Opinion
F075364
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. RICARDO HERRERA, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REQUEST FOR PUBLICATION
[No Change in Judgment]
It is hereby ordered that the opinion filed on August 15, 2018, be modified as follows:
1. On page 8, the sentence in the first full paragraph commencing, "To justify a vehicle search" is modified to read:
There is no change in the judgment. Except for the modification set forth above, the opinion previously filed remains unchanged.
To justify a vehicle search based upon a passenger's status as a parolee, the officer must know of the passenger's parolee status.
The Attorney General's request that the opinion filed August 15, 2018, be certified for publication is hereby denied. The opinion does not establish a new rule of law, nor does it meet any of the other criteria set forth in California Rules of Court, rule 8.1105(c).
In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Executive Officer of this court shall transmit copies of the request for publication, the opinion, and this order to the Supreme Court.
MEEHAN, J. I CONCUR: LEVY, Acting P.J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRL011472A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Meehan, J.
-ooOoo-
INTRODUCTION
After his motion to suppress was denied, and pursuant to a plea agreement, appellant Ricardo Herrera pled no contest to two counts of possession of methamphetamine for sale; two counts of transporting methamphetamine for sale; and evading a peace officer. He also admitted several enhancements. At sentencing, an eight-year prison term was imposed. Herrera appeals, contending the trial court erred in denying his motion to suppress. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Herrera initially was charged in a complaint filed May 2, 2014. The complaint alleged one count of possession of methamphetamine for sale, one count of transportation of methamphetamine for sale, one count of being an active participant in a criminal street gang, and one count of failing to stop at a stop sign. Numerous enhancements also were alleged.
Officer Darrin Cole testified at the July 9, 2014, preliminary hearing. On April 27, 2014, Cole was with the Los Banos Police Department and on patrol when he saw a white Ford Mustang traveling at a high rate of speed. The posted speed limit was 55 miles per hour; as Cole accelerated to catch the Mustang, he had to reach a speed of 89 miles per hour. When the Mustang reached a controlled intersection with a stop sign, it slowed but did not stop.
Cole continued to follow the Mustang and initiated a vehicle stop. There were three occupants in the Mustang. Herrera was the driver, Samuel Grijalva was in the back seat, and Steven Cecena was the third occupant. Marijuana was found in the front passenger area of the Mustang; both Herrera and Cecena produced medical marijuana cards. In a search of the car, officers found additional marijuana and methamphetamine in the trunk.
On July 23, 2015, Herrera filed a motion to suppress pursuant to Penal Code section 1538.5 the "Methamphetamine found in black and red shoe box in trunk of car defendant was driving; and [¶] ... Cash found on defendant's person." Herrera alleged the evidence had been obtained as the result of an unlawful detention and an illegal search and seizure.
References to code sections are to the Penal Code unless otherwise specified.
The People filed written opposition to the suppression motion on August 18, 2015. The People asserted that the initial detention was a lawful traffic stop because the Mustang had failed to stop at a stop sign and was travelling at excessive speeds. In addition, the People asserted the search was a valid search because Grijalva was on probation and the split rear seat of the Mustang allowed for access to the trunk from the rear seat.
At the August 20, 2015, hearing on the suppression motion, Herrera testified that he owned the Mustang along with Rudy Carrasco. Herrera had access to all parts of the vehicle, including the trunk.
The parties stipulated that Cole was unavailable to testify. Herrera moved to admit Cole's "entire testimony" from the preliminary hearing into evidence at the suppression hearing. The People did not object to the trial court taking judicial notice of the transcript of the preliminary hearing. Without objection, the trial court took judicial notice of the preliminary hearing transcript.
Officer Kristofer Hew also testified at the suppression hearing. Hew responded to the traffic stop to assist Cole. Hew arrived to see Cole speaking to Herrera; Cecena was in the front passenger seat. Hew saw Grijalva in the back seat and remembered he was on probation. Hew checked with dispatch and confirmed Grijalva was on probation and subject to search and seizure conditions of probation. Hew decided to conduct a probation search.
Hew asked Cecena to step out of the car so Grijalva could exit the vehicle. As Cecena stepped out of the vehicle, Hew spotted a clear container on the floorboard of the passenger side filled with what appeared to be marijuana. Hew asked about the marijuana and Cecena stated he had a medical marijuana card.
After Cecena stepped out of the vehicle, Hew patted him down and had him sit on the curb. Hew then did the same to Grijalva. With Cecena and Grijalva seated on the curb, Hew proceeded to search the "area immediately accessible to" Grijalva. Grijalva had been sitting in the rear seat on the passenger side. The back seats were a "split seat" configuration and there were latches at the top that would allow the back seats to drop, providing access to the trunk. According to Hew, the seat back did not have to be removed or broken in any way in order to access the trunk from the back seat.
Hew was fully in the back seat, kneeling on the bottom portion of the seat. He manipulated one of the latches and dropped down a portion of the back part of the seat. There was a clear "grocery-style plastic bag" within his immediate reach. Inside the clear bag were additional baggies and a "quart size Mason jar containing marijuana." Also in the trunk was a red and black shoe box, which was outside Hew's reach. Cole was able to reach in and retrieve the shoe box. The red and black shoe box appeared to contain "a good sized amount of methamphetamines."
The report filed for the traffic stop indicates there was "damage to the rear seat." The damage, however, was not caused when Hew operated the latch and pulled down a portion of the back seat. The damage could have referred to damage to the fabric that preexisted the traffic stop.
Hew testified that from his position in the back seat, Grijalva could have handed the container of marijuana to Cecena in the front seat. Hew also testified it was possible to access the trunk area from the rear seat while the car doors are shut. The entire process of stopping the Mustang, searching the Mustang, and placing Herrera under arrest was all part of "one contemporaneous action" that took place over a matter of minutes.
The trial court found that the violations of the Vehicle Code, failing to stop at a stop sign and exceeding the speed limit, as testified to by Cole at the preliminary hearing constituted a valid basis for the traffic stop and detention.
Herrera asked to have an audio recording of the traffic stop and detention that he captured on his cell phone admitted into evidence. The matter was continued so that the audio recording could be "burned onto a disc" and provided to the People and the trial court. The matter was continued to August 25, 2015.
At the continued hearing on the suppression motion, Herrera conceded officers had the right to conduct a search of the Mustang because Grijalva was on probation; however, he maintained the search should have been confined to areas over which Grijalva had access and he had "no access to the trunk." The People maintained officers could search the trunk pursuant to Grijalva's probation condition. In ruling on the suppression motion, the trial court stated:
"The Court has read and considered the moving papers, the response from the People, the preliminary hearing transcript, listened to the audio recording that was provided to the Court. Based upon all of that evidence, I believe the officer's actions were constitutionally reasonable. There is no Fourth Amendment violation. The motion is denied."
Also on August 25, 2015, the trial court ordered cases in which Herrera was a defendant consolidated. A consolidated first amended information filed September 15, 2015, charged Herrera with two counts of possession of methamphetamine for sale, in violation of Health and Safety Code section 11378; two counts of transportation of methamphetamine for sale, in violation of Health and Safety Code section 11379, subdivision (a); two counts of active participation in a criminal street gang, in violation of section 186.22, subdivision (a); one count of evading a peace officer in violation of Vehicle Code section 2800.2, subdivision (a); and one count of possession of marijuana for sale, in violation of Health and Safety Code section 11359. Numerous enhancements also were alleged.
On March 1, 2016, Herrera entered into a plea agreement with the People. In exchange for a stipulated eight-year prison term, Herrera pled no contest to two counts of possessing methamphetamine for sale; two counts of transporting methamphetamine; and one count of evading a peace officer. He also admitted a quantity enhancement, gang allegation, prior strike conviction, and two prior prison term enhancements.
In accordance with the plea agreement, the trial court imposed a total term of eight years in prison. Herrera filed a timely notice of appeal.
DISCUSSION
Herrera contends there was no justification for the warrantless search of the entire vehicle or the trunk. Consequently, he contends the trial court erred in denying his suppression motion.
Standard of Review
"Challenges to the admissibility of evidence obtained by a police search and seizure are reviewed under federal constitutional standards." (People v. Schmitz (2012) 55 Cal.4th 909, 916 (Schmitz).) "A warrantless search is unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional requirement of a warrant." (Ibid.) "California's parole search clause is one of those exceptions." (Ibid., citing Samson v. California (2006) 547 U.S. 843, 846, 850-857.)
On appeal from the denial of a motion to suppress (§ 1538.5), our standard of review is settled. We defer to the trial court's express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the trial court's factual findings in determining the legality of the search. (People v. Redd (2010) 48 Cal.4th 691, 719.) Appellate review "is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling." (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)
Probation Search
The Fourth Amendment guarantees individuals the "right ... to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." (U.S. Const., 4th Amend.) Under the Fourth Amendment, a warrantless search is unreasonable per se unless it falls within one of the "specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357.)
One exception with application here permits warrantless searches even without probable cause where the officer has legally obtained adequate consent. (See People v. Woods (1999) 21 Cal.4th 668, 674 (Woods), quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) In California, probationers and/or parolees may validly consent in advance to warrantless searches in exchange for the opportunity to avoid or obtain release from custody. (Woods, supra, at p. 674.) The California Supreme Court has repeatedly said such searches are lawful. (Id. at p. 675.) And, these searches have repeatedly been evaluated under the rules governing consent searches, albeit with the recognition that there is a strong governmental interest supporting the consent conditions—the need to supervise probationers and/or parolees and to ensure compliance with the terms of their release. (Id. at p. 681; see People v. Bravo (1987) 43 Cal.3d 600, 605.)
When executing a parole or probation search, the searching officer may look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee or probationer. (Woods, supra, 21 Cal.4th at p. 682; People v. Boyd (1990) 224 Cal.App.3d 736, 749.) This is true because the need to supervise those who have consented to probationary or parolee searches must be balanced against the reasonable privacy expectations of those who reside with, ride with, or otherwise associate with parolees or probationers.
We acknowledge that passengers in automobiles have a lesser expectation of privacy than in a residence. (Wyoming v. Houghton (1999) 526 U.S. 295, 304-305.) While those who associate with parolees or probationers must assume the risk that when they share ownership or possession with a parolee or probationer their privacy in these items might be violated, they do not abdicate all expectations of privacy in all personal property. The key question remains: whether there is joint ownership, control, or possession over the searched item with the parolee or probationer. (See People v. Robles (2000) 23 Cal.4th 789, 798; Woods, supra, 21 Cal.4th at p. 682; People v. Smith (2002) 95 Cal.App.4th 912, 918; People v. Veronica (1980) 107 Cal.App.3d 906, 909; People v. Boyd, supra, 224 Cal.App.3d at pp. 745-746, 749-750.)
In Schmitz, the California Supreme Court held that a vehicle search based on a passenger's parole status can extend to those areas of the vehicle where a parolee reasonably could have stowed personal items or discarded items when aware of law enforcement activity. (Schmitz, supra, 55 Cal.4th at p. 926.) To justify a vehicle search based upon a passenger's status as a parolee, the officer must know of the passenger's probation status. (Id. at p. 923.) In determining the permissible scope of a parole-based search, the Schmitz court analogized to probation-based searches. (Id. at pp. 917-918.)
The court in Schmitz expressed no opinion on the reasonableness of a search of certain areas of a vehicle, such as the trunk. "The reasonableness of such a search must necessarily take into account all the attendant circumstances, including the driver's legitimate expectation of privacy in those closed compartments, the passenger's proximity to them, and whether they were locked or otherwise secured." (Schmitz, supra, 55 Cal.4th at p. 926, fn. 16.)
The appellate court in People v. Cervantes (2017) 11 Cal.App.5th 860, 870 (Cervantes), addressing a vehicle search based on probation status, found Schmitz "dispositive because the similarities between parolees and probationers in the context of vehicle searches are compelling." Cervantes concluded it was reasonable for an officer to search the contents of a bag inside a center console of a vehicle that contained male belongings, when the probationer in the vehicle was female. (Id. at pp. 871-873.) The Cervantes court reasoned that the search was justified based upon the probationer's "proximity to it, her apparent ability to conceal contraband in it upon learning of police activity, and her probation status." (Id. at p. 873.)
The same rationale applies in Herrera's case. Grijalva was on probation and subject to a search condition; he was in the back seat, which allowed easy access to the trunk by simply manipulating a latch and folding the back of the seat down. Herrera acknowledges that Schmitz and Cervantes authorize the type of search that was conducted by Cole and Hew. Herrera argues, however, that he provided evidence establishing that one could not easily access the trunk from inside the vehicle.
First, the fact that the impoundment form indicates there was damage to the rear seat does not establish that any damage was caused by Hew when he unlatched one side of the rear seat back; the damage could have occurred at any time. Second, Hew testified that "I did not cause any damage" to the rear seat back when he opened it from inside the vehicle. Moreover, while officers on the scene may have speculated they would have to damage the car to gain access to the trunk unless given the keys, the testimony from Hew establishes otherwise.
Furthermore, to the extent there was conflicting evidence on whether the trunk could be accessed from the back seat of the Mustang, the trial court implicitly resolved that question when it denied the motion to suppress. The power to resolve conflicts in the evidence is vested in the trial court. (People v. Gomez (2004) 117 Cal.App.4th 531, 537.) Hew's testimony that he did in fact access the trunk from the rear seat of the Mustang without damage to the seat provides substantial evidence supporting the trial court's implied finding. We defer to a trial court's factual findings when supported by substantial evidence. (People v. Lomax (2010) 49 Cal.4th 530, 563.)
Herrera also argues there was no evidence to support a reasonable belief that the shoe box belonged to Grijalva; consequently, the shoe box was not subject to a warrantless probation search. He cites to this court's opinion in People v. Baker (2008) 164 Cal.App.4th 1152 (Baker) as support for his contention. In Baker, the male driver of the vehicle was on parole and the defendant was his female passenger; her purse was sitting at her feet. (Id. at p. 1156.) We concluded that a "searching officer may look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee" and a woman's purse was not such a container because a purse is not generally shared by two or more people. (Id. at pp. 1159-1160.)
Baker does not support Herrera's position. Grijalva did not need to be the owner of the shoe box for it to be subject to a probation search; it need only be a container where Grijalva reasonably could have concealed contraband upon detecting police activity. (Schmitz, supra, 55 Cal.4th at p. 925; Cervantes, supra, 11 Cal.App.5th at p. 873.) Furthermore, officers were under no obligation to inquire whether the shoe box belonged to Grijalva before searching it, and if the shoe box was owned by Herrera, that does not mean it may not be subject to search. (Baker, supra, 164 Cal.App.4th at p. 1160.) Nor is there any evidence that the shoe box was sealed in any fashion or distinctively marked as belonging to any specific occupant of the vehicle. (Id. at p. 1161.)
Consequently, we conclude the warrantless search of the vehicle, including the trunk area that was accessible from the back seat of the Mustang, was justified by Grijalva's probation condition and not a violation of the Fourth Amendment. (Cervantes, supra, 11 Cal.App.5th at p. 871.)
Vehicle Search Exception
In addition to Grijalva's probation condition constituting a valid basis for a search, the automobile exception to the warrant requirement provided grounds to search the vehicle. Under the automobile exception to the warrant requirement, an officer may search a vehicle when he or she has probable cause to believe the vehicle contains contraband or evidence of a crime. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225.)
Here, Hew testified he saw a jar containing marijuana on the front passenger floorboard as Cecena stepped out of the vehicle. Herrera acknowledges that at the time of the search, possession of 28.5 grams or less of marijuana was an infraction; over 28.5 grams was a misdemeanor. The presence of a medical marijuana card does not detract from probable cause; the presence of a medical marijuana card provides limited immunity. (People v. Waxler (2014) 224 Cal.App.4th 712, 720.) An officer seeing contraband and provided with a medical marijuana card is entitled to continue to "'search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.'" (Ibid.)
Once contraband is discovered in the passenger compartment of a vehicle, the trunk may also be searched for contraband. (People v. Dey (2000) 84 Cal.App.4th 1318, 1322.) "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." (United States v. Ross (1982) 456 U.S. 798, 825.)
At the time of the search, possession of certain quantities of marijuana and transportation of marijuana for sale was prohibited. (See People v. Waxler, supra, 224 Cal.App.4th at pp. 720-721.) Consequently, Hew and Cole were entitled to search the entire vehicle, including the trunk and any containers within the vehicle that could have contained contraband. (Id. at pp. 720-721, 723.)
Conclusion
Because the warrantless search of the vehicle, including the trunk area, was justified under the probation search condition to which Grijalva was subject, and the vehicle search exception based upon probable cause provided by the jar of marijuana on the floorboard of the vehicle, we conclude the search did not violate the Fourth Amendment. (People v. Redd, supra, 48 Cal.4th at p. 719.) Therefore, the trial court did not err in denying the motion to suppress.
DISPOSITION
The judgment is affirmed.