Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. LA052229 Kathryne Ann Stoltz, Judge.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Donald Joseph Huntsman (appellant) appeals from the judgment entered following his no contest pleas to seven counts of robbery with an admission that during the count 1 robbery he personally used a deadly weapon, a knife. (Pen. Code, §§ 211, 12022, subd. (b)(1).) Prior to entering his pleas and admission, the trial court denied his motion to suppress unlawfully-seized evidence. (§ 1538.5.) The trial court sentenced appellant to an aggregate term of 10 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that the trial court improperly denied his section 1538.5 motion because the police officers lacked probable cause to search the Ford Escort.
FACTS
I. The Suppression Hearing
In his written motion to suppress, appellant challenged the officers’ search of a motel room and of a purse sitting on the floor therein, as well as the search of a Ford Escort parked directly outside this same motel room.
Appellant moved to suppress the items that were set out in a police property report attached to the motion. That property report indicated that inside the motel room, atop a mirror that hung over the bed, the officers found two plastic baggies, containing respectively 0.29 grams gross of three off-white solids and 0.69 grams gross of five off-white solids, which resembled rock cocaine, as well as a baggie containing five plastic syringes. From the person of appellant’s female companion, the pregnant Kimberly Drager, the officers seized two white metal bracelets, one adorned with multi-colored stones and another yellow metal bracelet with a heart and red stones. An officer had seized a Escort car key from Drager’s purse. Inside the Ford Escort, the officers found a seven-inch Imperial bayonet and a cardboard sheath containing a 15-inch double-edged stainless steel knife with an ornate metal handle.
The evidence adduced during the suppression hearing established that during the early morning hours of April 22, 2006, Los Angeles Police Department Detective Tracey Benjamin and her partner were investigating a series of West Valley robberies, including one that had just occurred sometime before midnight on April 21, 2006. Several victims of the April 21, 2006, robbery identified a man named Tobias Summers as the robber. One witness also provided a responding police officer with a detailed description of a vehicle that may have been connected to the robbery, a red Ford Escort with the license plate No. 3JLS964. That eyewitness told officers that a red Ford Escort with the above license plate was “in the parking lot at the time of the robbery.” The eyewitness saw a female sitting in the Escort and saw a male “standing next to . . the driver’s side of that vehicle.” The eyewitness said that she did not see the male or the female enter or leave that vehicle.
After obtaining the eyewitness’ accounts of the robbery, during the early morning hours of April 22, 2006, the detective spoke to Tobias Summers, who was the registered owner of the red Ford Escort, license No. 3JLS964.
Several hours later, at approximately 6:00 to 7:00 a.m. on April 22, 2006, Detective Benjamin contacted a number of West Valley patrol officers in the field, including Officer Brent Rygh and his partner, Officer Owens. The detective briefed the officers about the robbery and asked the officers to search the local area for the red Ford Escort.
Detective Benjamin testified that the normal police procedure is as follows. When a police officer knows that a vehicle is wanted in connection with a robbery, it is entered into the police computer database as a wanted vehicle. Thereby, notice is given to the officers in the field that the occupants of that robbery vehicle are armed and dangerous. If the robbery vehicle is located by patrol officers, the officers are authorized to impound the vehicle and conduct an inventory search.
Sometime after 11:00 a.m. on April 22, 2006, Officer Rygh and Officer Owens found the red Ford Escort, license No. 3JLS964, parked in front of motel room No. 5 at the Movieland Motel on Ventura Boulevard. The officers conducted a brief surveillance to see if anyone approached the Escort. No one did.
The officers then contacted the motel’s manager. The manager informed them that the registered occupant of room No. 5 was a man with appellant’s name. The manager said that he had seen a male and a pregnant female occupying room No. 5. The manager also informed them that he had seen that same male and female driving the Ford Escort parked out front of their motel room.
After speaking to the motel manager, the officers knocked on the door of motel room No. 5. Appellant answered the door. Officer Rygh asked whether he could come in and speak to appellant. Appellant said, “I’ll come out instead.” Appellant stepped outside and left the motel door wide open. Officer Rygh asked appellant whether he was driving the red Ford Escort, and appellant denied any knowledge of the red Ford Escort. Officer Owen then took over speaking to appellant. Officer Rygh turned to the woman he could see seated on the bed inside the motel room. He asked whether he could “come in” and speak to her. The woman replied, “Sure.”
Officer Rygh crossed the threshold, and as he did so, he saw a baggie containing syringes “on top of a mirror . . . suspended over the [room’s] bed.”
Officer Rygh conducted a field interview, and the woman identified herself as Kimberly Drager. He ran a warrant check for her and discovered that Drager had two outstanding warrants. He asked for permission to search Drager’s purse, which was sitting at her feet. She said, “Sure. Go ahead.” Inside the purse, Officer Rygh found a single Ford key. Officer Rygh gave the key to Officer Owens, and Officer Owens tried the key in the door of the red Ford Escort. The key opened the door of the Escort.
During the hearing, Officer Rygh reiterated that before Officer Owen used the key to open the door to the Escort, he had spoken to both appellant and Drager about the vehicle. They denied ownership and said that they knew nothing about it. They also claimed that they had no transportation; Drager especially complained that she was pregnant and had to walk everywhere.
Officer Rygh testified that at that point, he was aware that that particular red Ford Escort had been used in a series of robberies. The officers impounded the Escort and conducted an inventory of its contents. Inside the Escort, on the left side of the driver’s seat, between the seat and the door, the officers found a large, silver-bladed, gold handled knife. Also inside the Escort, between its console and the front passenger seat, they found another weapon, a large black bayonet-type knife.
Officer Rygh placed appellant under arrest. The officer explained that he had previously placed Drager under arrest inside the motel room after discovering that she had outstanding warrants. After the inventory search of the red Ford Escort and appellant’s arrest for robbery, Officer Rygh contacted Detective Benjamin to inform her of their discovery of the red Ford Escort and the arrests.
The police report for the motel contact prepared by Detective Benjamin contained the following statement: “Huntsman would not allow the officers to enter the room. However, he agreed to step outside and talk to the officers.” During Detective Benjamin’s cross-examination, the detective acknowledged that she had written that passage in the police report. She explained that she had based its particular phrasing on “[her] understanding” of what one of the officers had told her after the arrests. Nevertheless, she did not know the exact words that appellant had used in response to Officer Rygh’s initial request to enter the motel room. All she had done was write down her “impression” based on the officer’s claim that appellant had stepped out of the motel room before Drager consented to entry.
During the hearing, the prosecutor objected on the grounds that appellant had no reasonable expectation of privacy in Drager’s purse. In response, appellant testified and agreed that initially, he had lied to the officers about knowing the identity of the Escort’s registered owner and who had been driving the Escort. However, after Officer Rygh found the Escort’s key in Drager’s purse, appellant claimed that he had acknowledged that he had been driving the Escort. He testified that he told Officer Owens, “Well, I drove it, and I did have the key to it, and I [have been] driving it.”
The prosecutor used the terminology “standing” to make his objection. As the California Supreme Court observed in its decisions in People v. Valdez (2004) 32 Cal.4th 73, 121, footnote 24, the use of that terminology should be avoided. The proper inquiry is whether a defendant has a reasonable expectation of privacy in the place searched or the items seized.
II. The Trial Court’s Ruling
During argument on the motion, trial counsel asserted the entry into the motel room was unlawful because (1) the officers lacked appellant’s consent and Drager’s consent in appellant’s presence failed to authorize the entry with respect to him, (2) the officers lacked probable cause to search the red Ford Escort and the motel room, and (3) the officers had no reason to conduct an inventory search of the Escort.
The prosecutor responded that one of the witnesses to the April 21, 2006, Wendy’s robbery had told the detectives that the Ford Escort was involved in the robbery. Also, the doctrine of inevitable discovery applied. The police officers were looking for that particular Ford Escort as they had reliable information that the Escort was involved in a recent robbery. Regardless of what had occurred during the contact with appellant, the Escort was properly seized and impounded as evidence of the robbery, and its contents inventoried as part of the impound procedure. Also, the prosecutor urged that the trial court should determine consent based on Officer Rygh’s firsthand testimony about the words appellant used during the contact, not any second-hand, hearsay statement contained in Detective Benjamin’s police report.
The prosecutor asserted that appellant had no reasonable expectation of privacy with respect to a search of Drager’s purse. Appellant never expressly refused the officers entry; appellant had merely said that he would speak to the officers outside the motel room. The prosecutor argued that the facts in the case appellant was relying on, Georgia v. Randolph (2006) 547 U.S. 103 (Randolph), were distinguishable. There, the court held that the physically present co-occupant’s express refusal of consent to a police search was dispositive as to him, despite a co-occupant’s express consent to the search. In this case, appellant failed to expressly object when Officer Rygh secured consent to enter the motel room from Drager. The officers had probable cause to search the Ford Escort as there was reason to believe that it was an instrumentality of the robbery.
The trial court denied the motion to suppress evidence. In ruling on the motion, the trial court observed that apart of any search that occurred in the motel room, the officers had probable cause to search the Escort. They had information that “this particular car . . . was registered to Tobias Summers, and [that Tobias had been] identified as the person who robbed the location where the car was seen.” As to consent, the trial court commented that there was a difference between failing to get permission and expressly refusing to give permission, and the former was what happened here. Also, appellant had no reasonable expectation of privacy in Drager’s purse.
III. The Plea
After the trial court denied the section 1538.5 motion, appellant entered a negotiated plea. After the trial court’s ruling on his section 995 motion, the information charged appellant with 11 counts of robbery occurring respectively, on April 16, 2006 (counts 1, 2 & 3), April 21, 2006 (counts 4, 5 & 6), April 13, 2006 (count 7), April 14, 2006 (count 8), and April 17, 2006 (counts 9, 10 & 11). Each count was alleged to have been committed with the use of a deadly and dangerous weapon, “to wit, a knife.” During the negotiated plea, appellant pled no contest to the robberies in counts 1 through 7, and in count 1, he admitted the personal use of a deadly weapon, the knife. In exchange for his pleas and admission, the People agreed to dismiss the remaining allegations of robbery and the remaining one-year deadly weapon enhancements. Appellant was promised an aggregate 10-year term in state prison on the condition that he waive presentence credit to and including April 16, 2007. Appellant agreed to the plea offer.
The probation report reveals that appellant was the “Valley Knife Bandit.” During an April 2006 robbery binge, appellant entered four fast food restaurants in the West Valley and threatened employees with a large knife. During the robberies, he obtained the contents of the restaurants’ cash registers. Also, using his knife, he robbed two employees working respectively at two local businesses. During these latter robberies, he stole the contents of the stores’ cash registers. On April 21, 2006, appellant committed or participated in the robbery of three employees at a Wendy’s restaurant. During the robberies, no one was injured. However, several victims were severely traumatized. Appellant, age 38 at sentencing, had an extensive criminal history and four of his felony convictions had resulted in the service of three separate prison terms.
DISCUSSION
Appellant contends that the police officers lacked probable cause to search the red Ford Escort as the prosecution witnesses at the hearing articulated insufficient facts linking the eyewitness’s observations about seeing the red Ford Escort in the parking lot of the Wendy’s restaurant to the robbery.
The contention lacks merit.
Specifically, appellant argues that the only information the detective related at the hearing about the Ford Escort was that it was parked “near to where the robbery took place.” The eyewitness said that when she observed the red Ford Escort, a man was standing at its driver’s door and a woman was seated in the passenger seat. Appellant asserts that this sparse information fails to link the red Ford Escort to the Wendy’s robbery. He urges that the information that another eyewitness had identified the Escort’s registered owner, Tobias Summers, as the robber is also insufficient to tie that Escort to the robbery. He claims that Detective Benjamin’s testimony failed to put the witnesses’ statements in a time frame indicating that prior to the contact with appellant, the detective had tied the Escort to the robbery.
The Attorney General responds that apart from any other theory the People used to justify the search of the red Ford Escort, a warrantless search of an automobile is justified whenever a police officer has probable cause to support the search based on the kind of objective facts that would justify the issuance of a search warrant. They argue that here, there was ample probable cause to justify searching the Escort upon its discovery as the officers were aware that the red Ford Escort was an instrumentality of the robbery.
“In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
When there is probable cause to believe that a motor vehicle parked in place open to the public contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search. (California v. Carney (1985) 471 U.S. 386, 390-395; People v. Chavers (1983) 33 Cal.3d 462, 468; People v. Laursen (1972) 8 Cal.3d 192, 201; see also California v. Acevedo (1991) 500 U.S. 565, 570; Warden v. Hayden (1967) 387 U.S. 294, 301.) Probable cause to search exists when under the totality of circumstances, a police officer believes that, considering veracity and the basis of knowledge of the persons supplying the information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238; People v. Romero (1996) 43 Cal.App.4th 440, 444-445.) Probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. (Gates, supra, 462 U.S. at p. 232.)
Also, as pertinent, Vehicle Code section 22655.5 provides as follows: “A peace officer . . . may remove a motor vehicle from the highway or from public or private property within the territorial limits in which the officer may act under the following circumstances: [¶] (a) When any vehicle is found upon a highway or public or private property and a peace officer has probable cause to believe that the vehicle was used as the means of committing a public offense. [¶] (b) When any vehicle is found upon a highway or public or private property and a peace officer has probable cause to believe that the vehicle is itself evidence which tends to show that a crime has been committed or that the vehicle contains evidence, which cannot readily be removed, which tends to show that a crime has been committed.”
Appellant mistakes his facts and the law.
The patrol officers in this case were aware through official channels that a robbery had occurred at a Ventura Boulevard fast food restaurant, a Wendy’s, not 12 hours earlier. (See People v. Rogers (1978) 21 Cal.3d 542, 547 [officer may make an arrest based on information received through “official channels”].) They were also aware that an eyewitness to the robbery had seen a vehicle in Wendy’s parking lot during the robbery and was able to identify it by its color, make, and license plate number. The reasonable inference from the detective’s testimony was that she believed that the particularly described red Ford Escort was likely the robbery getaway car. The registered owner of that getaway car was Tobias Summers, and several eyewitnesses had identified Summers as the robber. After obtaining the specific information about the getaway vehicle from the eyewitnesses. the detective had interviewed Summers during the early morning hours of April 22, 2006. This information suggested two reasonable scenarios: (1) there were two men involved in the robbery, one of whom was Summers, and the described Escort was used during the robbery, or (2) Summers was misidentified and another male with a similar physical description was the actual robber and that man was currently in possession of Summers’s car and using it to commit robberies.
Given this information, and upon the discovery of the red Ford Escort at the motel, the officers had probable cause to believe that the particular Ford Escort they observed was an instrumentality in the Wendy’s robbery. The officers also had probable cause to believe that the Ford Escort contained evidence of, or the fruits of, the robbery, particularly as it appeared that its driver was a transient and living in a motel room. (People v. Smith (1976) 17 Cal.3d 845, 850 [it is reasonable for police to act on the information received from citizen informants, who are presumptively reliable].) Where there is probable cause to believe that an automobile contains contraband or evidence of a crime, or was itself an instrumentality of the commission of a crime, law enforcement officers need not obtain a warrant before conducting a search of that vehicle. (People v. Laursen, supra, 8 Cal.3d at p. 201 [officers had probable cause to believe that a particular vehicle had been used in a robbery, and it was properly seized].)
Furthermore, as there was probable cause, the impound and an inventory search of the red Ford Escort was authorized pursuant to Vehicle Code section 22655.5. (See People v. Laursen, supra, 8 Cal.3d at p. 201; Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 706.)
In this instance, appellant opened his motel room door voluntarily and stepped outside to speak to the officers. After Officer Rygh asked appellant a few questions, he obtained Drager’s permission to enter the motel room. Drager consented, and as the officer crossed the motel room threshold, he observed narcotic paraphernalia inside the room. (Randolph, supra, 547 U.S. at p. 135; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634 [observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense].) That observation and the discovery that Drager had outstanding warrants authorized Drager’s arrest. Appellant did not have any reasonable expectation of privacy in Drager’s purse, where Officer Rygh had found the key to the Escort. (People v. Koury (1989) 214 Cal.App.3d 676, 686.) Once the motel room’s occupants were tied to the red Ford Escort, the officers additionally had probable cause to arrest appellant and Drager for robbery.
Randolph, supra, 547 U.S. 103 addressed the issue of whether a co-occupant can give permission to a police officer to search a location for evidence of a crime in the face of an express objection by another co-occupier. The Randolph court held that the rule is that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” (Randolph, supra, at pp. 122-123.) This case is not like Randolph. Appellant did not protest when Drager gave her consent for Officer Rygh to enter the motel room. Consequently, the entry into the motel room was justified by Drager’s express consent alone. (Randolph, supra, at p. 135.)
In the totality of the circumstances, the officers had probable cause at the outset to seize and search the red Ford Escort. They also had statutory authority to impound the Escort as an instrumentality of the robbery and to conduct an inventory search. Nothing that occurred subsequent to the officers’ initial contact with appellant constituted unjustifiable police conduct that warranted the application of the exclusionary rule.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.