Opinion
C082302
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL HARI DAS KAWA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15000218)
Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Michael Hari Das Kawa pleaded no contest to possession of cocaine for sale (Health & Saf. Code, § 11351) and possession of methamphetamine (§ 11377, subd. (a)). The trial court suspended imposition of sentence and placed defendant on formal probation for three years with various conditions, including the condition he serve 180 days in county jail.
Undesignated statutory references are to the Health and Safety Code. --------
On appeal, defendant contends the trial court erred in denying his motion to suppress evidence. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the evidence presented at the hearing on defendant's motion to suppress evidence. Around 8:05 p.m. on July 5, 2015, Grass Valley Police Officers John Herrera and Douglas Clark were dispatched to a Safeway parking lot to investigate a report of a male waving a knife and possibly attempting to enter a car using a knife. Upon his arrival at the Safeway parking lot, Officer Herrera saw a car that matched the description provided by the 911 caller. He also saw a male standing outside the car. When Officer Herrera spoke with this person, he identified himself as defendant.
Defendant told Officer Herrera that the person he was looking for, later identified as Rory Enos, was sitting in the front passenger seat of defendant's car. Defendant also told Officer Herrera that Enos had been drinking.
When Officer Herrera spoke with Enos, he had a difficult time understanding him because he was slurring his words. In addition to his slurred speech, Enos had bloodshot, watery eyes, and smelled of alcohol. Enos admitted that he had been walking around the Safeway parking lot with a knife, and said that he believed the knife was inside the car near his feet.
Following the arrival of several other police officers, Officer Herrera asked Enos to get out of the car. When Enos did so, Officer Herrera saw a knife lying on the floorboard.
Initially, Enos complied with Officer Herrera's directions and instructions. However, after a few minutes, he became belligerent, aggressive, and agitated. His speech was slurred and he was staggering. He began shouting and demanded to speak with a person named Clint Walker. He also clenched his fists and lunged forward in an aggressive manner. At this point, Officer Herrera determined that Enos was unable to care for himself and took him into custody. Enos was placed in the rear seat of Officer Herrera's patrol car.
Officer Herrera and Officer Clark both testified that they believed Enos was intoxicated. Officer Clark also testified that Enos seemed to be under the influence of a controlled substance. When Officer Clark asked defendant about the knife and the car, defendant said that the car and its contents belonged to his father, and that he had driven the car to Safeway.
With Enos in custody, Officer Clark decided to search the passenger compartment of defendant's car for intoxicants, drugs, and weapons. On the back seat of the car he found containers of alcohol, including an open bottle of whiskey, an unopened bottle of vodka, and beer. He also found a backpack. When he began examining it, defendant said the backpack and its contents belonged to his father. According to Officer Clark, defendant appeared nervous and indicated that the backpack should not be searched. When Officer Clark searched the backpack, he found defendant's passport and controlled substances.
Defendant was charged by information with possession of cocaine for sale (§ 11351) and possession of methamphetamine (§ 11377, subd. (a)). Prior to trial, defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, arguing that the warrantless search of his car violated his rights under the Fourth Amendment. Following the denial of his motion, defendant pleaded no contest to both charges. The trial court suspended imposition of sentence and placed him on probation for three years with various conditions, including the condition he serve 180 days in county jail.
Defendant filed a timely notice of appeal.
DISCUSSION
A. Probable Cause to Arrest
Defendant contends the trial court erred in concluding that the warrantless search of his car fell within the search incident to arrest exception because probable cause did not exist to arrest Enos for disorderly conduct under Penal Code section 647, subdivision (f). According to defendant, Enos was not intoxicated in a public place because he was inside a private vehicle when the police contacted him. We disagree.
A person is guilty of disorderly conduct if he or she "is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way." (Pen. Code, § 647, subd. (f).)
A public place is one that is open to common or general use, participation, and enjoyment. (See In re R.K. (2008) 160 Cal.App.4th 1615, 1619, 1621.) A Safeway parking lot is clearly such a place. (See People v. Vega (1971) 18 Cal.App.3d 954, 958 [parking lot of a market is a public place].) A person found intoxicated inside a car in a public place is in a "public place" within the meaning of Penal Code section 647, subdivision (f). (See People v. Belanger (1966) 243 Cal.App.2d 654, 656-657 [individual found drunk in his automobile parked at the curb of a public street was in "a public place" within the meaning of Pen. Code, § 647, subd. (f)]; People v. Lively (1992) 10 Cal.App.4th 1364, 1367-1369 [same].) Accordingly, because Enos was in a public place when he was arrested for disorderly conduct, we reject defendant's probable cause argument.
B. Search Incident to Arrest
Defendant contends that, even if probable cause existed to arrest Enos, the holding in Arizona v. Gant (2009) 556 U.S. 332 (Gant) prohibited a search of his car incident to that arrest. We disagree.
" 'In reviewing a suppression ruling, "we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found." ' [Citation.] [¶] Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court." (People v. Tully (2012) 54 Cal.4th 952, 979.) We review issues relating to the suppression of evidence derived from police searches and seizures under federal constitutional standards. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.)
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; People v. Diaz (2011) 51 Cal.4th 84, 90.) Warrantless searches are presumed to be unreasonable, " 'subject only to a few specifically established and well-delineated exceptions.' [Citation.]" (Diaz, at p. 90.) "One of the specifically established exceptions to the Fourth Amendment's warrant requirement is 'a search incident to a lawful arrest.' [Citation.]" (Ibid.)
Law enforcement may search a vehicle incident to an occupant's arrest in two circumstances: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or (2) when there is reason to believe evidence relevant to the crime of arrest might be found in the vehicle. (Gant, supra, 556 U.S. at p. 343.) According to Gant, "circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' [Citation.] In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. [Citations.] But in others . . . the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." (Id. at pp. 343-344.)
In People v. Nottoli (2011) 199 Cal.App.4th 531 (Nottoli), the Sixth Appellate District considered the legality of the search of a car driven by a defendant who was arrested for being under the influence of a controlled substance, and for driving with an expired license. (Id. at p. 540.) The search revealed drug paraphernalia, a firearm, and a cell phone that had a picture of the defendant posing with firearms. (Id. at pp. 540-541.) In finding the search lawful as incident to an arrest, the court stated that in Gant, "the court explicitly held that a vehicular search incident to arrest is valid when 'it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle' [citation] or when 'it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." [Citation.]' [Citation.]" (Nottoli, at p. 551, fn. omitted.)
Here, when defendant's car was searched, neither defendant nor Enos had access to the passenger compartment. However, Officer Clark properly searched the car incident to Enos's arrest because it was reasonable to believe that evidence relevant to the crime he was arrested for might be found in the vehicle. (Nottoli, supra, 199 Cal.App.4th at p. 551; Gant, supra, 556 U.S. at p. 343.) At the time of the search, Enos had recently been arrested for disorderly conduct based on being intoxicated and/or under the influence of a controlled substance in a public place. As such, it was reasonable to believe that the car Enos was found in prior to his arrest might contain evidence of alcohol and/or controlled substances. Accordingly, we conclude that the warrantless search of the passenger compartment of defendant's car and the backpack found therein was reasonable under the Fourth Amendment.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: HULL, J. DUARTE, J.