Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD212111, Kerry Wells, Judge.
O'ROURKE, J.
After the trial court partially denied her Penal Code section 1538.5 motion to suppress evidence, defendant Cathy Keller pleaded guilty to possession of a forged driver's license (Pen. Code, § 470b) in the present case and to receiving stolen property (Pen. Code, § 496, subd. (a)) as alleged in another felony complaint (Super. Ct. San Diego County, 2008, No. SCD212465 (case No. SCD212465)) as well as an on-bail enhancement (Pen. Code, § 12022). After Keller reoffended while out on bail, the trial court sentenced her to three years formal probation with 365 days in local custody. Keller appeals, contending the warrantless search of her purse was unreasonable and unlawful under the Fourth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts from the preliminary hearing transcript, which by stipulation provided the factual basis for Keller's guilty plea.
On February 22, 2008, San Diego Police Officer Jeffrey Wuehler was patrolling an area around Sports Arena Boulevard in San Diego when at about 7:32 p.m. he pulled over a vehicle after noticing it had no license plates, a violation of Vehicle Code section 5200. According to the officer, the vehicle's rear bumper had a faded dealer placard on it without any temporary registration or tags in the windshield or rear window. He approached the driver's door, at which time the driver held out a temporary operating permit. Officer Wuehler saw that the temporary permit had been "rewritten over" and that the occupants of the vehicle seemed to want to leave. The condition of the permit led the officer to suspect the registration was invalid or fraudulent. Officer Wuehler asked the driver, who identified herself as Alexa Samoiloff, for her license. When Samoiloff advised him she did not have a driver's license or identification, Keller, who was in the passenger seat, offered that she had a license and could drive. Keller reached into her purse and pulled out a wallet, but did not tilt it toward the officer's flashlight. She gave the officer what appeared to be a current California driver's license and told him the car belonged to her.
About twenty minutes after he stopped the car but before he performed the computer check, Officer Wuehler checked the car's temporary registration, which turned out to be valid.
Suspecting Samoiloff's driver's license was suspended and desiring to separate the women for his safety, Officer Wuehler instructed Samoiloff to exit the vehicle and placed her in the back seat of his patrol car. He then returned to the car and instructed Keller to step outside as well, to get her away from her purse. When Keller started to take it, he told her to leave the purse inside the car. Because she was wearing a jacket that could conceal a small weapon, the officer patted Keller down and had her sit on the curb, then asked her if she had anything illegal in her vehicle. She told him no. The officer asked her if he could check and she responded, "Yeah, go ahead."
Officer Wuehler explained: "It was an extremely busy night. The actions of the driver and the passenger, the way they were and her actions with me, wanting me to get on my way, the way she was tilting her purse away from me. It wasn't that well lit, so I didn't feel completely safe. That's why I wanted to separate them at that point." On cross-examination the officer stated that Keller had tilted her wallet away from his flashlight, and that her purse was sitting next to her left leg.
Officer Wuehler took the purse from the vehicle and held it out, asking Keller whether it was hers. She confirmed it was and he searched inside the purse, removing a metal card holder that contained a driver's license having Keller's photograph with the name of "Rebecca Sandeback, " as well as a credit card in Sandeback's name. Officer Wuehler then searched the rest of the vehicle, finding a computer tower and printer behind the driver's and passenger's seats. He took three to five minutes to run a computer check, which showed Keller was subject to a Fourth Amendment waiver and that Sandeback was a victim of a burglary. He then called Sandeback, who reported her identity had been stolen. The officer handcuffed Keller, placed her in the backseat of his vehicle, and continued his search of her car, finding a wig and a lamination machine. Between 7:50 and 7:59 p.m., the officer learned that Samoiloff had an outstanding warrant for her arrest in San Bernardino County.
Keller was charged in the present case with possession of a forged driver's license (Pen. Code, § 470b, count 1) and obtaining personal identifying information with the intent to defraud (Pen. Code, § 530.5, subd. (c)(1), count 2). She thereafter moved to suppress evidence under Penal Code section 1538.5 on grounds she was detained without warrant or probable cause; that she was "subjected... to a prolonged detention that had nothing to do with the investigation as to the car's registration or the driver having a license."
At Keller's preliminary hearing, counsel elicited the above-summarized evidence from Officer Wuehler and addressed the suppression motion. The People argued that Officer Wuehler searched Keller's purse out of fear for his safety, and that his placement of the driver, Samoiloff, in his patrol car constituted a custodial arrest, rendering the vehicle search lawful as a search incident to arrest under New York v. Belton (1981) 453 U.S. 454 (Belton). Keller's counsel argued that Samoiloff's placement in the officer's vehicle was a prolonged detention, not a custodial arrest that would justify the search under Belton. He argued Officer Wuehler had no reasonable basis or suspicion of criminal activity to justify either the pat down of his client or the search of her purse within the vehicle.
Shortly after Keller filed her notice of appeal, the United States Supreme Court decided Arizona v. Gant (2009) 566 U.S. ___ [129 S.Ct. 1710], which narrowed Belton's "bright line" rule authorizing officers to search, incident to a lawful custodial arrest, the passenger compartment of a vehicle without regard to the nature of the offense for which the arrestee was arrested, and regardless of whether the person had been restrained. (Id. at p. ___ [129 S.Ct. at p. 1722].) After Gant, "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (Gant, 566 U.S. ___ [129 S.Ct. 1710, 1724].) Because we dispose of Keller's appeal on the basis of her voluntary consent, we do not address her alternative challenge to the search of her purse as not the proper subject of a search incident to Samoiloff's arrest.
The trial court granted in part and denied in part the suppression motion. It found the initial detention of the vehicle was lawful, and that, with respect to the forged driver's license found in Keller's purse, the search was lawful as a search incident to arrest under Belton, supra, 453 U.S. 454. Keller unsuccessfully renewed her suppression motion in the superior court, which found the prior judge had made an implied finding of consent to search the purse. She later entered a plea of guilty to count 1 in the present case as well as to the receiving stolen property charge and enhancement in case No. SCD212465. Thereafter she filed the present appeal.
DISCUSSION
I. Standard of Review
" 'In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]' [Citation.] In evaluating whether the fruits of a search or seizure should have been suppressed, we consider only the Fourth Amendment's prohibition on unreasonable searches and seizures." (People v. Brendlin (2008) 45 Cal.4th 262, 268.)
"Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, 'the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.' " (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.) We resolve all factual conflicts in the manner most favorable to the trial court's ruling. (People v. Martin (1973) 9 Cal.3d 687, 692.) When the lower court does not make express findings of fact, we imply the trial court made whatever findings are necessary to support the judgment or order. (People v. Fulkman (1991) 235 Cal.App.3d 555, 560.) We independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
II. Keller Validly Consented to the Search of Her Purse
Here, the historical facts - elicited during the preliminary hearing - are not in dispute. There is no dispute that Keller's vehicle lacked license plates, and also lacked a visible or correctly displayed temporary operating permit. The absence of plates "has long been recognized as a legitimate basis for a traffic stop." (People v. Saunders (2006) 38 Cal.4th 1129, 1136 [vehicle had one license plate and a temporary permit; because those circumstances were mutually exclusive under DMV regulations, the officer had ample justification to stop the truck to investigate]; In re Raymond C. (2008) 45 Cal.4th 303, 307 [officer saw neither license plates nor a temporary permit in the rear window before making the traffic stop, and thus his stop was justified under the Fourth Amendment]; People v. Dotson (2009) 179 Cal.App.4th 1045, 1051-1052 [absence of license plates provides reasonable suspicion that the driver is violating the law]; see also People v. Hernandez (2008) 45 Cal.4th 295, 300-301.) Thus, Officer Wuehler had ample articulable suspicion that the law was being violated and justification for ordering a traffic stop. (Saunders, at pp. 1136-1137.) The officer's stop was a detention of both of its occupants, who could then challenge the basis for the stop. (Brendlin v. California (2007) 551 U.S. 249; Arizona v. Johnson (2009) 555 U.S. ___, ___ [129 S.Ct. 781, 784, 787].)
Thereafter, it is undisputed that Officer Wuehler asked Keller to exit her car and, though he instructed her to leave her purse inside, obtained her permission to search for "anything illegal" within the vehicle. "Consent to a search is a recognized exception to the Fourth Amendment's warrant requirement." (People v. Cantor (2007) 149 Cal.App.4th 961, 965; see People v. James (1977) 19 Cal.3d 99, 106.) When the state attempts to justify a search based on a defendant's consent, it has the burden of showing "consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances...." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249; see also James, at p. 106.) The trial court's findings on the issue of consent, whether express or implied, will be upheld on appeal if supported by substantial evidence. (James, at p. 107.) "Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure." (People v. Zamudio (2008) 43 Cal.4th 327, 341.) Further, " '[a] consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances.' " (People v. Baker (2008) 164 Cal.App.4th 1152, 1158; see also Cantor, at p. 965.)
Here, Keller advances several arguments as to why there was no valid consent to search her purse. We address them seriatim.
A. Keller's Detention Was Not Unlawfully Prolonged
Relying on People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran), Keller first argues Officer Wuehler's search of her purse was not consensual because it was garnered from an illegal detention during the traffic stop that was prolonged beyond constitutional bounds. Because we have determined Officer Wuehler's detention of Keller's vehicle met constitutional standards, we turn to the question of whether the detention became unconstitutionally lengthy.
We hold the detention was not unconstitutionally prolonged, rendering Keller's challenge to the validity of her consent on that theory untenable. In McGaughran, supra, 25 Cal.3d 577, police stopped a driver for traveling in the wrong direction on a one-way public street. The officer explained the reason for the stop and examined the licenses of the driver and passenger, who told him they were lost. (Id. at p. 581.) The officer testified he typically would let the motorist go with a warning about the unusual traffic pattern. (Id. at p. 585.) Instead, he returned to his patrol vehicle after his three- to four-minute discussion with the driver and the passenger and initiated a radio check for outstanding warrants in both names. (Id. at p. 581.) About 10 minutes later, the dispatcher notified the officer of outstanding warrants. (Ibid.) The California Supreme Court held this "additional period of detention for the purpose of seeking out unrelated arrest warrants... was not 'reasonably necessary' " to deal with the initial offense of violating the one-way traffic pattern, and it therefore " 'exceeded constitutional limitations.' " (Id. at p. 587.)
In People v. McKay (2002) 27 Cal.4th 601, the California Supreme Court made it clear that after the voters passed Proposition 8 (three years after McGaughran, supra, 25 Cal.3d 577 was decided), courts are not free to exclude evidence merely because it was obtained in violation of state statute or state constitutional provision. (McKay, at pp. 606-607; see also People v. Gomez (2004) 117 Cal.App.4th 531, 538-539.) Proposition 8 added a provision in the California Constitution precluding the suppression of relevant evidence in a criminal case unless compelled by federal law. And without violating the Fourth Amendment, an officer may arrest a person who in the officer's presence commits "even a very minor criminal offense"including minor Vehicle Code violations. (See McKay, at p. 607, quoting Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354.) Accordingly, absent a federal constitutional violation, evidence seized as a result of a brief detention may not be suppressed. (See, e.g., People v. Gomez, at p. 539; see also People v. Gallardo (2005) 130 Cal.App.4th 234, 239, fn. 1 [upholding consent to search on alternative grounds under Gomez and Atwater and rejecting argument that consent requires reasonable suspicion].)
On the issue of traffic detentions, the United States Supreme Court has recently stated: "A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. [Citation.] An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." (Arizona v. Johnson, supra, 555 U.S. ___ [129 S.Ct. at p. 783], italics added.) In Johnson, officers stopped a vehicle, in an area known for gang involvement, for a civil infraction that would warrant a citation. (Id. at p. ___ [129 S.Ct. at p. 788].) At the time of the stop, the officers had no reason to suspect that the driver or the two passengers in the vehicle were involved in criminal activity. (Ibid.) The defendant, who was a passenger in the vehicle, was nevertheless questioned about criminal activity that was not related to the reason for the traffic stop. (Id. at pp. 784-785.) Based on his responses and other articulable factors, the defendant was asked to exit the vehicle and, when patted down for weapons, was found to have a handgun. The Arizona Court of Appeals found that when the officer "undertook to question Johnson on a matter unrelated to the traffic stop... patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity." (Johnson, 555 U.S. at p. ___[129 S.Ct. at p. 787].) The Supreme Court unanimously reversed, explaining that the officer's inquiries into unrelated matters did not render the encounter unlawful as long as they did not "measurably extend" the stop's duration. (Id., at p. ___[129 S.Ct. at p. 788].)
The court's focus was on the length of time of the questioning during the traffic stop, not the subject matter of the questions. Johnson suggests a traffic stop is not measurably extended when officer asks a passenger for his or her name, birth date, and identification, questions him or her about gang membership, orders the passenger out of the vehicle, and pats that person down for officer safety. (Id. at p. ___ [129 S.Ct. at pp. 787-788].)
We conclude in accord with People v. McKay, supra, 27 Cal.4th 601 and Arizona v. Johnson, supra, 555 U.S. ___ [129 S.Ct. at p. 788], that the length of Keller's detention does not justify suppressing the evidence at issue. The total detention here lasted approximately 30 minutes from the stop to the time the officer learned of Samoiloff's warrant, during which time he had already learned of Keller's Fourth Amendment waiver. Our focus, however, is on the duration of time between the stop and Keller's consent to search. (E.g., People v. Gallardo, supra, 130 Cal.App.4th at p. 239 [noting time between initial contact to the request for consent to search was as little as two minutes and finding it not unduly prolonged].) The evidence shows that after the stop but before Keller's consent the officer asked Samoiloff for her identification and learned she had none in her possession. " '[I]f the driver is unable to produce a driver's license, registration or satisfactory proof of identity, then the officer may, depending on the circumstances, reasonably expand the scope of the stop, making it incrementally more intrusive.' " (People v. Hart (1999) 74 Cal.App.4th 479, 491.) Officer Wuehler then asked to see Keller's license and, perceiving Keller's somewhat uncooperative behavior, placed Samoiloff in the back of his patrol car to verify her license status, and returned to the car to have Keller exit and conduct a pat search because he "didn't feel completely safe." The officer testified that he could not run the computer checks until he ensured his own safety, which was why he asked Keller to exit and leave her purse in the vehicle. After this, the officer obtained Keller's consent to search. All of his actions, in our view, were justified by the initial traffic violation. Though the detention was thereafter extended for various record checks, those inquiries did not "measurably" or unreasonably extend the duration of the stop (Johnson, 555 U.S. ___ [129 S.Ct. at p. 788]) and they were justified by Officer Wuehler's reasonable suspicions about Samoiloff's license status and Keller's behavior. The officer sought to dispel his legitimate concerns by his actions, which we conclude were justified by reasonable suspicion warranting further investigation as the events unfolded.
Reasonable suspicion requires " 'some minimal level of objective justification' " that is more than a "hunch" but "considerably less" than a preponderance of the evidence, and "obviously less" than even the "fair probability" standard for probable cause. (U.S. v. Sokolow (1989) 490 U.S. 1, 7.)
B. The Officer's Pat Down Search Did Not Render Keller's Detention Unlawful
Keller further contends, citing Arizona v. Johnson, supra, 555 U.S. at p. ___ [129 S.Ct. at p. 784], that her detention was unlawful for an independent reason: that Officer Wuehler's pat down search was not justified by any reasonable suspicion that she was armed and dangerous. She maintains Officer Wuehler's pat down marked the point at which her detention became illegal, because the pat down was assertedly not reasonably designed to address the officer's suspicions regarding Samoiloff's driver's license status. She argues that the trial court's finding that Officer Wuehler felt "some concern for his safety" is insufficient to establish the lawfulness of her detention under the Fourth Amendment. We disagree.
Once a law enforcement officer has conducted a valid traffic stop, as we have determined occurred here, he or she may pat down the driver or passenger for weapons if he or she "harbor[s] reasonable suspicion that the person subjected to the frisk is armed and dangerous." (Arizona v. Johnson, supra, 555 U.S. at p. ___ [129 S.Ct. at p. 784], citing Terry v. Ohio (1968) 392 U.S. 1; see also Knowles v. Iowa (1998) 525 U.S. 113, 117-118; People v. Osborne (2009) 175 Cal.App.4th 1052, 1059.) In reiterating this rule, the U.S. Supreme Court in Johnson recognized that traffic stops are " 'especially fraught with danger to police officers....' " (Johnson, at p. ___ [129 S.Ct. at pp. 785-786].)
" 'When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, ' the officer may conduct a limited patsearch 'to determine whether the person is in fact carrying a weapon.' " (Osborne, at p. 1059, quoting Terry, at p. 24.) The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger. (Terry, 392 U.S. at p. 27.) "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch, ' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (Ibid.) The officer's subjective good faith is not enough. (Id. at p. 22.)
Here, Officer Wuehler conducted the traffic stop at night, in a busy, poorly lit intersection, by himself. He testified that the two women "both seemed like they were really - wanted to be on their way" and "wanted [him] to get on [his] way...." His testimony permits an inference that the women were acting in an unusually hurried or nervous fashion when approached. "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) That Samoiloff failed to present identification and Keller engaged in furtive behavior, refusing to tilt her wallet toward the officer's flashlight, are further facts that would lead a reasonable officer to believe that the women were attempting to conceal something. These observations and the entirety of the circumstances caused the officer to be concerned for his safety, prompting him to separate the women. All of these facts, combined with the time of night and the fact that Keller was wearing a jacket, gave Officer Wuehler a basis to reasonably conclude Keller might have a weapon in her possession, and thus justified his patsearch of Keller out of concern for his safety. "The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations." (People v. Dickey (1994) 21 Cal.App.4th 952, 957.) The Fourth Amendment has never been interpreted to " 'require that police officers take unnecessary risks in the performance of their duties.' " (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.) We thus reject Keller's challenge to voluntary consent to the extent it is based on Officer Wuehler's pat search.
C. The Scope of Keller's Voluntary Consent Included a Search of Her Purse
Finally, Keller contends that her consent, even if voluntarily given, did not include consent to search her purse or the business card holder within the purse. She maintains Officer Wuehler did not expressly ask for her consent to search her purse, he only asked for her consent to search her vehicle and thus the People did not show that the scope of her consent extended to the purse. Pointing out that a purse has been characterized as a "special container[]" (Wyoming v. Houghton (1999) 526 U.S. 295, 308 [conc. opn. of Breyer, J.]) and an "inherently private repository for personal items, " (People v. Baker, supra, 164 Cal.App.4th at p. 1159; see also Houghton, at p. 308 [purses are "repositories of especially personal items that people generally like to keep with them at all times"]), she also argues it would be objectively unreasonable for a person in her position to understand the officer's request included a search of her purse, which she attempted to remove from the vehicle and over which demonstrated a heightened expectation of privacy. Keller relies in part upon opinions of other states' high courts holding that when a nonarrested person exits a vehicle that has been properly stopped by law enforcement, the officer cannot lawfully order that person to leave her purse in the car and thereby make it subject to search as part of the vehicle search. (See State v. Tognotti (N.D. 2003) 663 N.W.2d 642; State v. Boyd (Kan. 2003) 64 P.3d 419; State v. Newsom (Idaho 1998) 979 P.2d 100, 102.)
In State v. Newsom, supra, 979 P.2d 100, after officers stopped a vehicle for traffic violations and found outstanding felony warrants for the driver, they asked the passenger (the defendant), who had her purse in her lap, to exit the vehicle. (Id. at pp. 100-101.) According to the defendant, she began to exit with her purse but was ordered by another officer to leave it in the vehicle, where it was searched, revealing contraband. (Id. at p. 101.) Idaho's high court treated the passenger's purse not as a searchable container but as part of her person, holding it was not subject to a search incident to the arrest of another occupant of the vehicle: "In these circumstances, the passenger's purse was entitled to as much privacy and freedom from search and seizure as the passenger herself." (Id. at p. 102.) The Kansas high court in State v. Boyd, supra, 64 P.3d 419, relied on Newsom when it invalidated the search of a passenger's purse, holding the officers who stopped a vehicle for a traffic violation and who obtained the driver's consent to search the vehicle did not have probable cause to search the passenger or her purse. (Boyd, at pp. 426-427.) In Boyd, the officers found no illegal substances on the driver, but obtained his consent to search the vehicle. Learning of the driver's consent to search, another officer asked the passenger to exit the car, but when she attempted to take her purse, he directed her to leave it in the car. (Id. at p. 421.) When police asked to search the purse, the passenger responded that it was a personal belonging and she did not want it searched. (Ibid.) The court held "where a passenger is told by a police officer to get out of a lawfully stopped vehicle and in response to the officer's order to leave her purse in the vehicle, puts the purse down and exits the vehicle, a subsequent search of the purse as part of a search of the vehicle violates the passenger's Fourth Amendment right against unreasonable search and seizure." (Id. at p. 427.) State v. Tognotti, supra, 663 N.W.2d 642, involved a vehicle search incident to a valid arrest of an occupant, in which the passenger's purse was also searched after she was asked to exit the vehicle. (Id. at pp. 643-644.) The North Dakota Supreme Court remanded the matter for a limited evidentiary hearing to determine whether the passenger had sought to take her purse when told to exit or voluntarily left it. (Id. at p. 650.) It reasoned: "A purse, like a billfold, is such a personal item that it logically carries for its owner a heightened expectation of privacy, much like the clothing the person is wearing. We are, therefore, persuaded... that the Fourth Amendment is violated when an officer directs that a purse be left in a vehicle and then proceeds to search the purse incident to the arrest of another passenger in the vehicle." (Ibid.)
" 'The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness - what would the typical reasonable person have understood by the exchange between the officer and the suspect?' " (People v. Cantor, supra, 149 Cal.App.4th at p. 965, quoting Florida v. Jimeno (1991) 500 U.S. 248, 251.) " 'Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination.' " (Cantor, at p. 965.)
In our view, it is objectively reasonable that a passenger such as Keller, who is instructed to leave her purse in the vehicle and thereafter gives open-ended consent to search the vehicle for "anything illegal, " would understand such consent to extend to a search of her purse and any other container within the vehicle. "[O]pen-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way, and that a general consent to search includes consent to pursue the stated object of the search by opening closed containers." (People v. Jenkins (2000) 22 Cal.4th 900, 975; see also Florida v. Jimeno, supra, 500 U.S. at pp. 249-250 [driver's general consent to a search of his car - given after he was stopped for a moving violation - reasonably is understood to include within its scope the search of closed paper bag on the floorboard].)
In U.S. v. Cannon (9th Cir. 1994) 29 F.3d 472, an officer conducted a pretextual traffic stop on a suspected drug dealer and asked the defendant for permission to search the car. (Id. at p. 474.) The defendant replied, "Sure, go ahead, " and did not protest when the officer searched under the hood, in the passenger compartment, and inside the trunk, where he found $16,000 in large bills. (Ibid.) Officers also found cocaine residue. (Ibid.) The court rejected the defendant's argument that the search exceeded the scope of his consent: "Here, [the defendant] told [the officer] to 'go ahead' and look in his car. He did not protest when [the officer] searched the interior of the car, including the glove compartment, or when [the officer] walked around to the trunk and used [the defendant's] key to open it. Failure to object to the continuation of a vehicle search after giving general consent to search 'is properly considered as an indication that the search was within the scope of the initial consent.' [Citations.] Although a suspect's consent to search a car may not automatically include consent to search the trunk, in the present case, the district court did not clearly err in finding that [the defendant's] consent included the trunk." (Id. at p. 477.)
Because Keller, the vehicle's owner, expressly gave her open-ended consent to search her vehicle, we cannot say the trial court here erred in finding, implicitly, that the scope of her consent extended to her purse, which remained inside. The facts presented are unlike the above-mentioned out-of-state cases, where the search of the passenger's purse was either incident to the driver's arrest or performed pursuant to the driver's consent. Accordingly, we cannot say the officer here committed a Fourth Amendment violation by searching Keller's purse.
III. Inevitable Discovery
The People argue - and we agree - that even assuming a Fourth Amendment violation occurred by Officer Wuehler's search of Keller's purse, the evidence at issue would have eventually been discovered by reason of her Fourth Amendment waiver. It is of no moment that the trial court did not rely on this doctrine, because we may affirm its decision on any ground supported by the record. (People v. Zapien (1993) 4 Cal.4th 929, 976; see People v. Boyer (2006) 38 Cal.4th 412, 449 [appellate court found inevitable discovery doctrine justified denial of suppression motion even though the prosecution had not raised it in the trial court]; People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7.)
"Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine 'is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.' [Citation.] The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct." (People v. Robles, supra, 23 Cal.4th at p. 800.)
Even assuming Officer Wuehler's pat down and search were unlawful, we conclude on these facts he would have eventually checked Keller's license and learned of her Fourth Amendment waiver, allowing him to lawfully search her purse where he would have discovered the forged driver's license. Under the inevitable discovery doctrine, the evidence was thus not subject to suppression.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.