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People v. Lambert

Court of Appeal of California
Apr 23, 2009
D052435 (Cal. Ct. App. Apr. 23, 2009)

Opinion

D052435.

4-23-2009

THE PEOPLE, Plaintiff and Respondent, v. BRUCE KEVIN LAMBERT, Defendant and Appellant.

Not to be Published in Official Reports


Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), Bruce Kevin Lambert entered a negotiated guilty plea to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possessing methamphetamine for sale (Health & Saf. Code, § 11378). The court placed him on three years probation. Lambert appeals the denial of his suppression motion, contending he was illegally detained, searched, and arrested. We affirm.

BACKGROUND

On June 12, 2007, El Cajon Police Officer Richard Gonsalves saw a truck traveling down the road with a hole in its rear license plate where one of the letters or numbers should have been. He stopped the truck. Lambert, the driver, was agitated and angry and said that Gonsalves was harassing him. Lambert was more uncooperative and confrontational than was usual for a traffic stop, and Gonsalves could not see into the trucks passenger compartment adequately. For his own safety, Gonsalves asked Lambert to step out of the truck. Lambert refused and repeated that Gonsalves was harassing him. After Gonsalves asked Lambert three times, Lambert finally got out of the truck. Gonsalves observed a baseball-sized bulge in Lamberts right front pants pocket. Gonsalves thought it might be a weapon, such as a gun, knife, or can of pepper spray or a chemical agent.

Gonsalves had Lambert stand on the sidewalk next to the truck and asked him to keep his hands out of his pockets. Lambert remained confrontational and angry and repeatedly tried to put his hands in his pockets. Gonsalves wanted to patdown Lambert for his own safety and radioed for assistance. While they waited for another officer to arrive, Lambert stood on the sidewalk and kept trying to put his hands in his pockets despite Gonsalvess repeated requests to the contrary. Lambert reiterated that Gonsalves was harassing him and said that he wanted to go and Gonsalves did not have any right to stop him.

Officer Jesse Sandoval arrived within approximately five minutes of Gonsalvess call. Gonsalves then told Lambert that he was going to conduct a patdown for weapons. Lambert removed a cigarette lighter from his right front pants pocket and placed it on the rear bumper of his truck. Gonsalves patted the outside of the same pocket and felt the baseball-sized item still in the pocket. Based on his training and experience and judging by texture and size, he believed that the item might be a bag of methamphetamine. He asked Lambert what it was. Lambert said it was his "nut sack." Gonsalves asked for clarification. Lambert said it was a sack of peanuts. Based on these statements, Gonsalves believed that the object might be something other than a bag of methamphetamine, possibly a weapon. Rather than removing the item from Lamberts pocket, he radioed for a narcotics police dog to "try and do the right thing and establish more probable cause. . . ."

The police dog, Wilco, and his handler, officer James Bray, arrived within approximately 40 to 50 minutes. Wilco was trained to search property, not people. Bray walked Wilco around the truck. When they reached the open window of the drivers door, Wilco alerted and tried to jump in the truck. Bray opened the door and Wilco got in the truck. Wilco alerted to the part of the drivers seat belt that would lie along the drivers right hip and to an empty box on the passenger seat next to that part of the seat belt. Bray got Wilco out of the truck and they resumed walking around it. Wilco alerted to the cigarette lighter on the bumper. Gonsalves concluded that the object in Lamberts pocket was methamphetamine, removed it from the pocket, and arrested Lambert. The object turned out to be methamphetamine.

DISCUSSION

Lambert contends that Gonsalves had no justification for detaining him pending Wilcos search and no probable cause to search and arrest him.

The appellate court reviewing the denial of a suppression motion must uphold all express and implied factual findings of the trial court if substantial evidence supports them and independently measure them against the proper constitutional standard of reasonableness. (People v. Valenzuela (1999) 74 Cal.App.4th 1202, 1206-1207.) We view the facts in the light most favorable to respondent. (Id. at p. 1206.)

Gonsalves was clearly justified in all of his actions up to and including the patdown for weapons. Once he felt the baseball-sized bulge in Lamberts pocket, he reasonably concluded that it might be a weapon or a bag of methamphetamine. Either way, he had probable cause to seize the object. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.) Moreover, the hole in the license plate, the justification for the initial detention, "also supplied probable cause for [Lambert]s de facto arrest." (People v. Gomez (2004) 117 Cal.App.4th 531, 538, citing Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354; People v. McKay (2002) 27 Cal.4th 601, 605, 607, 618.) The fact that Gonsalves did not cite or arrest Lambert for the license plate violation did not vitiate this probable cause. (People v. Gomez, supra, 117 Cal.App.4th at p. 539.) Nor was the probable cause vitiated by the fact that Gonsalves, apparently unsure of his authority to search Lambert, decided to err on the side of caution and summon Wilco.

The trial court did not err by denying the suppression motion.

DISPOSITION

The judgment is affirmed.

I CONCUR:

NARES, Acting P. J.

McDONALD, J., dissenting.

The majority opinion summarily concludes Officer Gonsalvess patdown search of defendant Lambert resulted in Gonsalvess reasonable belief Lambert possessed a weapon or a bag of methamphetamine in his pocket, and therefore Gonsalves had probable cause to justify the subsequent invasive search of Lamberts pockets. However, the record and conclusions of the trial court are to the contrary. The record shows and the trial court concluded Gonsalves did not believe, as a result of the patdown search, (1) Lambert possessed a weapon, or (2) it was immediately apparent the bag in Lamberts pocket contained methamphetamine or other contraband. Therefore, the prolonged detention of Lambert, the invasive search of his pockets and his subsequent arrest, all based on probable cause he possessed methamphetamine as a result of the patdown search, were constitutionally invalid. (Minnesota v. Dickerson (1993) 508 U.S. 366.

The majority opinion alternately, but no less summarily, concludes the hole in Lamberts license plate justified the initial vehicle stop and supplied probable cause for all subsequent police action. Gonsalves observed a partially unreadable license plate on Lamberts vehicle. Gonsalves stopped Lambert because of the observed Vehicle Code violation. Lambert was then subjected to a patdown search; no weapons were detected and no contraband was immediately apparent. However, without citing Lambert for a Vehicle Code violation or arresting him, Gonsalves subjected Lambert to a prolonged detention, during which time narcotics canines were summoned. After the canines alerted to certain portions of Lamberts vehicle, police officers conducted an invasive search of Lamberts pockets and vehicle. A result of the invasive search was discovery of a bag of methamphetamine on Lamberts person. After this, Lambert was arrested based on the methamphetamine seized from his person during the invasive search conducted in the course of the prolonged detention.

Although "a police officer may stop a motorist for a traffic violation, the detention cannot be prolonged beyond the time period necessary to address the violation. [Citation.]" (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.) If the detention is prolonged beyond the time necessary to deal with the reason for the stop, evidence obtained in exploitation of the prolonged detention must be suppressed. (People v. McGaughran (1979) 25 Cal.3d 577.)

Here, the detention exceeded the time necessary to deal with the Vehicle Code violation for which Lambert was stopped. About an hour elapsed from the time of the traffic stop to the arrival of the narcotics canine and handler, and additional time elapsed before the narcotics unit completed its investigation. At that time, Gonsalves conducted an invasive search of Lamberts pockets and seized the bag of methamphetamine from his pocket. Only then was Lambert arrested. Because the incriminating evidence was seized only after an impermissibly prolonged detention, that evidence should have been suppressed in response to Lamberts Penal Code section 1538.5 suppression motion under the authority of People v. McGaughran, supra, 25 Cal.3d 577.

The trial court concluded it must deny Lamberts Penal Code section 1538.5 motion because it was bound by People v. Gomez (2004) 117 Cal.App.4th 531. The majority opinion, in support of its alternate traffic stop analysis, also relies on People v. Gomez, supra, as well as Atwater v. City of Lago Vista (2001) 532 U.S. 318 and People v. McKay (2002) 27 Cal.4th 601. Unlike the trial court, this court is not bound by the Gomez decision, and the Atwater and McKay cases neither compel nor support the majority opinion.

Atwater held it was constitutionally permissible to arrest a person for minor crimes, there a vehicular seatbelt violation, committed in the presence of the arresting officer, and to search the person incident to the arrest. McKay also held it was constitutionally permissible to arrest a person for minor crimes, there riding a bicycle in the wrong direction and failure to possess written identification documentation, committed in the presence of the arresting officer, and to search the person incident to the arrest. However, in neither of these cases was the defendant subjected to an impermissibly prolonged detention, and in each the defendant was promptly arrested and a search of the person incident to the arrest actually made. Here no arrest was made until after an impermissibly prolonged detention, and the arrest finally made was not for the minor Vehicle Code violation but as a result of items seized in the subsequent invasive search made during the prolonged detention; the arrest was based on the items seized in the search, the search was not made incident to the arrest but prior to the arrest. "If the police conduct a warrantless search of a person and find evidence of crime in the course of that search and then place the individual searched under arrest, it is clear beyond question that this search may not be justified as being incident to the subsequent arrest if the arrest is in turn based upon the fruits of the prior search. Such bootstrapping would render the Fourth Amendment a nullity. As the Supreme Court emphasized in Sibron v. New York [(1968) 392 U.S. 40]: `It is axiomatic that an incident search may not precede an arrest and serve as part of its justification." (3 LaFave, Search and Seizure (4th ed. 2004) § 5.4(a), p. 190, fns. omitted.)

In this case the search was justified as incident to the subsequent arrest, probable cause for which was based on the fruits of the search. Under these circumstances, the invasive search of Lamberts pockets was unconstitutional under the Fourth Amendment.

The majority opinion seeks to avoid this result by reference to People v. Gomez, supra, 117 Cal.App.4th 531, in which the court transmogrified a prolonged detention into the euphemistic category of a de facto arrest, thus legitimizing the invasive search of the defendant as incident to an arrest. (Id. at p. 538.) In its alternate holding, Gomez determined that prolonged detention was in effect an arrest and the search was therefore incident to the arrest even though no actual arrest was made until after the search. (Id. at pp. 536, 538-540.) The majority opinion utilizes Gomez to conclude the police had probable cause to arrest Lambert for the Vehicle Code violation, and that probable cause continues throughout the prolonged detention to justify an arrest not made; that in turn justifies a later search of the person incident to the arrest not made. Gomez converted an unlawful prolonged detention into a lawful arrest. However, the absence of a formal arrest until after the search cannot justify the search as one incident to the arrest. (People v. Superior Court (1972) 6 Cal.3d 757.)

Under some circumstances, a search prior to the arrest is constitutionally permissible to justify the search as being incident to the arrest. (See Sibron v. New York, supra, 392 U.S. 40.) However, those circumstances have been described as "`proper if the officer had probable cause to believe that a crime had been committed and probable cause to believe that evidence of the crime in question will be found and that `an immediate, warrantless search is necessary in order to . . . prevent the destruction or loss of evidence" of that crime. (3 LaFave, Search and Seizure, supra, § 5.4(b), pp. 198-199, fns. omitted.) Under those circumstances, a search preceding the arrest is proper. In this case, however, the criteria for a search prior to arrest have not been satisfied. Here, the officer had probable cause to believe a crime had been committed—the Vehicle Code violation—and therefore had probable cause to arrest Lambert for that offense. However, the officer had no probable cause to believe evidence of that crime—the Vehicle Code violation—would be found in a search of Lambert, and there was no immediate search or any search required to prevent loss of evidence of the Vehicle Code violation. There was no probable cause to believe Lambert was guilty of the controlled substance crimes on which the search was based, or probable cause that evidence of those crimes would be found in the search. Therefore, there was in this case no constitutional justification for a search prior to arrest.

Lamberts Penal Code section 1538.5 motion to suppress the evidence obtained in the unlawful search should have been granted. Without that evidence there is no evidence to sustain his conviction and the judgment should be reversed.


Summaries of

People v. Lambert

Court of Appeal of California
Apr 23, 2009
D052435 (Cal. Ct. App. Apr. 23, 2009)
Case details for

People v. Lambert

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRUCE KEVIN LAMBERT, Defendant…

Court:Court of Appeal of California

Date published: Apr 23, 2009

Citations

D052435 (Cal. Ct. App. Apr. 23, 2009)