Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Charles V. Stone, Judge, Super. Ct. No. 1092389
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J. and Kane, J.
Appellant challenges the denial of his motion to suppress a billy club found inside a pickup truck that he occupied. He contends his initial detention was illegal because the police did not have a reasonable suspicion that he was involved in criminal activity and also contends the warrantless search of the vehicle was illegal.
We conclude that the totality of the circumstance provided a sufficient basis for a reasonable suspicion and, thus, the detention of appellant did not violate the Fourth Amendment of the United States Constitution. With respect to the warrantless search of the pickup, we conclude that the prosecution failed to carry its burden of proving the search was reasonable. In particular, the record lacks substantial evidence to support the only justification for the search advanced on appeal—namely, that the search was incident to the arrest of appellant’s co-occupant.
Accordingly, the judgment will be reversed and appellant will be given the opportunity to withdraw his plea of no contest. Whether the prosecution will be given another opportunity to present evidence to justify the admission of the billy club is an issue that, if raised, must be addressed in the first instance by the superior court.
PROCEDURAL HISTORY
A single count criminal complaint dated May 26, 2005, charged appellant Gilberto Martinez, Jr., with possession of a dangerous weapon in violation of Penal Code section 12020, subdivision (a). The complaint also alleged appellant had been convicted in 1999 of a serious felony and had served a term in state prison. (§§ 667, subd. (d), 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
On February 9, 2006, appellant filed a section 1538.5 motion to suppress relating to (1) all statements purported to have been made by him subsequent to an illegal detention, search, and arrest, and (2) all items seized, including a billy club.
The motion to suppress was withdrawn and subsequently reinstated. It appears from the record that the prosecution did not respond in writing to the motion because the deputy district attorney overlooked a note in the file that the motion had been reinstated and was combined with the preliminary hearing. Despite the absence of a written response, the deputy district attorney advised the court at the preliminary hearing that, at that time, he was prepared to argue the motion to suppress.
Consequently, the preliminary hearing and the hearing on the motion to suppress were conducted simultaneously on October 2, 2006, in Department 11 of Stanislaus Superior Court. The superior court denied the motion to suppress and specifically ruled that the officers had a reasonable suspicion that justified the detention of appellant.
Although the reporter’s transcript indicates this hearing was held on September 2, 2006, which was a Saturday, the court’s minutes state the hearing was held on October 2, 2006.
On October 30, 2006, appellant pled no contest to being a felon in possession of a billy club and admitted the prior felony conviction. Based on the plea of no contest, (1) the prosecution moved to dismiss the other counts in the other cases pending against appellant, and (2) the prison prior alleged in the complaint was stricken.
The superior court sentenced appellant to a total of four years in state prison: the midterm on his conviction for possession of a dangerous weapon, doubled to four years because of his prior strike. The superior court also ordered appellant to pay an $800 fine pursuant to section 1202.4, subdivision (b) and imposed and suspended an $800 parole revocation fine under section 1202.45.
On December 26, 2006, appellant filed a timely notice of appeal that challenged the denial of his motion to suppress under section 1538.5.
FACTS
The facts presented are taken from the transcript of the preliminary hearing.
District attorney investigator Glen Gulley had worked for the Oakdale Police Department for 31 years. On May 15, 2005, he was working as a watch commander sergeant. At approximately 4:40 that morning, he was in a construction area called Bridle Ridge investigating the theft of plywood. A witness had informed police that two Hispanic males had fled from the construction area. The two males had abandoned a vehicle and gone to the west on foot.
Based on that information, Gulley left the construction area and moved along West “F” Avenue to look for the two suspects. Approximately a quarter of a mile away from the construction area, Gulley saw appellant and another man sitting in a pickup truck located at the end of a driveway. The pickup was not running.
Gulley walked up to the window of the pickup and asked the occupants for identification. Gulley testified that, at the time he spoke to appellant, the occupants of the pickup were not in custody but they also were not free to leave. Gulley explained his reason for approaching the occupants was to determine whether they were the two individuals that had been at the construction area and whether they were trying to get back to the construction area in another vehicle or were trying to use that vehicle to get away. In short, he “[w]anted to know who they were and what they were doing.”
Before he asked for identification, Gulley saw a camera, camera case and some stereo equipment on the front seat or on the floorboard. Gulley did not see any plywood in the pickup.
The occupants did not have identification. At that point, Gulley, in accordance with routine procedure, separated the two occupants so that they could not hear the name the other gave to the officers. To separate the occupants of the pickup, Gulley asked appellant to get out of the vehicle.
When asked by defense counsel if he was aware of any state law that required a person to have identification, Gulley answered “[n]o.”
Appellant told the officers who he was and the other occupant, a White adult male, identified himself as William Antoine Morris. Another officer ran the names given and determined that Morris had a warrant for a parole hold. No warrants were found for appellant.
When asked if, at some point, he had an opportunity to conduct a search of the vehicle, Gulley answered “[y]es.” He also testified that he found a wooden billy club behind the driver’s seat. The testimony presented at the hearing does not identify which occurred first—the search of the vehicle or the police learning that there was a warrant out for Morris.
The Attorney General’s brief seems to imply that the arrest occurred before the vehicle search and argues the search was incident to the arrest of Morris. The Attorney General’s statement of facts describes the events as follows: “When Sergeant Gulley walked up to the truck, he saw a camera, a camera case, and some stereo equipment in the front compartment. [Citation.] He asked both men to identify themselves, and another officer ran their names; they did not produce proof of identification. [Citations.] The passenger, William Morris, was arrested on a parole hold warrant. [Citation.] Sergeant Gulley asked appellant to get out of the truck. [Citation.] Sergeant Gulley found a wooden billy club behind the driver’s seat. [Citation.]”
When asked whether appellant made a spontaneous statement about ownership of the billy club, Gulley answered “[y]es.” Appellant told him that the billy club belonged to a female who lived in the house at the address where they were parked. Officers knocked on the door of the house, but no one came to the door.
Appellant was arrested for possession of the billy club.
DISCUSSION
I. Standard of Review
When reviewing a superior court’s ruling on a suppression motion, an appellate court upholds any factual finding, express or implied, that is supported by substantial evidence, but independently assesses, as a matter of law, whether the challenged search or seizure conforms to the reasonableness standard contained in the Fourth Amendment. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
II. General Principles Regarding Searches and Seizures
A. Contentions of the Parties
Appellant presents two grounds for invalidating the seizure of the billy club. First, he contends that the police did not have a reasonable suspicion when they detained him. Second, he contends that the warrantless search of the pickup truck violated the Fourth Amendment.
In contrast, respondent argues that the superior court correctly determined that the police had a reasonable suspicion justifying the detention of appellant. Respondent also argues that the billy club was seized pursuant to the arrest of Morris and, therefore, the search was valid under the Fourth Amendment as a search incident to arrest. Alternatively, respondent argues that appellant did not obtain an express ruling from the superior court on whether the seizure of the billy club was legal and, therefore, the proper procedure is to remand this matter for further proceedings.
B. Reasonable Suspicion and Detention
The parties agree that Gulley’s contact with appellant and Morris constituted a detention, which is a type of seizure for purposes of the Fourth Amendment. (See In re Manuel G. (1997) 16 Cal.4th 805, 821 [three broad categories of police contacts—consensual encounters, detentions and arrests].) A detention is permitted under the Fourth Amendment if the officers have a reasonable suspicion that the person may be involved in criminal activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8.)
The officer’s suspicion must be objectively reasonable and cannot be based on curiosity, rumor, or hunch, even though the officer is acting in good faith. (In re Tony C. (1978) 21 Cal.3d 888, 893; United States v. Hensley (1985) 469 U.S. 221, 226.) The guiding principle is “‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’” (In re Tony C., supra, at p. 892.) Thus, the reasonable suspicion standard requires courts to consider the totality of the circumstances. (United States v. Sokolow, supra, 490 U.S. at p. 8.)
C. Warrantless Vehicle Search
As a general rule, the police may conduct a warrantless search of an automobile when they have probable cause to believe contraband or evidence is contained. (California v. Acevedo (1991) 500 U.S. 565, 580.) In addition, there are a number of exceptions to this general rule that allow the police to search a vehicle without probable cause. The exceptions include searches based on consent, searches incident to arrest, and protective searches for weapons. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [consent to search]; New York v. Belton (1981) 453 U.S. 454, 460 [search of passenger compartment of automobile lawful when a contemporaneous incident to a valid arrest of occupant of automobile]; Michigan v. Long (1983) 463 U.S. 1032, 1047-1049 [police may search automobile for weapons if they have reasonable suspicion person is dangerous and may gain immediate control of a weapon].)
In this case, the only exception to the probable cause requirement for a warrantless vehicle search asserted by respondent is that the search was incident to the arrest of Morris. Thus, the rule of law to be applied is: “[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (New York v. Belton, supra, 453 U.S. at p. 460, fns. omitted; see In re Arturo D. (2002) 27 Cal.4th 60, 98.)
With respect to the relative timing of the arrest and the search, “[t]he fact that a defendant is not formally arrested until after the search does not invalidate the search if [1] probable cause to arrest existed prior to the search and [2] the search was substantially contemporaneous with the arrest. [Citation.]” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240.)
III. The Detention of Appellant Was Justified
Based on the totality of the circumstances, we conclude that Gulley possessed an objectively reasonable suspicion and, consequently, his detention of appellant was lawful for purposes of the Fourth Amendment.
The superior court summarized the factual basis for its determination that a reasonable suspicion existed as follows: “[Gulley was in] a high crime district, 4:30 in the morning, nobody else on the street, two people who fled from a scene of a crime, two people [a] quarter mile away sitting in an automobile, I think [the officer might have been] derelict in his duty if he didn’t approach. [¶] Th[e suppression] motion is denied.”
We concur in the superior court’s reasoning. Appellant’s argument that the officer’s suspicion was not reasonable because the witness had described the two men who fled the construction area as Hispanic and one of the occupants of the truck was a White male is not convincing. An officer, even one without 31 years of experience, could reasonably infer that the witness’s description of two men observed before sunrise might not be entirely accurate. Therefore, the officer was justified in investigating (1) who the two men were, which included asking for identification, and (2) what they were doing at that location.
Questions concerning a person’s identity are a routine and valid part of a lawful detention. (Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County (2005) 542 U.S. 177, 186.)
IV. The Record Does Not Show the Search Was Incident to the Arrest
Even though the police had a reasonable suspicion that justified the detention and questioning of appellant, it does not follow automatically that the search of the interior of the truck was valid. As stated earlier, the general rule is that probable cause, not merely a reasonable suspicion, is needed to justify a warrantless search of an automobile unless an exception applies. (See part II.C., ante.)
On appeal, respondent attempts to justify the warrantless search of the vehicle by advancing only one exception to the general rule—namely, the search was incident to the arrest of Morris.
The difficulty presented in this appeal is that the record contains no evidence that identifies the sequence in which the police (1) learned of the warrant for Morris and (2) searched the vehicle. In short, the search may have occurred before or after the police learned of the outstanding warrant that gave them probable cause to arrest Morris. (See In re Lennies H., supra, 126 Cal.App.4th at pp. 1239-1240 [probable cause to arrest must exist before the search].) Also, the record does not establish how much time elapsed between the two events. This lack of evidence means we cannot conclude the superior court impliedly found that the search of the truck was a “contemporaneous incident” to the arrest of Morris. (New York v. Belton, supra, 453 U.S. at p. 460.) Without these implied findings, we cannot uphold the warrantless search of the vehicle’s interior on that ground, which is the only ground asserted by respondent on appeal.
An alternate ground for upholding the search of the truck’s interior was not set forth in the superior court’s oral statement of reasons for denying the motion. Rather, the reasons the superior court stated for denying the motion to suppress do not address the validity of the search as a separate issue.
Based on the arguments advanced on appeal, the reasoning of the superior court, and the evidence in the record, we conclude that the prosecution failed to carry its burden of showing that the warrantless search was reasonable under the circumstances. (People v. Williams (1999) 20 Cal.4th 119, 130 [burden on prosecution in motions to suppress].)
V. Relief Granted
A. Contentions of the Parties
Respondent asserts that remand is the appropriate disposition of this appeal if the matter cannot be resolved on the existing record.
Appellant’s reply brief did not discuss the appropriate disposition of this case, but simply concluded that appellant’s “conviction must be reversed on the basis of the wrongful denial of his motion to suppress.” Thus, it appears that appellant contends reversal, not remand, is appropriate. (See People v. Miller (2007) 146 Cal.App.4th 545, 551 [judgment reversed; under the circumstances, prosecution was not allowed to elicit additional facts supporting the reasonableness of the stop].)
B. Withdrawal of Plea
When an appellant’s motion to suppress should have been granted, it follows “that he must be allowed to withdraw his no contest plea.” (People v. Ramirez (2006) 140 Cal.App.4th 849, 854.)
For example, in People v. Holmsen (1985) 173 Cal.App.3d 1045, the court stated: “Where the trial court has erred in any manner in its suppression ruling, the plea must be vacated and the matter remanded for further proceedings.” (Id. at p. 1049.) In that case, the court reversed the judgment and remanded the case to the superior court with directions to vacate the guilty plea if the defendant made an appropriate motion within 30 days of the date the opinion became final. (Ibid.)
In this case, we will not presume that appellant will seek to withdraw his plea. He received certain advantages by entering that plea—a prison prior was stricken and other cases were dismissed. Consequently, he may choose to retain the disposition already achieved. (Cf. People v. Holmsen, supra, 173 Cal.App.3d at p. 1049, fn. 15.)
Accordingly, we conclude that the appropriate relief is to allow appellant, if he chooses, to withdraw his plea.
C. Relitigation of the Suppression Motion
If appellant chooses to withdraw his plea, a question might arise regarding the prosecution’s ability to relitigate the suppression of the billy club and statements made by appellant after he was shown the billy club. If that question arises, the superior court should resolve it in the first instance.
We recognize that the circumstances of this case are somewhat unusual because of the confusion about whether or not the motion to suppress had been reinstated and because the issues framed in the motion did not anticipate how the evidence was developed at the October 2006 hearing.
The motion was filed in February 2006 and not heard until October 2006. At the time the motion was prepared, defense counsel’s understanding of the facts surrounding the detention of appellant and search of the vehicle was presented as follows:
“Gulley drove westbound on F Street looking for the suspects. He saw two individuals, one Hispanic male adult (the [appellant]) and one White male adult (William Morris) sitting in a vehicle that was turned of[f] in a private driveway. Gulley contacted both individuals and asked for identification. After both individuals told [him] they had no identification, he asked them to get out of the vehicle so he could search for identification. When … Gulley opened the driver’s door, he observed a ‘wooden billy club.’”
This understanding of the facts does not suggest that the prosecution would attempt to justify the search of the vehicle as a search incident to the arrest of Morris. Thus, it was reasonable for appellant’s written motion not to raise the issue. (See People v. Williams, supra, 20 Cal.4th at p. 129 [defendants must specify precise grounds for motion to suppress, but are not required to guess at the justifications the prosecution will offer for a warrantless search].)
In any event, our decision does not preclude the prosecution from attempting to pursue the charges against appellant or necessarily bar it from using the evidence and statements obtained pursuant to the search of the vehicle. Questions related to these topics, if raised, must be resolved on remand. (See People v. Jordan (2004) 121 Cal.App.4th 544, 565 [superior court should decide, in the first instance, whether respondent can present additional evidence on admissibility of items obtained in search].)
DISPOSITION
The judgment is reversed and the matter remanded to the superior court with directions to vacate the no contest plea if appellant makes the appropriate motion within 30 days of this opinion becoming final.
If appellant does not make such a motion, the superior court shall reinstate the original judgment. Alternatively, if appellant makes such a motion, the superior court should grant the motion and vacate its order denying the motion to suppress. In the event that respondent seeks a new suppression hearing to present additional evidence to show that the warrantless search of the truck was lawful, the superior court shall decide, in the first instance, whether to hold such a hearing and the matters that may be presented.