Opinion
F061016 Super. Ct. No. MCR033680
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL DAWAYNE NASH, Defendant and Appellant.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Kane, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Dawayne Nash, defendant, appeals claiming the case of Arizona v. Gant (2009) 556 U.S. 332 (Gant) mandated the granting of his suppression motion and the trial court erred when it denied the motion. We affirm, finding the good faith exception to the exclusionary rule applied to the search and the suppression motion was properly denied.
STATEMENT OF THE CASE AND FACTS
An information was filed charging defendant with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). After the information was filed, defendant filed a motion to suppress the methamphetamine and any statements he made when he was stopped on October 12, 2008.
Defendant filed a previous motion to suppress that was denied before the preliminary hearing. That motion was heard before the United States Supreme Court decided Gant.
The motion was heard on May 17, 2010. Madera police officer Brian Esteves testified he was on duty on October 12, 2008, when he drove down an alleyway. He saw a car, driven by defendant, pull all the way out of a parking space. As Esteves got closer to the car, defendant pulled back into the parking space and parked. Esteves thought the action of the driver, in pulling out and then back into the parking space, was odd and he said the move was a common one to avoid contact with an officer. Esteves parked his patrol car so it was not blocking defendant's vehicle. Esteves did not activate the lights on his patrol car. After parking his car, Esteves got out and approached the car to talk to the driver. Defendant quickly threw something with both hands into the backseat of the car.
After approaching the car, Esteves recognized defendant through prior police contacts and prior narcotics arrests. Esteves knew defendant's driver's license was suspended. He asked defendant about the status of his driver's license and defendant told him his license had been suspended. Defendant was nervous. Esteves had defendant get out of the car and stand five to 10 feet away. Esteves had no intention of letting defendant leave at this point. Another officer arrived and stood by defendant while Esteves retrieved the item, a jacket, that defendant had thrown into the backseat. Esteves found and removed a baggie containing methamphetamine from the pocket of the jacket. Defendant was placed in the patrol car. Defendant's mother inquired what was going on and defendant replied, "They found some dope in my jacket."
Esteves testified that it is common for drug users to avoid contact with officers, common for drug users to try and conceal drugs, and common for drug users to be nervous when contacted. Esteves searched the car for his own safety and to see what had been discarded by defendant when he approached the car.
The trial court denied the motion to suppress. It found the encounter began as a purely consensual encounter. Once the officer learned that defendant's license was suspended, the officer had probable cause to arrest defendant. The officer had probable cause to search the car based on defendant's behavior and the knowledge of the officer that defendant had been previously arrested for narcotics offenses.
Defendant proceeded to trial by jury and was convicted as charged. In addition, defendant admitted he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a term of five years.
Defendant received 46 days of actual credit and 46 days of conduct credits under Penal Code section 4019.
DISCUSSION
Defendant asserts that the search of his car as a search incident to arrest was improper under the rule of Gant prohibiting a vehicle search incident to arrest when an arrestee is secured and unable to reach the car. Additionally, he argues the search was not justified because he admitted he had a suspended license; therefore, there was no further evidence that needed to be recovered from the car to support a charge of driving with a suspended license. He continues his argument by claiming there was no probable cause to authorize the search of his car for contraband.
Prior to Gant, the rules for a vehicle search incident to arrest were established in New York v. Belton (1981) 453 U.S. 454. "[W]e hold that when 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." (Id. at p. 460, fns. omitted.) Belton has been widely understood in California and other jurisdictions to permit officers to conduct warrantless searches of the interior of an automobile after the arrest of a recent occupant, even if the arrestee had been removed from the vehicle and there was no possibility that he or she could gain access to the vehicle at the time of the search. (Gant, supra, 556 U.S. at p.__; People v. Hunt (1990) 225 Cal.App.3d 498, 507-509; People v. Stoffle (1991) 1 Cal.App.4th 1671, 1680-1682; People v. Baker (2008) 164 Cal.App.4th 1152, 1157-1158.)
Gant revisited Belton and held that police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant, supra, 129 S.Ct. at p. 1719, fn. omitted.) Gant also held that a search of an automobile incident to arrest is reasonable if the officer believes that evidence of the offense of arrest might be found in the vehicle. (Ibid.) It has since been held that Gant is retroactive to searches which occurred prior to the court's ruling, and in cases that were pending on direct review and not yet final when Gant was decided. (Davis v. U.S. (2011) __ U.S. __ [131 S.Ct. 2419, 2431] (Davis).)
While the search here was invalid under Gant (because defendant was not within reaching distance of the vehicle at the time of the search and the officer was not searching for evidence of his suspended license), the trial court found probable cause to search based on Esteves's observations and prior knowledge of defendant. We need not determine if this ruling by the trial court was correct because the good faith exception to the exclusionary rule as set forth in United States v. Leon (1984) 468 U.S. 897 applies and if the ruling of the trial court is right upon any theory of the law applicable to the case it will be sustained on appeal. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Although neither party raised this exception below and have not raised it on appeal, we are not limited in our consideration of applicable theories when they are directly related and encompassed in the issue raised on appeal.
--------
The United States Supreme Court in Davis, supra, 131 S.Ct. 2419 held that evidence seized from a car during a search incident to arrest was not subject to the exclusionary rule because the officer conducted the search in "objectively reasonable reliance on [the] binding appellate precedent" of Belton, and because "suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety ..." (Davis, supra, at pp. 2423-2424.) "Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." (Id. at p. 2429.)
The search here occurred prior to Gant, when the rule of Belton had not yet been overturned. "[W]hen the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply." (Davis, supra, at p. 2434.) The search was conducted incident to arrest, the officer reasonably relied on the precedent set forth in Belton, and the good faith exception applies.
DISPOSITION
The judgment is affirmed.