Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from a judgment of the Superior Court of Los Angeles County Super. Ct. No. PA055168, Harvey Giss, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant Avelino Padilla.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant Veronica Flores.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendants Avelino Padilla and Veronica Flores appeal from the judgment entered following their pleas of no contest to having a concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)(1)), taken after the trial court denied their motion to suppress (§ 1538.5). We affirm.
Padilla pled to the charge as a felony. Flores pled to the charge as a misdemeanor.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
On April 29, 2006, at approximately 2:00 a.m., Los Angeles Police Officer Charles Dinse and his partner, Officer Vargas, were traveling in their marked patrol car when Officer Dinse saw a white Saturn driving west on Van Nuys Boulevard. The vehicle had a paper bearing the name Galpin Ford, which partially covered the rear metal license plate. Believing that the vehicle had been stolen or that the occupants had been recently involved in criminal activity, the officers conducted a felony traffic stop. Additional units were requested, and upon their arrival, the occupants of the Saturn were asked to exit. When the occupants got out, they were put on their knees and handcuffed while the vehicle was searched for additional suspects.
The stop was conducted in Latin Type Pacoima gang territory, and Padilla was a member of that gang. Dinse recognized Padilla from a prior gang investigation.
Padilla had been in the front passenger seat of the Saturn, and Flores had been in the driver’s seat. After it was determined that defendants were the only occupants of the stopped vehicle, the other officers who had responded to the scene left.
After Dinse determined that Flores was the registered owner of the Saturn, he received permission from defendants to search the vehicle, although Padilla denied that he owned the car, saying it was his girlfriend’s car. Dinse spoke to defendants as they stood handcuffed on the sidewalk.
When Dinse entered the vehicle, he saw gang paraphernalia, and noticed that screws were missing from the center console and the console was loose. Without the use of tools, he was able to take the side panel off of the console. He saw the butt of a handgun. Approximately 10 minutes had passed from the time the officers stopped the vehicle to the discovery of the gun.
Flores testified that she did not give Dinse permission to search her vehicle.
DISCUSSION
In reviewing the denial of a motion to suppress, “[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) As each defendant’s circumstances are different, we will examine each case separately.
I. Padilla’s Appeal
The vehicle that was searched belonged to Flores. As they did in the trial court, the People contend that Padilla had no reasonable expectation of privacy in the vehicle. We agree. “A passenger in a vehicle may not challenge the seizure of evidence from the vehicle if the passenger asserts ‘neither a property nor a possessory interest in the automobile nor an interest in the property seized.’” (People v. Valdez (2004) 32 Cal.4th 73, 122, citing Rakas v. Illinois (1978) 439 U.S. 128, 148.) As he expressly disavowed an interest in the vehicle and asserted no interest in any property located in the vehicle, Padilla lacked a reasonable expectation of privacy in the vehicle. Consequently, the trial court properly denied his motion to suppress. (Ibid.)
Padilla asserts he is married to Flores, and is not an ordinary passenger. His claim is not supported by the evidence. On cross-examination, Officer Dinse was asked whether Padilla denied ownership of the vehicle. Dinse replied that Padilla said, “It was his girlfriend’s car.” It was Padilla’s counsel who then asked, “Wife/girlfriend?” To which Dinse responded, “Girlfriend/wife.” No further testimony regarding the nature of Padilla and Flores’s relationship was elicited. There is simply no evidence to support Padilla’s claim that Flores is his wife.
Padilla attempts to get around the failure of proof by contending that “the probation report makes it[] clear that the couple have two children together. . . . As such, it is clear that appellant and co-defendant are more than just boyfriend and girlfriend. Even if they were not legally married, they shared many of the characteristics of being married and, as a result, appellant should have an expectation of privacy in a car registered to his co-habitant and mother of his children.” The problem with Padilla’s argument is that the probation report was not in evidence before the trial court when it ruled on the suppression motion. We need not address the issue further.
II. Flores’s Appeal
Flores argues that her consent to search was coerced and that the scope of any consent was exceeded when Officer Dinse removed the panel from the console. We reject both contentions.
On the question of consent, as we have noted, Flores denied that she gave Officer Dinse permission to search her vehicle. She did not testify to any circumstances that might have led the trial court to believe that Dinse coerced her into giving consent. The trial court accepted the officer’s testimony and found that Flores’s consent was not coerced. “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings—whether express or implied—must be upheld if supported by substantial evidence. [Citations.]” (People v. Superior Court (Keithley)(1975) 13 Cal.3d 406, 410.)
Nonetheless, Flores asserts that any consent she may have given was coerced as a matter of law. She cites five facts in support of her claim: 1) she was taken out of the car at gunpoint; 2) she was handcuffed; 3) she was not advised of her Miranda rights; 4) she was not advised of her right to refuse to give consent; and 5) the consent was tainted by an unreasonable detention. Her contention lacks merit.
Miranda v. Arizona (1966) 384 U.S. 436.
In every case, the voluntariness of consent is a factual question that must be decided after a review of all of the circumstances. (People v. James (1977) 19 Cal.3d 99, 106.) The important question is what was the state of affairs at the time Flores was asked to give consent? The fact that the officers initially drew their weapons is not significant because the evidence clearly established that the guns were not out at the time Flores gave consent. (See People v. Ratliff (1986) 41 Cal.3d 675, 686 [fact that officers originally drew guns does not invalidate later consent to search].) In fact, the allegedly coercive nature of the stop had dissipated by the time Flores was asked to consent to the search. All of the parties had moved to the sidewalk, and had engaged in conversation. Flores had been advised of the officers’ concern that the car was stolen, and she knew they had determined that it was not. The other officers had left the scene and the weapons had been holstered. The fact that Flores was handcuffed does not, by itself, render the consent involuntary. (People v. James, supra, 19 Cal.3d at p. 110.) Likewise, Flores’s consent is not presumptively tainted because Officer Dinse failed to advise Flores of her Miranda rights or her right to refuse to permit the search. (Id. at pp. 114-116.)
In a similar case, People v. Aguilar (1996) 48 Cal.App.4th 632, officers went to an apartment at 10:40 p.m. to serve an arrest warrant on the defendant. When the defendant answered the door, the officers entered and arrested him. During a protective sweep, one of the officers put his foot through a bedroom door. Some of the occupants, including the defendant’s brother, were handcuffed. The brother later gave consent to search. Aguilar argued that his brother’s consent was coerced “based upon the following factors: the lateness of the hour, the display of the weapon, the fact that [his brother] was handcuffed, the number of officers and the failure of the officers to advise Daniel of his right to refuse consent.” (Id. at p. 640.) The trial court’s determination that consent had not been coerced was upheld. (Ibid.) We believe the same result is warranted here.
Flores also argues that her consent was coerced because the detention was unduly prolonged. She correctly cites People v. McGaughran (1979) 25 Cal.3d 577, 584, for the proposition that an officer may detain a motorist for only that period necessary to discharge the duties required by the traffic stop. However, the detention here was not a mere traffic stop. Officer Dinse testified that he believed the vehicle had been stolen or that its occupants may have recently committed a crime. He specifically stated that he did not stop the vehicle for the purpose of issuing a citation to the driver. The detention lasted approximately 10 minutes before the officer’s discovery of the gun. Flores claims that once the police determined her vehicle was not stolen, the detention should have ended. She ignores the fact that the officer also believed that the occupants of the Saturn might have been recently involved in criminal activity. Given the circumstances, continuing the detention for a brief period was not unreasonable.
We conclude the trial court’s finding that Flores voluntarily consented to the search of her vehicle is supported by the evidence.
Whether Officer Dinse exceeded the scope of Flores’s consent presents a closer question. “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? [Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno). The prosecution has the burden of proving that a search was within the scope of the consent given. (People v. Harwood (1977) 74 Cal.App.3d 460, 466.) “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.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408 (Crenshaw).)
Flores relies on the case of People v. Cantor (2007) 149 Cal.App.4th 961 (Cantor) to support her view that Officer Dinse’s search exceeded the scope of her consent. In Cantor, the officer attempted to stop a vehicle after the driver had committed several traffic violations. Once the vehicle yielded, the officer asked the driver, Cantor, to exit. The officer detected the odor of marijuana, and he asked Cantor if he had been smoking some “weed.” After Cantor denied doing so, the officer asked if he could search Cantor’s car “real quick.” Cantor agreed. (Id. at pp. 963-964.) The officer took Cantor’s keys, opened the trunk, looked through it, and closed the lid. After thoroughly searching the engine compartment and the interior of the vehicle several times, he told Cantor that he was going to get a drug-sniffing dog. Cantor did not object. While going through the trunk again, the officer found a wooden box. Cantor said that it was a record-cleaning machine. After inspecting the box and seeing a bag inside through a mesh screen, the officer opened the back panel of the box with a screwdriver. Inside the bag, he found narcotics. (Id. at p. 964.)
The appellate court reversed the trial court’s denial of Cantor’s suppression motion. The panel noted that the officer had received permission to conduct a “real quick” search of the vehicle. After thoroughly searching for 15 minutes, the officer had not found anything incriminating. The court determined: “At that point, if not sooner, the search should have ceased. A typically reasonable person would not have understood defendant’s consent to a ‘real quick’ search to extend beyond that point, much less to include authorization to unscrew the panel of a piece of equipment during a second search of the trunk while awaiting the arrival of a drug-sniffing dog.” (Cantor, supra, 149 Cal.App.4th at p. 965.) The court reasoned further that “[e]ven if the length of the search were not an issue, no typically reasonable person would have understood defendant’s consent to extend to unscrewing the back panel of the record-cleaning machine.” (Id. at p. 966.) The court relied on a case, State v. Wells (Fla. 1989) 539 So.2d 464, 467 (Wells), where the Florida Supreme Court held that consent to search a trunk did not give the officer authorization to break open a locked briefcase located in the trunk. The Cantor court analogized the record-cleaning machine box to locked luggage, and concluded that Cantor had manifested a greater expectation of privacy by placing the contraband inside of the box and securing it with screws. Thus, general consent to search did not extend to the box. (Cantor, supra, at p. 967.)
The People cite Crenshaw, supra, 9 Cal.App.4th 1403, to bolster their argument that the officer’s search was within the scope of Flores’s consent. In that case, the officer stopped Crenshaw for a traffic violation. The officer asked Crenshaw if he “‘had any drugs in the vehicle,’” and whether he could search the vehicle “‘for drugs.’” (Id. at p. 1407.) After receiving permission to search the vehicle, the officer walked to the car while Crenshaw opened the door to retrieve the keys to the trunk. The officer noticed that the vent to the door post was secured with a screw that appeared to have been tampered with recently. Using a screwdriver, the officer removed the screw from the door vent. Inside the post, previously covered by the vent, the officer found a weapon and drugs. (Id. at pp. 1407-1408.)
The court noted that Crenshaw had been told that the officer wanted to search for drugs. It concluded that Crenshaw’s consent should extend to any location within the vehicle that might reasonably hold narcotic contraband, and held that the door panel was the type of location an experienced officer would search to find drugs. (Crenshaw, supra, 9 Cal.App.4th p. 1415.) The court relied on Jimeno, supra, 500 U.S. 248, a case where the driver of a vehicle gave an officer permission to search it for drugs, and did not place any explicit limitation on the scope of the search. The Supreme Court concluded: “We think that it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs.” (Id. at p. 251.) The court upheld the search of a paper bag that was on the car’s floor.
The Crenshaw court concluded that the officer’s removal of the door vent did not cause the search to be beyond the scope of the consent to search the vehicle. The panel noted the ease with which the officer was able to remove the door vent. It distinguished Crenshaw’s case from Wells. “The officer did not rip the vent from the door; he merely loosened a screw with a screwdriver and removed it.” (Crenshaw, supra, 9 Cal.App.4th at p. 1415.)
Our case does not fit squarely into either the Cantor or Crenshaw scenario. Here, Officer Dinse did not tell Flores that he wanted to search for drugs. He obtained a general release to search the vehicle. Flores did not attempt to limit the scope of the search in any way. Although Flores asserts that the officer did not remove the panel until he had found nothing in the console or the rest of the car, the claim is not supported by the evidence. The record is silent on the questions of how long or how thoroughly the officer searched the vehicle before locating the loose console panel. If anything, the evidence suggests the console was one of the first areas Dinse searched. The officer testified that during vehicle searches, he went to the center console as a matter of course.
We find Cantor distinguishable. Officer Dinse did not tell Flores that he merely wanted to conduct a “real quick” search of her vehicle. There was no evidence that the officer unsuccessfully searched the entire vehicle before returning to the console to take a second or third look. We have already determined that the detention was not impermissibly prolonged. The most salient difference is that Officer Dinse did not open a closed and secured container.
Flores makes the broad statement that “a reasonable person would not think that the officer would pry the console apart even if it required no tools and even if it resulted in no damage.” We disagree. We believe a reasonable person, knowing that an officer is looking for illegal contraband, would expect that the officer would examine an area of a vehicle that, although generally secured, is altered to allow easy access. Indeed, no reasonable person would expect a searching officer not to examine an obviously tampered part of a vehicle. As the Supreme Court noted, “Contraband goods rarely are strewn across the trunk or floor of a car.” (United States v. Ross (1982) 456 U.S. 798, 820.) In our case, Officer Dinse would have been remiss if he had not scrutinized the console panel after he discovered the missing screws.
We uphold the trial court’s determination that the search of the vehicle was within the scope of Flores’s consent, as it was not clearly erroneous. (Crenshaw, supra, 9 Cal.App.4th at p. 1408.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.