Opinion
F062591
02-22-2012
THE PEOPLE, Plaintiff and Respondent, v. LEAMON EUGENE PHELPS, JR., Defendant and Appellant.
Patrick J. Hennessey, Jr., 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, Catherine Chatman and Raymond L. Brosterhous II, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF135469A)
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Patrick J. Hennessey, Jr., 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Leamon Eugene Phelps, Jr., pled guilty to transportation of methamphetamine (count 1/Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364), creating or passing a forged California license plate (Veh. Code, 4463, subd. (a)(2)) and misdemeanor driving with a suspended license (Veh. Code, § 14601, subd. (a)). Phelps also admitted two prior conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)) in count 1, two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).
On May 18, 2011, the court struck Phelps's strike conviction and sentenced him to an aggregate seven-year term: the low term of two years on his transportation of methamphetamine conviction, two consecutive one-year prior prison term enhancements, and a three-year prior conviction enhancement.
On appeal, Phelps contends the court erred when it denied his motion to suppress. We affirm.
FACTS
On January 31, 2011, Bakersfield police officers arrested Phelps after stopping the car he was driving and discovering that his driver's license was suspended. During an ensuing search of Phelps's car, the officer found methamphetamine.
Subsequent references to dates are to dates in 2011.
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On March 9, Phelps filed a motion to suppress alleging that his detention was unreasonable and that his subsequent arrest was not supported by probable cause.
On April 7, at a hearing on the motion, Bakersfield Police Officer Colby Earl testified that on January 31, at approximately 9:50 p.m., he was on patrol when he saw an SUV driven by Phelps heading north on Jewetta Avenue fail to stop at a posted stop sign at the intersection of Reina Road. The vehicle then made a U-turn and travelled southbound. As it entered the intersection at Reina, the vehicle came to a stop. Earl pulled up to the driver's door at a perpendicular angle and illuminated the vehicle with his high beam from a distance of about eight feet. When Earl turned on his emergency lights, Phelps, the sole occupant, began making furtive movements towards the floorboard and center console of the car.
Phelps identified himself and stated that his license was suspended. Phelps initially told the officer that the car belonged to a friend's wife before admitting that he was the primary driver and the unregistered owner of the car. Earl had Phelps exit the vehicle and patted him down after obtaining consent to do so. Earl did not find anything on Phelps during the initial patdown. After confirming that Phelps's license was suspended, Earl placed Phelps under arrest, searched him incident to the arrest, and found a clear glass methamphetamine pipe concealed in the sleeve of Phelps's sweatshirt. Earl requested backup and two officers, including one with a canine, soon arrived on the scene. The officer with a canine searched the vehicle and found a baggie containing methamphetamine located between the center console and front driver's seat.
The officers also conducted an inventory search of the car. During the search they found that the registration tag on the license plate had the numbers 2011 written on it even though a check of the plate disclosed that the registration had expired in 2010. Phelps admitted altering a 1995 registration tag to look like a 2011 registration tag, that the powder in the baggie was methamphetamine, and that the methamphetamine pipe and the methamphetamine belonged to him.
Defense counsel argued in support of the motion to suppress that there was an issue whether there was a reasonable probability that Phelps ran a stop sign and whether that violation was "reasonable enough to justify [the] detention." The prosecutor responded that the officer was justified in detaining Phelps because he ran a stop sign at 55 miles per hour, made an illegal U-turn, and did not stop at the limit line.
After hearing argument, the court denied the motion.
DISCUSSION
Phelps cites Arizona v. Gant (2010) 556 U.S. _ (Gant) to contend that the search of his car was illegal because it was not reasonably related to his arrest for driving with a suspended license. Respondent contends that Phelps is precluded from raising this theory on appeal because he did not raise it in the trial court and, in any event, the discovery of the methamphetamine pipe justified the search of the car. We agree with respondent.
In People v. Williams (1999) 20 Cal.4th 119 (Williams), our Supreme Court examined the specificity with which a defendant must make a motion to suppress evidence pursuant to Penal Code section 1538.5. "[W]hen the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion." (Williams, supra, 20 Cal.4th at p. 130.) Once the defendant meets the foregoing specificity requirement, "[t]he prosecution ... has the burden of proving some justification for the warrantless search or seizure ...." (Id. at p. 136.)
But, the court stated further, "once the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.] Otherwise, defendants would not meet their burden under [Penal Code] section 1538.5 of specifying why the search or seizure without a warrant was 'unreasonable.' This specificity requirement does not place the burden of proof on defendants. [Citation.] [T]he burden of raising an issue is distinct from the burden of proof. The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citation.] But, if defendants detect a critical gap in the prosecution's proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal." (Williams, supra, 20 Cal.4th at p. 130.) "Defendants cannot ... lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (Id. at p. 131.) "Defendants who do not give the prosecution sufficient notice of [the] inadequacies [in the prosecution's proposed justification for a warrantless search or seizure] cannot raise the issue on appeal." (Id. at p. 136.) "'This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions.'" (Ibid.)
Phelps did not argue in the trial court that his arrest for driving on a suspended license did not justify the search of his car. Therefore, he is precluded under Williams from raising this argument on appeal. However, even if this issue were properly before us, we would reject his claim that the court erred in denying his suppression motion.
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We 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." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
"The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement ...." (People v. Parson (2008) 44 Cal.4th 332, 345.) Warrantless searches like the one at issue here, i.e., "searches conducted outside the judicial process, without prior approval by judge or magistrate" "are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.) One of the specifically established exceptions to the Fourth Amendment's warrant requirement is "a search incident to a lawful arrest." (United States v. Robinson (1973) 414 U.S. 218, 224.)
In Gant, supra, 556 U.S. _ , the United States Supreme Court clarified prior authority regarding the search of a vehicle incident to the lawful arrest of an occupant of the vehicle and held that the police are authorized "to search a vehicle incident to a recent occupant's arrest .11 when [1] the arrestee is unsecured and within reaching distance of the passenger compartment at the time of search" or "[2] when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" (Id. at p. 1719, fn. omitted.)
In explaining the second of these justifications, which we sometimes refer to as the evidence-gathering justification, the court stated the following: "In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence." (Gant, supra, 129 S.Ct. at p. 1719.) As examples of such cases, the court cited Atwater v. Lago Vista (2001) 532 U.S. 318, 324 (failure to wear a seat belt) and Knowles v. Iowa (1998) 525 U.S. 113, 118 (speeding). (Gant, at p. 1719.) In other cases, "the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." (Ibid.) Such cases include New York v. Belton (1981) 453 U.S. 454 and Thornton v. United States (2004) 541 U.S. 615. The defendants in those cases were arrested for "drug offenses." (Gant, at p. 1719.)
As applied to this case, we find the evidence-gathering justification set forth in Gant supported the search of defendant's vehicle. Earl testified that after arresting Phelps for driving with a suspended license, he searched him incident to the arrest and found a methamphetamine pipe. Based on Gant, there was clearly probable cause to arrest Phelps for possession of a methamphetamine pipe, and there was a reasonable basis to believe the vehicle contained evidence relevant to the offense for which Phelps had been arrested, such as drugs or additional drug paraphernalia. (See, e.g., People v. Osborne (2009) 175 Cal.App.4th 1052, 1062-1065.) Earl's search of Phelps's vehicle was thus justified by the "evidence-gathering" theory as set forth in Gant, supra, 129 S.Ct. at page 1726.
DISPOSITION
The judgment is affirmed.