Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. CC645092, CC755026, CC762424.
Bamattre-Manoukian, J.
After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant Kenneth Robert Rangel entered negotiated guilty and no contest pleas to various drug and weapons offenses. Pursuant to the plea agreement, the trial court sentenced defendant to eight years in state prison. On appeal, defendant contends that the trial court erred in denying his motion to suppress, as the officer did not have probable cause to search his vehicle, and that the subsequent consent to search his house was the fruit of the unlawful search of the vehicle. We will affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by information No. CC645092 with possessing methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1; count 1), possessing a loaded firearm while under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (e); count 2), child endangerment (§ 273a, subd. (a); count 3), two counts of possessing a short-barreled shotgun (§ 12020, subd. (a)(1); counts 4 & 5), carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1); count 6, a misdemeanor), and possessing drug paraphernalia (Health & Saf. Code, § 11364; count 7, a misdemeanor). The offenses were alleged to have occurred on October 7, 2006.
Defendant was charged by information No. CC755026 with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 2, a misdemeanor), and possessing drug paraphernalia (count 3, a misdemeanor). The offenses were alleged to have occurred on January 19, 2007, while defendant was out of custody on bail (§ 12022.1).
Defendant was charged by felony complaint No. CC762424 with inflicting corporal injury on a spouse (§ 273.5, subd. (a)). The offense was alleged to have occurred on March 7, 2007, while defendant was out of custody on bail.
On September 11, 2007, defendant filed a motion to suppress the evidence in case No. CC645092, contending that the police did not have probable cause to search his vehicle on October 7, 2006. The prosecutor filed opposition to the motion on September 25, 2007, contending that under the totality of the circumstances the officer had reasonable suspicion justifying the detention and search and that, regardless, the encounter would have led to the inevitable discovery of defendant’s handgun. San Jose Police Officer Rocky Zanotto, the sole witness at the hearing on the motion, testified as follows.
Around 1:00 p.m. on October 7, 2006, the officer responded to the post office at Hillsdale and Ross Avenues to do a welfare check based on a report of a young child possibly left unattended in a vehicle. The child was described as having dark hair and wearing a striped shirt, and the vehicle was described as a tan or light-colored truck. The officer arrived at the post office approximately five minutes after receiving the call and saw seven or eight vehicles parked in the parking lot. One of the vehicles was a large, raised, light primer gray Chevy Blazer.
The officer, who was driving a marked patrol car and in uniform, saw the Blazer as he pulled into the parking lot. As he drove closer to the Blazer, he could see a child in a striped shirt standing and moving around on the back seat of the Blazer. “The vehicle was open, meaning it had no – it had no top. It was a – it had no top on the back of it. The older Blazers have removable backs. The front has a top, but the back removes, so I [could] see into the back.” It appeared to the officer that the child was the only person inside the vehicle, but that the child was not in any distress.
The officer sat in his parked patrol car and watched the Blazer for about a minute. The head of an adult male, who he identified as defendant, momentarily popped up in the driver’s seat area of the Blazer and then disappeared again as the officer exited his patrol car. No vehicle was parked in the stall next to the driver’s side of the Blazer, and the officer walked up to the driver’s side of the Blazer from the back. “I walked up in an attempt to make contact with the person who was seated in the driver’s seat, and basically investigate whether or not the child was left unattended and to investigate the original report.” “The vehicle was raised, so basically I’m about 6 feet tall, so the handle of the vehicle was about at my chest level . . . . So I couldn’t see the vehicle seat at that time, just standing along the side of it.” Although the driver was sitting up at that point, “I couldn’t see anything below the person’s neck.” “I couldn’t see his hands, but he appeared to be moving around quite a bit. I’m not sure why.” “I could see this body movement this way, turning to his right, turning to left, moving forward, backwards.” “He is more looking to the right and center, right and center, looking back towards the child.” “He was reaching around. I don’t know, back towards the child . . . . I don’t know what he was reaching for. He just appeared to be moving around.” The officer could also see the top of the head of a woman who was seated in the front passenger seat of the Blazer.
The officer did not think at that time that the persons in the vehicle with the child may have just been out of view of the person who reported a possible unattended child in a vehicle. He “took it at face value that the child had been left unattended” despite seeing two adults in the vehicle with the child. Prior to this incident, he had responded to other reports of a child left unattended in a vehicle but found adults in the vehicle when he arrived. In those situations he still contacted the adults, and he planned to do the same in this case.
Without announcing his presence, and while an arm’s length away from the Blazer, the officer opened the driver’s side door of the Blazer. “Based on the height of the vehicle, and the nervous kind of appearance of the driver – I also noticed distinct tattoos on his neck and head – to communicate with him and for officer safety reasons, I opened the door up and announced myself, Hey, how are you doing, basically to investigate the crime or the alleged accusation of the child being left unattended.” “I felt it was reasonable to make contact with [defendant] and to provide myself with safety . . . . I didn’t think at the time and I don’t think now that it was unreasonable to open the door and make contact with him based on that.” Once the officer opened the driver’s side door, he saw an item hanging from defendant’s neck.
“Once I opened the door up, the driver was even more nervous and sweating and was moving around quite a bit, he looked at me, obviously he noticed that I was a police officer and appeared very nervous. He was moving side to side, and I saw the hanging item move quite a bit, and I was able to catch a reflection of ammunition from the chamber of the [revolver] that was hanging from his neck.” “Similar to from a chain. Like a necklace almost, but a holster was attached to the end if it and the firearm” was in the holster. “At th[at] point I feared for my safety obviously, based on [defendant’s] demeanor, his nervous behavior, his tattoos and the fact that he was wearing a loaded firearm, I ordered him to put his hands on the steering wheel.”
Defendant did not comply with the officer’s order, but asked the officer “ ‘what is going on, what did I do?’ ” The officer again ordered defendant to put his hands on the steering wheel, and again defendant did not comply. The officer then said, “Hey, at least listen to your wife, she asked you a question.” When defendant turned his attention to the woman beside him, the officer pulled out his duty weapon. Defendant saw the officer’s gun and then complied with his orders. The officer retrieved defendant’s gun, secured it, ordered the woman to hold onto the child and ordered defendant onto the ground. Other officers arrived about two minutes later.
The woman in the Blazer with defendant was identified as Tanya Romero, and the child was identified as their three-year-old son. A search of the Blazer revealed a loaded 9 millimeter firearm on the front center floorboard under a black T-shirt, numerous rounds of ammunition, knives, methamphetamine, and loaded syringes. The parties stipulated that Romero signed a consent-to-search form for the couple’s home, and that a subsequent search of the home revealed numerous weapons, including two sawed-off shotguns, and ammunition and drug paraphernalia,
The prosecutor argued to the court that the officer had every reason to approach the Blazer, and that, for officer safety reasons based upon the totality of the circumstances, the officer reasonably decided to open the vehicle’s door so that he could communicate with defendant. The prosecutor further argued that, even if the officer had not opened the door, he would have inevitably discovered the handgun during his contact with defendant. “There was – [the] officer testified he would have made contact with the adult there just to make sure everything was okay. And he would have made contact with him by asking him to step out, or at least speak to him face to face. And any point after that, he would have seen the revolver and had he tried to secrete the revolver, tried to take it off and stick it underneath his shirt, he would have seen that movement as well. [¶] So you have an officer who has every reason to make contact with this particular person. He would have talked to him. He would have detained him, at least investigated, and at that time when you have a revolver on your chest and in plain view, that would have certainly given cause to, to either arrest him, or at least search the vehicle to make sure there weren’t any weapons in the vehicle.”
Defendant argued that the officer “may have had a right to at least make an inquiry” to assure himself that everything was okay. However, because the officer saw two adults in the car with the child and he did not first make an oral inquiry, “I don’t think there is really a basis whatsoever for the officer to believe there is criminal activity afoot” at the time the officer opened the vehicle’s door. Therefore, it was not reasonable for the officer to open the door. Defendant did not argue the issue of inevitable discovery as the court stated that the issue was not “where I’m going to base my decision. If for some reason I think that that’s where I’m going to base my decision, I will let you both argue, but that’s – with all due respect to [the prosecutor], I am not that caught up in that.”
The court denied defendant’s motion to suppress, ruling as follows. “The officer got a call to respond to a post office parking lot because there was a child unattended in a described vehicle, arrives and sees the child in what, at least part of the vehicle apparently is open, almost like a convertible, and in my mind I think I have a picture of what the vehicle looks like. The child is not unattended. It turns out there is at least one other adult in the vehicle.
“I view this case in a sense that, not only is the officer responding for some suspected criminal behavior, but also going to check on the welfare of the child. He does see an adult in the vehicle with the child, could be the parents or the guardians of the child, or it could be some people with some really motives about kidnapping not only the vehicle, but the child with it. It’s not uncommon for us in everyday life to have people get into the car and the child in the car. So I think it was reasonable for the officer, in light of that, to do some further investigation, and talk to the adults in the car.
“And it’s at this point where I think that if it had been a low-slung sports car, and Mr. Rangel was in the car, had a blanket across his lap up to around mid waist, and his hands were moving underneath the blanket, I do think that the officer for officer safety would have a right to remove the blanket to see what his hands were doing. I can’t envision a situation that would require an officer to continue having a discussion with somebody whose hands were completely covered by a blanket.
“The analogy that I draw from that is the door to this vehicle is like a blanket. In other words, that door is blocking the view of the officer. And that he had a right to open the door, not to go in, but to be able to see Mr. Rangel’s body and what his hands, arms and lower body were doing at that moment.
“So I think that it was reasonable for him for that purpose, in other words, to open the door, to remove that piece of metal that was blocking his view of Mr. Rangel’s body, and then from there we all know that he made an observation that there was a handgun hanging around Mr. Rangel’s neck, and I think everything that flowed from that was completely reasonable.”
On October 1, 2007, defendant entered into a negotiated plea agreement whereby, in exchange for a sentence of eight years, he pleaded guilty or no contest to counts 1 through 4 in information No. CC645092, to counts 1 through 3 in information No. CC755026, and to the one count in complaint No. CC762424, and admitted the on-bail allegation as to that one count. Pursuant to the plea agreement, on October 26, 2007, the trial court sentenced defendant to eight years in state prison, and ordered him to pay various fines and fees. Defendant filed a timely notice of appeal. (Cal. Rules of Court, rule 8.304(b)(4)(A).)
DISCUSSION
Standard of Review
“As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to [plaintiff] as respondent[] since ‘all factual conflicts must be resolved in the manner most favorable to the [superior] court’s disposition on the [suppression] motion.’ [Citation.] But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found.” (People v. Woods (1999) 21 Cal.4th 668, 673-674; People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Lawler (1973) 9 Cal.3d 156, 160.)
A trial court’s ruling, if legally correct, will not be disturbed on appeal merely because its reasoning was erroneous. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
The Parties’ Contentions
In his opening brief, defendant contends that the trial court erred in denying his motion to suppress. He argues that the officer’s act of opening the Blazer’s door was a search subject to Fourth Amendment protections, and that the officer did not have probable cause to justify the search. And, because the search was unlawful, all fruits of the search, including the officer’s observations, the items seized from the vehicle, and the items seized from his home after Romero signed a consent-to-search form, should have been suppressed. In a supplemental opening brief filed with leave of court, defendant contends that his detention was unlawful because the report of a possibly unattended child in a vehicle was from an unknown person and the officer failed to independently corroborate the reported suspicions before undertaking the detention.
In response, the Attorney General first contends that the officer’s opening of the door did not constitute a search. The Attorney General contends that, should this court find that it did constitute a search, the officer had reasonable suspicion to justify the search. The Attorney General also contends that defendant has no standing to challenge Romero’s consent to search their home. And, in response to defendant’s supplemental brief, the Attorney General contends that the information provided in the report of a possibly unattended child wearing a striped shirt in a truck was corroborated by the officer when he saw a child wearing a striped shirt standing in the Blazer parked in the post office parking lot.
We also asked the parties to brief the following issues: Does a child welfare check constitute exigent circumstances justifying a warrantless entry or search of a parked vehicle? Would the officer have inevitably discovered defendant’s revolver during his child welfare check if the officer had not opened the vehicle’s door?
Defendant argues that a child welfare check does not constitute exigent circumstances justifying the search in this case and that the officer would not have inevitably discovered defendant’s revolver. The Attorney General argues that the officer was justified in attempting to enter the vehicle to conduct a child welfare check and that the handgun would have been inevitably discovered even if the officer had merely detained defendant and ordered him out of the vehicle.
The Law
Pursuant to the California Constitution, article I, section 28, a trial court may exclude evidence under section 1538.5 only if the exclusion is mandated by the Fourth Amendment to the federal Constitution. Exclusion is mandated under the Fourth Amendment only if the search or seizure was unreasonable in light of the totality of the circumstances presented. (In re Lance W. (1985) 37 Cal.3d 873, 896; People v. Souza (1994) 9 Cal.4th 224, 230 (Souza).)
An officer may legally detain a suspect based upon a reasonable suspicion that the suspect has committed or is about to commit a criminal offense. (Terry v. Ohio (1968) 392 U.S. 1, 22 (Terry).) “California cases indicate that a citizen’s tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083 (Wells).) “Even where the police receive information from an anonymous source, if independent police investigation establishes sufficient indicia of reliability for the tip, a temporary investigative detention is permissible.” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1577; see also Alabama v. White (1990) 496 U.S. 325, 331-332.)
“Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.] But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.” ’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances, “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1083.)
When an officer has lawfully detained a suspect, he may conduct a limited search of the suspect’s person for weapons that might be used to harm the police officer or others. (Terry, supra,392 U.S. at pp. 25, 27, 29.) However, the officer must have reasonable grounds to believe that the suspect is armed and dangerous. (Id. at p. 21.) “[T]here is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ [Citation.]” (Terry, supra, 392 U.S. at p. 21.) “And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? [Citations.]” (Id. at pp. 21-22, fn. omitted.) Accordingly, an appellate court determines objectively whether an officer’s belief that a suspect is armed and dangerous was reasonable and in consideration of specific, articulable facts known by the officer which formed that belief. (Souza, supra, 9 Cal.4th at pp. 229-230; People v. Medina (2003) 110 Cal.App.4th 171, 176-177.) “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry, supra, 392 U.S. at p. 27.)
A police officer’s entry into a vehicle is, in the constitutional sense, a search of that vehicle. (See People v. Gale (1973) 9 Cal.3d 788, 794-795; see also People v. Zichwic (2001) 94 Cal.App.4th 944, 954; People v. Rico (1979) 97 Cal.App.3d 124, 133.) Nevertheless, during an investigative stop, “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Michigan v. Long (1983) 463 U.S. 1032, 1049; see also United States v. Ross (1982) 456 U.S. 798.) The quantum of suspicion necessary for a protective search of the passenger compartment of a vehicle during an investigative stop is the same as that required for a protective search of a lawfully detained suspect under Terry. (See Knowles v. Iowa (1998) 525 U.S. 113, 117-118.) “Our past cases indicate . . . that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect.” (Michigan v. Long, supra, 463 U.S. at p. 1049, citing Terry, supra, 392 U.S. at p. 21.)
Activities which in isolation may seem innocuous, in proper context, can indicate criminal activity to an officer with special training and experience. (People v. Carvajal (1988) 202 Cal.App.3d 487, 495-496.) “Experienced police officers naturally develop an ability to perceive the unusual and suspicious which is of enormous value in the difficult task of protecting the security and safety of law-abiding citizens.” (People v. Cowman (1963) 223 Cal.App.2d 109, 117.) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. (In re Tony C. (1978) 21 Cal.3d 888, 894; see also People v. Renteria (1992) 2 Cal.App.4th 440, 444.)
“It is well settled that ‘the law requires more than a mere “furtive gesture” to constitute probable cause to search . . . .’ ” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1240, citing People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 818, People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 206.) In the past, our Supreme Court has rejected the argument that “furtive gestures” furnish probable cause to search a vehicle for contraband in the absence of additional facts since such gestures are often innocuous. (See People v. McGaughran (1979) 25 Cal.3d 577, 590; see also Kiefer, supra, 3 Cal.3d at p. 817.) However, the fact that a person’s furtive movements could have an innocent explanation does not require an officer to ignore them, especially when the furtive movements are properly considered together with the other information known to the officer. (See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230; see also People v. Warren (1984) 152 Cal.App.3d 991, 997.)
Under the “emergency aid exception” to the Fourth Amendment warrant requirement, police officers may enter a dwelling or vehicle in order “ ‘to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance.’ [Citation.] ‘ “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” [Citation.] And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. [Citations.]’ [Citations.]” (People v. Ray (1999) 21 Cal.4th 464, 470-471 (lead opn. of Brown, J.).) “ ‘[T]he community caretaker exception is only invoked when the police are not engaged in crime-solving activities.’ [Citations.]” (Id. at p. 471.) “Upon entering a dwelling [or vehicle], officers view the occupant as a potential victim, not as a potential suspect.” (Ibid.) Therefore, to meet their burden of establishing circumstances warranting an officer’s actions under the emergency aid component of community caretaking, the officer must have “specific, articulable facts indicating the need for ‘ “swift action to prevent imminent danger to life or serious damage to property . . . .” [Citation.]’ [Citation.]” (Id. at pp. 472-473.)
We next turn to the inevitable discovery doctrine. The doctrine may be applied on appeal if the factual basis for the theory was fully set forth in the record, whether or not the doctrine was presented to the trial court below. (People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7 (Robles); People v. Brown (2004) 33 Cal.4th 892, 901.) “Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine ‘is in reality an extrapolation from the independent source doctrine: “Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” (Murray v. United States (1988) 487 U.S. 533, 539.) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. (Nix v. Williams (1984) 467 U.S. 431, 443, fn. 4.) The burden of establishing that illegally seized evidence is admissible under the rule rests with the government. [Citations.]” (Robles, supra, 23 Cal.4th at pp. 800-801, fn. omitted.)
“[I]nevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification . . . .” (Nix v. Williams, supra, 467 U.S. at p. 445, fn. 5.) In Nix, it was clear that search parties were approaching the location of the evidence, a dead body; that the search teams would have resumed the search had the defendant not led the police to the body; and that the body inevitably would have been found. (Id. at pp. 449-450.)
Analysis
Applying these principles to defendant’s case, we find that the evidence against defendant was procured through a search. (People v. Zichwic, supra, 94 Cal.App.4th at p. 954.) Therefore, the validity of the seizure of the revolver and the other contraband in the vehicle and in defendant’s home turns upon the lawfulness of that search.
As a result of the information he had received, Officer Zanotto had not only the right but the duty to check on the welfare of the child he saw in the Blazer. The officer received a report of a possibly unattended child wearing a striped shirt in a truck in the post office parking lot. When the officer arrived at the parking lot, he saw a child in a striped shirt standing alone in the back of a Blazer, which was a truck-like vehicle. Thus, the officer’s observations appeared to corroborate the anonymous report. (Wells, supra, 38 Cal.4th at p. 1083.) Even though the officer then determined that there was an adult in the driver’s seat of the Blazer and that the child was not in any immediate distress, the officer could still check on the welfare of the child, investigate whether the child had in fact been left unattended in the vehicle, and determine the relationship of the occupants of the vehicle to the child. (Ibid.)
Although the officer was entitled to act on the anonymous report of a possible unattended child in a vehicle, the issue is whether the officer’s decision to open the door of that vehicle was lawful under the totality of the circumstances presented. As Officer Zanotto testified that he could see that the child was not unattended and was not in any apparent distress, the officer “had no knowledge of any facts that would lead a reasonable person in [his] position to believe entry was immediately necessary to aid life or limb.” (Ray, supra, 21 Cal.4th at p. 473.) Thus, exigent circumstances justifying Officer Zanotto’s warrantless entry of the vehicle at that point under the “community caretaking exception” did not exist. (Id. at pp. 472-473.)
In addition, although the anonymous report clearly warranted an investigation, the report did not mention the involvement of any weapons. The fact that defendant, the person in the driver’s seat of the car, looked around, moved around, and reached around suggested that he was dealing with the passenger and the child, rather than picking something up. We do not believe that this behavior by defendant can necessarily be considered furtive, especially since there is no suggestion in the record that defendant’s behavior was in response to seeing the officer. The decision of a person sitting in a driver’s seat to turn towards passengers in the car, especially towards a young child who does not appear to be belted in, is not something that is particularly unusual. And the fact that the officer could see that defendant had distinctive tattoos adds nothing, given that there is nothing in the record from which we can infer that the particular tattoos were associated with criminal activity or contraband. Under these circumstances, we cannot say that Officer Zanotto had probable cause to search the Blazer. (Keifer, supra, 3 Cal.3d at p. 818; People v. McGaughran, supra, 25 Cal.3d at p. 590.)
Nevertheless, the officer needed only “a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]’ ” the officer in believing defendant posed a danger in order to justify the officer’s search of the Blazer. (Michigan v. Long, supra, 463 U.S. at p. 1049.) Officer Zanotto testified that it was his policy to talk to the occupants of a vehicle that had been reported to contain an unattended child. Defendant and an adult female were in the car with the child as the officer approached and the child was not in any apparent distress. It was 11:00 a.m., there were several other cars parked in the post office parking lot, the officer had not announced his presence, and there was no reason to believe that defendant’s movements inside the vehicle were in response to the officer’s approach. Although there may have been no reason for the officer to believe that defendant was engaged in anything but lawful activity when the officer opened defendant’s car door, the officer was not required to ignore defendant’s movements. And, although the officer could not see defendant’s hands, as defendant notes, “an officer is not always going to be able to see a person’s hands in an elevated vehicle. However, there is a simple remedy for that – the officer can ask the person to exit the[] vehicle in order to speak with [him].”
The officer testified that he opened the Blazer’s door for reasons of officer safety. The trial court found that the opening of the Blazer’s door was reasonable under the totality of the circumstances. Even if we were to find that the opening of the car door was not reasonable under the totality of the circumstances in this case, the fruits of the resulting searches need not be suppressed if they would have been inevitably discovered. Thus, if Officer Zanotto would have discovered defendant’s revolver as a result of the natural and probable course of events already in progress, it and the other evidence discovered that day need not be suppressed.
Although the trial court did not rely upon the theory of inevitable discovery to justify the denial of the motion to suppress, the facts adduced below lead us to the conclusion that Officer Zanotto would have searched defendant’s vehicle even if he had not opened the vehicle’s door upon first approaching the vehicle. “To close our eyes to the clear applicability of the inevitable discovery doctrine would run contrary to the settled principle of appellate review that a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasoning.” (Green v. Superior Court (1985) 40 Cal.3d 126, 138.) The prosecutor raised the issue in the written opposition to defendant’s motion to suppress, the evidence supporting the inevitable discovery doctrine was fully developed at the hearing on the motion, and defendant had an opportunity to cross-examine Officer Zanotto regarding the facts supporting the issue. Thus, defendant does not appear to have been prejudiced by his lack of an opportunity to argue below against application of the doctrine. (Ibid.)
The historical facts in this case indicate that Officer Zanotto inevitably would have seen defendant’s loaded handgun even if he had not opened the Blazer’s door when he did. The officer approached the Blazer with the intent to speak to the adult occupants of the vehicle. At that point, the officer had a reasonable suspicion that defendant had committed a criminal offense, and he articulated specific facts justifying an investigative detention of the vehicle and its occupants. (Terry, supra, 392 U.S. at p. 22.) The officer had received the report of a possibly unattended child left in a vehicle (see, e.g., § 273a, subd. (a)), and the child and the Blazer matched the description of the child and the vehicle in the report. The officer could not see into the vehicle below defendant’s head and neck when he was still an arm’s length away from it, which is why he opened the vehicle’s door at that time. Had he not opened the door, the officer would have stepped up to the vehicle, announced his presence, and asked the driver, defendant, to step outside the vehicle so that the officer could speak to him. Defendant concedes that “the officer [could] ask [defendant] to exit the[] vehicle in order to speak to [him].” Had the officer done so, the handgun hanging on a chain around defendant’s neck would have been readily visible to the officer. A subsequent search of the vehicle would then have been reasonable (Michigan v. Long, supra, 463 U.S. at p. 1049), and all the evidence at issue would then have been discovered.
As all the evidence would have been inevitably discovered even if the officer had not immediately opened the vehicle’s door upon his approach, the trial court did not err in denying defendant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, ACTING P.J., ELIA, J.