Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF152769, Rafael A. Arreola (retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Carl E. Davis (retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges.
Judge Davis presided over the trial, and Judge Arreola presided over the motion to suppress.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Defendant and appellant Mike Solorzano was charged by information with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2), and possession of drug paraphernalia (Health & Saf. Code, § 11364; count 3). It was further alleged that defendant had been previously convicted of two prior strikes within the meaning of Penal Code sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A). Prior to trial, defendant filed a motion to suppress evidence. The trial court denied the motion. A jury subsequently found defendant guilty as charged. In a bifurcated proceeding, the trial court found the strike allegations to be true. On February 26, 2010, the trial court dismissed one of the prior strikes and granted the People’s motion to refile the strikes as prison priors pursuant to Penal Code section 667.5, subdivision (b). The court then sentenced defendant to state prison for a total term of seven years. He appeals.
Because defendant’s sole challenge is to the denial of his suppression motion, we use the facts as presented at the hearing on such motion.
On August 6, 2009, Riverside County Sheriff’s Deputy Rico Garcia responded to a 9:50 a.m. dispatch regarding a “family disturbance” in Rubidoux involving defendant. It was further noted that defendant was on federal parole for armed federal bank robbery and possibly under the influence of methamphetamine.
When Deputy Garcia arrived, he saw defendant sitting in the driver’s seat of a vehicle. Defendant got out of the vehicle, and the deputy noticed that defendant had a metal object, later determined to be a screwdriver, in his hand. The deputy ordered defendant to put the object down. Defendant became upset but eventually complied with the order. Deputy Garcia confirmed that defendant was Mike Solorzano and that he was on federal parole. For officer safety, Deputy Garcia patted down defendant.
As Deputy Garcia was talking to defendant, the deputy observed defendant display objective signs of being under the influence of a controlled substance. Defendant could not stand still and could not keep his hands or head still. He was sweating profusely, his pupils were dilated, and his pulse was accelerated over the normal rate. Deputy Garcia had defendant take a couple quick tests and determined he was under the influence. Thus, defendant was arrested for being under the influence, was put in handcuffs and placed in the back seat of the patrol car. The deputy then called for a tow and conducted an inventory search of the vehicle. A search of defendant’s vehicle produced a cigarette box containing a plastic baggie of 1.1 grams of methamphetamine and a glass smoking pipe.
In support of his motion to suppress, defendant offered the testimonies of Bertha Mendez and Diana Solorzano, defendant’s sister. Mendez called 911 and was present when defendant was arrested and his vehicle was searched. Mendez claimed defendant was outside his vehicle when the deputies arrived and that the deputies used force to take the object out of defendant’s hand. After doing so, they handcuffed defendant, searched him, and put him in the patrol car. After defendant was placed in the patrol car, one of the deputies talked to Mendez and defendant’s sister. Defendant’s car was then searched. According to Mendez, the deputies did not find anything until she told them where to look in the vehicle to locate the contraband. Defendant’s sister testified that defendant was outside of his vehicle when the deputies arrived. She saw the deputies go up to defendant, handcuff him, and then search him. While the deputies were searching the vehicle, defendant’s sister and Mendez approached. After the deputies’ search of the vehicle produced nothing, Mendez told them where defendant hid his contraband.
II. THE TRIAL COURT PROPERLY DENIED THE
MOTION TO SUPPRESS
Defendant moved to suppress the items seized from his vehicle, arguing that he was unlawfully detained; that the deputy could not search the vehicle incident to defendant’s arrest because he was not in the vehicle that day; and that he neither consented to the search, nor was the contraband in plain view. The prosecution opposed the motion. The trial court denied the motion. It justified the search on the grounds that it was incident to defendant’s arrest, and defendant was on federal parole.
A. Standard of Review
In reviewing the denial of a motion to suppress evidence, “[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.)
B. Analysis
Defendant contends the search was not justified because (1) there was no evidence of the specific conditions of his federal parole; (2) the deputy did not have probable cause to arrest defendant for being under the influence of a controlled substance; and (3) there was no justification to impound defendant’s car simply because he was being taken into custody.
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” However, “[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable [Citation.].” (Florida v. Jimeno (1991) 500 U.S. 248, 250 [111 S.Ct. 1801, 114 L.Ed.2d 297].) Warrantless searches, although usually per se unreasonable, are considered reasonable in various contexts. (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 19 L.Ed.2d 576].) The warrantless search of an automobile, for instance, can be justified on a variety of grounds, among them: (1) probable cause to believe the car contains contraband (Carroll v. United States (1925) 267 U.S. 132, 149 [45 S.Ct. 280, 69 L.Ed. 543]); (2) the search is incident to the arrest of an occupant of the vehicle (Arizona v. Gant (2009) ___ U.S. ___, ___ [129 S.Ct. 1710, 1721, 173 L.Ed.2d 485] (Gant)); or (3) the search is part of the inventory of a lawfully impounded vehicle (South Dakota v. Opperman (1976) 428 U.S. 364, 375-376 [96 S.Ct. 3092, 49 L.Ed.2d 1000]).
“In order to comply with the law, an officer must have probable cause before making an arrest. [Citation.] Probable cause has been defined in a number of different ways, including the Supreme Court’s adjuration that ‘“[t]he term ‘probable cause, ’ according to its usual acceptation, means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion.”’ [Citations.] The Supreme Court of California expressed its standard for probable cause in People v. Price (1991) 1 Cal.4th 324... stating that probable cause ‘exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.’ (Id. at p. 410.) Probable cause must be viewed in the totality of the circumstances, not based on any isolated event. Arrests which are made without probable cause ‘in the hope that something might turn up’ are unlawful. [Citation.]” (In re J.G. (2010) 188 Cal.App.4th 1501, 1505-1506.)
Here, Deputy Garcia had probable cause to arrest defendant for being under the influence of a controlled substance. The deputy testified as to his expertise in drug use recognition. He testified that defendant exhibited objective symptoms of being under the influence of methamphetamine: Defendant’s eyes were dilated, he was sweating, and he was moving around in an agitated manner. The deputy conducted in-field tests on defendant and concluded that he was under the influence. Based on this evidence, Deputy Garcia had probable cause to arrest defendant for being under the influence of a controlled substance.
If defendant’s arrest was lawful, the subsequent search of his car was also lawful, because once Deputy Garcia arrested defendant for being under the influence of a controlled substance, he had probable cause to search the entire car. (Chimel v. California (1969) 395 U.S. 752, 763 [89 S.Ct. 2034, 23 L.Ed.2d 685] (Chimel) [warrantless search of an arrestee incident to a lawful custodial arrest extends to the area “‘within his immediate control’ [i.e., ]... the area from within which he might gain possession of a weapon or destructible evidence”]; United States v. Ross (1982) 456 U.S. 798, 809 [102 S.Ct. 2157, 72 L.Ed.2d 572] [under “automobile exception” to the Fourth Amendment’s warrant requirement, a “search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained”]; Gant, supra, 129 S.Ct. at p. 1721 [“[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, ” a search of any area in the vehicle where evidence may be found is proper].)
In Gant, the police made a pretextual stop for driving with a suspended license. (Gant, supra, 129 S.Ct. at pp. 1714-1715.) After Gant was arrested, handcuffed, and placed in a patrol car, the police conducted a warrantless search of his car. They found drugs in the passenger compartment. The state sought to uphold the validity of the search on the ground that it was a search incident to an arrest. (Id. at p. 1715.) In concluding the search was unlawful, the court held: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Id. at p. 1723.)
In Gant, the United States Supreme Court disapproved a broad reading of New York v. Belton (1981) 453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768] (Belton), formerly the leading case discussing the applicability of the search incident to arrest exception to the search of vehicles, and clarified the application of Thornton v. United States (2004) 541 U.S. 615 [124 S.Ct. 2127, 158 L.Ed.2d 905]. (Gant, supra, 129 S.Ct. at p. 1714.) The majority in Gant explained, “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” (Id. at p. 1714.) However, consistent with Thornton, “circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Ibid.)
In Belton, the court expanded the Chimel rule in the context of an automobile search incident to arrest. In Belton, the challenged search of a jacket occurred after all the occupants of the car had been removed and arrested. (Belton, supra, 453 U.S. at p. 456.) The court held that, because the jacket had been “within the area which we have concluded was ‘within the arrestee’s immediate control’ within the meaning of the Chimel case, ” the search “was a search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments.” (Id. at pp. 462-463, fn. omitted.) Thus, considering Chimel and Belton together, it is clear that a valid search incident to arrest may take place even after the suspect has been arrested or immobilized. Gant, however, rejected the prevalent broad reading of Belton as authorizing a vehicle search incident to every recent occupant’s arrest because it would divorce the rule from the justifications underlying the Chimel exception. (Gant, supra, 129 S.Ct. at p. 1719.) Gant therefore held that “the Chimel rationale authorizes police to 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.” (Ibid., fn. omitted.)
Gant recognized, however, that, consistent with Thornton, police must be able to search a vehicle incident to a lawful arrest when it is “‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ [Citation.]” (Gant, supra, 129 S.Ct. at p. 1719.) Gant noted that, although this exception is not grounded in the rationale of Chimel, the unique circumstances of the vehicle context justify a search incident to arrest in this situation. (Gant, supra, at p. 1719.) In many cases, such as when a vehicle’s occupant is arrested for a traffic violation (as occurred with Rodney Gant), there will be no reasonable basis to search the vehicle for evidence. (Ibid.) In other cases, such as Belton and Thornton, the offense for which the occupant is arrested supplies a justification for searching the passenger compartment of the arrestee’s vehicle and any containers police find within it. (Gant, supra, at p. 1719.)
Defendant’s is just such a case. After Deputy Garcia determined that defendant was under the influence of methamphetamine and arrested him, his car was searched incident to the lawful arrest. The deputy clearly had a reasonable believe that “evidence of the offense of arrest might be found in the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714.)
People v. Osborne (2009) 175 Cal.App.4th 1052 (Osborne) is instructive. In that case, after the officers reasonably detained the defendant near his vehicle, they lawfully performed a patdown search and located a loaded firearm in his pocket. (Id. at p. 1062.) The defendant was arrested for being a felon in possession of a firearm. Incident to that arrest, the officers searched the defendant’s vehicle and found drugs. (Ibid.) Following an analysis of the Gant decision, the Osborne court concluded that the officers had reason to believe the car might contain evidence relating to defendant’s arrest for illegally possessing a firearm. (Osborne, supra, at pp. 1063-1065.) The court stated: “Here, when Officer Malone found the firearm on defendant’s person, he had probable cause to arrest him for illegal possession of a firearm and could then conduct a search incident to his arrest. Given the crime for which the officer had probable cause to arrest (illegal possession of a firearm), it is ‘“reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”’ [Citation.] Unlike simple traffic violations, which the court in Gant specifically noted may provide no reasonable basis for believing the vehicle contains relevant evidence, illegal possession of a firearm is more akin to possession of illegal drugs, which would provide such a reasonable belief. [Citation.] Although the firearm found on defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster.” (Id. at p. 1065, fns. omitted.)
As noted by our colleagues in Osborne, supra, 175 Cal.App.4th at page 1065, “[t]he Gant court specifically requires only a ‘reasonable basis to believe’ the vehicle contains relevant evidence, a standard less than full probable cause. [Citation.]” Accordingly, we conclude the search of defendant’s car was lawful. The trial court therefore properly denied the motion to suppress evidence, and defendant’s arguments are without merit.
Given our finding that Deputy Garcia had probable cause to arrest defendant and to believe his car contained contraband, we need not address whether the search was reasonable (1) because of defendant’s federal parole status, or (2) because the deputy was justified in impounding defendant’s car.
III. DISPOSITION
The order denying the motion to suppress is affirmed.
We concur: RICHLI J., CODRINGTON J.