THE PEOPLE, Plaintiff and Respondent, v. JAIME E. CERVANTES, Defendant and Appellant.
No. D069959
Fourth Dist., Div. One
May 18, 2017
9 Cal. App. 5th 860
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Genevieve Herbert, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
HALLER, J.—Police validly stopped defendant Jaime E. Cervantes for driving with expired vehicle registration. They searched his vehicle after they learned that the adult female riding in the front passenger seat had provided them with a false identity and was subject to a felony warrant and probation search condition. Police initially discovered large quantities of illegal drugs and paraphernalia in a closed toiletries bag and an opaque plastic drawstring bag in the backseat behind the driver. They continued their search and found more methamphetamine in the front center console. They arrested defendant, who admitted to transporting drugs for sale.
Defendant moved to suppress the seized drugs and his confession on the basis the officers were unjustified in searching the bags in the backseat because the probationer on whom the police justified their search was female, yet the closed bags in the backseat undisputedly contained male toiletries and clothing. After the trial court denied the motion, defendant pleaded guilty to transporting drugs for sale. The trial court granted him probation, one of the conditions of which requires him to submit to warrantless and suspicionless searches of his electronic devices and social media accounts.
On appeal, defendant contends the trial court erred by denying his suppression motion. The contention lacks merit. The policy considerations articulated by the California Supreme Court in People v. Schmitz (2012) 55 Cal.4th 909
Defendant also challenges the reasonableness and constitutionality of the electronics search condition of his probation. The challenges lack merit.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY1
Defendant‘s October 18, 2015 Arrest
On October 18, 2015, San Diego Police Officer Peter Larson and his partner, Officer Thomas Cooper, stopped “a four-door compact sedan” (a 2001 Toyota Corolla) for having expired registration. Defendant was driving. A female sitting in the front passenger seat identified herself to Officer Larson as Sarah Craft. After a computer-based record search returned no information for Sarah Craft, Officer Larson learned that the passenger‘s real name was Tiffany Craft. Records indicated she had “a felony warrant and a valid [f]ourth waiver.”2 Officer Cooper detained Craft outside of the car.
Officer Larson told defendant he was “going to search his vehicle.” Defendant wanted to know why and asked to speak to a sergeant. Officer Larson called his sergeant to the scene. After speaking with the sergeant, defendant got out of his car. Officer Larson then searched defendant‘s car.
Officer Larson began by searching two bags he found on the driver‘s side backseat that were “within arm‘s reach of where the passenger was sitting.” He first searched a “toiletries bag” that was zipped closed. He saw “numerous men‘s toiletries” (deodorant, shaving cream, and razors) and a black pouch. Officer Larson opened the pouch and found “numerous items,” including “one small clear plastic bag with a crystalline material inside” that he
Officer Larson then searched the other bag, which was an opaque gray plastic bag with the drawstrings drawn closed. He untied the drawstring and “immediately noticed men‘s boxers,” “men‘s white tennis shoes,” and “men‘s body wash.” He continued searching the bag and found an opaque Tupperware container. Officer Larson opened the container and found 185.65 grams of methamphetamine (“well in excess of 3600 dosage units“).
Craft never claimed ownership of either bag, and Officer Larson never saw her try to grab or look at them.
Officer Larson then searched the center console,3 where he found two “orange zipper bags, and inside one was the same material which [he] believed was methamphetamine.” He also found two cell phones in the car.
After Officer Larson completed his search of defendant‘s car, Officer Cooper searched defendant and found a glass pipe and about $300 in cash. The officers arrested defendant and transported him to the police station. After being read his Miranda rights,4 defendant told Officer Cooper that a man named Carlos had been paying him to transport methamphetamine once or twice per month from Los Angeles to San Diego, where “[h]e gave it to another man to sell.”5
Defendant was released on bail.
Defendant‘s October 20, 2015 Arrest
Two days after his arrest, a patrolman stopped defendant in his car for having tinted windows. Defendant acknowledged his recent arrest and admitted to having used drugs the day of his October 18 arrest. A search of his car revealed 17.1 grams of methamphetamine (approximately 342 dosage units) and a glass pipe. Defendant was arrested again.
In connection with his October 18 arrest, the People charged defendant with one count of transporting methamphetamine (
Before the preliminary hearing, defendant moved to suppress the evidence obtained and statements he made in connection with his October 18 and 20 arrests.7 The prosecution argued the October 18 search was justified under Schmitz, supra, 55 Cal.4th 909, which held that “a vehicle search based on a passenger‘s parole status may extend beyond the parolee‘s person and the seat he or she occupies,” but “is confined to those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.” (Id. at p. 926.) Defendant agreed Schmitz was controlling, but argued Officer Larson‘s search exceeded the permissible scope. At the preliminary hearing, the trial court (Hon. Frederic L. Link) found the search was “valid and legal” because “the items were within the reach of the female” who “had a Fourth waiver.” The court denied the suppression motion and bound defendant over for trial.
Defendant renewed his suppression motion (
Guilty Plea and Sentence
Two days later, defendant pleaded guilty as charged.
Defendant told his probation officer he had been transporting drugs for Carlos for approximately one year, but said it was ” ‘not a daily thing.’ ” The probation officer reported that the street value of the methamphetamine seized in the Tupperware container on October 18 was between $111,000 and $222,000. He believed the quantity of seized drugs “would potentially have had a significant impact on the community if [defendant] had completed his mission.” Nevertheless, the probation officer recommended defendant be granted formal probation with 365 days of custody. He further recommended the court impose an electronics search condition.
The trial court (Hon. Michael S. Groch) followed the probation officer‘s recommendation and granted defendant 36 months of formal probation with 365 days in local custody. One condition of defendant‘s probation requires that he submit his “computers, . . . recordable media[,] electronic devices[, and] social media [accounts] to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation] or law enforcement officer.” The court expressly stated during sentencing, without objection, that it was annotating the probation form to add “electronic communication devices” and “social media accounts” to the search condition.
DISCUSSION
I. Suppression Motion
Defendant argues the trial court erred in denying his suppression motion. In the trial court, defendant acknowledged the principles articulated in Schmitz, supra, 55 Cal.4th 909 were controlling, but argued the search of his car exceeded those principles. Now, on appeal, defendant contends Schmitz is “inapposite” because it involved a search based on a parole search clause, whereas the search of defendant‘s car was based on a probation search condition. We recognize that, in certain contexts, Schmitz draws distinctions between parolees and probationers. However, we find more compelling the similarities it notes in the context of a vehicle search: (1) parolees and probationers both have demonstrated histories of criminal activity and share a motivation to conceal further criminal activity and (2) drivers’ already-diminished expectation of privacy in their vehicles is even further diminished
Doing so, we find (1) the search of defendant‘s center console was justified, and (2) the search of the console would inevitably have led to the discovery of the drugs in the backseat bags.
A. Relevant Legal Principles
” ‘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. Redd (2010) 48 Cal.4th 691, 719 [108 Cal.Rptr.3d 192, 229 P.3d 101].)
“We review challenges to the admissibility of evidence obtained by a police search and seizure under federal constitutional standards.” (People v. Lomax (2010) 49 Cal.4th 530, 564, fn. 11 [112 Cal.Rptr.3d 96, 234 P.3d 377]; see
In Schmitz, police validly stopped a noncommercial five-passenger vehicle being driven by the male defendant, then searched the passenger compartment when they learned the male front seat passenger was on parole. (Schmitz, supra, 55 Cal.4th at pp. 914, 925.) In the backseat area, which was occupied by a woman and her small child, police found “two syringes in a chips bag, and some methamphetamine in a pair of shoes.” (Id. at p. 914.) The defendant sought to suppress the drugs and paraphernalia, claiming the scope of a parole search of the passenger could validly extend only to the front passenger‘s seat and the floor in front of it. (Id. at pp. 914-915.) The trial court denied the suppression motion and the defendant pleaded guilty. (Id. at p. 914.) The defendant prevailed in the Court of Appeal, but the California Supreme Court reversed. (Id. at pp. 914-915.)
The Supreme Court explained that the reasonableness of a parole search is determined by “weigh[ing] the privacy interests of the parolee against
In determining the permissible scope of a parole-based search of a car and its contents, the Schmitz court analogized to probation-based searches of residences and their contents. (Schmitz, supra, 55 Cal.4th at pp. 917-918.) In the latter context, the court explained that because ” ‘probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term,’ by extension, ‘if others live with a probationer, the shared areas of their residence may be searched based on the probationer‘s consent.’ ” (Id. at p. 917.) However, ” ‘officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over.’ ” (Id. at p. 918; see People v. Woods (1999) 21 Cal.4th 668, 681-682 [88 Cal.Rptr.2d 88, 981 P.2d 1019]; People v. Robles (2000) 23 Cal.4th 789, 798 [97 Cal.Rptr.2d 914, 3 P.3d 311] (Robles).)
But the Schmitz court found the probation/consent-based rationale for third party searches of residences “unworkable when applied to [a] parolee . . . who was a mere passenger in [the] defendant‘s automobile.” (Schmitz, supra, 55 Cal.4th at p. 919.) To begin with, in contrast to a residence, “[b]oth drivers and passengers have a reduced expectation of privacy in the interior of a car and its contents because cars ‘trave[l] public thoroughfares’ [citation], ‘seldom serv[e] as . . . the repository of personal effects’ [citation], are subjected to police stop and examination to enforce ‘pervasive’ governmental controls ‘[a]s an everyday occurrence’ [citation], and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny.’ ” (Id. at p. 920.) Schmitz reasoned a driver‘s already-diminished expectation of privacy is even “further diminished when he allows others to ride in his car, thus ceding some measure of privacy to them.” (Id. at p. 924.)
The Schmitz court also found the probation-based consent analogy “inapt” because “previous cases have drawn a clear distinction between probation and parole with regard to consent. A probationer explicitly agrees to being placed on probation,” whereas ” ‘parole is not a matter of choice.’ ” (Schmitz, supra, 55 Cal.4th at pp. 921, 920.) Thus, while the scope of consent granted by a probationer is determined by the express terms of his or her probation
The Schmitz court then applied these principles to the context of a vehicle search. Considering the nature, proximity, and accessibility of the searched area to the parolee, the court observed that “a standard five-passenger automobile generally affords ready access to areas in both the front and the back seats.” (Schmitz, supra, 55 Cal.4th at p. 925.) Recognizing that a parolee or probationer—“more than an ordinary passenger” (ibid.)—has “a heightened incentive to conceal or quickly dispose of incriminating evidence” (ibid.), the court observed that “an artificially narrow rule” that would limit a parole search to the front seat passenger‘s immediate seating area would allow a parolee to “frustrate a valid parole search simply by sitting in the front seat of the car and placing or discarding his belongings in the back” (id. at p. 926). The court explained that allowing searches of backseat areas accessible to front seat passengers would not offend “modern social conventions” (id. at p. 924) with regard to the driver‘s already-reduced expectation of privacy: “Typically, automobile occupants do not act as if they were confined in separate divided compartments, coats and other possessions piled on their laps, elbows clamped at their sides. A front seat passenger, even if only a casual acquaintance of the driver, will likely feel free to stow personal items in available space at his or her feet, in the door pocket, or in the backseat, until they are needed or the journey ends. Even if the driver‘s personal preferences are otherwise, it is not reasonable to expect that the passengers will always adhere to them. The driver is not necessarily in a position to supervise his passengers at every moment, nor is he in a position to control their every move once they are in the car. . . . [A]n occupant of an automobile may hide contraband without the other occupants’ knowledge or permission.” (Id. at p. 925.)
Turning to the chips bag and pair of shoes, the Schmitz court upheld the searches. (Schmitz, supra, 55 Cal.4th at pp. 930-932Id. at p. 931, citing People v. Baker (2008) 164 Cal.App.4th 1152, 1160 [79 Cal.Rptr.3d 858] [during a vehicle search based on the male driver‘s parolee status, it was unreasonable to search a “distinctly feminine purse” (Baker, at p. 1160) located at the feet of the female, nonparolee passenger]). But the court found that concern unwarranted on the record before it: the chips bag was “plainly distinguishable” from something “inherently private” like a purse (Schmitz, at p. 931), and, although “[t]he shoes present[ed] a much closer question” (id. at p. 932), the court upheld the search because the record was silent as to “the shoes’ owner or whether the style of the shoes was gender specific” (id. at p. 932).
B. Analysis
We find Schmitz dispositive because the similarities between parolees and probationers in the context of vehicle searches are compelling. First, defendant‘s expectation of privacy in his car was just as diminished as the Schmitz defendant‘s. Both drivers were carrying passengers on public thoroughfares where they were subjected to potential police stops for myriad technical traffic violations or exposed to traffic accidents ” ‘that may render all their contents open to public scrutiny.’ ” (Schmitz, supra, 55 Cal.4th at p. 920.)
Second, just as with parolees, the state has a substantial interest in monitoring probationers to prevent and detect recidivism. “[I]t must be remembered that ‘the very assumption of the institution of probation’ is that” the probationer ” ‘is more likely than the ordinary citizen to violate the law.’ ” (United States v. Knights (2001) 534 U.S. 112, 120 [151 L.Ed.2d 497, 122 S.Ct. 587].) “And probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration . . . .” (Ibid.) Indeed, Schmitz (a parole search case) cited Knights (a probation search case) to support this proposition. (Schmitz, supra, 55 Cal.4th at pp. 923-924.)
By extension, as with searches of parolees, an “artificially narrow rule” (Schmitz, supra, 55 Cal.4th at p. 926) restricting searches of probationers to their immediate seating area would allow probationers—who are as equally incentivized as parolees to conceal further criminal activity—to frustrate a valid probation search by placing contraband in the backseat or mere inches away in an adjacent center console.
Accordingly, we hold “that a vehicle search based on a passenger‘s [probation] status may extend beyond the [probationer]‘s person and the seat he or she occupies,” but is “confined to those areas of the passenger compartment where the officer reasonably expects that the [probationer] could have stowed personal belongings or discarded items when aware of police activity.” (Schmitz, supra, 55 Cal.4th at p. 926.) The searchable area includes “items of personal property if the officer reasonably believes that the [probationer] owns the items or has the ability to exert control over them.” (Id. at p. 930.) Applying this standard, and considering the totality of these circumstances, we conclude it was objectively reasonable for Officer Larson to search those areas of defendant‘s car where Craft could have concealed contraband upon becoming aware of police activity.
We turn now to the specific areas Officer Larson searched. Defendant‘s primary argument on appeal is that it was unreasonable for Officer Larson to continue searching the toiletries bag and the plastic drawstring bag once he became aware they contained male belongings and, thus, likely belonged to defendant and not to probationer Craft. (See, e.g., Schmitz, supra, 55 Cal.4th at p. 932.) We need not address this specific argument because we agree with the Attorney General that even if Officer Larson had not begun his search with those bags, he would inevitably have discovered the drugs contained in them. That is, Officer Larson was (as we will explain) entitled to search the center console; he undoubtedly would have done so regardless of whether he first discovered drugs in the backseat bags; he would have found the methamphetamine in the center console; and he then would have justifiably searched the rest of defendant‘s car and its contents, leading to his inevitable discovery of the drugs in the backseat bags.
“The inevitable discovery doctrine acts as an exception to the exclusionary rule, and permits the admission of otherwise excluded evidence ‘if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police.’ ” (People v. Hughston (2008) 168 Cal.App.4th 1062, 1071 [85 Cal.Rptr.3d 890]; see Robles, supra, 23 Cal.4th at p. 800.) “The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct.” (Robles, at p. 800.) “Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct.” (Nix v. Williams (1984) 467 U.S. 431, 447 [81 L.Ed.2d 377, 104 S.Ct. 2501].)
“The prosecution bears the burden of proving by a preponderance of the evidence that evidence otherwise unlawfully obtained would have been inevitably discovered.” (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1217 [49 Cal.Rptr.3d 831] (Walker).)11 “The showing must be based not on speculation but on ‘demonstrated historical facts capable of ready verification or impeachment.’ ” (People v. Hughston, supra, 168 Cal.App.4th at p. 1072.) However, in assessing whether evidence would inevitably have been discovered, “this ‘court does not leave its common sense at the door.’ ” (Walker, at p. 1216.)
Common sense tells us Officer Larson intended to search the interior of the car, including the center console. Upon learning Craft was a wanted felon who was subject to a valid “Fourth waiver” and had just provided the officers with a false identity, Officer Larson advised defendant he was “going to search his vehicle” (italics added), not just two bags in it. The fact that Officer Larson persisted in searching the vehicle over defendant‘s objection and request to speak to a sergeant satisfies us that Officer Larson would inevitably have searched the area most immediately accessible to the front seat passenger—the center console—and discovered the methamphetamine located there. Once Officer Larson found the methamphetamine in the center console, he would have been justified in searching the remainder of defendant‘s car and its contents. (See People v. Dey (2000) 84 Cal.App.4th 1318, 1322 [101 Cal.Rptr.2d 581]; United States v. Ross (1982) 456 U.S. 798, 821-824 [72 L.Ed.2d 572, 102 S.Ct. 2157].) That would inevitably have led to the discovery of the drugs in the toiletries bag and the plastic drawstring bag.
Defendant contends the People forfeited their ability to invoke the inevitable discovery doctrine by failing to assert it below. The contention lacks merit. As noted, the prosecutor‘s opposition to defendant‘s motion to dismiss and renewed suppression motion expressly raised the doctrine. This was sufficient to preserve the issue for appeal.
In sum, we conclude that although Officer Larson happened to have begun his search of defendant‘s car by searching the toiletries bag and plastic
II. Electronics Search Condition*
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DISPOSITION
The judgment is affirmed.
McConnell, P. J., and Aaron, J., concurred.
A petition for a rehearing was denied June 7, 2017, and appellant‘s petition for review by the Supreme Court was denied August 23, 2017, S242843. Werdegar, J., did not participate therein.