Opinion
INTRODUCTION
Officers stopped defendant and appellant Vernon Evans after they observed him commit traffic violations. When Evans refused to comply with a command to exit his automobile, officers broke the vehicle’s window, “Tased” and pepper sprayed him, forcibly removed him from the car, and arrested him for interfering with a police investigation. A warrantless search of the vehicle
FACTUAL AND PROCEDURAL BACKGROUND
An information filed on November 19, 2009, charged Evans with the sale, transport, or offer to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)) (count 1); possession of cocaine base for sale (Health & Saf. Code, § 11351.5) (count 2); and misdemeanor resisting, obstructing, or delaying an officer (Pen. Code, § 148, subd. (a)(1)) (count 3). It was further alleged that Evans had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
1. Motion to suppress.
Evans moved to suppress evidence on the ground that the warrantless searches of his vehicle violated the Fourth Amendment. (Pen. Code, § 1538.5.) A hearing was conducted, at which the following evidence was adduced.
a. People’s evidence.
On the evening of September 27, 2009, Los Angeles Police Department Gang Enforcement Officer Kevin Currie and his partner, Officer Prodigalidad,
Evans’s nervousness, coupled with the facts that the stop occurred at night, in an area claimed as the territory of the Rolling 60’s criminal street gang, prompted Currie to ask Evans to step out of the car. Evans did not comply, but instead asked why he had been stopped. Currie explained the basis for the stop. Currie and Evans “went back and forth,” with Currie asking Evans to exit the vehicle at least 10 times, and Evans repeatedly asking why he had been stopped. Evans asked to speak to a supervisor. Currie replied that a supervisor was on the way. Evans’s reluctance to exit the vehicle appeared unusual to Currie; in his experience, most motorists comply with a direction to exit their cars “once you explain everything to them as [he] did.” As Currie and Evans conversed, Evans continued to appear exceptionally nervous. Evans’s voice “shuddered” and cracked. His hands continued to shake. Currie—who had been an officer for more than eight years and had conducted over 1,000 traffic stops—explained that Evans “appeared more nervous than most people I’ve ever come in contact with on a traffic stop.” Evans’s refusal to exit his car indicated to Currie that “something was wrong.”
Currie told Evans he would use pepper spray or a Taser if Evans continued to refuse to get out of his car. Evans continued to refuse. When additional police units arrived approximately 10 minutes later, Currie sprayed a small amount of oleoresin capsicum spray into the car through the window, which was open approximately one-half inch. Evans rolled up the window and remained in the car, staring forward. Another officer broke the driver’s side window. Evans was Tased and removed from the car. He was placed facedown on the ground, with officers on top of him, and arrested for interfering with an investigation (Pen. Code, § 148) based on his refusal to exit his automobile.
After Evans was immobilized on the ground, Officer Prodigalidad searched Evans’s car. He discovered 11 clear, empty sandwich baggies and approximately $65 in cash in the vehicle’s front center console. The car was taken to the police impound yard. Evans was apparently taken to the hospital.
b. Defense evidence.
The general manager of the tow yard testified that Evans’s vehicle had been inventoried by a company employee assigned to drive the car from the site of the stop to the yard. That inventory listed only the items which were in plain view in the car. The inventory did not list cocaine.
According to defense counsel’s representation at the hearing below, Evans picked the car up from the impound lot the following day.
c. The trial court’s ruling.
The trial court concluded that the initial search of the vehicle was justified as a warrantless search incident to arrest. The court explained, “We have the search of the vehicle incident to arrest when Mr. Evans refused to get out of the car” and “that is an appropriate search under the circumstances . . . .” The court further concluded that the second search at the impound yard was justified under the “automobile exception” to the Fourth Amendment’s warrant requirement. In the court’s view, Evans’s extreme nervousness, his unwillingness to exit the vehicle, the baggies found in the console, his history of hiding a gun in a vehicle’s air vent, and his passenger’s parole status, established probable cause for the officers to believe contraband or evidence of a crime was present in the car. Although the vehicle was in an impound lot, Evans, or his representative, was free to reclaim it at any time. Accordingly, the court denied the motion to suppress.
2. Guilty plea and sentence.
After his motion to suppress was denied, Evans pleaded no contest to count 1, the sale, transportation, or offer to sell a controlled substance (Health & Saf.
DISCUSSION
1. Applicable legal principles and standard of review.
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Davis v. United States (2011) 564 U.S. _, _, _ [180 L.Ed.2d 285, 131 S.Ct. 2419, 2423, 2426] (Davis); People v. Diaz (2011) 51 Cal.4th 84, 90 [119 Cal.Rptr.3d 105, 244 P.3d 501].) Warrantless searches are presumed to be unreasonable, “ ‘subject only to a few specifically established and well-delineated exceptions.’ ” (People v. Diaz, supra, at p. 90; Gant, supra, 556 U.S. at p. 338 [129 S.Ct. at p. 1716].) The prosecution bears the burden of demonstrating a legal justification for such a search. (People v. Redd (2010) 48 Cal.4th 691, 719 [108 Cal.Rptr.3d 192, 229 P.3d 101]; People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 101 [59 Cal.Rptr.3d 633].) If there is a legitimate reason for a search or seizure, an officer’s subjective motivation is generally irrelevant. (Kentucky v. King (2011) 563 U.S. _, _ [179 L.Ed.2d 865, 877, 131 S.Ct. 1849] [the high court’s cases “ ‘have repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the action’ ”]; Whren v. United States (1996) 517 U.S. 806, 811-813 [135 L.Ed.2d 89, 116 S.Ct. 1769]; People v. Lomax (2010) 49 Cal.4th 530, 564 [112 Cal.Rptr.3d 96, 234 P.3d 377].) We evaluate challenges to the admissibility of a search or seizure solely under the Fourth Amendment. (People v. Carter (2005) 36 Cal.4th 1114, 1141 [32 Cal.Rptr.3d 759, 117 P.3d 476].)
When reviewing the denial of a suppression motion, we defer to the trial court’s express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (People v. Lomax, supra, 49 Cal.4th at p. 563; People v. Redd, supra, 48 Cal.4th at p. 719; People v. Osborne (2009) 175 Cal.App.4th 1052, 1057 [96 Cal.Rptr.3d 696].) We will affirm the trial court’s ruling if it is correct on any theory of law applicable to the case, even if for reasons different than those given by the trial court. (People v. McDonald (2006) 137 Cal.App.4th 521, 529 [40 Cal.Rptr.3d 422].)
The initial stop of Evans’s vehicle
a. The searches did not fall within the exception for searches incident to arrest.
Contrary to the trial court’s ruling, the first search was not a valid search incident to arrest. In Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], the United States Supreme Court held that a police officer who makes a lawful arrest may conduct a warrantless search of an arrestee’s person and the area within his or her immediate control. (Id. at p. 763; Davis, supra, 564 U.S. at p. _ [131 S.Ct. at p. 2424].) The Chimel exception “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” (Gant, supra, 556 U.S. at p. 338 [129 S.Ct. at p. 1716].) In New York v. Belton (1981) 453 U.S. 454, 458-459 [69 L.Ed.2d 768, 101 S.Ct. 2860] (Belton), the court extended Chimel and held that when a police officer has made a lawful custodial arrest of a vehicle’s occupant, the officer might, “ ‘as a contemporaneous incident of that arrest, search the passenger compartment’ ” of the vehicle. (Davis, supra, at p. _ [131 S.Ct. at p. 2424]; see Belton, supra, at pp. 4594-60.) Until 2009, Belton was widely understood to have established a “simple, bright-line rule” that automobile searches incident to arrests of recent occupants were constitutionally valid regardless of whether the arrestee was within reaching distance of the vehicle at the time of the search. (Davis, supra, at p. _ [131 S.Ct. at p. 2424]; see Gant, supra, at p. 341 [129 S.Ct. at p. 1718].)
In 2009, in Gant, the high court rejected this sweeping interpretation of Belton. Gant reasoned that “[t]o read Belton as authorizing a vehicle search
The court adopted a “new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest.’ [Citation.]” (Davis, supra, 564 U.S. at p. _ [131 S.Ct. at p. 2425]; see Gant, supra, 556 U.S. at p. 343 [129 S.Ct. at p. 1719].) Gant noted that the second prong of the test flowed not from Chimel, but from Justice Scalia’s concurrence in Thornton v. United States (2004) 541 U.S. 615, 632 [158 L.Ed.2d 905, 124 S.Ct. 2127], and was justified by “circumstances unique to the vehicle context.” (Gant, supra, 556 U.S. at pp. 335, 343 [129 S.Ct. at pp. 1714, 1719]; see also People v. Osborne, supra, 175 Cal.App.4th at p. 1064.) Where neither justification is present, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” (Gant, supra, 556 U.S. at p. 351 [129 S.Ct. at pp. 1723-1724].)
Here, the searches did not fall within the first prong of the Gant test.
Nor was it reasonable for the officers to believe evidence relevant to Evans’s crime of arrest—interfering with a police investigation in violation of Penal Code section 148—might be found in his automobile. In Gant, the defendant was arrested for driving with a suspended license. (Gant, supra, 556 U.S. at p. 335 [129 S.Ct. at p. 1714].) The high court found it unreasonable to believe that evidence of this crime might be found in his car. (Id. at p. 343 [129 S.Ct. at p. 1719].) The court explained: “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.” (Ibid.) By way of example, the court cited Atwater v. Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2d 549, 121 S.Ct. 1536], in which the petitioner was arrested for a misdemeanor seatbelt violation, and Knowles v. Iowa (1998) 525 U.S. 113 [142 L.Ed.2d 492, 119 S.Ct. 484], in which the petitioner was stopped for speeding. (Gant, supra, at pp. 343-344 [129 S.Ct. at p. 1719].) The court reasoned that in other cases, “including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” (Gant, supra, at p. 344 [129 S.Ct. at p. 1719]; see People v. Osborne, supra, 175 Cal.App.4th at p. 1065.) In Belton, the crime of arrest was unlawful possession of marijuana; in Thornton, the defendant was arrested after an officer found drugs in his pocket. (Belton, supra, 453 U.S. at p. 456; Thornton v. United States, supra, 541 U.S. at p. 618.) Gant concluded that, unlike in Belton and Thornton, in which the defendants “were arrested for drug offenses, Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant’s car.” (Gant, supra, at p. 344 [129 S.Ct. at p. 1719].)
Gant did not otherwise elaborate on the circumstances under which it would be reasonable to believe offense-related evidence might be found in the arrestee’s vehicle, thereby leaving some ambiguity in regard to the precise parameters of the newly created exception. (See 3 LaFave, Search and Seizure (4th ed. 2010-2011 supp.) § 7.1(d), pp. 124-125.) Outside the context of minor traffic offenses, which Gant held would not provide an evidentiary basis for a search, courts have generally adopted one of two approaches to the question. Some courts have concluded or implied that whether it is reasonable
In People v. Nottoli, supra, 199 Cal.App.4th 531, the defendant was arrested for driving with an expired license and for being under the influence of a controlled substance. (Id. at p. 540.) A deputy searched Nottoli’s vehicle and discovered drug paraphernalia, a firearm, and a cellular telephone photograph that depicted Nottoli posing with firearms. (Id. at p. 541.) The Sixth Appellate District concluded the search was valid under Gant’s second prong. Although it was unreasonable to believe evidence of the expired license offense would be found in the car, the defendant’s “arrest for ‘being under the influence of a controlled substance’ supplied a reasonable basis for believing that evidence ‘relevant’ to that type of offense might be in his vehicle.” (Id. at pp. 550-551, 553.) “The presence of some amount of the controlled substance or drug paraphernalia in the interior of the vehicle would be circumstantial evidence tending to corroborate that a driver was in fact under the influence of the controlled substance.” (Id. at p. 554, fn. omitted.) Citing Evidence Code section 210, the court opined that evidence need not directly prove an element of an offense to be considered relevant. (Nottoli, at p. 553.) Nottoli rejected the argument that some showing of particularized facts, in addition to or in place of analysis of the nature of the offense, was required. To the contrary, “Gant indicated that the nature of the crime of arrest was determinative . . . .” (Ibid.) “[N]othing in Gant suggests that the Supreme Court was adopting a fact-intensive test similar to the reasonable suspicion standard established by Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868] . . . .” (Nottoli, at p. 553; see also People v. Osborne, supra, 175 Cal.App.4th at p. 1065 [illegal possession of a firearm, like possession of drugs, is an offense that would provide officers with a reasonable belief evidence related to the crime of gun possession, such as more ammunition or a holster, might be found in defendant’s car].)
Brown v. State (Fla.Dist.Ct.App. 2009) 24 So.3d 671, reached a similar conclusion. Defendant Brown was stopped and arrested based on two outstanding warrants for theft. (Id. at p. 674.) After he was handcuffed and secured, the arresting officer observed a wallet on the front seat of Brown’s car. The officer examined it, determined it belonged to an elderly woman, and conducted a search of the vehicle that revealed additional wallets that did not belong to Brown, but which were apparently unconnected to the thefts for which the warrant had been issued. Brown moved to suppress on the theory that the vehicle had no connection to the crimes for which he had been arrested. (Ibid.) Brown held the search was permissible under Gant’s second prong because the “offense of arrest was theft, an offense for which police
Certainly, the language used by the high court in Gant—that “the offense of arrest will supply a basis . . .” to believe evidence might be found in the vehicle, and that Gant’s offense, driving with a suspended license, was “an offense for which police could not expect to find evidence”—suggests the focus of the inquiry is entirely upon the nature of the offense of arrest, rather than the particular facts of the case. (Gant, supra, 556 U.S. at p. 344 [129 S.Ct. at p. 1719], italics added.) This conclusion is also suggested by the court’s blanket pronouncement that traffic violations do not provide a reasonable basis for the exception, but drug crimes akin to those at issue in Belton and Thornton do. (Ibid.) These aspects of Gant suggest a pure “ ‘nature-of-the-offense’ exception, in which a reasonable belief is held to exist whenever the crime of arrest is one for which evidence is possible and might conceivably be found in the arrestee’s vehicle . . . .” (People v. Chamberlain (Colo. 2010) 229 P.3d 1054, 1056-1057 (Chamberlain).)
On the other hand, as cogently explained by the Colorado Supreme Court in Chamberlain, Gant’s use of phrases like “ ‘reasonable to believe’ ” and “ ‘reasonable basis to believe’ ” indicates the court “intends some degree of articulable suspicion, a standard which it has previously acknowledged in its Fourth Amendment jurisprudence as meriting official intrusion. While this particular language is often used synonymously with probable cause, in light of the automobile exception, which already provides an exception to the warrant requirement whenever police have probable cause to believe an
In our view, predicating the applicability of Gant’s offense-related evidence exception entirely on the nature of the offense of arrest, in the abstract, is an approach fraught with difficulty. As Chamberlain observed, “such a non-case-specific test would suffer from objections similar to those that Gant condemned in the broad reading of Belton.” (Chamberlain, supra, 229 P.3d at p. 1057; see also U.S. v. Reagan (E.D.Tenn. 2010) 713 F.Supp.2d 724, 732.) The People’s arguments here aptly demonstrate the perils of such an approach. The People posit that the presence of drugs in Evans’s car would have been relevant at trial to explain his motive in committing the crime, i.e., to explain why he refused to exit the vehicle when ordered to do so by police. They urge that “motive evidence is almost always relevant in a criminal trial.” (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168 [91 Cal.Rptr.3d 874] [because “ ‘ “a motive is ordinarily the incentive for criminal behavior . . . wide latitude is permitted in admitting evidence of its existence” ’ ”].) Certainly, motive is often relevant at trial, along with issues such as intent, knowledge, and the like. Under the People’s theory, then, an officer could presumably search incident to Gant’s second prong if he or she reasonably believed circumstantial evidence of the myriad evidentiary issues that might eventually arise at trial might be found in the arrestee’s car.
This is clearly not what Gant envisioned; such an interpretation would rather easily allow searches on the same scale as the now prohibited Belton searches. As Chamberlain explains: “the driving-under-restraint type of offense for which Gant was arrested necessarily requires proof of awareness, or at least constructive notice, of the particular restraint being violated, making documentary evidence in the form of official notice a possible object of a
Even setting aside concerns about the potentially overbroad application of a pure “nature of the offense” test, many offenses cannot readily be categorized as either supplying the basis for a search, or not, without reference to the particular facts of the case. (See U.S. v. Reagan, supra, 713 F.Supp.2d at p. 732.) Gant teaches that “traffic violation[s]” do not provide a reasonable basis to search, whereas offenses in which there is evidence of drug possession do. (Gant, supra, 556 U.S. at p. 344 [129 S.Ct. at p. 1719].) We have no difficulty agreeing with Nottoli and similar cases to the extent they hold that, at least absent unusual circumstances, when a driver is arrested for driving under the influence, or being under the influence, it will generally be reasonable for an officer to believe evidence related to that crime might be found in the vehicle. (People v. Nottoli, supra, 199 Cal.App.4th at pp. 553-554; State v. Cantrell, supra, 233 P.3d at pp. 184, 186; U.S. v. Oliva (S.D.Tex., July 1, 2009, No. C-09-341) 2009 U.S.Dist. Lexis 57293; Cain v. State (2010) 2010 Ark.App. 30; see generally U.S. v. Tinsley (8th Cir. 2010) 365 Fed.Appx. 709, 710-711; U.S. v. Martinez (9th Cir. 2010) 403 Fed.Appx. 182, 183-184.) It is certainly logical and reasonable to expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily be contained in the intoxicated driver’s car.
But other offenses may defy easy categorization. Take, for example, a driver arrested for making criminal threats in violation of Penal Code section 422. If the threat in question was verbal, it is surely unreasonable to expect evidence related to the crime to be contained in a vehicle. But if the threat was made in a text message, or amplified by means of props or a threatening drawing, evidence might well be found in the car. Or, consider the offenses of battery (Pen. Code, § 242) or assault with a deadly weapon other than a firearm or by means of force likely to cause great bodily injury (Pen. Code, . § 245, subd. (a)(1)). If such crimes were committed with fists alone, it would generally be unreasonable to expect evidence of the offense in the arrestee’s vehicle; if committed with a brick or broken bottle, on the other hand, the opposite might be true. Even in the case of a fistfight, might it be reasonable to expect to find blood, or perhaps a broken fingernail, in the vehicle? In short, some offenses of arrest cannot be meaningfully evaluated without reference to the specific facts known to the officer. (See U.S. v. Reagan, supra, 713 F.Supp.2d at p. 732 [“any attempt to categorize every criminal offense as being either one that might yield physical evidence or one for which there is no physical evidence runs into interpretive problems”].)
Accordingly, we agree with Chamberlain that while the “nature of the offense of arrest is clearly intended to have significance, and in some cases it may virtually preclude the existence of real or documentary evidence, ... a broad rule automatically authorizing searches incident to arrest for all other offenses cannot be reconciled with the actual holding of Gant. . . . Some reasonable expectation beyond a mere possibility, whether arising solely from the nature of the crime or from the particular circumstances surrounding the arrest, is therefore clearly contemplated by the Court.” (Chamberlain, supra, 229 P.3d at p. 1057.) We conclude a reasonable belief to search for evidence of the offense of arrest exists when the nature of the offense, considered in conjunction with the particular facts of the case, gives rise to a degree of suspicion commensurate with that sufficient for limited intrusions such as investigatory stops. (Ibid.) Reasonable suspicion, not probable cause, is required. (Chamberlain, at p. 1057; U.S. v. Vinton, supra, 594 F.3d at p. 25; 3 LaFave, Search and Seizure, supra, § 7.1(d), pp. 124—125; but see U.S. v. Grote (E.D.Wn. 2009) 629 F.Supp.2d 1201, 1203.) As a practical matter, for crimes such as driving under the influence, absent unusual circumstances the requisite reasonable belief may be readily inferable from the nature of
Here, neither the nature of the offense nor any facts specific to the crime would have provided the officers with a reasonable belief that evidence related to the offense of arrest would be found in Evans’s automobile. Evans’s offense of arrest was interfering with a police investigation in violation of Penal Code section 148, due to his refusal to exit the car. In pertinent part, Penal Code section 148, subdivision (a)(1) prohibits willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties. People v. Bridgewater (2009) 235 Ill.2d 85 [335 Ill.Dec. 208, 918 N.E.2d 553, 558], concerned a similar crime. Applying Gant, the court there explained, “defendant was arrested for obstructing a peace officer after exiting his vehicle and walking into the store. The offense was based entirely on defendant’s failure to obey [the officer’s] commands. The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant’s vehicle.” (Id., 918 N.E.2d at p. 558; see also U.S. v. Chavez (E.D.Cal., Nov. 24, 2009, No. 2:09-cr-0033 FCD) 2009 U.S.Dist. Lexis 116924 [resisting arrest is akin to a traffic-related offense, and an officer could not reasonably expect to find evidence of the crime inside a car].)
We turn next to the question of whether either the initial search or the search at the impound yard was lawful under the automobile exception to the warrant requirement. Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found. (Gant, supra, 556 U.S. at pp. 346-347 [129 S.Ct. at p. 1721]; Ross, supra, 456 U.S. at pp. 820-821; People v. Panah (2005) 35 Cal.4th 395, 469 [25 Cal.Rptr.3d 672, 107 P.3d 790]; People v. Superior Court (Nasmeh), supra, 151 Cal.App.4th at pp. 100-102.) Such 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.” (Ross, supra, at p. 809.) Ross “allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader.” (Gant, supra, at p. 347 [129 S.Ct. at p. 1721].) “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (Ross, supra, at p. 825; see Gant, supra, at p. 347 [129 S.Ct. at p. 1721]; People v. Hunter (2005) 133 Cal.App.4th 371, 379-382 [34 Cal.Rptr.3d 818].) The automobile exception is rooted in the reduced expectation of privacy in a vehicle, the fact a vehicle is inherently mobile, and the historical distinctions between searches of automobiles and dwellings. (See California v. Carney (1985) 471 U.S. 386, 391-393 [85 L.Ed.2d 406, 105 S.Ct. 2066]; People v. Superior Court (Nasmeh), supra, 151 Cal.App.4th at p. 100.)
Probable cause is defined as “ ‘ “a fair probability that contraband or evidence of a crime will be found.” ’ ” (Alabama v. White (1990) 496 U.S. 325, 330 [110 L.Ed.2d 301, 110 S.Ct. 2412]; see People v. Hunter, supra, 133 Cal.App.4th at p. 378.) Probable cause to search thus exists when the “known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found----” (Ornelas v. United States (1996) 517 U.S. 690, 696 [134 L.Ed.2d 911, 116 S.Ct. 1657]; see People v. Hunter, supra, at p. 378.) The standard is a “ ‘ “fluid concept—turning on the assessment of probabilities in particular factual contexts,” ’ ” and is incapable of precise definition. (People v. Thompson (2006) 38 Cal.4th 811, 818 [43 Cal.Rptr.3d 750, 135 P.3d 3]; see People v. Hunter, supra, at p. 378.) A probable cause determination must be based on objective facts. (Ross, supra, 456 U.S. at p. 808.)
The People did not establish probable cause existed to search Evans’s vehicle at the scene of arrest pursuant to the automobile exception. The facts known to the officers were that Evans had swerved back and forth after he
Regarding the nature of the area where the stop occurred, Officer Currie explained he ordered Evans to exit the car because it was nighttime in an area claimed as the territory of a gang. Currie did not state that he believed Evans was a gang member or engaged in gang-related activity, nor were any facts presented that would have supported such a conclusion. That a detention occurs in a high crime area may contribute to a finding of probable cause if it is relevant to the officer’s belief that the suspect is involved in criminal activity (People v. Nonnette (1990) 221 Cal.App.3d 659, 668 [271 Cal.Rptr. 329]; People v. Souza (1994) 9 Cal.4th 224, 240 [36 Cal.Rptr.2d 569, 885 P.2d 982]; cf. Illinois v. Wardlow, supra, 528 U.S. at p. 124; In re H.M., supra, 167 Cal.App.4th at p. 145), but that principle does not help the People here, given that there was no apparent connection between the hour and area, on the one hand, and the officers’ suspicions, on the other.
As to Evans’s erratic driving, the officers followed Evans for a brief period, over a course of several blocks at the most, during which time Evans
For the same reasons, there was no probable cause to conduct the search at the impound yard. Setting aside the evidence of the baggies and cash, which was disclosed during the initial, unlawful search, the only additional fact known to the officers when they conducted the impound yard search was that Evans had once hidden a gun in his air vent when arrested for a crime sometime previously. Had there been probable cause to believe contraband was in the vehicle, this information would no doubt have given the officers insight into where it might be hidden. We fail to see, however, how the fact a gun was found sometime well before the stop at issue, in regard to an unrelated crime for which Evans was apparently never charged, somehow established probable cause to believe he had contraband in the car on this occasion. Because probable cause did not exist to conduct either the first or second searches, the searches violated the Fourth Amendment.
c. The inevitable discovery doctrine.
The People argue that even if the searches were unlawful, suppression of the evidence was unwarranted because the baggies, cash, and cocaine inevitably would have been discovered during an inventory search. Under the inevitable discovery doctrine, where the prosecution can establish by a preponderance of the evidence that the information would inevitably have been discovered by lawful means, the exclusionary rule does not apply. (Nix v. Williams (1984) 467 U.S. 431, 443-144 [81 L.Ed.2d 377, 104 S.Ct. 2501]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62 [17 Cal.Rptr.3d 710, 96 P.3d 30]; People v. Robles (2000) 23 Cal.4th 789, 800-801 [97 Cal.Rptr.2d 914, 3 P.3d 311].) “As the United States Supreme Court has explained, the doctrine ‘is in reality an extrapolation from the independent source doctrine:
The People have failed to establish that the baggies and cash would inevitably have been discovered. The inevitable discovery doctrine was not presented to the trial court below, and the factual basis for the theory was not explored. (Cf. People v. Robles, supra, 23 Cal.4th at p. 801.) The impound yard manager testified that his driver would have completed a routine inventory search; however, the yard’s policy was to inventory only items that were in plain view. He explained, “We don’t search. Just what we can see.” Because the cash and the baggies were in the vehicle’s center console, and the cocaine was in the air vent, the inventory search conducted at the impound yard would have disclosed none of these items. The record was undeveloped regarding what, if any, additional inventory would have been conducted by police. The impound yard manager identified a “CHP 180” form and testified that “[t]he officer fills it out.” Other than this oblique reference, there was no evidence presented regarding when, or whether, a separate inventory would have been conducted by police, or what the scope of such an inventory search would have been. The prosecution has the burden to prove the existence of an inventory search policy, including any policy or practice governing the opening of closed containers. (People v. Williams, supra, 20 Cal.4th at p. 138.) Given the People’s failure to factually develop these predicates to the application of the inevitable discovery doctrine below, they cannot rely upon the doctrine now.
Because both searches were constitutionally impermissible, Evans’s suppression motion should have been granted.
The judgment is reversed. The matter is remanded to the trial court with directions to set aside its order denying the motion to suppress, enter a different order granting the motion, allow appellant to move to withdraw his guilty plea, and conduct further proceedings consistent with the opinions expressed herein.
Croskey, Acting P. J., and Kitching, J., concurred.
Respondent’s petition for review by the Supreme Court was denied February 22, 2012, S198696.
Officer Prodigalidad’s first name is not reflected in the record.
It appears that Evans was not charged with the murder.
Evans stopped his vehicle at the curb although the officers did not activate the police cruiser’s lights and siren. There is no dispute, however, that the encounter was a traffic stop.
In In re Jaime P. (2006) 40 Cal.4th 128 [51 Cal.Rptr.3d 430, 146 P.3d 965], the court observed in dicta that the People had conceded the defendant’s failure to signal when turning or pulling to the curb, standing alone, would not have justified a vehicle stop, because no other vehicles were affected. (Id. at p. 131; see, e.g., People v. Logsdon (2008) 164 Cal.App.4th 741, 746 [79 Cal.Rptr.3d 379]; Veh. Code, § 22107.) The People made no such concession here, and Evans did not challenge the validity of the stop below, which was additionally based on his erratic driving.
When a vehicle is lawfully impounded, a warrantless inventory search conducted pursuant to a standardized procedure is constitutionally reasonable. (South Dakota v. Opperman (1976) 428 U.S. 364, 376 [49 L.Ed.2d 1000, 96 S.Ct. 3092]; People v. Williams (2006) 145 Cal.App.4th 756, 761 [52 Cal.Rptr.3d 162].) Such a search must be carried out “according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” (Colorado v. Bertine (1987) 479 U.S. 367, 375 [93 L.Ed.2d 739, 107 S.Ct. 738]; see Florida v. Wells (1990) 495 U.S. 1, 4-5 [109 L.Ed.2d 1, 110 S.Ct. 1632].) “[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” (Florida v. Wells, supra, at p. 4; see People v. Redd, supra, 48 Cal.4th at p. 722; People v. Williams (1999) 20 Cal.4th 119, 138 [83 Cal.Rptr.2d 275, 973 P.2d 52]; People v. Torres (2010) 188 Cal.App.4th 775, 788 [116 Cal.Rptr.3d 48].) There was no evidence that either search was an inventory search conducted pursuant to standardized criteria. Currie did not testify that the initial search of the vehicle was conducted pursuant to a standardized inventory procedure. It was undisputed that the officers conducted the second search at the impound yard in order to discover incriminating evidence, not as an inventory search. For example, when asked whether he routinely searched a vehicle’s air vent, Officer Currie replied, “Well, this isn’t routine. These circumstances were, I believe, different than most other routine stops.” Accordingly, neither search may be considered valid as a lawful inventory search. (See People v. Nottoli (2011) 199 Cal.App.4th 531, 545-546 [130 Cal.Rptr.3d 884].)
The officers did not know Cash was on parole at the time they initially searched the car, and the first search was therefore not justified as a parole search. (See People v. Brendlin (2008)
The searches occurred on September 27, 2009, approximately five months after the decision in Gant was issued.
Although the record is not entirely clear, it appears that the passenger, Cash, was no longer in the car when the search was conducted. The People do not contend the search was justified
On this point, we part company with U.S. v. Reagan, supra, 713 F.Supp.2d at pages 733-734 (holding that it was unreasonable to believe evidence of intoxicated driver’s offense of arrest, driving under the influence, would be found inside the vehicle absent particularized facts such as observations of the driver drinking, open containers, or other similar facts).
Of course, other established exceptions to the warrant requirement are unaffected by Gant’s interpretation of the search incident to arrest exception. (Gant, supra, 556 U.S. at p. 346 [129 S.Ct. at p. 1721]; United States v. Ross (1982) 456 U.S. 798, 820-821 [72 L.Ed.2d 572, 102 S.Ct. 2157] (Ross) [automobile exception]; Michigan v. Long (1983) 463 U.S. 1032 [77 L.Ed.2d 1201, 103 S.Ct. 3469] [search of passenger compartment permissible when an officer has reasonable suspicion that an individual is dangerous and might access the vehicle to gain immediate control of a weapon].)
Although unpublished California cases may not be cited, the California Rules of Court do not prohibit citation to unpublished federal cases. (Cal. Rules of Court, rule 8.1115; Moss v. Kroner (2011) 197 Cal.App.4th 860, 874 & fn. 6 [129 Cal.Rptr.3d 220]; Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352 & fn. 6 [42 Cal.Rptr.3d 283].)
The People’s cursory invocation of the exigent circumstances doctrine is even less persuasive. The People cite no authority discussing application of the exigent circumstances doctrine in the context of a vehicle search. It is true that the presumption of unreasonableness that attaches to a warrantless entry into a home can be overcome by a showing that destruction of evidence is imminent. (People v. Thompson, supra, 38 Cal.4th at p. 818.) Entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by the imminent destruction of evidence or other factors. (Ibid.; People v. Celis (2004) 33 Cal.4th 667, 676 [16 Cal.Rptr.3d 85, 93 P.3d 1027].) The People fail to adequately address how the doctrine applies in the context of a vehicle search, where the car was in the impound yard, the driver was apparently in the hospital, and the officers had no probable cause to search. Because the People fail to adequately support this argument, we do not consider it. (See People v. Redd, supra, 48 Cal.4th at pp. 744-745; People v. Barnett (1998) 17 Cal.4th 1044, 1182 [74 Cal.Rptr.2d 121, 954 P.2d 384] [where defendant failed to support his claim with adequate argument, court rejected it as not properly raised]; People v. Bragg (2008) 161 Cal.App.4th 1385, 1396-1397 [75 Cal.Rptr.3d 200].)