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People v. Branner

December 17, 2009; as modified January 11, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JASPER DWIGHT BRANNER, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Troy L. Nunley, Judge. Affirmed. (Super.Ct.No. 04F11213).

The opinion of the court was delivered by: Scotland, P. J.

CERTIFIED FOR PUBLICATION

OPINION ON REHEARING

Almost a century ago, when it created the exclusionary rule to deter improper conduct by law enforcement officers, the United States Supreme Court held the guilty must go free when evidence essential for their convictions was obtained by an officer in violation of the right against unreasonable search and seizure enshrined in the Fourth Amendment to the United States Constitution. (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652]; see also United States v. Leon (1984) 468 U.S. 897, 906 [82 L.Ed.2d 677, 687]; Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081].)

A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind. As we will explain, the answer is "No."

Although it may be that a "criminal is to go free because the constable has blundered" (People v. Defore (1926) 242 N.Y. 13, 21), the guilty should not go free when the constable did precisely what the United States Supreme Court told him he could do, but the court later decides it is the one who blundered. Evidence seized during a search that was lawful pursuant to Supreme Court precedent existing at the time, but later overruled by the court, should not be excluded for two reasons: (1) "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates" (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694]) and, therefore, if a search by an officer complies with a court ruling that allows the officer to so act, "[p]enalizing the officer for the [court's] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations" (id. at pp. 918, 921 [82 L.Ed.2d at pp. 696, 697); and (2) applying the exclusionary rule in such a circumstance would have "substantial social costs" due to the "objectionable collateral consequence of [the rule's] interference with the criminal justice system's truth-finding function [by allowing] some guilty defendants [to] go free or receive reduced sentences" (id. at p. 907 [82 L.Ed.2d at p. 688]).

This principle, known as the good-faith exception to the exclusionary rule, applies to the search and seizure in this case.

Defendant Jasper Dwight Branner, who was required to register as a convicted drug offender (Health & Saf. Code, § 11590), was arrested when officers investigating Vehicle Code violations discovered that he had not complied with the drug offender registration requirements, a misdemeanor (Health & Saf. Code, § 11594). Incident to defendant's arrest, officers searched the passenger compartment of his vehicle while defendant was in the back of a patrol car. Cocaine base and a gun were found.

When conducted on December 17, 2004, the search and seizure were lawful. (New York v. Belton (1981) 453 U.S. 454, 460 [69 L.Ed.2d 768, 775] (hereafter Belton) [to establish a "straightforward," "workable rule" that informs a person of "the scope of his constitutional protection" and lets a law enforcement officer "know the scope of his authority" under various factual situations, the Supreme Court held that, when an officer "has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" and "any containers found" there, even if the person arrested is no longer in the car (id. at pp. 456, 459-460, 462-463 [69 L.Ed.2d at pp. 772, 774-775, 776])]; U.S. v. Humphrey (10th Cir. 2000) 208 F.3d 1190, 1196, 1202 ["to provide specific and coherent guidance to officers in the field" who arrest the occupant of a vehicle, Belton "created a `bright line' rule" authorizing officers to search, incident to arrest, the passenger compartment of the vehicle "without regard to the nature of the offense for which he was arrested" and regardless of whether the person "had been restrained," e.g., Humphrey had been handcuffed and placed in a patrol car].)

Today, the search and seizure are deemed unlawful, unless it was reasonable to believe the car contained evidence of the offense for which defendant was arrested. (Arizona v. Gant (2009) 556 U.S. __, __ [173 L.Ed.2d 485, 501] (hereafter Gant) [officers "may search incident to arrest only the space within an arrestee's `"immediate control,"' meaning `the area from within which he might gain possession of a weapon or destructible evidence' [citation]"; hence, a warrantless "vehicle search incident to a recent occupant's arrest [may not be done] after the arrestee has been secured and cannot access the interior of the vehicle" (id. at p. ___ [173 L.Ed.2d at p. 491), unless "it is reasonable to believe the vehicle contains evidence of the offense of arrest"] (id. at p. ___ [173 L.Ed.2d at p. 501]).)

Because the officers relied in good faith on the teaching of Belton, the exclusionary rule does not apply even though the holding of Gant is retroactive to this case. (See United States v. Leon, supra, 468 U.S. at pp. 916, 918 [82 L.Ed.2d at pp. 694, 696.)

Nevertheless, defendant contends the officers' discovery that he had failed to comply with drug offender registration requirements was the product of an unlawfully prolonged detention (citing People v. McGaughran (1979) 25 Cal.3d 577 (hereafter McGaughran)), thus invalidating the ensuing search incident to defendant's arrest for the registration violation. The contention fails because changes in search and seizure law subsequent to the California Supreme Court's ruling in McGaughran make McGaughran obsolete and inapplicable to this case. In 1982, three years after McGaughran, California's voters added a provision to our state Constitution that precludes suppression of relevant evidence in a criminal case unless compelled by federal law. (See People v. McKay (2002) 27 Cal.4th 601, 605.) Under federal law, an officer may, without violating the Fourth Amendment, arrest a person who in the officer's presence commits "even a very minor criminal offense" (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354 [149 L.Ed.2d 549, 577]), such as a Vehicle Code violation. Consequently, the McGaughran limit on the time an officer may detain a Vehicle Code violator is no longer the law in California for purposes of Fourth Amendment analysis. (People v. McKay, supra, at pp. 607-619.)

Accordingly, we shall affirm the judgment in this case.

FACTS AND PROCEDURAL BACKGROUND

While conducting surveillance of an apartment complex because of complaints of drug sales in its parking lot, officers saw defendant's Jeep Wagoneer travel from Howe Avenue into the complex. On a prior occasion, the officers had seen defendant in the vehicle at the apartment complex and knew he "was an 11590 drug registrant." (Health & Saf. Code, § 11590 [a person convicted of certain drug crimes must register as a drug offender].) The rear license plate light of defendant's vehicle was not working (Veh. Code, §§ 24252, subd. (a), 24601), and one of the headlights was misaligned so that it illuminated the ground four to five feet in front of the vehicle (Veh. Code, § 24409). When the vehicle stopped and one of its passengers got out and started urinating on the wall of an apartment building, the officers approached and detained defendant due to the Vehicle Code violations. Asked if he was on probation or parole, or had outstanding arrest warrants, defendant said no. In response to a request for identification, defendant presented his driver's license. A records check, which took "probably less than five minutes," revealed the last address on defendant's drug offender registration. When asked if he was still living there, defendant said no, that he had been living with his mother for the past eight to twelve months. Believing that defendant was in violation of the drug offender registration requirements, an officer arrested him and put him in the back of an unmarked patrol car. (Health & Saf. Code, § 11594 [requires reregistering within 10 days of changing residences; failure to do so is a misdemeanor].) Officers then searched the passenger compartment of defendant's vehicle and found a gun and cocaine base. The entire encounter, from urination to arrest, took approximately 15 minutes.

Defendant was charged with possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)) while armed with a firearm (Pen. Code, § 12022, subd. (c)), and being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). It was further alleged that defendant had a prior conviction for possessing cocaine base for sale. (Health & Saf. Code, § 11370.2, subd. (a).)

After his motion to suppress evidence of the gun and cocaine base was denied, defendant pled no contest to possessing cocaine base and admitted the prior conviction allegation. The other charges were dismissed, and he was sentenced to the low term of three years for the drug charge, plus a consecutive term of three years for the prior conviction enhancement. The court also imposed various fines and fees.

Defendant appealed and on April 20, 2009, we affirmed the judgment. We later granted defendant's petition for rehearing, vacated our opinion, and requested supplemental briefing on whether the United States Supreme Court's decision in Gant, supra, 556 U.S. ___ [173 L.Ed.2d 485], issued the day after we had affirmed the judgment, applies to the search in this case and, if so, "must the evidence be suppressed, i.e., is the purpose of the exclusionary rule advanced by applying it to a search carried out in lawful compliance with United States Supreme Court precedent that existed when the search and seizure occurred?"

The parties have filed supplemental briefing, and we now issue our opinion on rehearing.

DISCUSSION

I.

Defendant contends the evidence must be suppressed because he was unlawfully detained and, even if the initial detention was permissible, it "became unduly prolonged based on an investigation unrelated to [the] Vehicle Code violations."

An officer may detain a person when "the circumstances known or apparent to the officer . . . include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place . . . , and (2) the person he intends to stop or detain is involved in that activity." (In re Tony C. (1978) 21 Cal.3d 888, 893.) The officer's suspicion must be objectively reasonable. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.)

Here, specific and articulable facts existed for the officers to have an objectively reasonable suspicion that defendant was violating the Vehicle Code because the rear license plate on his Wagoneer was not illuminated (Veh. Code, §§ 24252, subd. (a), 24601) and one of the headlights was out of alignment (Veh. Code, § 24409).

Defendant argues, however, the officers could not reasonably suspect that he was violating the Vehicle Code because his car was in the parking lot of an apartment complex, not a public highway (Veh. Code, § 360) and the Vehicle Code provisions at issue "refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to" (Veh. Code, § 21001). This contention ignores that the officers observed defendant driving on Howe Avenue, a public highway within the meaning of the sections at issue, before he drove into the apartment complex parking lot. Having reason to believe that the lighting violations did not begin just when defendant was in the parking lot, the officers had reason to detain defendant for having so violated the Vehicle Code while driving on Howe Avenue.

Defendant relies on McGaughran, supra, 25 Cal.3d 577, in arguing that the detention became unconstitutional when, in the words of his counsel, it was "unduly prolonged beyond the time necessary to deal with citation of traffic offenses." In McGaughran, a person was stopped for driving in the wrong direction on a one-way public street. Beyond the time needed to cite him, the driver was detained for 10 minutes during a radio check to determine whether he had any outstanding arrest warrants. He did and was arrested. A search of his car revealed a radio that had been stolen the same day from a car parked about a mile from the arrest. Defendant's fingerprints were found on the car door that was broken open so the radio could be taken. (Id. at pp. 581-582, 585-586.) Noting the traffic violation was one for which the driver could not be taken into custody (id. at p. 583), McGaughran held that the 10-minute "additional period of detention for the purpose of seeking out unrelated arrest warrants in the name of [the driver] or his passenger was not `reasonably necessary' to [deal with the traffic offense], and hence `exceeded constitutional limitations'" (id. at p. 587).

As we will explain, the McGaughran limit on the time an officer may detain a Vehicle Code violator is no longer the law in California for purposes of Fourth Amendment analysis.

Three years after the McGaughran decision was issued, the voters of California approved Proposition 8, which added a provision to our state Constitution to preclude the suppression of relevant evidence in a criminal case, unless compelled by federal law. (Former Cal. Const., art. I, § 28(d) [now art. I, § 28(f)(2)]; People v. McKay, supra, 27 Cal.4th at p. 605 (hereafter McKay).)

The effect of Proposition 8 on a case like the one now before us was explained in detail in McKay, where a bicyclist was stopped for riding in the wrong direction on a residential street, an infraction. When the bicyclist stated his name and date of birth but could not produce any identification, he was taken into custody and searched incident to arrest. Methamphetamine was found. (McKay, supra, 27 Cal.4th at p. 606.) He moved to suppress the evidence on the ground that the officer lacked the statutory authority to effect a custodial arrest. (Id. at pp. 606-607.) The California Supreme Court held the contention was "foreclosed by" Atwater v. City of Lago Vista, supra, 532 U.S. at p. 354 [149 L.Ed.2d at p. 577] (hereafter Atwater), which ruled that, under federal law, an officer may, without violating the Fourth Amendment, arrest a person who in the officer's presence commits "even a very minor criminal offense." As McKay explained, it was immaterial whether the bicyclist's arrest violated California statutes; "[w]ith the passage of Proposition 8, we are not free to exclude evidence merely because it was obtained in violation of some state statute or state constitutional provision." (Id. at pp. 607-608.) This is so because the United States Supreme Court "has repeatedly emphasized that the Fourth ...


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