Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., and Gary S. Paer, Judges. Reversed and remanded with directions. (Super. Ct. No. 08NF2894).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Defendant Alfredo Torres Torres challenges his convictions for various drug-related offenses, possession of a firearm by a felon, and misdemeanor driving without a valid license. Before defendant pleaded guilty to all charges, the court denied his motions to set aside the information and suppress evidence. In each motion, defendant contended drugs seized from his truck and other evidence were the inadmissible fruits of an illegal traffic stop and inventory search. We agree, and reverse.
Initially, defendant is entitled to separate review of the denials of his motion to set aside and his motion to suppress. We publish to reaffirm this established proposition because neither party was able to find a case on point. We also clarify that each motion must be reviewed on the record as it existed when the court decided the motion.
Turning to the merits, the inventory search was unlawful because the prosecution did not show the police reasonably impounded defendant's truck pursuant to their community caretaking function. To the contrary, the record shows this was a pretextual inventory search conducted as a ruse for a criminal investigation. As such, and because no attempt has been made to justify the search as an investigatory search based upon probable cause, we reverse.
The Impound and the Search
An Orange County Sheriff's deputy patrolling in the City of Anaheim pulled over a pickup truck which had made an unsafe lane change and failed to signal a turn. The driver, who was defendant, parked in a stall in a public parking lot near a restaurant and got out of the car. Defendant told the deputy he did not have a valid driver's license. The deputy obtained defendant's consent to search him, and found four cellular phones and $965. The deputy decided to impound the truck. He placed defendant in the back of the patrol car and waited for his partner to arrive. The deputy and his partner conducted an inventory search of the truck. They found 12 ounces of methamphetamine under the driver's seat and a pay/owe sheet in the back seat.
Deputies later searched defendant's home pursuant to a warrant. They found $133,074 in cash, nearly three pounds of methamphetamine, some cocaine, narcotics trafficking equipment, and a rifle.
The First Motion to Suppress and the Preliminary Hearing
Before the preliminary hearing, defendant filed a motion to quash and traverse the search warrant and suppress evidence. (Pen. Code, § 1538.5, subd. (f).)*fn1 He contended the traffic stop was "clearly pretextual" and unreasonable; the impound and inventory search was "a ruse" and unlawful; and the search warrant was "tainted" by the unlawful detention and search.
The court denied the motion after hearing testimony at the preliminary hearing. The deputy testified he had told defendant he would cite defendant for driving without a valid license (Veh. Code, § 12500, subd. (a)) and impound the truck pursuant to Vehicle Code section 14602.6, subdivision (a)(1) (authorizing impoundment of vehicles being driven by unlicensed drivers). The deputy testified his department has a policy governing inventory searches: "[Y]ou can search the vehicle, if you are impounding it."
The deputy made several concessions on cross-examination, however. He conceded a narcotics officer had previously asked him to "develop some basis for stopping" defendant. The deputy agreed with defense counsel that he had decided to impound the truck "in order to facilitate an inventory search." And he agreed he was "basically using the inventory search as the means to go look for whatever narcotics-related evidence might be in the [truck]." He never started writing a citation for driving without a license.
The People filed an information against defendant, charging him with seven counts. Defendant was charged with two counts of possession for sale of methamphetamine (Health & Saf. Code, § 11378) and one count each of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of cocaine for sale (Health & Saf. Code, § 11351), possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of drug sale proceeds exceeding $100,000 (Health & Saf. Code, § 11370.6, subd. (a)), and misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a)). The People alleged defendant suffered a prior felony conviction for possession of a controlled substance for sale. (§ 1203.07, subd. (a)(11); Health & Saf. Code, § 11370.2, subds. (a), (c).)
The Motion to Set Aside and the Renewed Motion to Suppress
Defendant moved to set aside the information. (See § 995.) He again contended the detention and search were unlawful and the search warrant was invalid. The court denied the motion. It noted: "[I]f there had been an inventory search that was in fact a pretext search, but it was otherwise established to be valid, the Court believes that the case law supports the validity of that search . . . ."
Defendant renewed his motions to quash the warrant and suppress evidence. (See § 1538.5, subd. (i) [right to renew suppression motion].) The court conducted a hearing on the motion, at which the deputy provided additional testimony.
On direct examination, the deputy reiterated he pulled defendant over for traffic violations and impounded the truck when defendant admitted having no license. He further testified his department has a policy giving an officer discretion to impound a vehicle driven by an unlicensed driver. The department trained him to exercise his discretion based on several factors: "Depending on the person, if they have ever been issued a license or not. How long they have been in the country," as well as "for safety reasons. I wouldn't want the person who doesn't have a license to get back into the vehicle after I issued them a citation [, with] [m]e leaving the vehicle ...