(Super. Ct. No. CRF091751)
The opinion of the court was delivered by: Raye, P.J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Miguel Angel Lopez appeals the trial court's denial of his motion to suppress evidence. The evidence includes a handgun the police found in a search underneath the center console of a Chevrolet Suburban that defendant was driving. The search was conducted as a "parole search"--a passenger in the far back of the Suburban was on parole.
Defendant argued below, as he does on appeal, that the search underneath the center console cannot be justified as a parole search. For the reasons that follow, we agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
According to Officer Brent Slade of the Yuba City Police Department, on July 15, 2009, while on duty, he observed a blue Chevrolet Suburban stopped at an intersection in Sutter County. Officer Slade noticed the front passenger was not wearing his seat belt. The front passenger looked over at Officer Slade and promptly fastened his seat belt. The Suburban continued through the intersection headed eastbound, and Officer Slade observed that a rear seat passenger, sitting immediately behind the front seat passenger, was also riding without a seat belt. Officer Slade followed the Suburban for one to two minutes, and after it turned onto another street, Officer Slade initiated a traffic stop.
According to Officer Slade, the Suburban had four doors and three rows of seating. Six occupants, including the driver, were inside. As Officer Slade looked into the vehicle, he did not suspect any criminal activity aside from the seat belt infractions. Officer Slade asked the driver, defendant, for his driver's license. Defendant could not provide his driver's license but did "identify himself verbally."
After defendant verbally identified himself, Officer Slade asked all the vehicle occupants if they were on probation or parole. Jose Lopez, a passenger in the third row on the passenger side of the vehicle, stated that he was on parole.*fn2 Officer Slade asked Jose for the name of his parole agent, which Jose supplied. Officer Slade then obtained the names of the remaining occupants. The front seat passenger identified himself as Quintan Ontiveros, a name which Officer Slade recognized from a gang-related investigation.
Officer Slade had dispatch run a records check on all the occupants and requested a backup unit. As dispatch was running the records check, Officer Jurado arrived on the scene. In addition, Officers Sharma and Moe with the gang suppression team advised that they would be en route. Officer Slade waited five to 10 minutes for the additional officers to arrive.
The records check confirmed that Jose was on parole. According to Officer Slade, "[a]fter everything was confirmed, I went and advised them all I was going to do a parole search and asked each individual to step out one at a time." All the passengers complied and Officer Slade conducted a parole search. Officer Slade entered the front of the vehicle through the passenger door, while Officer Sharma was at the driver's side door. Officer Slade grasped the center console in order to look inside it. As he did so, he noticed the whole center console unit was loose, although it was bolted down at the back and "kind of hinged up."*fn3 Officer Slade then raised the whole center console unit, looked in the space underneath, and saw a white rag. Inside the white rag, Officer Slade found a black semiautomatic handgun.*fn4 Subsequently, defendant, the driver, was arrested.*fn5
Officer Slade acknowledged there was no reason to believe that Jose, the parolee, owned, or had "custody or control of," the Suburban. Jose was seated in the third row, between four and seven feet from the center console, and other individuals were in front of him. Jose could not reach the center console while seated in the third row. When asked at the suppression hearing whether Jose could reach the center console while standing in the third row, Officer Slade responded, "[p]robably not."
On August 21, 2009, defendant was charged with three crimes: carrying a loaded firearm (count 1), carrying a concealed weapon in a vehicle (count 2), and participation in a criminal street gang (count 3). The first count further alleged that defendant was not the registered owner of the firearm, and consequently the offense was charged as a felony. Similarly, the second count alleged that defendant was not in lawful possession of the firearm, and consequently that offense was also charged as a felony. ...