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The People v. Donald Robert Posada

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


October 17, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONALD ROBERT POSADA, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62-081814A)

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

P. v. Posada CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The defendant Donald Robert Posada appeals the trial court's denial of his motion to suppress evidence which includes contraband the police found in a search of a convertible Mustang the defendant was driving. The defendant also appeals the trial court's ruling on his Pitchess motion.*fn1

We affirm.

BACKGROUND

I Factual Background*fn2

At approximately 9:00 a.m. on July 8, 2008, Deputy Sheriff Gregg Hopping was on patrol in the northwest portion of Placer County. While parked in a lot at the Thunder Valley Casino, Deputy Hopping observed a gray Ford Mustang convertible with its top down driving toward him without a front license plate. As the Mustang passed, Deputy Hopping observed that it also lacked a rear license plate. Deputy Hopping then pulled behind the Mustang and paced it traveling 60 to 65 miles per hour in a 55-miles-per-hour zone. Consequently, Deputy Hopping activated his overhead lights and initiated a traffic stop. The Mustang's driver (the defendant) initially pulled over to the shoulder but then pointed as if he desired to go further and pulled back onto the roadway. Deputy Hopping activated his siren and motioned for the vehicle to pull over. The defendant returned the Mustang to the shoulder and stopped. The Mustang had one other occupant, Fred Barreno, who was sitting in the front passenger seat.

As Deputy Hopping approached the Mustang, he noticed Barreno leaning forward and possibly moving or manipulating something on the passenger seat floor area. Deputy Hopping informed the defendant of his speed and license plate violations and requested his driver's license, which the defendant provided. While they were conversing, Deputy Hopping detected a strong odor of alcohol and observed empty beer bottles in a Pacifico beer box or case in the back seat. He was concerned that the defendant may have consumed alcohol and believed that there might be further alcohol in the vehicle. Deputy Hopping asked the defendant to step out of the Mustang and the defendant complied. With the defendant's consent, Deputy Hopping pat searched the defendant and found nothing. Deputy Hopping then went around to the passenger side of the Mustang and indicated to Barreno that he intended to look for the source of the alcohol odor. Deputy Hopping asked Barreno to exit the vehicle and he complied. With Barreno's consent, Deputy Hopping pat searched Barreno and found a glass methamphetamine pipe that contained burnt residue. Deputy Hopping handcuffed and arrested Barreno and placed him in the back of his patrol car. Deputy Hopping then called for a backup unit while the defendant stood in front of the patrol car.

When the backup, Deputy Schafer, arrived, Deputy Hopping began to search the Mustang's passenger compartment incident to Barreno's arrest. Due to Barreno's previously observed furtive movement in the front passenger seat, Deputy Hopping searched that area and noticed that the carpet on the floorboard near the center console was loose. Under the carpeting in that area, Deputy Hopping found a broken glass methamphetamine pipe. Upon making this discovery, Deputy Hopping arrested the defendant for possession of the methamphetamine pipe and the defendant was placed in Deputy Schafer's patrol car. According to Deputy Hopping, the area near the center console in which he found the methamphetamine pipe was within the defendant's reach and accessible to him.

After arresting the defendant, the Mustang's driver, Deputy Hopping decided to have the vehicle towed. Deputy Hopping explained he was "not going to leave [the convertible Mustang] there in an area that has [a] high crime rate, especially for burglaries." Deputy Hopping conducted an inventory search to note any particular damage to the car and to document noteworthy or valuable items. Deputy Hopping testified his inventory search was consistent with departmental policy and anything "noteworthy of value" had to be logged. During the inventory search of the trunk, Deputy Hopping found a black cosmetic bag that contained a glass methamphetamine pipe, five white tablets, and two blue tablets. He suspected the white tablets were vicodin but was uncertain as to the blue tablets. Subsequently, Deputy Hopping took the defendant to jail and during booking, the defendant was instructed to take off his shoes and socks. As the defendant removed his right sock, a baggie fell out containing what Deputy Hopping believed to be methamphetamine.

II Procedural Background

On August 29, 2008, the district attorney filed an amended complaint in the Placer County Superior Court charging the defendant with: (1) possession of hydrocodone (count one); (2) transportation of hydrocodone (count two); (3) transportation of methamphetamine and alprazolam (count three); (4) possession of methamphetamine and alprazolam (count four); (5) possession of drug paraphernalia (count five); (6) speeding (count six); and (7) failing to display a license plate (count seven). As enhancements, with respect to counts one through five, it was alleged that the defendant had prior serious or violent felony convictions and had served prior prison terms.

On March 19, 2009, the defendant filed a Pitchess motion. The motion sought discovery of police records concerning prior alleged incidents of "falsifying information, illegal search or seizure, harassment, and racial or ethnic bias" by Deputy Hopping. On April 22, 2009, the trial court heard the Pitchess motion and concluded that the defendant made a sufficient showing to warrant an in-chambers review of Deputy Hopping's personnel records for incidents pertaining to the "issue of truthfulness, falsification of evidence."*fn3 Later that day, the court held an in-chambers proceeding with the custodian of records during which the trial court reviewed Deputy Hopping's personnel records. Back on the record, the trial court stated that it had reviewed the records and found nothing pertinent to the discoverable issues.

On September 14, 2009, the court heard the defendant's suppression motion. The court denied the defendant's motion by written order on September 23, 2009. Subsequently, the criminal complaint was amended to allege a count for transportation of alprazolam (count eight).

On October 30, 2009, in exchange for a 15-year state prison sentence, the defendant pleaded no contest to counts two, three, and eight and admitted one prior strike and one prior prison term. On December 3, 2009, the court sentenced the defendant to an aggregate term of 15 years in state prison. This appeal followed.

DISCUSSION

I Motion To Suppress

In reviewing a suppression ruling, we defer to the trial court's factual findings, whether express or implied, when supported by substantial evidence and we independently determine whether the facts of the challenged search and/or seizure violated defendant's Fourth Amendment rights. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Ferguson (2003) 109 Cal.App.4th 367, 371.) When, as here, "the facts are basically undisputed, . . . we independently review the trial court's legal decision." (People v. Ferguson, supra, at p. 371.)

On appeal, the defendant does not dispute the legality of the traffic stop or Barreno's arrest. Instead, he cites a case decided less than three months before his arrest, Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d 485] (Gant). The defendant argues here, as he did below, the search of his Mustang's passenger compartment cannot be justified as a search incident to Barreno's arrest. Furthermore, according to the defendant, the purported inventory search of his Mustang's trunk was a mere pretext for evidence gathering and was therefore unlawful. We conclude that the search of the passenger compartment and the trunk were lawful.

A. Passenger Compartment Search

In Gant, the Supreme Court revisited its earlier decision in New York v. Belton (1981) 453 U.S. 454 [69 L.Ed.2d 768] (Belton), which had "been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 495].) More than a quarter of a century after issuing it, the high court now "clarified" Belton, saying the police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Id. at p. __ [173 L.Ed.2d at p. 496], fn. omitted.)

At the same time it limited Belton's scope, Gant added a new exception to the search warrant requirement: a vehicle search incident to a recent occupant's arrest is also permissible "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' Thornton v. United States, 541 U.S. 615, 632 [158 L.Ed.2d 905] (Scalia, J., concurring in judgment) [Thornton]." (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496].) Discussing this exception further, the court stated that "[i]n 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. [Citations.] But in others, 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." (Ibid.)

Here, the arrestee, Barreno, was handcuffed and in the back of the patrol car at the time Deputy Hopping searched the Mustang's passenger compartment -- Barreno was not "unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496], fn. omitted.) Thus, a Belton search was no longer an option. Nevertheless, the search of the Mustang's passenger compartment was lawful under Gant because it was "'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' [Citation.]" (Gant, supra, 556 U.S. ___ [173 L.Ed.2d at p. 496].)

The offense of arrest at issue is Barreno's possession of drug paraphernalia, i.e., specifically a methamphetamine pipe that contained burnt residue, a violation of Health and Safety Code section 11364, subdivision (a) (hereafter section 11364(a)). This section makes it unlawful to possess "any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking" a controlled substance, including methamphetamine. (Ibid.) Under this section, "the possession of paraphernalia [is] illegal if, and only if, it is used for unlawfully injecting or smoking specified controlled substances." (In re Johnny O. (2003) 107 Cal.App.4th 888, 895.) The offense is regarded as containing a mens rea requirement. (CALCRIM No. 2410 [delineating elements of the offense including that "defendant knew that the object could be used to unlawfully inject or smoke a controlled substance"]; see also CALJIC No. 16.040 [same].)

Conceivably, the offense of arrest -- Barreno's possession of a methamphetamine pipe that contained burnt residue -- alone made it reasonable to believe that evidence relevant to this offense, such as methamphetamine, a lighter, or a tool used for cleaning the pipe's residue, might be found in the Mustang. (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496]; Thornton, supra, 541 U.S. at p. 630 [158 L.Ed.2d at p. 919] (conc. opn. of Scalia, J.) ["it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended"]; United States v. Bradford (E.D. Wis. Nov. 5, 2009, No. 09-CR-71) 2009 U.S. Dist. LEXIS 110385 at *8, *9 [concluding that "possession of drug paraphernalia," the offense of arrest, justified a vehicle search under Gant because it "ma[de] it reasonable for the officer to search the car for drugs"]; Daves v. State (Tex.Ct.App. 2010) 327 S.W.3d 289, 293 [concluding that "possession of narcotic paraphernalia," the offense of arrest, justified a vehicle search under Gant because it made it "reasonable . . . to believe that the vehicle contained evidence related to that offense"].) In any event, in addition to the offense of arrest, when Deputy Hopping initially approached the Mustang, he observed Barreno leaning forward and possibly manipulating or moving something on the floor area. This activity, combined with the offense of arrest, certainly made it reasonable to believe that evidence relevant to the offense of arrest might be found in the Mustang. Accordingly, the search of the Mustang's passenger compartment was lawful under Gant. Although the defendant raises several arguments to the contrary, none have merit.

First, the defendant contends that when Deputy Hopping arrested Barreno for possessing a methamphetamine pipe, Deputy Hopping already had all the evidence relevant to this crime -- the pipe itself. According to the defendant, "[t]here was no possibility whatsoever that further evidence of that offense was going to be found in the vehicle, either under the passenger-side carpeting or anywhere else." We disagree. There was indeed a possibility, and it was reasonable to believe, that the Mustang might contain evidence relevant to the offense of arrest such as methamphetamine (the very contraband associated with the pipe), a lighter (to ignite the contraband), or a tool for cleaning the pipe's residue (which tool could contain traces of methamphetamine or be identified as commonly associated with narcotic use). The presence of one or more of these items in the Mustang would be relevant to, and could help prove, essential elements of the offense, including: (1) whether the pipe found on Barreno was used to smoke a controlled substance, and/or (2) whether Barreno had knowledge that the pipe could be used to smoke a controlled substance. (See § 11364(a); CALCRIM No. 2410.)

Next, the defendant contends that once Deputy Hopping found the methamphetamine pipe on Barreno, this pipe, coupled with Deputy Hopping's testimony as to where he found it, "was all the evidence the People needed to convict Barreno of violating section 11364." The defendant maintains that because no additional evidence was necessary to convict Barreno of the offense of arrest, a search of the Mustang was unnecessary. The defendant's contention, even if true, is immaterial. The pertinent inquiry, under Gant, is whether it is reasonable to believe that evidence relevant to the offense of arrest might be found in the vehicle, not whether it is reasonable to believe that further evidence is needed to convict the arrestee of the offense of arrest.

Finally, the defendant contends that when Deputy Hopping searched the Mustang's passenger compartment, he was not actually looking for evidence of the offense of arrest; rather, he was looking for methamphetamine, the possession of which is a separate crime. According to the defendant, because Deputy Hopping was looking for evidence of a separate crime (possession of methamphetamine) and not evidence relevant to the offense of arrest (possession of drug paraphernalia), Deputy Hopping's search was unlawful under Gant. The defendant's argument is flawed.

First, even assuming Deputy Hopping was looking for methamphetamine in the Mustang's passenger compartment, as previously mentioned, this contraband would be evidence that is relevant to the offense of arrest. Second, the defendant's argument is premised on the mistaken belief that, under Gant, Deputy Hopping's subjective motivation for searching the Mustang's passenger compartment impacts the legality of his search. It does not. Gant articulated an objective test: "[C]ircumstances unique to the vehicle context justify a search incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' [Citation.]" (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496], italics added.) The Supreme Court has explained that an "action is 'reasonable' under the Fourth Amendment regardless of the individual officer's state of mind, as 'long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant." (Brigham City v. Stuart (2006) 547 U.S. 398, 404 [164 L.Ed.2d 650, 658], original italics); see also Whren v. United States (1996) 517 U.S. 806, 812 [135 L.Ed.2d 89, 97] ["we [have] never held, outside the context of inventory search or administrative inspection . . . , that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment").] Gant's objective test was satisfied in this case. Therefore, whatever Deputy Hopping's subjective motivation may have been for searching the Mustang's passenger compartment, it did not affect the legality of his search under Gant.

Despite all the defendant's arguments to the contrary, Deputy Hopping's search of the Mustang's passenger compartment was lawful under Gant.*fn4

B. Trunk Search

Although the trial court obviously found no constitutional violation associated with the trunk search and denied the defendant's suppression motion in its entirety, the court did not expressly say the trunk search was lawful under the inventory search exception (or any other exception) to the warrant requirement. Nevertheless, we may apply the inventory search exception to Deputy Hopping's trunk search, and affirm the trial court's ruling, if the factual basis for the exception is fully set forth in the record. (Green v. Superior Court (1985) 40 Cal.3d 126, 138-139; People v. Marquez (1992) 1 Cal.4th 553, 578; People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) That is the case here.

Below, the parties presented evidence at the suppression hearing related to the inventory search exception, they specifically addressed the inventory search exception in their briefing, and the trial court made factual findings directly bearing on the issue.*fn5 Because the factual basis for the inventory search exception is fully set forth in the record, we apply it on appeal.

An inventory search is a well-recognized exception to the search warrant (and probable cause/reasonable suspicion) requirement. (Colorado v. Bertine (1987) 479 U.S. 367, 372 [93 L.Ed.2d 739, 745-746].) When the police lawfully decide to impound a vehicle or otherwise take it into custody, the police may conduct an inventory of the vehicle's contents "aimed at securing or protecting the car and its contents." (South Dakota v. Opperman (1976) 428 U.S. 364, 373 [49 L.Ed.2d 1000, 1007]; People v. Redd (2010) 48 Cal.4th 691, 721 (Redd).) An inventory search is constitutionally reasonable if conducted in accordance with "'standardized criteria'" or "'established routine'" and is not merely a pretext or ruse for an investigatory search. (Brigham City v. Stuart, supra, 547 U.S. at p. 405; Florida v. Wells (1990) 495 U.S. 1, 4 [109 L.Ed.2d 1, 6]; People v. Williams (1999) 20 Cal.4th 119, 127.) Here, the record establishes all the requirements of a proper inventory search.

Under Vehicle Code section 22651, subdivision (h)(1), Deputy Hopping was legally authorized to have the Mustang towed by virtue of defendant's, the driver's, lawful arrest. (See Redd, supra, 48 Cal.4th at p. 721.)*fn6 As the trial court found, Deputy Hopping elected to have the vehicle towed due to its location. Deputy Hopping explained that, after arresting the defendant, he was "not going to leave [the convertible Mustang] there in an area that has [a] high crime rate, especially for burglaries." The record demonstrates that the decision to have the Mustang towed was lawful. (See Redd, supra, 48 Cal.4th at p. 721 & fn. 13 [officer's vehicle impoundment proper when it was authorized by Veh. Code, § 22651, subds. (h)(1) & (o)(1)]; People v. Shafrir (2010) 183 Cal.App.4th 1238, 1248 [officer's vehicle impoundment/removal proper when it was authorized by Veh. Code, § 22651, subd. (h)(1) and there was some testimony indicating that the decision to impound/remove the vehicle served a "community caretaking" function].)

In connection with the vehicle tow, Deputy Hopping testified that he conducted an inventory of the Mustang to note any damage to the car and to document contents that were noteworthy or valuable. He further testified such inventorying helps ensure there are no problems of missing or stolen items, and protects the vehicle. The record establishes that Deputy Hopping's inventory search was "aimed at securing or protecting the car and its contents." (South Dakota v. Opperman, supra, 428 U.S. at p. 373.)

Finally, Deputy Hopping testified his department has a policy with respect to inventory searches, and his search inside the trunk was consistent with the policy. The policy, which is part of the Placer County Sheriff Department's policy manual, was received into evidence, and Deputy Hopping's testimony on this point was unrebutted. The court impliedly, if not expressly, found that Deputy Hopping "followed departmental policy in performing an inventory search of the vehicle before towing." Based on the record, Deputy Hopping conducted a lawful inventory search of the trunk and its contents.

On appeal, the defendant does not dispute that Deputy Hopping's departmental policy authorized the inventory search inside his trunk. Instead, the defendant argues that Deputy Hopping's inventory search was merely a pretext for an investigatory search and this improper motive negates the search's legality.

The defendant's pretext argument is based on CHP 180 form which Deputy Hopping utilized in connection with documenting the Mustang's condition and inventorying its contents. The CHP 180 form was received in evidence at the suppression hearing. A portion of the CHP 180 form states: "LIST PROPERTY, TOOLS, VEHICLE DAMAGE, ARRESTS." Although damage to the Mustang was documented on the form, the Pacifico beer bottles in the backseat, the defendant's purported "PROPERTY," were not. According to the defendant, if the purpose of taking inventory was, as Deputy Hopping testified, to document valuable items, "it is inconceivable that [the police] would have failed to make note of the one item in the vehicle with significant legitimate monetary value" -- the beer bottles. To the defendant, "the pretextual nature of the search was borne out by the fact that the beer bottles in the back seat, which could be turned in for cash at a nearby recycling center, were not mentioned on the inventory form prepared by the [deputies]." The defendant's pretext argument is unpersuasive.

While the empty beer bottles were not specifically listed on the CHP 180 form, they were otherwise noted in Deputy Hopping's report. More important, Deputy Hopping explained that anything "noteworthy of value" had to be inventoried and he testified that the empty beer bottles were not regarded as such. This adequately explains why the beer bottles were not listed on CHP 180 form and dispels any suggestion of an investigatory motive. (Cf. United States v. Kimes (6th Cir. 2001) 246 F.3d 800, 805 [rejecting a challenge to an inventory search, stating the "[law enforcement department's] policy of [inventorying] only 'valuable' items is not impermissible, and neither is a measure of flexibility regarding the implementation of that policy"); United States v. Garner (8th Cir. 1999) 181 F.3d 988, 992 [rejecting a challenge to an inventory search, stating that the "police generally only record valuable items discovered during an inventory search" and this explained why "cigarettes" and "gloves" were not included in the police's "'property record'"].) Although the empty beer bottles may have had some recycling value, under the circumstances, their omission from CHP 180 form does not suggest that Deputy Hopping's inventory search was pretextual.

Even assuming, arguendo, that the omission of the empty beer bottles from CHP 180 form demonstrates that Deputy Hopping's inventory search was merely a pretext for an investigatory search, the trunk search would still be lawful under the automobile exception. (Cf. United States v. Rowland (8th Cir. 2003) 341 F.3d 774, 782 [trunk search could not be justified as an inventory search, but held proper under the automobile exception].)*fn7 At the time Deputy Hopping conducted the trunk search, he had observed Barreno make a furtive movement in the passenger seat, had found a methamphetamine pipe (contraband) with burnt residue on Barreno's person, and had found another methamphetamine pipe (more contraband) inside the Mustang's passenger compartment. Given all the circumstances, after Deputy Hopping found the methamphetamine pipe in the Mustang's passenger compartment, he had probable cause to believe that the vehicle contained further evidence of criminality, including in the convertible's trunk. (See People v. Hunter (2005) 133 Cal.App.4th 371, 381-382 [recognizing that probable cause to search a trunk can arise from contraband lawfully found in the passenger compartment]; People v. Dey (2000) 84 Cal.App.4th 1318, 1322 [same]; United States v. Jackson (D.C. Cir. 2005) 415 F.3d 88, 91 ["'the discovery of contraband in the passenger compartment of a car is a factor that strongly supports the lawfulness of a trunk search'"].) Deputy Hopping's trunk search, even if done for purely investigatory purposes, was lawful under the automobile exception to the warrant requirement.

Because the search of the passenger compartment and the trunk were lawful, we affirm the trial court's ruling on the defendant's suppression motion.

II Pitchess Motion

We review the trial court's decision not to disclose any of Deputy Hopping's personnel records for an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) On appeal, both the defendant and the People ask us to review the transcript from the in-chambers Pitchess proceeding, which has been properly sealed, to determine whether the trial court abused its discretion. This is standard appellate practice (People v. Prince (2007) 40 Cal.4th 1179, 1285), and we have done so.

During the in-chambers proceeding, the custodian of records affirmed that he "[b]rought everything" from Deputy Hopping's personnel file. The trial court asked the custodian several questions, verbally identified the components of Deputy Hopping's personnel file, verbally described the documents examined, and found nothing pertaining to dishonesty or fabrication of evidence.

The defendant notes that he filed a motion below to augment the appellate record with the documents the trial court reviewed during the in-chambers proceeding. Subsequently, the superior court clerk indicated she was unable to locate these documents. The absence of these documents, while unfortunate, is not problematic. Meaningful appellate review is still possible because the trial court sufficiently described the contents of the personnel file and the documents it reviewed. (See People v. Prince, supra, 40 Cal.4th at pp. 1285-1286 [concluding that although the trial court did not copy the personnel file, it "adequately stated for the record the contents of that file" sufficient to permit meaningful appellate review].) Having reviewed the sealed transcript of the in-chambers proceeding, we independently conclude that the trial court did not abuse its discretion in ruling upon the defendant's Pitchess motion.*fn8

DISPOSITION

The trial court's ruling on the defendant's motion to suppress and the defendant's Pitchess motion are affirmed.

We concur: BUTZ , J. MAURO , J.


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