Superior Court of California, Appellate Division, San Diego
from the Order granting defendant's Penal Code section
1538.5 motion to suppress the drug screening results entered
by the Superior Court, San Diego County, No.: CN358552 Frank
L. Birchak, Judge. Following argument on June 22, 2017, this
matter was taken under submission.
Stephan, District Attorney, Lilia Garcia, Deputy District
Attorney, for Plaintiff and Appellant.
Christopher Zander, for Defendant and Respondent.
DECISION/STATEMENT OF REASONS (CCP § 77(D)) BY
AND FACTUAL BACKGROUND
February 19, 2016, the defendant was arrested for driving
under the influence of alcohol. When the officer gave the
Implied Consent Law admonishment, he told defendant that
she'd have to submit to a breath or blood test. He
further explained that the breath machine is unable to retain
any kind of a sample for retesting. On the other hand, with
the blood test, the nurse would draw two small vials of blood
-- “[o]ne of those vials goes to the crime lab and
gets tested for alcohol….The second vial is
held at no cost to you.” (Emphasis
added.) Consistent with his field
admonishment, the officer testified he told the defendant
“that two small vials of blood will be drawn. One goes
to the San Diego Country Crime Lab. It gets tested for
alcohol and … that report gets added to my
report at a later date.” (Emphasis added.) The
defendant elected to submit to a blood test. It was
stipulated by the parties that the defendant's blood was
analyzed for alcohol on February 29, 2016, and was later sent
to Bio-Tox for a drug analysis. Bio-Tox received the second
vial of defendant's blood on March 30th, and the Bio-Tox
report dated April 1, 2016 reflected the positive results of
the drug screen. On April 25, 2016, the People filed a
complaint charging defendant with driving under the combined
influence of alcohol and drugs in violation of Vehicle Code
section 23152, subdivision (f).
hearing the evidence during the suppression motion, the trial
court found that the defendant had consented to the blood
test after her arrest for driving under the influence. The
trial court denied the motion to suppress the blood alcohol
test dated February 29, 2016, but granted the motion to
suppress the drug test results dated April 1, 2017 as beyond
the scope of the defendant's consent, which was limited
to testing the blood sample for alcohol. The People appeal
from the order suppressing the drug test results.
on the scope of a suspect's consent has been set forth in
People v. Crenshaw (1992) 9 Cal.App.4th 1403:
standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that of ‘objective'
reasonableness - what would the typical reasonable person
have understood by the exchange between the officer and the
suspect? [Citations.]” [Citation.] Generally, the scope
of a warrantless search is denied by its expressed object.
[Citation.] A consensual search may not legally exceed the
scope of the consent supporting it. [Citation.] Whether the
search remained within the boundaries of the consent is a
question of fact to be determined from the totality of the
circumstances. [Citation.] Unless clearly erroneous, we
uphold the trial court's determination.
at p. 1408.)
People contend the defendant never limited the scope of her
consent and that the second test for drugs did not exceed the
scope of the consent.
is the government's burden to prove that a warrantless
search was within the scope of the consent given.
People v. Superior Court (Arketa) (1970) 10
Cal.App.3d 122, 127, states: “The authority to search
pursuant to a consent must be limited to the scope of the
consent.” …. [¶] Thus, despite initial
authorization - whether by warrant, probable cause, or
consent - police officers may exceed the boundaries of the
power conferred upon them and create illegality for their
actions. Limitation may exist due to the specifications of
the warrant [citation] or by the constitutional mandate
[citation], or, in the case of consensual search, by the
mutual understanding and reasonable expectations of the
v. Harwood (1977) 74 Cal.App.3d 460, 466-467; original
italics.) The People fail to acknowledge that it was the
officer who limited the scope of the search of the
blood to the testing of alcohol. Defendant was offered a
breath test, which only tests for alcohol content and does
not preserve a sample for retesting, or a blood test for
alcohol. Under these facts and circumstances,
Defendant did not have an affirmative obligation to expressly
place limits on the consent when it was the mutual
understanding of the defendant and the officer, and their
reasonable expectations that the blood was to be tested
only for alcohol.
People cite to People v. Miller (1999) 69
Cal.App.4th 190, but that case is readily distinguishable.
The court in Miller acknowledged that during the
course of a consent search, the police do not have to blind
themselves to contraband that is in plain view simply because
it is not within the scope of their search. Here, the drugs
in the defendant's ...