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People v. Wallace

California Court of Appeals, First District, Second Division

September 7, 2017

THE PEOPLE, Plaintiff and Respondent,
LEROY WALLACE III, Defendant and Appellant.

         Superior Court Solano County No. FCR313484 Hon. E. Bradley Nelson Judge

          Anna Dorn, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Masha A. Dabiza, Deputy Attorney General, for Plaintiff and Respondent.

          STEWART, J.

         Defendant Leroy Wallace III seeks reversal of the judgment against him for possession of a baton or similar weapon in violation of Penal Code section 22210, [1] which the court entered after a negotiated disposition of his case. Officer Ambrose of the Fairfield Police Department found the baton in defendant's vehicle after defendant was stopped by another officer for a traffic violation and then arrested at the scene by Ambrose as a suspect in a domestic violence incident. Defendant contends the trial court erred when it denied his motion to suppress evidence relating to the baton on the ground that it was obtained during an inventory search of his vehicle. The People do not defend the search as a valid inventory search or otherwise contend it was constitutionally permissible. Rather, they assert that we should affirm the judgment because police inevitably would have discovered the baton in the course of impounding the vehicle and taking an inventory of its contents. We conclude there is no substantial evidence either that the evidence was obtained as the result of a valid inventory search or that the baton inevitably would have been discovered. Therefore, we reverse the judgment.


         In March 2015, the Solano County District Attorney filed an information charging defendant with possession of a baton in violation of section 22210, which prohibits possession of “any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slingshot.” In June 2015, defendant moved under section 1538.5 to suppress evidence of the baton and other evidence relating to it. In November 2015, the court, a magistrate presiding, held a preliminary hearing at which the court also considered defendant's motion.

         At the hearing, the officer who arrested defendant, Michael Ambrose of the Fairfield Police Department, was the only person who testified. Officer Ambrose said that at 9:47 a.m. on March 18, 2015, he heard defendant's name broadcast over the police radio as someone stopped by another officer, Sergeant Reeves, in Fairfield for having “false tabs” on his vehicle. Ambrose knew defendant was wanted for a domestic violence incident that had occurred a night or two before. Ambrose went to the traffic stop and spoke to Reeves by Reeves's own vehicle. The two then went up to defendant's vehicle, removed defendant from the vehicle, placed him in handcuffs and searched his person. Asked what happened next, Ambrose said, “I then put [defendant] in the back of my vehicle, and went back and searched his vehicle.”

         In response to the prosecutor's further questioning, Ambrose testified no one else was in defendant's vehicle and no one was in the area to take custody of defendant's vehicle. He further testified that the Fairfield Police Department had a policy that required officers to have a vehicle towed and inventoried when no one was present to take custody of it. Asked if this was the situation in defendant's case, Ambrose replied, “In this case, the subject also had no license, ... and Sergeant Reeves was citing him for that as well. So there was [sic] a couple of different reasons to get in and search his vehicle: One being inventory search, and one being incident to the arrest that I was making.”

         Ambrose also testified that the purpose of the department's inventory search policy was “to ensure if there is [sic] any items of high value in the vehicle, that we are to note them-or, actually, take and put them into our custody for safekeeping, just so that when the vehicle is towed, it's not going to possibly become missing. [¶] Or the defendant or the person who the vehicle is being towed is not going to be able to come back and say, ‘I had $1, 000, 000 in the trunk, and it's missing now, so, therefore, the Fairfield Police Department owes me money.' ”

         Ambrose then said he searched defendant's vehicle after placing defendant in the back of the patrol car: “I went up to the vehicle. I started on the open driver's side door that was still open from when I removed him. I started to go into the vehicle, and as I did, I noticed a red handle sticking up between the center console and the driver's seat. [¶] I reached down and pulled out, from grabbing the handle that was exposed, about a 24-inch long brown wooden baton with red tape on the end where the handle would be.” He saw the red handle of the baton when he “actually entered the vehicle.” Ambrose did not see any non-violent purpose for the baton, particularly in light of the red tape handgrip that prevented the baton from slipping when swung. He considered the baton to be a deadly weapon based on his training and experience, and its presence in the vehicle was an additional basis for his arrest of defendant. After finding the baton, Ambrose said, he continued to search the vehicle. He did not locate anything of value.

         Ambrose further testified that he was not sure if defendant's vehicle was towed or not because he left with defendant while Reeves stayed behind with the vehicle. Ambrose said it was standard procedure to fill out a “California Highway Patrol 180 Form” (CHP 180 form) if a vehicle was towed, and acknowledged that the form contained a field in which one could inventory the items that were found in the towed vehicle. However, he said, he had nothing to do with the traffic stop or anything to do with filling out such a form, if one was filled out. He also testified that he did not note in his own police report what kind of vehicle defendant was driving because “[t]he vehicle had nothing to do with why I was there.”

         After hearing argument, the court denied defendant's suppression motion. It stated about Ambrose's search of defendant's vehicle, “This was not a search incident to an arrest; it was a search that [was] based upon the normal practice to once this individual was taken into custody on the serious charge of the violation of domestic violence, to inventory his car and his car be[ing] towed.

         “Officer Ambrose was arresting him for the circumstances that he discovered once the object was seen, and it wasn't his responsibility to tow the vehicle; it was to take [defendant] into custody. And what happened to the vehicle and the circumstances afterwards is not really known as a process as much as whether or not he had a basis to be where he was when he saw that object that he did; and therefore, the motion to suppress is denied.

         “It was part of the community caretaking function when this person was placed under arrest, to inventory the vehicle and prepare it for towing so that the officer and the agency doesn't incur any other liability.”

         Subsequently, defendant moved under sections 995 and 1538.5, subdivision (i) to set aside the information on the ground that his motion to suppress should have been granted. The People opposed the motion. After hearing argument, the trial court denied the motion “because of the inventory search.” The court explained further, “Officer Ambrose articulated the policy, articulated the reason. The defendant was the sole occupant of the car. He had no license. He was being arrested. The officer articulated the community caretaking policy, if you will. And you know, by denying the motion to suppress, the magistrate found that the officer's conduct was subjectively non-pretextual. So there is substantial evidence in the record to support that finding by the magistrate.” The court continued, “And we don't have evidence one way or the other as to whether or not the inventory search was actually performed, but the decision to conduct it on the car initially was reasonable. [¶]... And there's no published case, that I'm aware of anyway, that requires that the CHP 180 form actually be filled out. I know it's a standard practice, but that doesn't mean without it an inventory search can't be justified. [¶] So the 995 motion is denied.”

         In May 2016, pursuant to a negotiated disposition, defendant entered a no contest plea to the weapon charge and was convicted on that charge. He preserved his right to ...

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