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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. AUDRA MARIE OLIVAREZ, Defendant and Appellant.


Decided: February 24, 2011

Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.



Following the denial of her motion to suppress evidence (Pen.Code, § 1538.5), appellant, Audra Marie Olivarez, pled no contest to transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a)) and admitted an enhancement allegation that she committed that offense while released on bail (Pen.Code, § 12022.1).   The court imposed a prison term of two years.

On appeal, appellant's sole contention is that the court erred in denying her suppression motion.   We will affirm.


Facts 1

On September 4, 2009, Kern County Deputy Sheriff Marvin Gomez was sitting in an unmarked car, parked in a residential area on Coventry Drive in Bakersfield, looking for appellant when, at approximately 10:54 p.m., a Honda Accord automobile pulled up and parked.   A felony warrant for appellant's arrest for failure to appear had been issued, and the deputy believed appellant had “some connection to [a particular] address” in that area.

Deputy Gomez pulled up and parked with his right bumper close to the Honda's left rear bumper.   Approximately five seconds later, a female, later identified as appellant, got out of the car on the driver's side.   Deputy Gomez had never seen appellant before that night, but he had a booking photograph of her and when she got out of the car, he “recognized her.”   She “appeared to be the person on the picture [he] was looking” for.   She was the only person in the Honda.

When appellant got out of the Honda, Deputy Gomez got out of his car, approached appellant, and “asked [her] to confirm her identity.”   Appellant gave the name “Audrie Alvarez.”   The deputy “asked her again” and she again stated her last name was Alvarez.   The deputy asked appellant for “a California driver's license or some form of [proof of identity],” in order to “confirm her identity,” but appellant was unable to provide any form of photo identification.

“At some point,” Deputy Gomez handcuffed appellant and “told her she was going to receive extra charges for lying,” and “it was after that point” that appellant “seemed to agree that she was Audrie [sic ] Olivarez,” although “she never confirmed, specifically told [the deputy] she was Audra Olivarez.”

Once appellant was handcuffed, Deputy Gomez searched her person for identification, but found none.   At that point, he began a search of the Honda;  he was looking for documentary proof of identity and “[a]lso ․ to see who the owner of the vehicle [was].”   He first searched the front seat and the glove compartment, but found nothing.   He then retrieved a backpack from the back seat.   Inside a pouch in the backpack he found plastic baggies and a digital scale “that had controlled substance on it․”  Inside of a small purse in the backpack he found three baggies of what the deputy suspected was methamphetamine.

At some point, Deputy Gomez placed appellant in his patrol vehicle, but at the point he was searching through the backpack appellant was standing outside, near the rear of the Honda.


Appellant contends Deputy Gomez did not have reasonable cause to believe that evidence relevant to the crime for which the deputy had arrested appellant providing false identification information to a police officer might be found in the Honda, and, therefore, the search of the Honda violated appellant's Fourth Amendment rights.   We disagree.

“The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement․”  (People v. Parson (2008) 44 Cal.4th 332, 345.)   Warrantless searches like the one at issue here i.e., “searches conducted outside the judicial process, without prior approval by judge or magistrate” “are per se unreasonable ․ subject only to a few specifically established and well-delineated exceptions.”  (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.)   One of the specifically established exceptions to the Fourth Amendment's warrant requirement is “a search incident to a lawful arrest.”  (United States v. Robinson (1973) 414 U.S. 218, 224.)

In Arizona v. Gant (2009) 556 U.S. _ [129 S.Ct. 1710] (Gant ), the United States Supreme Court clarified prior authority regarding the search of a vehicle incident to the lawful arrest of an occupant of the vehicle and held that the police are authorized “to search a vehicle incident to a recent occupant's arrest ․ when [1] the arrestee is unsecured and within reaching distance of the passenger compartment at the time of search” or “[2] when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ”  (Id. at p. 1719, fn. omitted.)

In explaining the second of these justifications, which we sometimes refer to as the evidence-gathering justification, the court stated the following:  “In 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.”  (Gant, supra, 129 S.Ct. at p. 1719.)   As examples of such cases, the court cited Atwater v. Lago Vista (2001) 532 U.S. 318, 324 (failure to wear a seat belt) and Knowles v. Iowa (1998) 525 U.S. 113, 118 (Knowles ) (speeding).  (Gant, at p. 1719.)   In other cases, “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein.”  (Ibid.) Such cases include New York v. Belton (1981) 453 U.S. 454 (Belton ) and Thornton v. United States (2004) 541 U.S. 615 (Thornton ).   The defendants in those cases were arrested for “drug offenses.”  (Gant, at p. 1719.)

Here, there is no dispute that the crime of arrest was false representation of identity to a peace officer in violation of Penal Code section 148.9 (section 148.9), which provides, in relevant part:  “Any person who falsely represents ․ herself as another person or as a fictitious person to any peace officer listed in [enumerated statutes], upon a lawful detention or arrest or the person, either to evade the process of the court, or to evade the proper identification of the person by the arresting officer is guilty of a misdemeanor.”

In order to show that appellant falsely identified herself to Deputy Gomez, the People would have to show appellant's true identity.   Evidence relevant to appellant's true identity would include her driver's license.   And, given (1) the evidence that appellant could not provide a driver's license to the deputy, and (2) the legal requirement that drivers have in their possession a valid driver's license (Veh.Code, § 12951, subd. (a)), it was reasonable to believe that appellant's driver's license was in the car, i.e., it was “ ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ”  (Gant, supra, 129 S.Ct. at p. 1719.)   Therefore, under Gant, the search of the vehicle and the containers within the vehicle was justified, notwithstanding the absence of a search warrant, as a search incident to arrest.

Appellant argues it was not “ ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’ ” (Gant, supra, 129 S.Ct. at p. 1719), within the meaning of Gant, because Deputy Gomez was aware of appellant's true identity, and once appellant falsely identified herself, the deputy had “sufficient evidence to prosecute the crime.”   Under appellant's interpretation of Gant, under these circumstances, it was not constitutionally permissible for the deputy to search the car for “corroborative evidence.”   Appellant bases this argument chiefly on Knowles, supra, 525 U.S. 113.

In Knowles, an Iowa police officer stopped Knowles for speeding and issued him a citation.   The officer then conducted a full search of the vehicle, found marijuana and a “pot pipe,” and placed Knowles under arrest.   Knowles moved to suppress the evidence.   The state argued the vehicle search was justified under the incident to arrest exception to the warrant requirement, under a state statute that provided that the issuance of a citation in lieu of arrest “ ‘does not affect the officer's authority to conduct an otherwise lawful search.’ ”   (Knowles, supra, 525 U.S. at p. 115.)   The trial court denied the suppression motion and Knowles was found guilty.   The Supreme Court of Iowa affirmed, upholding the constitutionality of the search under a “bright-line ‘search incident to citation’ exception to the Fourth Amendment's warrant requirement.”  (Ibid.)

The United States Supreme Court reversed, holding that the twin rationales of the search incident to arrest exception to the warrant requirement officer safety and evidence preservation are absent if the police issue a citation before they search.  (Knowles, supra, 525 U.S. at pp. 116-119.)   The court stated further:  “Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained.   No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.”  (Id. at p. 118, italics added.)

As indicated above, the major legal premise of appellant's argument is the claim that once a police officer has arrested a vehicle's occupant following a traffic stop, if the officer has obtained enough evidence to establish the crime of arrest, it is constitutionally impermissible to search the vehicle for additional evidence of the offense.   Appellant bases this claim on the italicized portion of the passage quoted in the preceding paragraph.   This claim, however, is incorrect.

As Gant explained, the offense of arrest can determine whether it reasonable to believe there might be evidence relevant to that offense in the vehicle.   The high court in Gant, referring to Knowles, cited speeding as an offense that would not justify a search of the car, but this is because given the nature of the offense, it is not reasonable to believe that a car stopped for speeding will contain any evidence relevant to that offense.   As the court in Knowles stated in the sentence immediately following the one upon which appellant relies, “No further evidence of excessive speed was going to be found ․ in the passenger compartment of the car.”  (Knowles, supra, 525 U.S. at p. 118.)   Thus, under Gant, in determining whether there is reasonable cause to believe that evidence of the crime of arrest might be found in the vehicle, it is of no moment that police have discovered other evidence relevant to that crime prior to searching the vehicle.

Our conclusion on this point is supported by the fact that Gant cited Thornton as an example of a case in which the search of the stopped vehicle following the driver's arrest was permissible.   In Thornton, a police officer stopped a car driven by Thornton for displaying license plates that had been issued to a different vehicle.   The officer accosted Thornton outside the car, Thornton consented to a pat-search, and the officer found bags containing marijuana and cocaine in one of Thornton's pockets.   After arresting Thornton and placing him in the back of his patrol car, the officer searched the car and found a handgun under the driver's seat.

Thus, the officer in Knowles had evidence sufficient to establish the crime of arrest before searching the car for more evidence.   The clear implication of the Gant court's citation of Knowles as a case in which a vehicle search was justified is that the determination of whether it is reasonable to believe a vehicle contains evidence of the crime of arrest is not affected by evidence in the officer's possession before undertaking a search of the vehicle.   Under Gant, it is of no moment that Deputy Gomez had evidence sufficient to establish the crime of arrest because, as demonstrated above, there was reasonable cause to believe the car might contain other evidence relevant to that offense.   Therefore, the warrantless search of the car was justified as a search incident to arrest.

Appellant argues that two cases decided by the Eleventh Circuit Court of Appeal support his claim that once an officer has obtained evidence sufficient to support the crime of arrest, the search incident arrest exception to the warrant requirement does not authorize search of the car:  United States v. Davis (11th Cir.2010) 598 F.3d 1259 (Davis ) and United States v. Mitchell (11th Cir.2010) 374 Fed.Appx. 859 (Mitchell ).

In Davis, a police officer made a routine traffic stop and Davis, a passenger in the car, gave the name Ernest Harris.   Bystanders told the officer Davis's true name, “which [the officer] verified with the police dispatcher, using Davis's birth date.”  (Davis, supra, 598 F.3d at p. 1261.)   The officer arrested Davis for giving a false name and placed him, handcuffed, in the back of his patrol car.   The other occupant of the vehicle was also secured in the back of a patrol car.   The officer then searched the car and found a handgun in the pocket of a coat Davis had left behind on the seat.

The court stated:  “There can be no serious dispute that the search here violated Davis's Fourth Amendment rights as defined in Gant. First, both he and the car's driver had been handcuffed and secured in separate police cruisers before [the officer] performed the search.   Second, Davis was arrested for ‘an offense for which police could not expect to find evidence in the passenger compartment,’ Gant, 129 S.Ct. at 1719, because [the officer] had already verified Davis's identity when he arrested him for giving a false name.  Gant makes clear that neither evidentiary nor officer-safety concerns justify a vehicle search under these circumstances.”  (Davis, supra, 598 F.3d at p. 1263.)  Mitchell, which relies on Davis, reaches a similar conclusion.

It appears that, as appellant asserts, Davis and Mitchell support the position that where police stop a vehicle and arrest an occupant of the vehicle for giving a false name, once the police have “verified” that the person, in fact, gave a false name, Gant's evidence-gathering justification for a search of the vehicle does not apply, even if the police have reasonable cause to believe additional evidence of the crime of arrest might be found in the car.   This result, which Professor LaFave calls “curious[ ],” is, as demonstrated above, contrary to Gant. (3 LaFave, Search and Seizure (4th ed.2004, Supp.2010-2011) § 7.1, fn. 186, p. 153.)   Therefore, we decline to follow Davis and Mitchell.  (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn.   3 [California courts not bound by decisions of the lower federal courts].)

Appellant also relies on People v. Chamberlain (Colo.2010) 229 P.3d 1054 (Chamberlain ) for his interpretation of the Gant evidence-gathering justification for a search of a vehicle under the incident to arrest exception to the warrant requirement.   In that case, a police officer stopped Chamberlain's car for a traffic violation.   Chamberlain produced her driver's license, registration and proof of insurance, and admitted she had been living for three weeks at an address different from the one shown on her license.   After a check of her driver's license and a call to another officer revealed that she had been ticketed less than two weeks earlier and had provided the ticketing officer with the old address shown on her license, she was arrested for “false reporting,” handcuffed, and placed in a patrol car.   (Chamberlain, at p. 1055.)   Officers then searched her car and found a glass pipe and a small quantity of methamphetamine.   Chamberlain moved to suppress these items, and the trial court granted the motion.   The People appealed, and the appellate court affirmed.   The court reasoned that Chamberlain was secured in the patrol car and “it would not have been reasonable for the officers to believe that the defendant's vehicle might contain evidence relevant to false reporting, the crime for which she was arrested․”  (Id. at p. 1055.)

Chamberlain is distinguishable.   Prior to the search, Chamberlain had produced several identification documents, including her license.   Although it is conceivable that in the car there might have been some other documents containing information as to where she lived, given that the officers were already in possession of the standard forms of identity documentation typically carried in vehicles, there was no “reasonable basis to believe” (Gant, supra, 129 S.Ct. at p. 1719) additional evidence might be found in the car.   Here, by contrast, as discussed above, there was a reasonable basis to believe evidence relevant to the crime of arrest, viz., appellant's license, was in the car because she had not produced her license and she was legally required to have it in her possession.

Finally, appellant cites Chest v. State (2009) 922 N.E.2d 621 (Chest ) for the proposition that a driver's license is not relevant to prove the offense of providing false information in violation of section 148.9.   In that case, an Indiana police officer stopped a car Chest was driving and, after an exchange with Chest, arrested him for the offense under Indiana law of “refusal to provide identification,” which consists of “knowingly or intentionally refusing to provide either one's name, address, and date of birth, or a driver's license to a law enforcement officer who has stopped the person for an infraction or ordinance violation.”  (Chest, at p. 625, fn. 5.) Thereafter, the officer searched the car for Chest's driver's license or other proof of identity.   In addressing Chest's challenge to the search, the appellate court stated, in the portion of the opinion upon which appellant relies:  “Chest had refused to identify himself and, in so doing, committed the crime.   The relevant evidence to convict Chest would be Officer Reynolds's testimony regarding the refusal, not Chest's driver's license.”  (Id. at p. 625, italics added.)

Chest, however, is inapposite because the offense involved there was refusing to provide identification, not, as in the instant case, providing false identification.   As discussed above, to establish the latter offense the prosecution necessarily must show the defendant's true identity, and a driver's license is relevant evidence as to that issue.   The Indiana offense of refusing to provide identification requires no showing of the accused's true identity.   All that was required in Chest, as the court there indicated, was proof that Chest knowingly refused to provide identification information.

To summarize, the search of appellant's car was justified as a search incident to arrest because Deputy Gomez had a reasonable basis to believe appellant's car might contain evidence relevant to the crime for which appellant was arrested.   Therefore, the court did not err in denying appellant's suppression motion.


The judgment is affirmed.



FN1. Our factual statement is taken from the reporter's transcript of the hearing on appellant's suppression motion..  FN1. Our factual statement is taken from the reporter's transcript of the hearing on appellant's suppression motion.

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