THE PEOPLE v. JOSE ANTONIO DIAZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Following denial of his motion to suppress evidence (§ 1538.5),¹ defendant Jose Antonio Diaz pled nolo contendere to carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1)).   The trial court imposed a three-year sentence.

This appeal challenges only the denial of defendant's suppression motion.   Defendant contends:  “The search of [his] backpack [from which the police recovered the firearm] was unconstitutional as he did not consent to a search thereof and his sister [who consented to a search of the car in which the backpack was found] lacked the actual or apparent authority to consent to a search of [his] closed backpack.”   We agree and therefore reverse the judgment.

STATEMENT OF FACTS

1. The Evidence

This prosecution arises out of a traffic stop.   The following evidence was presented at the hearing on defendant's motion to suppress (§ 1538.5).

During the afternoon of June 30, 2009, Los Angeles Police Officer Jose Hidalgo was on patrol with Officers Rivera and Santamaria.   Officer Hidalgo observed defendant driving a Saturn sedan.   Defendant's sister, Elizabeth Velasco, was the front passenger and Jose Ramirez was the rear passenger.   Defendant failed to signal before making a turn, a violation of Vehicle Code section 22108.   Officer Hidalgo conducted a traffic stop of the car.

Officer Hidalgo approached the vehicle.   He saw the words “Project Maravilla” written on defendant's right hand.   He asked defendant for a driver's license.   Defendant replied that he did not have one and that Velasco owned the car.   Velasco stated that the car belonged to her.

Officer Hidalgo ordered defendant, Velasco, and Ramirez to exit the car.   Officer Hidalgo, based upon his training and experience with local gangs, believed a weapon could be in the car because he had recognized the words written on defendant's hand-”Project Maravilla”-as the name of a local gang.   The traffic stop was not in “Project Maravilla” territory and Officer Hidalgo knew that “[w]hen gang members leave their area, they're generally armed because they're in an area not claimed by their own.”   If a gang member enters another gang's territory, that individual carries a firearm because he is “disrespecting another neighbor, another gang and that could have retaliation and consequences ․ sometimes immediate.”

Officer Hidalgo conducted a visual search of the car and a pat down search of defendant.   Neither search revealed a firearm.

Officer Rivera, a court-qualified gang expert, shared Officer Hidalgo's concern about the presence of a gun and wished to search the car for weapons.   Officer Rivera told Velasco that “since the driver of her vehicle [defendant] did not possess a valid driver's license, an impound search was going to be conducted.”   At that point, Velasco gave her consent to a search of her car.   When Officer Rivera opened the trunk, he saw a backpack.   Defendant stated the backpack belonged to him.   Officer Rivera, nonetheless, proceeded to search the backpack and found a loaded revolver.   Defendant was arrested but the car was not impounded.

Defendant called Velasco as a witness at the suppression hearing.   She denied that Officer Rivera had told her that the car would be impounded and denied that she had given consent to a police search of her vehicle.

2. The Trial Court's Ruling

After hearing argument from counsel about multiple theories to attack and uphold the search of the backpack, the trial court stated:  “The only issue is consent․  I think the only thing that would give [the police] a right to search the trunk of that vehicle is [Velasco's] giving permission.   I find no place absent a consent to search that gives rise to search under these particular circumstances.”   The court noted:  “[The police had] a right ․ to look inside the car where the potential three suspects could have any access to weapons.  [But t]he trunk is a different situation.   The trunk is closed.   So that's where the consent comes into play.”   The court explained:  “So basically, I'm wrestling with credibility” because Officer Hidalgo testified that Velasco had consented and Velasco had testified to the contrary.   The court ruled:  “I side with the credibility on the police officers.   And I'm denying the 1538.5.”

DISCUSSION

A. CONSENT TO SEARCH

“The standard of appellate review of a trial court's ruling on a motion to suppress is well established.   We defer to the trial court's factual findings, express or implied, where supported by substantial evidence.   In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.”  (People v. Glaser (1995) 11 Cal.4th 354, 362.)

In this case, conflicting evidence about consent was presented.   Officer Rivera testified that Velasco consented to a search of her car;  Velasco testified she had not consented.   The trial court resolved that conflict in favor of the People, finding that Velasco had consented.   That decision is binding upon us as it is supported by substantial evidence.

However, that conclusion does not end our inquiry.  “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.]”  (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)   Here, the issue is whether Velasco's consent covers the search of defendant's backpack, an item defendant asserted an ownership interest in before Officer Rivera opened and searched it.   We conclude that it does not.

“Valid consent may be given by a third party [here, Velasco] who possesses common authority over the property at issue.  [Citation.]”  (People v. Baker (2008) 164 Cal.App.4th 1152, 1158.)   In that circumstance, a police officer can search a closed container that he reasonably believes is in the joint control of two parties.  (Id. at p. 1159.)   However, nothing in the record establishes, or even suggests, that Velasco possessed authority over defendant's backpack.   In fact, defendant clearly told Officer Rivera that the backpack belonged to him before it was searched.   On these facts, Officer Rivera could not have reasonably believed that Velasco's consent to search her car extended to a search of defendant's backpack.   On this basis (lack of consent to search the backpack), defendant's motion to suppress evidence should have been granted.

“Our conclusion here is consistent with that reached by a number of sister states deciding the same or similar issue.  (See State v. Suazo [ (1993) 133 N.J. 315] 627 A.2d 1074 [driver had no authority to consent to search of passenger's luggage;  officers' belief that driver could validly consent to search held unreasonable];  State v. Williams (1980) 48 Ore.App. 293 [vehicle owner's consent to search of vehicle held not reasonably construed as permission for search of closed and latched stereo cassette tape case belonging to passenger];  State v. Zachodni (S.D.1991) 466 N.W.2d 624, 628-629 [driver's consent to search of vehicle not reasonably construed as permission to search wife's purse, who was passenger in vehicle];  People v. James [ (1994) 163 Ill.2d 302] 645 N.E.2d [195,] 203 [driver had no authority to consent to search of passenger's purse];  State v. Friedel [ (Ind.Ct.App.1999) ] 714 N.E.2d [1231,] 1240-1241 [same];  State v. Caniglia (1993) 1 Neb.Ct.App. 730 [evidence suppressed because passenger's makeup purse not item that police could reasonably believe belonged to male driver or which male driver would possess sufficient relationship to or common authority over];  see also United States v. Welch [ (9th Cir.1993) ] 4 F.3d 761, 765 [passenger's consent to search of car did not permit search of companion's purse].)”  (People v. Baker, supra, 164 Cal.App.4th 1152, 1161.)

To avoid this conclusion, the Attorney General argues “[t]hat [defendant] said the backpack was his does not resolve the problem, because he could have been lying to protect Velasco.”   The record does not support this argument.   Officer Rivera did not testify that he disbelieved defendant's claim of ownership or that he believed the backpack belonged to Velasco, and we find no objectively reasonable basis on this record for such a conclusion.   Consequently, we need not decide what action Officer Rivera could have properly undertaken had he disbelieved defendant's assertion of ownership.

B. EXIGENT CIRCUMSTANCES

The Attorney General urges that independent of consent, the warrantless search can be upheld because “the exigent circumstance of a likely weapon in the movable vehicle authorized the search of the backpack.”   He relies upon the officers' testimony that the car likely contained a firearm because defendant was travelling outside of his gang's territory.

This theory was not litigated below.   In the trial court, the prosecutor relied upon consent, “the auto exception and search incident to arrest” to uphold the warrantless search of defendant's backpack.   The prosecution is not permitted to assert a new theory on appeal to support the trial court's denial of a suppression motion if the factual basis for that theory was not fully developed below.  (Green v. Superior Court (1985) 40 Cal.3d 126, 137-139.)   Here, we cannot conclude that the factual basis for the theory of exigent circumstances was fully developed by both sides below.   In any event, the testimony that was produced fails to meet the standard of exigent circumstances justifying a warrantless search, i.e., “ ‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property’ [citation].”  (People v. Frye (1998) 18 Cal.4th 894, 989.)   Indeed, from the record it appears that the officers did not consider the situation perilous, as they were prepared to impound the vehicle.

C. INEVITABLE DISCOVERY

Lastly, the Attorney General argues that “even without consent or exigent circumstances, the officers could have impounded the car and inventoried its contents, which would have led to the inevitable discovery of the revolver in the backpack.”   We are not persuaded.

“Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means.”   (People v. Robles (2000) 23 Cal.4th 789, 800.)   It is the People's burden to establish the predicates to application of the doctrine.  (Id. at pp. 800-801.)   The People may raise the doctrine for the first time on appeal only “if the factual basis for the theory is fully set forth in the record.”  (Id. at p. 801, fn. 7, italics added.)

The Attorney General is correct that pursuant to Vehicle Code section 22651, subdivision (p), the officers could have properly authorized impound of Velasco's car once they discovered defendant did not possess a driver's license.  “If officers are warranted in impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a standardized procedure is constitutionally reasonable.”  (People v. Williams (2006) 145 Cal.App.4th 756, 761.)   However, the car was not impounded.   Further, no evidence was offered in the trial court that even if the car had been impounded, it would have been subject to an inventory search conducted pursuant to a standardized procedure.

It is the prosecution's burden to “prove ․ the existence of [a] policy [supporting an] inventory search[,][and] when relevant, the prosecution must also prove a policy or practice governing the opening of closed containers encountered during an inventory search.”  (People v. Williams (1999) 20 Cal.4th 119, 138.)   Given the People's failure to factually develop in the trial court these predicates to applying the inevitable discovery doctrine, the Attorney General cannot now rely upon it.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All undesignated statutory references are to the Penal Code..  FN1. All undesignated statutory references are to the Penal Code.

EPSTEIN, P.J. SUZUKAWA, J.