P. v. Smith
Filed 1/23/14 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(Shasta)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
JAMES
EDWARD SMITH,
Defendant and
Appellant.
C068027
(Super. Ct. Nos.
08F10648 & 09F8492)
Defendant James
Edward Smith contends the trial court
erred in denying his motion to suppress evidence discovered during a search of
his vehicle, and in denying his Trombetta
account of the loss of exculpatory evidence.
We disagree with
defendant’s contentions and affirm the judgment. The trial court properly denied the motion to
suppress evidence, as defendant was lawfully detained and the searches of his
vehicle were based on his voluntary
consent. The trial court also
properly denied the Trombetta motion,
as defendant failed to show the loss of potential evidence was the result of
bad faith conduct by law enforcement officers, and that the lost evidence was
material and exculpatory.
FACTS
Carol Macy’s
home in Anderson was burglarized in August 2009.
Two brass sculptures of eagles worth $3,000 each were stolen.
Michael Darrow
was a salesman for Northern California Glove and Safety Supply in November
2009. When he arrived to work the
morning of November
9, 2009, he noticed his work van had been
burglarized. The van was missing items
he always kept in the van to sell: a
large amount of batteries, Carhartt work clothing, and gloves. The items taken were valued at about
$2,000.
That same day,
November 9, at 11:45
a.m., Shasta County Sheriff’s Deputy Lisa
Green responded to a call and found defendant lying on the ground next to a
parked car. She immediately detained
him. Captain Jerry Shearman and
Detective Donald Clegg also responded to the scene. Defendant gave the officers consent to search
the car, first to locate documents that would prove he owned the car, and later
to search the car generally.
The officers
found two prescription bottles in the car’s center console. One bottle contained marijuana. They found over 50 pairs of gloves and 50 eye
goggles with attached tags and in the original packaging on the backseat. In the trunk, the officers found new jackets
with reflective gear, cases of new batteries, and a bronze or brass eagle sculpture.
That afternoon,
James Ortlieb, the owner of Northern California Glove and Safety Supply, identified
many of the items found in defendant’s car as products belonging to his
company. Also, at a later time, Ms. Macy
identified the brass eagle sculpture found in defendant’s car as one of the two
sculptures that had been stolen from her home.
Defendant
pleaded guilty to misdemeanor possession of marijuana (
11357, subd. (c)). A jury convicted him
of receiving stolen property (Pen. Code, § 496, subd. (a)), and defendant
admitted an enhancement under Penal Code former section 12022.1 that he was out
on bail in another case, Shasta County case No. 08F10648, when he committed the
instant crimes, which make up Shasta County case No. 09F8492.
The trial court
sentenced defendant to a total prison term of 13 years eight months, based on a
plea agreement that resolved both case
Nos. 08F10648 and 09F8492. In the former
case, defendant pleaded no contest to first degree burglary (Pen. Code, § 459)
and admitted a prior serious felony allegation (Pen. Code, § 667, subd.
(a)). The court sentenced defendant in
case No. 08F10648 to the upper term of six years for the burglary plus five years
for the serious felony prior, and it sentenced him in case No. 09F8492 to eight
months (one-third the midterm) for the receiving stolen property conviction and
two years for the on-bail enhancement, all terms to run consecutively.
Defendant filed
notices of appeal in both cases, but his arguments concern only case No.
09F8492. He contends the
denying his motion to suppress evidence and his Trombetta motion to dismiss.
DISCUSSION
I
Motion to Suppress Evidence
Defendant
contends the trial court erred when it denied his motion to suppress the
evidence obtained from the search of his vehicle. He contends (1) the officers lacked
reasonable cause to detain him; (2) insufficient evidence supports the finding
that the two prescription bottles found in the center console, their labeling,
and their contents were in plain view; (3) his consent to search the car was
involuntary; and (4) the search was not justified as an inventory search. We disagree with his contentions.
A.
On November 9, 2009, at about 11:45
a.m., Shasta County Sheriff’s Deputy Lisa
Green responded to a call of “a man down.â€
When she arrived at the scene, she found a red, two-door Ford
Thunderbird parked off the roadway in a “pasture[-]like†area. The vehicle’s trunk and a passenger door were
open. Deputy Green parked her car behind
the red vehicle.
About the time
Deputy Green arrived, Shasta County Sheriff’s Captain Jerry Shearman also arrived. He parked his unmarked vehicle near the Thunderbird’s
front left corner and facing the Thunderbird.
Deputy Green saw
that a man, defendant, was down “on the ground area†at the back of the
vehicle. Then defendant moved towards
the car’s passenger side where the door was open and peered around the car to
see the vehicle that had just stopped in front of his. Deputy Green did not think defendant saw
her. She called out to him. She recognized him from prior contacts. While she walked up to him, she observed
items in the open trunk, but she did not know at that time what they were. She testified she “immediately detained [defendant]
because I didn’t know what was going on with the vehicle, what he was doing. Uhm, I recognize him from having prior
contacts.†She handcuffed him and
directed him to sit by her car. She
subsequently read him his Miranda
rights.
Deputy Green
asked defendant what he was doing there.
Defendant stated his car had broken down and he was trying to fix it. Captain Shearman joined the conversation and
asked defendant who owned the car.
Defendant stated he received the car secondhand through another party
from either a friend or for doing some work, and that the paperwork in the car
would explain it. Deputy Green asked
defendant if they could look in the car for the paperwork, and defendant said
they could. Captain Shearman asked where
the paperwork would be. Defendant said
he thought it would be in the glove box and would be either a bill of sale or a
release of liability.
Captain Shearman
entered the Thunderbird through the open passenger door and looked through the
glove box. He found no paperwork in the
glove box that named the car’s owner. He
told Deputy Green and defendant there was nothing in the glove box. He asked defendant where else the paperwork
could be. Defendant said he was sure the
paperwork was in the car. Captain
Shearman asked if he could look, and defendant said, “[I]t’s in there. Find it.â€
Captain Shearman
returned to the vehicle. He looked again
in the glove box to make sure no paperwork was there. He then looked under the dash, under the
front seats, on the floorboards, behind the visors, along the doors, between
the front seats, and in the center console.
He found lots of debris, but he found no paperwork identifying ownership
of the car.
While looking in
the center console, however, Captain Shearman found two prescription
bottles. One had a female’s name on it, and
the other had defendant’s name on it.
The latter bottle contained small packages of marijuana. Captain Shearman alerted Deputy Green of the
bottles’ presence in the car. Defendant
said the marijuana belonged to his wife.
Captain Shearman
went back to defendant and asked him again where the paperwork might be. Defendant had no answer. Captain Shearman asked defendant more
questions about how he obtained the vehicle.
Defendant stated he got it from somebody on a deal and he was sure the
paperwork was inside the car. Captain
Shearman stated he was going to continue his search for a third time, and
defendant said he did not care because the paperwork was in the car. Captain Shearman again found nothing.
Captain Shearman
and Deputy Green were concerned the car might have been stolen. They had found no paperwork documenting its
ownership, and they had seen that part of the car’s dash had been torn
out. Captain Shearman ran the license
plate and vehicle identification number, and he learned the car was owned by a
Russell Fossett. The car had not been
reported stolen, and the license plate and the vehicle identification number
matched. Captain Shearman reported this
to defendant. Defendant suggested Captain
Shearman contact defendant’s father, who had information on how the transaction
took place. Captain Shearman dialed the
phone number defendant provided him. The
man on the other end of the line said he had obtained the car from doing a
favor for a friend of a friend and that the car ended up going to
defendant. The man had no information
about where the pink slip or a bill of sale might be.
While Captain
Shearman had been searching the car, Deputy Green had viewed the items stored
in the open trunk with more attention. She
noticed jackets and Carhartt safety jackets with reflective gear. They still had tags on them. There were also nylon mesh bags with items in
them.
Through the car’s
windows and the open passenger door, Deputy Green also observed a number of
items on the car’s backseat. She saw
boxes of gloves, protective eyewear still in packaging, and stereo
speakers. It appeared to her the items
were stolen property. Captain Shearman
had noticed the same items on the backseat when he was inside the vehicle.
Deputy Green
asked defendant about the items she had seen.
He said he received them from yard sales and was planning to go to the flea
market. He said he also received items
from people as gifts in exchange for work.
Believing that defendant might be in possession of stolen property,
Deputy Green decided to tow the vehicle and perform an inventory of its
contents. At about that same time, she
arrested defendant for possession of another person’s prescription and possession
of marijuana.
Defendant
consented to a search of his vehicle.
Deputy Green asked Captain Shearman if he had a consent form for
defendant to sign, but he did not and neither did she. Defendant, however, consented to the
search. Deputy Green performed the
search. She was assisted by Detective
Clegg, whom she had contacted earlier for help in identifying some of the
property. Captain Shearman also assisted
Deputy Green in moving items from the car.
Deputy Green took defendant’s handcuffs off so defendant could speak
freely with Detective Clegg.
Detective Clegg also
asked defendant for permission to search the car. Defendant said he could. In addition, Detective Clegg asked defendant
for permission to collect the items found in the car. Defendant gave him permission. Detective Clegg told defendant he would give
him a receipt for everything he collected that he believed was stolen, and
defendant agreed. As something was
located in the car during the search, Detective Clegg would ask defendant where
he got the item. Defendant never told the
officers to stop searching.
The officers
found a bronze statue of an eagle in the car’s trunk. Detective Clegg recognized the statue as
something that had been reported stolen in an earlier burglary. Detective Clegg also recognized the safety
equipment as being similar to equipment he had seen in the warehouse of a
safety equipment company a year prior to this incident. The officers also found several cases of new
batteries still in their packaging.
B.
1. Reasonable
cause to detain defendant
Defendant contends
he was unlawfully detained without reasonable suspicion. He asserts Deputy Green detained him only
because she recognized him from past criminal activity and because she saw him
make the furtive gesture of peering around his car. These acts, he claims, did not give Deputy
Green sufficient reason to detain him.
We disagree with defendant’s contentions and conclude under the totality
of the circumstances that Deputy Green had reasonable suspicion to detain him.
“The Fourth
Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and
its protections extend to brief investigatory stops of persons or vehicles that
fall short of traditional arrest. (Terry
v. Ohio (1968) 392 U.S. 1, 9 [20 L.Ed.2d 889] [(Terry)]; United States v. Cortez (1981) 449 U.S. 411,
417 [66 L.Ed.2d 621] [(Cortez)].) Because the ‘balance between the public
interest and the individual’s right to personal security’ (United States
v. Brignoni-Ponce (1975) 422 U.S. 873, 878 [45 L.Ed.2d 607]), tilts in
favor of a standard less than probable cause in such cases, the Fourth Amendment
is satisfied if the officer’s action is supported by reasonable suspicion to
believe that criminal activity ‘ “may be afoot†’ (United States v. Sokolow
(1989) 490 U.S. 1, 7 [104 L.Ed.2d 1] (Sokolow)
(quoting Terry, supra, at 30). (See also Cortez 449 U.S. at
417 (‘An investigatory stop must be justified by some objective manifestation
that the person stopped is, or is about to be, engaged in criminal activity.’).)
“When discussing
how reviewing courts should make reasonable-suspicion determinations, we have
said repeatedly that they must look at the ‘totality of the circumstances’ of
each case to see whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing. (See, e.g., id. at 417-418.) This process
allows officers to draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information available
to them that ‘might well elude an untrained person.’ (
(1996) 517 U.S. 690, 699 [134 L.Ed.2d 911] (reviewing court must give ‘due
weight’ to factual inferences drawn by resident judges and local law
enforcement officers).) Although an
officer’s reliance on a mere ‘ “hunch†’ is insufficient to justify a stop (Terry,
supra, at 27), the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard (Sokolow, supra, at 7).†(
We also
acknowledge “the need for law enforcement officers to protect themselves and
other prospective victims of violence in situations where they may lack
probable cause for an arrest.†(
Viewing
defendant’s detention under the totality of the circumstances of this case, we
conclude Deputy Green had a sufficiently particularized and objective basis for
suspecting defendant was, or was about to be, engaged in criminal
activity. Deputy Green was dispatched to
the location based on a report of a “man down.â€
That description would have indicated to her that someone was in serious
need of assistance. Upon arriving, she
saw a car with its trunk lid up and passenger door open, and it was parked off
the roadway in something akin to a pasture.
Upon parking her vehicle, she indeed saw a man down. At this point, she could have believed the
man down was a crime victim. But when
Captain Shearman arrived, Deputy Green saw the man get up off the ground, move
to the open passenger door, and peer around the car to see who had
arrived. She also observed items in the
trunk as she approached defendant. Now,
the situation was changed, and the open appearance of the car with a trunk full
of items, and defendant off the ground and peering around the car as another
officer approached him, rendered the situation much more uncertain. She could have reasonably believed she had to
control the situation to learn what was happening and had to protect Captain
Shearman. Under these circumstances,
Deputy Green could have reasonably believed some type of criminal behavior was
afoot, and she was justified to detain defendant.
At a minimum,
the circumstances gave Deputy Green reasonable cause to investigate the status
of the car, and that investigation would have inevitably led to defendant’s
arrest. Coming upon this particular
scene, Deputy Green and Captain Shearman were justified in inquiring about the
ownership and registration of the vehicle.
Whether or not defendant was handcuffed, the officers would have learned
defendant carried no proof of ownership or registration. State law requires a person in the immediate
control of an automobile to present evidence of valid registration upon command
of a peace officer. (Veh. Code, § 4462,
subd. (a).) The failure to do so may
result in the person’s arrest and his car being impounded and its contents
inventoried. (People v. Redd (2010) 48 Cal.4th 691, 719-721.) Thus, defendant’s detention and the
subsequent search of his car did not violate the Fourth Amendment.
2. Sufficiency
of the evidence that prescription bottles were in plain view
Defendant
contends there is insufficient evidence to support the finding that he gave
Captain Shearman consent to look inside the center console. Even if he gave Captain Shearman that
consent, defendant claims there is insufficient evidence to support the finding
that the prescription bottles’ labeling and contents were in plain view. We disagree with his contentions.
Sufficient
evidence supports the trial court’s finding that defendant consented to Captain
Shearman looking inside the center console.
Defendant initially limited his consent to searching the glove box. But after Captain Shearman could not find any
paperwork identifying ownership there, defendant told him the paperwork had to
be in the car somewhere. Captain Shearman
asked if he could look again, and defendant replied, “[I]t’s in there. Find it.â€
By this comment, defendant gave Captain Shearman consent to search
anywhere inside the car, including inside the center console.
Sufficient
evidence also supports the court’s finding that Captain Sherman observed the
prescription bottles, their labels, and their contents in plain view. Captain Shearman testified the prescription
bottles, their labels, and their content were in plain view as he searched the
center console. Captain Shearman stated
that while searching in the console, he found the prescription bottles,
including one for a female. The bottles
were “generally see-through,†and he could see through the bottle labeled for
defendant and determine marijuana was inside.
This was sufficient evidence to support the court’s conclusion that Captain
Shearman found the bottles, their labels, and their contents in plain
view.
Defendant claims
Captain Shearman would have had to pick up the prescription bottles in order to
read the labels or view their contents, and picking up the bottles exceeded
defendant’s consent to search for paperwork documenting ownership of the
car. We disagree. The evidence was that the bottles were in
plain view, and there was no evidence that Captain Shearman had to pick them up
to view them. Even if defendant limited impliedly
the scope of his consent, his limited consent would not prevent Captain
Shearman from retrieving what was in plain view. “Police officers do not have to blind
themselves as to what is in plain sight simply because it is disconnected with
the purpose for which they entered the premises. (People
v. Superior Court (Meyers) (1979)
25 Cal.3d 67[, 73].) Objects falling in
plain view of a law enforcement officer who has a lawful right to be in a
position to have that view are subject to seizure and may be introduced
301, 306.)†(People v. Szabo (1980) 107 Cal.App.3d 419, 431-432.)
In addition, even
if the evidence had not been in plain view, it still would have been admissible
at trial under the inevitable discovery exception to the exclusionary
rule. Evidence found because of a Fourth
Amendment violation is admissible if the prosecution can establish the evidence
ultimately or inevitably would have been discovered by lawful means. (Nix v.
Williams (1984) 467 U.S. 431, 444 [81 L.Ed.2d 377, 387-388].) Here, the prosecution would have satisfied
this test. Reasonably believing the car
may have been stolen, Deputy Green decided to tow the vehicle and perform an
inventory search. During this lawful
search of the car, Deputy Green would have discovered the prescription
bottles. The court thus did not err in
refusing to suppress this evidence.
3. Voluntariness
of consent
Defendant
asserts his consent to Detective Clegg to search the vehicle was involuntary. He cites no facts to support his assertion;
instead, he states simply the legal maxim that “consent to search produced by
an illegal arrest or detention is not voluntary.†(People
v. Valenzuela (1994) 28 Cal.App.4th 817, 833.) We have already concluded defendant’s
detention was lawful. His arrest was
also lawful, as it was based on probable cause of possessing marijuana and
another person’s prescription. His
consent to Detective Clegg was not coerced.
4. Search
justified as an inventory search
Defendant
contends no evidence was produced at the suppression hearing to show the
vehicle search was an inventory search. Although
Deputy Green’s decision to perform an inventory search establishes the
inevitable discovery exception, as we have explained, defendant’s contention is
irrelevant, as the searches of defendant’s car were based on his consent
following his lawful detention, and the items found that exceeded his consent
were found in plain view. The trial
court correctly denied defendant’s motion to suppress.
II
Trombetta
Motion to Dismiss
After defendant
was arrested for unlawfully possessing another’s prescription and marijuana,
his car was inventoried and then towed to a private tow yard for
safekeeping. The stolen items retrieved
from the car were photographed after being removed from the car and the items
were returned to their lawful owners.
However, the private tow company sold the car when the impound fees
exceeded the car’s value.
Defendant filed
a Trombetta motion to dismiss the action,
claiming law enforcement violated his due process rights and denied him a
defense by not photographing the stolen property inside the vehicle and by
allowing the car to be sold. He asserted
the car and its contents would have shown the plain view search claims made by
law enforcement were unfounded because the car was so filled with junk and
debris there was no way the prescription bottles or any of the stolen property
could have been visible. The trial court
denied the motion.
Defendant
contends the trial court’s denial was error.
He asserts the officers acted in bad faith in failing to retain the car
and its contents, and the lost evidence was material and exculpatory. We conclude the trial court did not err.
If the
prosecution collects material, exculpatory evidence, due process requires the
prosecution to preserve it. (
51, 58 [102 L.Ed.2d 281, 289]; Trombetta,
supra, 467 U.S. 479.) If the
prosecution fails to preserve such evidence, the defense may make a motion for
sanctions, called a Trombetta or Youngblood motion.
The showing the defense must make to obtain relief varies, depending
on whether the loss of the evidence was in bad faith. (People
v. Pastor Cruz (1993) 16 Cal.App.4th 322, 324-325.) A defendant who can establish the prosecution
acted in bad faith in destroying or failing to preserve evidence is entitled to
relief on a showing that the lost or destroyed evidence might have
exonerated him. (Illinois v. Fisher (2004) 540 U.S. 544, 547-548 [157 L.Ed.2d 1060,
1066].) If the
defendant cannot establish bad faith, he is entitled to relief only on a
showing that the lost or destroyed evidence was material and exculpatory. (Trombetta,
supra, 467 U.S. at pp. 488-489.)
Material, exculpatory evidence is evidence that might be expected to
play a significant role in the suspect’s defense. It must possess an exculpatory value that was
apparent before the evidence was destroyed or lost, and be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means. (Trombetta,
supra, 467 U.S. at p. 489.)
Defendant failed to demonstrate the officers acted in bad faith, or
that the lost evidence was material and exculpatory. Defendant submitted no evidence establishing
the officers acted in bad faith in not taking pictures of the stolen property
inside the car or not preventing the car from being sold. His assertions of bad faith -- that the
officers did not take pictures and lost the car in order to protect their ruse
of claiming plain view -- are mere speculation.
Trombetta motions based on
speculation are without merit. (
1258, 1265-1266.)
Defendant also submitted no evidence establishing the proposed
pictures or the car were material and exculpatory evidence. Obviously, the car was not material. Defendant was not charged with any crime
involving the car. Also, the stolen
items were removed from the car with defendant’s consent and inventoried before
it was towed. Thus, the car itself would
have served defendant no purpose.
As for the pictures defendant faults the officers for not taking,
defendant cites to no authority that holds law enforcement officers are under a
duty to create evidence. Also, such
photos would not have been exculpatory.
Defendant consented to Captain Shearman searching inside the entire
vehicle to look for ownership documentation.
This consent gave Captain Shearman authority to move the debris he found
in the car in search of paperwork documenting ownership. As he moved debris, the prescription bottles
and the stolen goods would have come into plain view, and a photo of the car’s
interior at that time likely would not have shown them hidden. The court did not err in denying defendant’s
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
HULL , J.
MAURO , J.
name="_ftn1" title="">[1]
name="_ftn2" title="">[2] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
