P. v. Zimmerman
Filed 4/17/13 P. v. Zimmerman CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. ERIC MATTHEW ZIMMERMAN, Defendant and Appellant. | B237016 (Los Angeles County Super. Ct. No. PA067836) |
APPEAL from
a judgment of the Superior Court
of
County, Cynthia L. Ulfig, Judge. Reversed.
Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
>
Following
the denial of a motion to suppress evidence, Eric Matthew Zimmerman was
convicted by a jury of transportation of a controlled substance and
in his car should have been suppressed as the fruit of an unlawful search. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On October 25, 2010 Los Angeles County
Sheriff’s deputies Mark Vencer and John McKay stopped Zimmerman for driving
over the speed limit. As Deputy McKay
approached the car, Zimmerman “was highly irate†and “screaming
profanities.†McKay told Zimmerman to
place his hands on the steering wheel, but Zimmerman said with his voice
raised, “You can’t tell me what to do.
You have no right to be stopping me.â€
The deputies placed Zimmerman in the back of the patrol car to ensure
officer safety. After it was determined
Zimmerman’s driver license was suspended, he was arrested. During an inventory search of the car, Deputy
Vencer found three small, individually wrapped packages of methamphetamine
inside an empty cigarette box in the trunk.
No drug paraphernalia, drug packaging materials, scales, excess cash or
records regarding drug sales were recovered.
McKay testified Zimmerman did not appear to be under the influence of
methamphetamine.
At the
preliminary hearing Zimmerman moved to suppress the evidence recovered during
the inventory search and statements he made after the arrest on the ground the
search was conducted to find incriminating evidence.
was conducted for Zimmerman’s benefit because the deputies intended to tow the
car and documenting valuable articles prevents the towing company from stealing
anything. McKay explained, however, the
officers did not complete the inventory because they decided not to tow the
car, which was in an area where McKay believed it would be safe from theft or
vandalism: “[B]ased on the fact
. . . [Zimmerman] had not been notified by the courts yet that his
license had been suspended, he had no prior knowledge that his license was
suspended, that he was not the registered owner of the vehicle, and the fact
that he begged me not to tow his vehicle because it belonged to his girlfriend,
I decided at the last second to not tow his vehicle.†McKay further explained Zimmerman had asked
to speak with a detective so he could make a deal “to work off a case.†According to McKay, the detective asked him
not to tow the car because Zimmerman “would be released soon and then would
immediately start working for the detective.â€
The court
denied the motion to suppress, finding it was reasonable for the deputies to
begin inventorying the contents of the car because Zimmerman’s license was
suspended: “[I]t looks as to count 3,
he’s alleged[] to have been driving on a suspended license, although there’s
testimony that he apparently was not aware at the time. But be that as it may, he was on a suspended
license. I know officers typically at
that time when the vehicle is being driven on a suspended license, it’s subject
to impound. And it seems reasonable to
me that the officer would have begun that process of dealing with the
inventory. So I think that the inventory
search justifies the search of the vehicle . . . .â€
The jury
found Zimmerman guilty of transportation of a controlled substance (Health
& Saf. Code, § 11379, subd. (a)) and possession for sale of a
controlled substance (Health & Saf. Code, § 11378).
jail for a term of nine years.
DISCUSSION
1.
Standard of Review
In reviewing the ruling on a motion
to suppress, the appellate court defers to the trial court’s factual findings,
express or implied, when supported by substantial evidence. (People
v. Redd (2010) 41 Cal.4th 691, 719; People
v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh
evidence and draw factual inferences is vested in the trial court. (James,
at p. 107.) However, in
determining whether, on the facts found, the search or seizure was reasonable
under the Fourth Amendment, we exercise our independent judgment. (Redd,
at p. 719; People v. Glaser (1995) 11
Cal.4th 354, 362.)
2.
Governing Law
The Fourth Amendment’s prohibition
of “unreasonable searches and seizures†generally precludes warrantless
searches of an individual and his possessions, including an automobile. (See In
re Arturo D. (2002) 27 Cal.4th 60, 68.)
that police officers have a legitimate interest in taking an inventory of the
contents of vehicles they legally tow and impound “to protect an owner’s
property while it is in the custody of the police, to insure against claims of
lost, stolen, or vandalized property, and to guard the police from danger.†(See Colorado
v. Bertine (1987) 479 U.S. 367, 372 [107 S.Ct. 738, 93 L.Ed.2d 739].) Such “inventory searches†are now considered
“a well-defined exception to the warrant requirement of the Fourth
Amendment.†(Id. at p. 371.) To ensure it
is not merely used as a pretext or ruse to search vehicles for contraband or
other incriminating evidence, a
warrantless inventory search must be conducted “pursuant to standard police
procedures†(South Dakota v. Opperman
(1976) 428 U.S. 364, 372 [96 S.Ct. 3092, 49 L.Ed.2d 1000] and be “sufficiently
regulated†to avoid wholly unfettered police discretion. (Florida
v. Wells (1990) 495 U.S. 1, 4 [110 S.Ct. 1632, 109 L.Ed.2d 1]; see
also Opperman, at p. 384.)
name="_ftnref5" title="">[5]
A defendant meets his or her
initial burden of challenging the constitutionality of a warrantless search or
seizure by “simply assert[ing] the absence of a warrant and mak[ing] a prima
facie showing to support that assertion.â€
(People v. Williams (1999)
20 Cal.4th 119, 130.) The People
then bear the burden of proving that both the impoundment and search were
constitutionally reasonable under all the circumstances. (Ibid.;
Fourth Amendment.†(Florida v. Jimeno (1991) 500 U.S. 248, 250 [111 S.Ct. 1801,
114 L.Ed.2d 297].)
3. The People Failed To Satisfy Their Burden of Establishing the Search of
Zimmerman’s Car Was Conducted Pursuant to a Standardized Inventory Procedure
In Florida v. Wells, supra, 495 U.S. 1 the Supreme Court held the
trial court should have suppressed marijuana found when officers opened a
locked suitcase while inventorying a vehicle.
(Id. at p. 2.) Reiterating the limitation on inventory
searches it had announced in Colorado v.
Bertine, supra, 479 U.S. 367, the Court explained “standardized criteria
[citation] or established routine [citation] must regulate the opening of
containers found during inventory searches†to safeguard the “principle that an
inventory search must not be a ruse for a general rummaging in order to
discover incriminating evidence.†(
searches should be designed to produce an inventory. The individual police officer must not be allowed
so much latitude that inventory searches are turned into ‘a purposeful and
general means of discovering evidence of crime.’†(Ibid.) Because the record in Wells contained no evidence of any
policy of the law enforcement agency whose officers had conducted the search
regarding the opening of closed containers during inventory searches, the
Supreme Court concluded the marijuana found in the suitcase should have been
suppressed: “[A]bsent such a policy, the
. . . search was not sufficiently regulated to satisfy the Fourth
Amendment . . . .†(
In People v. Williams, supra, 20 Cal.4th 119 the California Supreme
Court reinforced the Bertine and
“prosecution must always prove the existence
of a policy supporting an inventory
search . . . .†(
the risk that an inventory search will be ‘a ruse for a general rummaging,’ a
risk that this case particularly exemplifies, a valid inventory search must
adhere to a preexisting policy or practice.
[Citation.] This rule may require
the prosecution to prove more than the existence of some general policy
authorizing inventory searches; when relevant, the prosecution must also prove
a policy or practice governing the opening of closed containers encountered
during an inventory search.†(
U.S. at pp. 4-5.) The officers in
leather bags inside the defendant’s truck during the inventory search. Because the prosecution did not prove the
leather bags had been opened “pursuant to a policy or practice,†the Court held
the warrantless search was unlawful. (
As in
the People failed to prove the existence of any general policy of the Los
Angeles County Sheriff’s Department authorizing inventory searches, let alone a
policy or practice governing searches of packages or container where drugs may
be concealed. The only testimony that
even hinted at the existence of a policy was Deputy McKay’s testimony they
conducted an inventory search to protect Zimmerman from theft because they
intended to have the vehicle towed. This
testimony suggests, at most, that inventorying a vehicle is standard department
procedure whenever someone is arrested for driving with a suspended
license. However, as emphasized in
exists is not enough. The People must
prove the actual existence of a policy, including “the specifics†that govern
those areas actually searched, albeit the policy need not be in writing. (Williams,
at p. 138; see id. at p. 127 [“Wells
does not require a written policy governing closed containers or a
policy that leaves no room for police discretion, but the record must at least
indicate that police were following some ‘standardized criteria’ or
‘established routine’ when they elected to open the containersâ€].) The prosecution did not present evidence of
any policy whatsoever and therefore failed to meet its burden of justifying the
warrantless search.
DISPOSITION
The judgment of conviction is reversed. On remand the trial court is directed to
vacate its order denying Zimmerman’s motion to suppress evidence and to enter a
new order granting the motion.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
JACKSON,
J.
told Deputy McKay he acted as a middleman between drug dealers and
distributors. On the night of his arrest
he was on his way to pick up more “product.â€
had also been charged with driving with a suspended license (Veh. Code,
§ 14601.1, subd. (a)), but the charge was dismissed in furtherance of
justice (Pen. Code, § 1385, subd. (a)).
