P. v.
Filed 2/24/12 P. v. Stafford CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
STEPHANIE MARIE STAFFORD,
Defendant and
Appellant.
H036350
(Santa Cruz
County
Super. Ct.
No. F19733)
After the
trial court denied her motion to suppress
evidence (Pen. Code, § 1538.5),
defendant Stephanie Marie Stafford pleaded no contest to misdemeanor
(a)), and misdemeanor driving with a suspended license (Veh. Code, § 14601.1,
subd. (a)). The court suspended
imposition of sentence and placed her on probation for two years. On appeal, defendant contends that the court
erred in denying her motion to suppress because the impoundment and search of
her vehicle violated the Fourth Amendment. We disagree with defendant’s contention and,
therefore, we will affirm the judgment.
Defendant was charged by
complaint with felony receiving stolen property (§ 496, subd. (a); count 1), and
misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd.
(a); count 2). The complaint further
alleged that defendant had served seven prior prison terms. (§ 667.5, subd. (b).)
On November
15, 2010, the date set for the preliminary examination, defendant filed a
motion to suppress evidence (§ 1538.5), seeking suppression of evidence “seized
from a red woman’s bag in the backseat along with certain checks and checkbooks
and driver’s license and other items listed in WVPD property report, including
two alleged meth pipes and a small amount of marijuana . . . .” Defendant contended in part that her vehicle
was unlawfully impounded and searched.
Attached to the motion was a copy of the “Vehicle Towing Policy” from the
Watsonville Police Department’s policy manual.
The testimony at the preliminary examination was as follows.
Watsonville
Chief of Police Manuel Joseph Solano testified that he was on duty around 1:04
p.m. on June 22, 2010, when he saw an SUV travelling at “a very fast pace,” “an
unsafe speed,” on East Beach Street. The
high school was just a block away, and high school students were on the
sidewalk and in the street returning from their lunch break. Chief Solano followed the SUV and determined
that it was travelling approximately 45 miles per hour in an area with a
25-mile-per-hour speed limit. He used
his siren and lights to pull the SUV over in front on the Buddhist
Temple on Bridge
Street. The
SUV almost struck a parked car on the right side of the street before pulling
over. Because the street was very
narrow, and there was no place in the area where the SUV could be safely parked
on the street, Chief Solano instructed the driver of the SUV to pull into the
parking lot of the temple, and the driver complied.
Defendant
was the driver of the SUV. Chief Solano
knew her from previous contacts, “but it’s been quite a few years.” He asked defendant for her driver’s license
and the SUV’s registration. Defendant
gave Chief Solano a California ID card and a valid registration. The car was registered to Theresa Ketchum in
Gilroy, whom defendant said she knew.
Defendant said that her license was suspended but it should not have
been, and that she was in the process of working things out with the DMV. Chief Solano “told her I stopped her for
speeding. She admitted to it. Said she had a lot on her mind. She appeared very frazzled, very nervous,
very agitated and she was fidgeting a lot in the car.” Chief Solano called dispatch to verify
defendant’s driver’s license status, and to check for warrants and search and
seizure terms. When he was told that
defendant’s driver’s license was suspended, he radioed for back-up
assistance. “My intent was to issue a
citation for speeding, but then it rolled into a possible suspended driver at
which point I’m not equipped to take a person into custody, issue citation,
deal with that.” He was then told by
dispatch that defendant did not have search and seizure terms.
Chief
Solano testified that Officer Alex Rodriguez arrived within a few minutes and
Chief Solano “handed over the investigation” to him. However, before Officer Rodriguez arrived,
and while Chief Solano was standing at the door of the SUV with defendant still
seated inside, Porfirio Melgoza, “a person known to Watsonville Police,” “ran
up,” with his gang-associated tattoos clearly visible. “He ran up to us, kind of scared us. Turned into kind of a volatile domestic
situation with exchange of words between [defendant] and Mr. Melgoza at which
point I yelled at Mr. Melgoza to stay away.
That was just when Officer Rodriguez was arriving. So kind of by myself, it became a little
tense.” Melgoza “was basically swearing
at [defendant], calling her names for what she was doing, why she got
stopped. And she was also kind of giving
him some vulgarity back. It just
appeared to me that there was something that took place before the stop. My understanding was it might have been she
left a location where he was and that for some reason it was continuing at this
location at the stop.” Defendant and
Melgoza were speaking in “very raised tone[s] of voice. Again, it just presented a volatile, unsafe
situation for me. I know him to be
involved in gangs. I worried for my
safety at that point and my main concern at that point was to separate the two
and not let them talk.” Chief Solano
told dispatch that he needed additional assistance because he had a gang member
on the scene.
Chief
Solano ordered Melgoza to stay at the sidewalk and told Officer Rodriguez to handle
him while Chief Solano stayed with defendant.
Melgoza “didn’t really obey my commands.
He kept pushing the envelope, coming closer and closer. We kept telling him to stay away until an
actual officer arrived to separate the two.”
The other officer had Melgoza stand by a patrol car about 30 feet away,
and stayed with him. Defendant kept
“fidgeting” in the SUV, so Chief Solano had her removed from the car. She continued “moving around and fidgeting”
with her phone. Defendant said that she
was talking to her attorney, and she did not pay attention to the officers’
directions or answer their questions.
They had to repeatedly tell her to calm down, to quit moving around, and
to sit on the curb.
Chief
Solano testified that Officer Rodriguez checked and verified defendant’s
driver’s license status. Officer
Rodriguez prepared defendant’s ticket (citation to appear), and Chief Solano
signed it as the issuing officer. By
this time, five officers, including a gang analyst, were on the scene. “Our Watsonville officers frequently know
players in Watsonville and that appeared to be what was happening at this
particular time.” The officers discussed
the possibility of there being incriminating evidence inside the SUV based on
defendant’s “association and intelligence that I do not have particulars
of.” Defendant did not give them consent
to search the SUV, so the officers discussed what they could do. Defendant asked that the SUV be released to
Melgoza. Melgoza’s license was run and
it came back valid. Chief Solano did not
want to release to SUV to Melgoza because “I believed him to be – first of all,
his state of mind and his body language, posture appeared to be very agitated,
dangerous. He’s a known criminal. The information I was getting from the other
officers. And again the fact that I did
not want to release a vehicle to a known criminal with the possibility of that
car being stolen and us being responsible for giving that vehicle away.”
Chief
Solano further testified that Officer Rodriguez requested a tow vehicle because
the SUV “was on private property. Again,
there was no safe parking close to where we were stopped at that that vehicle
would be safe. There’s a lot of items
inside the car; that was a concern of mine” even though he did not consider the
area to be a high crime area. In
addition, neither defendant nor Melgoza were the registered owner of the SUV,
and the officers did not even know whether defendant had permission to drive
the car. “We did not know [Melgoza’s]
connection to that vehicle. I could very
well be releasing the vehicle to someone that was going to steal it. And then we would be on the responsible side
for that vehicle. That is a concern
whenever we release the vehicle.” “We
try to see what the person’s association is.
Again, we had a volatile situation.
This situation was unique in that he was confrontational, very agitated
for some reason and that played into our decision of not releasing the vehicle
to him.” Chief Solano did not try to
call Ketchum, the registered owner of the SUV.
The officers decided to do an inventory search of the SUV, and Officer
Rodriguez and another officer conducted the search.
Officer
Rodriguez testified that he assisted Chief Solano during the car stop of
defendant on June 22, 2010. When Officer
Rodriguez arrived on the scene, Chief Solano already had defendant’s ID and car
registration, and Melgoza was already at the scene speaking to another
officer. Melgoza appeared to be
upset. Officer Rodriguez knew who
defendant was and he knew that Melgoza was her boyfriend.
Officer
Rodriguez testified that he was in charge of the investigation. He prepared the citation and gave it to
defendant. Defendant said that her
license was not suspended, that it was in good standing. He told her that their records showed that it
was suspended and that she needed to contact the DMV. He also asked her for permission to search
her car. She appeared nervous and she
declined to give her permission. The
other officers on the scene discussed the possibility that defendant and
Melgoza were involved in other criminal behavior, but Officer Rodriguez did not
take part in the discussion.
Officer
Rodriguez did not ask dispatch whether Melgoza had a valid driver’s license,
and he did not otherwise know whether Melgoza had a valid license. Officer Rodriguez made the decision to
impound defendant’s vehicle. He has the
discretion to have a vehicle towed even when a licensed driver is on the
scene. “It’s discretion. It’s not policy. It’s discretion of the officer may or may not
tow it.” The department’s policy
explains that there are circumstances where it might be better to tow a car,
such as when the car cannot be left safely.
“I would have to say that there’s issues in that neighborhood,” even
though Chief Solano thought that it was not a high crime area.
Before the
car was impounded, Officer Rodriguez did an inventory search of it with another
officer. On the rear seat in a red purse
they found two checkbooks, a bank card, and an ID card. Richard Carbahall’s name was on one
checkbook, the bank card, and the ID card, and Janet Barney’s name was on the
other checkbook. On the floorboard of
the rear passenger seat in a black slipper were methamphetamine pipes. Also on the floorboard was a black purse containing
a small amount of marijuana. Officer
Rodriguez asked defendant who the purses belonged to and she said that they
were hers. Officer Rodriguez called
Carbahall and Barney. Carbahall said
that he had filed a police report in Santa Cruz County a week earlier because
his vehicle had been broken into and his wallet stolen. Carbahall said that he did not know
defendant. Barney said that her bank had
sent her the checks through the mail but she had never received them. Barney also said that she did not know
defendant.
Following
the testimony, the prosecutor argued to the court that Chief Solano articulated
the reasons why the officers did not want to release the car to Melgoza, and
why it was proper to impound the car and do an inventory search. Defense counsel argued that the impoundment
of the vehicle was a pretext for the search.
The court ruled in relevant part as follows: “The Torres
case[
cites a number of cases and whether by accident or design [a] number of
conflicting factors happened here. The
first is of course where Chief Solano had the car pulled over which ended up
being into private property instead of on the street. That’s a factor we have to look at.”
“The issue
then becomes whether there was somebody to take the car away and whether there
was somebody to do that. This is
different than Torres where the
deputy candidly stated he impounded the truck as a pretext for searching for
narcotics evidence. Unfortunately,
sometimes people you associate with are the ones that cause you the most
trouble. And in this case Mr. Melgoza’s
attitude was everything. I don’t know
what Mr. Melgoza thought when he first came upon the unmarked car, the Chief
Solano, but Mr. Melgoza rolled the dice and he rolled them wrong. And his behavior, his attitude is probably
what set this in motion in a bad way for [defendant] because they were not
going to entrust him with the vehicle.”
“Well, we
have two – there was no other licensed driver.
I don’t know they had significant issues with Mr. Melgoza. Was the car blocking a driveway No.
Was defendant – and the defendant was not the registered owner of this
vehicle. But the difficulty becomes how
this was all put together. And this is
one where the Court on an overall basis it’s very close but the Court finds by
a preponderance of the evidence . . . that there was a basis to impound the
vehicle based on the location and conduct the inventory search and based on the
behavior of Mr. Melgoza.”
“When I
read Torres and I’ve read it
carefully[, t]hese are the areas that came out.
[¶] One, when Mr. Melgoza
appeared on the scene, Mr. Melgoza was kept 30 feet away only because the Chief
kept him away. He appeared on the scene
agitated in a louder than normal voice.
Not appearing as someone who was going to be there to be of any
assistance. But in fact the defendant
and Mr. Melgoza were now arguing with each other and I think that’s putting it
mildly. [¶] The Chief explained it as a domestic
situation but did not appear to be a friendly situation. And Mr. Melgoza had to be separated from the
defendant.
“This is
not a situation where a car is pulled over, there’s another passenger who
happens to be there that’s licensed and said, gee, I’ll take it away. Doesn’t sound like that. If that was the benefit or the municifance [
across that way to the Chief. So the
Chief also explained that this occurred in an area near the high school where
there were a lot of children involved.
[Defense counsel] made a very good point about why didn’t he have the
car pull over on the street. But he also
did indicate that one of his concerns probably why he did get active is this
happened in front of a school. And as
Chief of Police I’m sure he probably was very concerned about that. He did mention that.
“What is
disconcerting to the Court is when you have a statement that we heard over and
over, ‘I just had a second party just run up on me.’ That is an officer safety issue. And so the issue was not the registered owner
of the vehicle. Mr. Melgoza certainly
did not behave in any such manner that – the last thing the Chief said in the
answer/question cross-examination was that he was concerned about the vehicle
being stolen. He clarified that. He did not feel that it would be prudent to
expose his agency to liability by turning the car over to somebody that it
might be stolen. There were a number of
things that went on there.
“It is a
close case. It is a very close
situation, but the testimony of Chief Solano and listening to Defendant’s B
[the dispatch CD] and looking at Defendant’s A [the dispatch log], convinces
the Court this was a proper impound search on all the circumstances. [¶]
The Court will deny the motion to suppress.”
The court
held defendant to answer on counts 1 (receiving stolen property, § 496, subd.
(a)) and 2 (driving with a suspended license (Veh. Code, § 14601.1, subd. (a)),
but reduced count 1 to a misdemeanor pursuant to section 17, subdivision (b)(5)
sua sponte. Defendant signed an
advisement of rights, waiver, and plea form, and pleaded no contest to both
counts on condition that she receive “90 days on work release.” The court suspended imposition of sentence
and placed defendant on probation for two years with various terms and
conditions, including that she “[s]erve 90 days in the county jail with zero
credits; balance maybe done on work release.”
Defendant
contends that the court erred in denying her motion to suppress, as the
impoundment and search of her vehicle violated the Fourth Amendment. She argues that the decision to impound the
vehicle was not made pursuant to the written or established policies of the
Watsonville Police Department, that the impoundment did not advance any
community caretaking policy, and that the impoundment was a pretext to allow
the officers to conduct a search for incriminating evidence.
The
Attorney General contends that the court properly denied the motion to suppress
because the inventory search of defendant’s vehicle did not violate the Fourth
Amendment. The Attorney General argues
that the decision to impound defendant’s vehicle under the officers’ community
caretaking function was reasonable based on all the facts and circumstances, and
that the officers did not use the decision to impound the vehicle as a pretext
to engage in a search for criminal activity.
“When, as
here, a magistrate rules on a motion to suppress under Penal Code section
1538.5 raised at the preliminary examination, he or she sits as the finder of
fact with the power to judge credibility, resolve conflicts, weigh evidence,
and draw inferences.” (
1238, 1244 (Shafrir).) “ ‘ “An appellate court’s review of a trial
court’s ruling on a motion to suppress is governed by well-settled
principles. [Citations.] [¶] In
ruling on such a motion, the trial court (1) finds the historical facts,
(2) selects the applicable rule of law, and (3) applies the latter to the
former to determine whether the rule of law as applied to the established facts
is or is not violated. [Citations.]” ’
” (People
v. Ayala (2000) 23 Cal.4th 225, 255.)
“Accordingly, ‘we review the trial court’s findings of historical fact
under the deferential substantial evidence standard, but decide the ultimate
constitutional question independently.
[Citations.]’ [Citation.] We must accept factual inferences in favor of
the trial court’s ruling.
[Citation.] If there is
conflicting testimony, we must accept the trial court’s resolution of disputed
facts and inferences, its evaluations of credibility, and the version of events
most favorable to the People, to the extent the record supports them. [Citations.]”
(People v. Zamudio (2008) 43
Cal.4th 327, 342.) “In determining
whether, on the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment. [Citations.]”
(People v. Glaser (1995)
11 Cal.4th 354, 362; see also Shafrir,
supra, at p. 1245.)
The Fourth
Amendment guarantees the right to be free of unreasonable searches and seizures
by law enforcement personnel. A
warrantless search or seizure is presumed to be unlawful. (U.S. Const., 4th Amend.;
390.) “The prosecution always has the
burden of justifying the search by proving the search fell within a recognized
exception to the warrant requirement.” (
“As part of
their ‘ “community caretaking functions,” ’ police officers may
constitutionally impound vehicles that ‘jeopardize . . . public safety and the
efficient movement of vehicular traffic.’
[Citation.] Whether ‘impoundment
is warranted under this community caretaking doctrine depends on the location
of the vehicle and the police officers’ duty to prevent it from creating a
hazard to other drivers or being a target for vandalism or theft.’ [Citation.]”
(Williams, supra, 145 Cal.App.4th at p. 761.) “Nothing
. . . prohibits the exercise of police discretion [in deciding to impound a
vehicle] so long as that discretion is exercised according to standard criteria
and on the basis of something other than suspicion of evidence of criminal
activity.” (Colorado v. Bertine (1987) 479 U.S. 367, 375 (Bertine); see also South
Dakota v. Opperman (1976) 428 U.S. 364, 375-376.) “While written criteria may be evidence of
standardization, the absence of written criteria would not mean that the
procedures were not standard. By the
same token, unreasonable procedures do not ipso facto become standard, and therefore
legal, merely because they are contained in a written directive.” (People
v. Steeley (1989) 210 Cal.App.3d 887, 891.)
“ ‘The fact
that there may be less intrusive means of protecting a vehicle and its contents
does not render the decision to impound unreasonable. [Citation.]’
[Citation.]” (
309, 325 (Benites).) “[A]n impoundment decision made pursuant to
standardized criteria is more likely to satisfy the Fourth Amendment than one
not made pursuant to standardized criteria.
[Citation.] However, the ultimate
determination is properly whether a decision to impound or remove a vehicle,
pursuant to the community caretaking function, was reasonable under all the
circumstances. [Citation.]” (Shafrir,
supra, 183 Cal.App.4th at p.
1247.) “ ‘ “[P]olice cannot sensibly be
expected to have developed, in advance, standard protocols running the entire
gamut of possible eventualities” ’ but ‘ “must be free . . . to choose freely
among the available options, so long as the option chosen is within the
universe of reasonable choices.” ’
[Citations.]” (
If an
officer properly decides to impound the vehicle, a subsequent “inventory search
may be ‘reasonable’ under the Fourth Amendment even though it is not conducted
pursuant to a warrant based upon probable cause.” (Bertine,
supra, 479 U.S. at p. 371.) An
officer has “authority to conduct an inventory of the vehicle’s contents ‘aimed
at securing or protecting the car and its contents.’ [Citation.]”
(People v. Redd (2010)
48 Cal.4th 691, 721, fn. omitted.)
“ ‘ “When vehicles are impounded, local police departments generally
follow a routine practice of securing and inventorying the automobiles’
contents. These procedures developed in
response to three distinct needs: the
protection of the owner’s property while it remains in police custody
[citation]; the protection of the police against claims or disputes over lost
or stolen property [citation]; and the protection of the police from potential
danger [citation]. The practice has been
viewed as essential to respond to incidents of theft or vandalism. [Citations.]” ’ [Citations.]”
(Benites, supra, 9 Cal.App.4th at p. 322; see also Bertine, supra, at p.
373; Shafrir, supra, 183 Cal.App.4th at p. 1245; Torres, supra, 188
Cal.App.4th at p. 787.)
“When an
inventory search is conducted based on a decision to impound a vehicle, we
‘focus on the purpose of the impound rather than the purpose of the inventory,’
since an inventory search conducted pursuant to an unreasonable impound is
itself unreasonable. [Citation.] Although a police officer is not required to
adopt the least intrusive course of action in deciding whether to impound and
search a car [citation], the action taken must nonetheless be reasonable in
light of the justification for the impound and inventory exception to the
search warrant requirement.
Reasonableness is ‘[t]he touchstone of the Fourth Amendment.’ [Citation.]”
(Williams,
see also Torres, supra, 188 Cal.App.4th at p. 786.)
“Just as
inventory searches are exceptions to the probable cause requirement, they are
also exceptions to the usual rule that the police officers’ ‘[s]ubjective
intentions play no role in ordinary, probable-cause Fourth Amendment
analysis.’ [Citation.] We have ‘never held, outside the context of inventory search . . . that an officer’s
motive invalidates objectively justifiable behavior under the Fourth
Amendment.’ [Citation.] Instead, courts will explore police officers’
subjective motivations for impounding vehicles in inventory search cases, even
when some objectively reasonable basis exists for the impounding.” (Torres,
supra, 188 Cal.App.4th at pp.
787-788.)
“Inventory
search jurisprudence presumes some
objectively reasonable basis supports the impounding. The relevant question is whether the
impounding was subjectively motivated by an improper investigatory
purpose.” (Torres, supra,
188 Cal.App.4th at p. 791.) “Thus,
as the United States Supreme Court has explained, inventory search cases apply
‘the principle that an inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence. The policy or practice governing inventory
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.” ’ [Citation.]
[¶] And so courts invalidate
inventory searches when the police impound vehicles without serving a community
caretaking function, suggesting the impounds were pretexts for conducting
investigatory searches without probable cause.”
(Id. at p. 788; citing
and Williams, supra, 145 Cal.App.4th at p. 763.)
“Federal
cases underscore the impounding of a vehicle driven by an unlicensed driver
must be supported by some community caretaking function other than temporarily
depriving the driver of the use of the vehicle.
In U.S. v. Caseres (9th Cir.
2008) 533 F.3d 1064, the court doubted ‘that Benites stands for [the] proposition’ ‘that impounding an
unlicensed driver’s car to prevent its continued unlawful operation is itself a
sufficient community caretaking function.’
(Id. at p. 1075.) And in Miranda
v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, the court cautioned that
if the community caretaking function extended so broadly as to include the
deterrence of future illegal activity, it ‘would expand the authority of the
police to impound regardless of the violation, instead of limiting officers’
discretion to ensure that they act consistently with their role of “caretaker
of the streets.” ’ (Id. at p. 866.)” (
In this
case, the trial court found that the car’s location and Melgoza’s behavior were
the reasons the car that defendant was driving was impounded, and the record
supports the trial court’s factual findings.
Chief Solano stopped defendant for speeding near a high school when students
were in the street and on the sidewalk returning to the school after their
lunch break. The street was very narrow,
and there was no place in the area where the car could be safely parked on the
street. Thus, Chief Solano had defendant
pull over and park on private property rather than on the street. Defendant “admitted” that she had been
speeding. She was not the registered
owner of the car, she did not have a valid driver’s license, and there were no
other licensed drivers in the car with her.
Melgoza ran up to the scene, agitated, and acted in such a way that
Chief Solano feared for his safety.
Melgoza argued with defendant in a voice that was louder than normal,
and it appeared to Chief Solano that it was not a friendly situation. He had to have another officer separate
defendant and Melgoza.
The
officers were concerned that if the car defendant had been driving was not
impounded, it could be stolen. The car
was parked on private property. There
were a number of high school students in the area at the time and, although it
may not have been a high crime area, the area had “issues.” The officers did not know whether defendant
had permission to be driving the car or the authority to grant Melgoza permission
to drive the car. And, because of
Melgoza’s behavior and attitude at the scene, the officers did not want to
entrust the car to him. Accordingly, the
decision to impound the car was supported by the police community caretaking
function, was reasonable under all the circumstances, and was not done simply
to keep defendant from continuing to drive the car. (Williams,
supra, 145 Cal.App.4th at pp.
761-762; Shafrir,
That Chief
Solano asked dispatch whether defendant had search and seizure terms and that
Officer Rodriguez asked her whether she would consent to a search of the car
does not change our analysis. Neither
does the fact that some of the officers at the scene discussed whether
defendant and Melgoza were involved in illegal activity. Because the decision to impound the vehicle
served a valid community caretaking function and, as the court determined, was
reasonable under all the circumstances, the fact that some officers voiced a
desire to search the vehicle before it was impounded does not invalidate the
impoundment and inventory search in this case.
(Torres, supra, 188 Cal.App.4th at p. 788.) The officers acted consistently with their
role of “caretaker of the streets.” (
Defendant
also contends that the officers departed from the Watsonville Police
Department’s vehicle towing policy, and that this shows that they did not have
a proper motive to impound the car. We
agree with defendant that nothing in the department’s vehicle towing policy
vehicle.
provides that, when circumstances permit, an officer should make a good faith
effort to notify the owner of a vehicle that it is subject to removal prior to
having the vehicle towed for parking or registration violations.
vehicle “shall be stored whenever . . . the community caretaker doctrine would
reasonably suggest that the vehicle should be stored (e.g., traffic hazard,
high crime area).” (Policy, § 510.2.3.)
In our
view, the officers did not depart from the department’s vehicle towing
policy. The policy does not require
towing but gives officers discretion to determine if and when a vehicle should
be towed. (Policy, § 510.1.) The policy gives examples of when vehicles
should be towed, such as for parking or registration violations. (Policy, § 510.2.) The policy also gives examples of “situations
where consideration should be given to leaving a vehicle at the scene in lieu
of storing, provided the vehicle can be lawfully parked and left in a
reasonably secured and safe condition,” such as “[w]henever the licensed owner
of the vehicle is present, willing, and able to take control of any vehicle not
involved in criminal activity.” (Policy,
§510.2.3.) The situation presented to
the officers in this case does not match any of the examples described in the
policy as to when a vehicle should be towed or should be left at the scene in
lieu of towing. Therefore, the officers
had to determine whether “the community caretaker doctrine would reasonably
suggest that the vehicle should be stored.”
(Ibid.) As we have determined that the officers acted
reasonably and consistently with their community caretaking function when they
decided to impound the car, we do not believe that the officers departed from
their department’s vehicle towing policy.
The fact that there may have been other or less intrusive means of
protecting the vehicle and its contents did not render the officers’ decision
to impound the vehicle unreasonable. (
The trial
court did not err in denying defendant’s motion to suppress.
The
judgment (order of probation) is affirmed.
___________________________________________
Bamattre-Manoukian, ACTING P. J.
I CONCUR:
__________________________
DUFFY, J.
Walsh, J., Dissenting
I
respectfully dissent.
Unlike my
colleagues, I conclude that the inventory search in this case was improper
because the police failed to adhere to their own Department Towing Policy. That
policy required the officers to make an effort to contact the registered owner
before impounding the vehicle if the circumstances permitted it which, in my
view, they did. I conclude that the
officers’ failure to adhere to department policy, coupled with evidence that
the officers’ decision to impound the vehicle was a pretext for conducting an
investigatory search without probable cause, invalidated the search. Consequently, I would reverse the order on
the motion to suppress.
Facts
The
procedural history and many of the facts of this case are set forth in the
majority opinion. In addition to the
evidence described by the majority, the following facts are relevant to my
analysis.
Defendant’s Offer of Proof
name="_ftnref7" title="">[6]
After defendant gave her identification information to
Chief Solano, she told him that Melgoza was there to drive the SUV, that both
she and Melgoza had permission to drive the SUV, and that the officers “could
contact [her] mother, . . . Miss Ketchum, for permission to have
[Melgoza] take the car.” Also, when she
denied consent to search, defendant asked if she was free to leave and she was
told she was not. The police “huddled”
for five to 10 minutes before deciding what to do with the SUV; they circled
the car and peered into the windows. It
looked to defendant like they wanted to search and were going to search
regardless.
title="">[7]
Testimony of Chief Solano
Chief
Solano testified that, after he stopped the SUV, he learned that it was
registered to defendant’s mother, Theresa Ketchum. Though he did not know Ketchum and he
initially testified that defendant did not tell him Ketchum was her mother,
later, he recalled that defendant had said the registered owner was a relative
or a friend, and testified that it was “possible” defendant told him the owner
was her mother. Ketchum, who lived in
Gilroy, never came to the scene and Chief Solano did not attempt to contact
her.
Chief
Solano stopped defendant’s vehicle at 1:05 p.m.
Only six minutes later, about the time the back-up officers arrived and
before learning facts that supported the decision to impound the vehicle, Chief
Solano stated “ ‘We’re going to do a search of the vehicle.’ ” While the traffic stop was under way, other
Watsonville Police Department (WPD) officers began showing interest in the
case, including Officer Mike Walker (a gang analyst) and Police
Investigators Albert Lopez and Jared Pisturino.
Walker called Chief Solano because he wanted Chief Solano to know that
defendant was connected to a local gang.
At one point, there were five officers on scene, including Officers
Rodriguez, Thul, and Pisturino; gang analyst Walker; and Chief Solano. Chief Solano testified that it was not
uncommon for five officers to be involved in a speeding/suspended license
case. “. . . Watsonville
officers frequently know players in Watsonville and that appeared to be what
was happening at that particular time.”
At 1:28
p.m., one of the officers asked dispatch to double-check whether defendant had
any search terms. At 1:32 or 1:33 p.m.,
Officer Rodriguez asked dispatch to send a tow truck. Officer Rodriguez issued defendant a
citation; she was not arrested at the scene.
Testimony of Officer Rodriguez
Officer
Rodriguez verified defendant’s license status, prepared the citation, and took
over the investigation. After he
prepared the citation, Officer Rodriguez asked defendant for permission to
search the car, which she declined to give.
She appeared nervous, which made him think there was reason to
search. Based on his knowledge of her
prior arrests, he believed he would find drugs or other contraband if he
searched.
Discussion
I.
General Principles Governing Inventory Searches
Inventory
searches that are done when the police impound a vehicle “are now a
well-defined exception to the warrant requirement of the Fourth
Amendment.” (Colorado v. Bertine (1987) 479 U.S. 367, 371 (Bertine).) “In the interests
of public safety and as part of what the Court has called ‘community caretaking
functions,’ [citation], automobiles are frequently taken into police
custody.” (South Dakota v. Opperman (1976)
departments generally follow a routine practice of securing and inventorying
the automobiles’ contents. These
procedures developed in response to three distinct needs: the protection of the owner’s property while
it remains in police custody, [citation]; the protection of the police against
claims or disputes over lost or stolen property, [citation]; and the protection
of the police from potential danger, [citation].” (Id.
at p. 369.) The United States Supreme
Court “has consistently sustained police intrusions into automobiles impounded
or otherwise in lawful police custody where the process is aimed at securing or
protecting the car and its contents.” (
“public officers from claims of lost or stolen property and the protection of
the public from vandals who might find a firearm . . . or
. . . contraband drugs, are also crucial.” (Id.
at p. 376, fn. 10.) The
governmental interest in securing property for which the police become
responsible justifies the search. (
“By securing the property, the police protect[] the property from
unauthorized interference. Knowledge of
the precise nature of the property [guards] against claims of theft, vandalism,
and negligence” and helps “avert any danger to the police or others that may
[be] posed by the property.” (
A criminal
defendant’s challenge to an inventory search turns on the reasonableness of the
decision to impound the vehicle. (See
Courts “focus on the purpose of the impound rather than the purpose of
the inventory.” (People v. Aguilar (1991) 228 Cal.App.3d 1049, 1053 (
an unreasonable impound is itself unreasonable.” (People
v. Williams (2006) 145
Cal.App.4th 756, 761 (Williams).)
“The
decision to impound the vehicle must be justified by a community caretaking
function ‘other than suspicion of evidence of criminal activity’ (Bertine,
supra, 479 U.S. at p. 375) because
inventory searches are ‘conducted in the absence of probable
cause’ . . . .
‘. . . The policies behind the warrant requirement are
not implicated in an inventory search, [citation], nor is the related concept
of probable cause . . . .” ’ ” (People
v. Torres (2010) 188 Cal.App.4th 775, 787 (Torres), quoting Bertine,
supra, 479 U.S. at p. 371.)
“[A]n
inventory search must not be a ruse for a general rummaging in order to
discover incriminating evidence. The
policy or practice governing inventory 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.’ ” (Florida
v. Wells (1990) 495 U.S. 1, 4 (Wells)
[evidence in suitcase in impounded car suppressed because state police lacked
standardized policy on opening closed containers during inventory
searches].)
Inventory
searches are excepted from the usual rule that the police officers’
“[s]ubjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.” (
officers’ subjective motives for impounding vehicles in inventory search cases,
even when some objectively reasonable basis exists for impounding the
vehicle. (Torres, supra, 188
Cal.App.4th at pp. 787-788.)
II.
Review of Case Law
Inventory
search cases stress one or both of two factors:
(1) the need to impound the car to serve some community caretaking
function, and (2) the absence of pretext.
(Torres, supra, 188 Cal.App.4th at p. 791.)
They also consider whether the search was done according to standard
criteria and on the basis of something other than the suspicion of criminal
activity. (Id. at p. 787.)
California
inventory search cases fall into three categories: (1) those that upheld the search where the
decision to impound served a community caretaking function and there was no
evidence of pretext; (2) those that invalidated the search where the police
decision to impound did not serve a community caretaking function and there was
no consideration of pretext; and (3) those that invalidated the search because
there was no evidence of community caretaking and clear evidence of pretext.
Cases in
the first category include People v.
Benites (1992) 9 Cal.App.4th 309 (Benites). The sheriff’s deputy in Benites impounded a van after learning that both the driver and the
passenger had suspended licenses. (
inventory search because the decision to impound the van was reasonable under
the circumstances. It was “very late at
night,” the van was three miles from town on “a dark, lonely and isolated
stretch of road” where it “could be vandalized,” “the passenger also lacked a
valid license,” and “there was the possibility that [the defendant] would
simply drive off once [the officer] left.”
(Id. at p. 326.) Moreover, regarding the question of pretext,
the deputy did not know the defendant was a suspect in a burglary. (Id.
at p. 314, 315.) The court held, “the
officer’s discretion to impound is clearly based on factors other than using it
as a pretext to engage in a search for criminal activity.” (Id.
at p. 327.)
In
367 (Green), police officers arrested
the defendant “for driving without a driver’s license in violation of Vehicle
Code section 12500. The officers
impounded the vehicle as there was no other person with a valid license present
to take control of the automobile while defendant was taken to jail.” (Green,
at p. 373.) The court upheld the
inventory search, noting, “[t]here is no indication that the inventory search
of the car was merely a ‘ruse’ to try to discover evidence of criminal activity
. . . .” (
889-890, 892 (Steeley).) [“It was not
unreasonable for [the officer] to conclude that the appropriate way to protect
the vehicle was impoundment,” as “there was no other licensed driver, the car
was blocking a driveway and [the defendant] was not the registered owner of the
vehicle.”]; People v. Burch (1986)
188 Cal.App.3d 172.)
Cases in
the second category (those that have invalidated inventory searches where the
police decision to impound did not serve a community caretaking function)
include Williams. In Williams,
the police stopped a car because the driver was not wearing a seatbelt; the
driver pulled over in front of his home.
A computer check revealed a warrant for the driver’s arrest and the
officer arrested the driver pursuant to the outstanding warrant. (Williams,
supra, 145 Cal.App.4th at p.
759.) Vehicle Code section 22651,
subdivision (h)(1) authorized impounding the car because the driver had been
arrested. (Williams, at p. 762.)
Despite this statutory authorization, the court concluded that the
search was unconstitutional because the prosecution had “made no showing that
removal of the car from the street furthered a community caretaking
function.” (Id. at p. 763.) “The car was
legally parked at the curb in front of [the defendant’s] home. The possibility that the vehicle would be
stolen, broken into, or vandalized was no greater than if [the officer] had not
stopped and arrested [the defendant] as he returned home. In this regard, it is significant that other
cars were parked on the street and that it was a residential area. The prosecution made no showing that the car
was blocking a driveway or crosswalk, or that it posed a hazard or impediment
to other traffic.” (Id. at pp. 762-763.) “By
[the officer’s] own admission, he impounded [the defendant’s] car simply
because he was taking [the defendant] into custody. [The officer] did not assert any community
caretaking justification for the impoundment, and in light of the evidence at
the hearing, no such justification existed.”
(Id. at p. 763; accord
2005) 429 F.3d 858, 865-866 [impound did not serve a community caretaking
purpose where the car was parked in the defendants’ driveway and one of the
defendants had a valid license]; U.S. v.
Caseres (9th Cir. 2008) 533 F.3d 1064, 1074-1075 [inventory search
unlawful; impound did not serve any community caretaking purpose since
defendant’s car was parked on the street two doors down from his home].)
In the
third category of cases, the court invalidated the inventory search because the
evidence suggested the decision to impound was a pretext for conducting an
investigatory search without probable cause.
For example, in Aguilar, a police
officer saw defendant and others carrying what the officer suspected was a
stolen television set. The individuals
put the item in the trunk of a car and left in the car. The driver of the car made an illegal stop
and turned right without signaling. The
officer stopped the car and arrested the driver for driving with a suspended
license. (Aguilar, supra, 228
Cal.App.3d at p. 1051.) The officer
testified that “he followed [the defendant’s] car because he suspected criminal
activity and wanted to investigate; he intended to stop the car as soon as he
saw a traffic violation; [and] one of the reasons he had the car
. . . impounded, was so he could look in the trunk (he never
gave any other reasons for the impound).”
(Ibid.) The court found the inventory search
unreasonable and unconstitutional, because it was clear from the officer’s
testimony that the arrest and the impound were for an investigatory
motive. (Id. at p. 1052.) The officer
“testified one, if not the only, purpose of the impound was to conduct an
investigatory search.” (
In
the defendant’s pickup truck for a routine traffic violation testified that a
narcotics officer had previously asked him to find a reason to stop the
defendant’s truck and that he decided to impound the truck so he could search
for whatever narcotics-related evidence might be in the truck. (Torres,
supra, 188 Cal.App.4th at p.
781, 792.) The court held that the
inventory search was unlawful because the defendant’s truck was concededly
impounded for an investigatory motive and that the impound and inventory search
fell within the exact type of “ ‘pretext concealing an investigatory
police motive’ ” and “ ‘ruse for a general rummaging in order to
discover incriminating evidence’ ” that violates the Fourth
Amendment. (Id. at p. 792.)
Although the evidence suggested a nonpretextual ground for impounding
the truck because the driver was unlicensed, the court held that the statutory
authorization to impound a vehicle under Vehicle Code section 14602.6 does not
determine the constitutional reasonableness of an inventory search. (Torres,
188 Cal.App.4th at p. 790.)
The evidence revealed “a concededly investigatory motive and no
community caretaking function. The deputy
did not testify defendant’s truck was isolated, at risk of vandalism, or
blocking a driveway. Nor did he testify
no one could come to pick up the truck.
Rather, the deputy candidly stated he impounded the truck as a pretext
for searching for narcotics evidence.” (Id.
at p. 792.)
III.
Defendant
contends that the inventory search here was unlawful because the decision to
impound the SUV did not advance any community caretaking purpose. Defendant also contends that the impound was
a pretext to search the SUV and a ruse for general rummaging to discover
incriminating evidence. She argues that,
from the moment she was recognized as a “ ‘player,’ ” the desire to
search the SUV drove subsequent events.
I am
satisfied, as set forth by the majority, that if the officers properly followed
their own policies, there were some valid community caretaking reasons to
impound the SUV. I also agree with the
majority that it was not unreasonable for the officers to determine whether a
known ex-felon, with a history of theft and drug offenses and ties to a local
gang, has outstanding warrants, search terms, or would consent to search. To the contrary, this strikes me as good police
work. But I disagree with my colleagues
regarding the effect of the officers’ failure to comply with the Watsonville
Police Department Towing Policy (Towing Policy) and the impact of the evidence
of an investigatory motive to search the SUV.
Unlike the
cases surveyed above, this case involves a combination of both community
caretaking reasons to impound the SUV and evidence of an investigatory motive
for searching the vehicle. As the court
observed in Torres, “Inventory search
jurisprudence presumes some
objectively reasonable basis supports the impounding. The relevant question is whether the
impounding was subjectively motivated by an improper investigatory
purpose.” (Torres, supra, 188
Cal.App.4th at p. 791.) In evaluating
the investigatory motive in this case, one other factor comes into play: the police officers’ failure to follow their
own procedures, as set forth in the Towing Policy.
“Police
officers may exercise discretion in determining whether impounding a vehicle
serves their community caretaking function, ‘so long as that discretion is
exercised according to standard criteria and on the basis of something other
than suspicion of evidence of criminal activity.’ ” (Torres,
supra, 188 Cal.App.4th at p. 787, citing Bertine, supra, 479 U.S.
at p. 375.) The procedures for impound
and inventory need not be written. (
891.) “While written criteria may be
evidence of standardization, the absence of written criteria would not mean
that the procedures were not standard.
By the same token, unreasonable procedures do not ipso facto become
standard, and therefore legal, merely because they are contained in a written
directive.” (Ibid.) In addition,
“[s]tatutes authorizing impounding under various circumstances ‘may constitute
a standardized policy guiding officers’ discretion’ . . . ,
though ‘statutory authorization does not, in and of itself, determine the
constitutional reasonableness of the seizure.’ ” (Torres,
supra, at p. 787, citing
Defendant
asserts that because less intrusive measures were readily available and were
“explicitly encouraged” by the Towing Policy, the officers’ departure from
those procedures rendered this search unreasonable. She relies on three provisions from the
Towing Policy: (1) “Nothing in this
policy shall require the Department to tow a vehicle” (Towing Policy,
§ 510.1); (2) “The following are examples of situations where
consideration should be given to leaving a vehicle at the scene in lieu of
storing, provided the vehicle can be lawfully parked and left in a reasonably
secured and safe condition: [¶] Traffic
related warrant arrest. [¶] Situations
where the vehicle was not used to further the offense for which the driver was
arrested. [¶] Whenever the licensed owner
of the vehicle is present, willing, and able to take control of any vehicle not
involved in criminal activity. [¶]
Whenever the vehicle otherwise does not need to be stored and the owner
requests that it be left at the scene.
In such cases the owner shall be informed that the Department will not
be responsible for theft or damages” (Towing Policy, § 510.2.3); and (3)
“When circumstances permit, for example when towing a vehicle for parking or
registration violations, the handling employee should, prior to having the
vehicle towed, make a good faith effort to notify the owner of the vehicle that
it is subject to removal. This may be
accomplished by personal contact, telephone, or by leaving a notice attached to
the vehicle for at least 24 hours prior to removal. If a vehicle presents a hazard, such a being
abandoned on the roadway, it may be towed immediately. (Towing Policy, § 510.2)” Defendant argues that the officers had
alternatives to towing the SUV, including parking and locking the car or having
Ketchum authorize its release to Melgoza.
Though in
held that the Fourth Amendment did not require the police to pursue
alternative, less intrusive means when determining whether to impound and
search a vehicle, the court stressed that the discretion to do so must be
“exercised according to standard criteria”—there, as here, the department’s own
policies (Bertine,
for driving under the influence of alcohol, attacked two aspects of the
inventory search of his van: (1) the
officer’s decision to open his backpack and inventory its contents, which
resulted in the discovery of drugs, drug paraphernalia, and large amounts of
cash; and (2) the officer’s decision to take his van to an impound lot, as
opposed to offering him the opportunity to park and lock his van in a public
parking place. (Id. at pp. 369-370, 373-375.)
The United
States Supreme Court stated, “And while giving Bertine an opportunity to make
alternative arrangements would undoubtedly have been
possible, . . . [¶] ‘[T]he real question is not what
“could have been achieved,” but whether the Fourth
Amendment requires such steps
. . . . [¶] ‘The reasonableness of any particular governmental
activity does not necessarily or invariably turn on the existence of
alternative “less intrusive” means.’ ”
(Bertine, supra, at pp. 373-374.)
“[R]easonable police regulations relating to inventory procedures
administered in good faith satisfy the Fourth
Amendment, even though courts might as a matter of hindsight be able to
devise equally reasonable rules requiring a different procedure.” (Bertine,
at p. 374.) The Supreme Court emphasized
the trial court’s finding that the police department’s procedures “mandated the
opening of containers and the listing of their contents” and observed that its
“decisions have always adhered to the requirement that inventories be conducted
according to standardized criteria.” (
exercise of police discretion so long as that discretion is exercised according
to standard criteria and on the basis of something other than suspicion of
evidence of criminal activity. [In
. . . police was exercised in light of standardized criteria, related
to the feasibility and appropriateness of parking and locking a vehicle rather
than impounding it. There was no showing
that the police chose to impound Bertine’s van in order to investigate
suspected criminal activity.” (
In this
case, defendant challenges the lack of a good faith effort by the officers to
follow “standardized criteria” by contacting Ketchum, who they knew was the
registered owner of the SUV, as required by their Towing Policy. As noted previously, Towing Policy section
510.2 provided that “[w]hen circumstances permit, . . . , the
handling employee should, prior to having the vehicle towed, make a good faith
effort to notify the owner of the vehicle that it is subject to removal. This may be accomplished by personal contact,
telephone, or by leaving a notice attached to the vehicle for at least 24 hours
prior to removal.”
The record
reflects that Chief Solano manifested his desire to search the SUV
approximately six minutes after stopping defendant, that Watsonville police
were on the scene for approximately 28 minutes before Officer Rodriguez called
for the tow truck, and that the entire call lasted about an hour. At one point, there were five officers on the
scene. Given the amount of time involved
and the number of officers present, this certainly appears to be a situation in
which “circumstances permit[ted]” the officers to “make a good faith effort to
notify the owner of the vehicle that it was subject to removal” before
impounding the SUV and doing the inventory search. In my view, one of the officers should have
attempted to call Ketchum to determine whether she wanted the SUV towed,
whether she was able to come to the scene and remove the SUV herself, or
whether she would authorize Melgoza to drive the SUV from the scene.
Despite the
ample time available to the officers, none of them attempted to contact
Ketchum. This is particularly troubling
because, though K
| Description | After the trial court denied her motion to suppress evidence (Pen. Code, § 1538.5),[1] defendant Stephanie Marie Stafford pleaded no contest to misdemeanor receiving stolen property (§ 496, subd. (a)), and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The court suspended imposition of sentence and placed her on probation for two years. On appeal, defendant contends that the court erred in denying her motion to suppress because the impoundment and search of her vehicle violated the Fourth Amendment. We disagree with defendant’s contention and, therefore, we will affirm the judgment. |
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