P. v. Chandler

Filed 6/15/07 P. v. Chandler CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, and Everett W. Dickey (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.), Judges. Reversed.

E. Thomas Dunn, Jr., for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey Koch and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

After the trial court denied David William Chandlers renewed motion to suppress evidence, he pled guilty to drug-related offenses and admitted drug-quantity enhancements. The trial court sentenced him to state prison for a total term of three years. On appeal, Chandler challenges the courts ruling on his renewed motion to suppress evidence discovered pursuant to a warrantless search. We conclude the court improperly denied the motion and reverse the judgment.

FACTS[1]

Preliminary Hearing/Motion to Suppress Hearing

Officer Michael Rosanelli was a 15-year veteran of the Laguna Beach Police Department and had been assigned to the narcotics unit for approximately one year. Rosanelli was on patrol in the early morning when he saw a red car with its right, front headlight out traveling in the opposite direction. He made a u-turn and caught up with the car, which was stopped at a green light. He pulled behind the car and saw the registration tags were expired. The car was stopped at the green light for approximately 10 seconds. Rosanelli pulled the car over and walked to the drivers side to speak with the driver, Chandler.

Rosanelli asked Chandler for his drivers license, proof of insurance, and vehicle registration. Chandler gave him his drivers license and proof of insurance, but appeared to be looking for the registration. Rosanelli asked him why he was sitting at the green light, and Chandler said he did not know and was tired. Rosanelli again asked for his registration, and Chandler said he could not find it. Chandler was acting very [bizarre] and would not look at him. Rosanelli told Chandler to look at him; Chandlers pupils were constricted and his eyes were slightly red. Rosanelli conducted a horizontal gaze nystagmus test, which was negative. He also gave him an indirect and direct lighting test, which indicated likely or highly probable chronic use of amphetamines. Rosanelli could not say . . . he was actually under the influence at that time. But, he believe[d] [Chandler] possibly was. Rosanelli again asked Chandler for his vehicle registration, but Chandler said he could not find it.

During his investigation, Rosanelli did not receive any information that led him to believe Chandlers drivers license and proof of insurance were fraudulent or that the car was stolen. Rosanelli asked Chandler if he could search the car. Chandler refused and said, I know my constitutional rights[.]

Rosanelli requested backup and told Chandler to get out of the car and sit on the curb. A second officer arrived and watched Chandler. Rosanelli entered the car through the drivers side. He saw a pill splitter in the drivers side door. Rosanelli asked Chandler what the pill splitter was for, and he said to split Viagra. Rosanelli asked him if he had Viagra in the car, and Chandler said he did not think so. As Rosanelli moved towards the glove compartment to look for the vehicle registration, he saw a black, cardboard box containing three Ziploc baggies. One baggy contained what appeared to be a prescription pill, and the other baggies contained a white crystalline substance that he recognized to be methamphetamine. He took the baggies, got out of the car, and asked Chandler what they were.

Rosanelli searched the trunk and found a wad of money totaling $5,561. He also found several baggies containing a clear crystalline substance later determined to be 433 grams of methamphetamine. He found 119 Viagra tablets, a white powdery substance later determined to be 32 grams of cocaine, used and unused methamphetamine pipes, and a digital scale. Based on his training and experience, Rosanelli opined Chandler possessed the methamphetamine and cocaine for sale.

A felony complaint charged Chandler with sale or transportation of a controlled substance (methamphetamine) (Health & Saf. Code,  11379, subd. (a))

(count 1), possession for sale of a controlled substance (methamphetamine)

(Health & Saf. Code,  11378) (count 2), sale or transportation of a controlled substance (cocaine) (Health & Saf. Code,  11352, subd. (a)) (count 3), and possession for sale of a controlled substance (cocaine) (Health & Saf. Code,  11351) (count 4). The complaint alleged Chandler possessed for sale and sold 28.5 grams and more of methamphetamine, and 57 grams and more of a substance containing methamphetamine as to counts 1 and 2 (Health & Saf. Code,  1203.073, subd. (b)(2)). The complaint also alleged he possessed for sale and sold 28.5 grams and more of cocaine, and 57 grams and more of a substance containing cocaine (Health & Saf. Code,  1203.073, subd. (b)(1)).

Chandler filed a motion to suppress. The district attorney did not respond in writing. The trial court, Judge Everett Dickey, conducted a dual preliminary and motion to suppress hearing where Rosanelli testified. At the hearing, Rosanelli testified the sole reason for the search that is part of my thinking, that is part of my investigation something is wrong here. Defense counsel asked him whether he was looking for drugs, and he said, No. I was searching for the registration. The court denied the motion to suppress and ordered Chandler held to answer. An information charged Chandler with the same charges as the felony complaint.

Renewed Motion to Suppress

Chandler filed a renewed motion to suppress. This time, the district attorney opposed the motion in writing.

At the hearing on the renewed motion to suppress, the trial court,

Judge Susanne Shaw, reviewed the preliminary hearing transcript and admitted a

video tape of the traffic stop. Although the video tape is in many ways similar to Rosanellis testimony, the tape, which we viewed, shows the following additional facts which are italicized: When Rosanelli asked Chandler for the documents, Chandler gave him his drivers license and proof of insurance, but said he did not have vehicle registration because he had just had the carsmogged. After looking at his drivers license and proof of insurance, Rosanelli again asked about the vehicle registration and said, You just got it smogged? Chandler said, Yep. Rosanelli asked, What are you looking for? Chandler replied, Registration. Rosanelli said, Its all right. Dont worry about it. Rosanelli told Chandler he was acting strange and asked him a series of questions and conducted the sobriety tests.

Rosanelli then asked him if he had anything illegal in his car or on his person. Chandler said, No. Rosanelli responded, Do you mind if I check? Chandler said, Yes, I do. Rosanelli said, You do, and why is that? Chandler cited his rights pursuant to the United States Constitution. Rosanelli said, Okay, and is there something you did not want me to find. Chandler said, Nope. Rosanelli made a call on his radio, asked him to get out of the car, and told him to sit on the curb. He radioed in Chandlers name, birth date, and address on his radio. He asked him more questions, including, How long have you had the car? Chandler told him four years. Rosanelli conducted another test. He asked him again, You dont want me to search you or your vehicle right? Rosanelli disappeared from the screen and you hear him speaking with another person. Although not entirely clear because the sound quality is poor, the following dialogue occurred: The other person says, Who is this guy? Rosanelli replied, He doesnt have registration so Im gonna [sic] look for it. The other person says, Okay. Rosanelli appears on the screen, and walks directly to the car, opens the door, and starts searching the car.

The court denied the renewed motion on the grounds he had probable cause because he was stopped at the green light and his strange behavior. The court also said Rosanelli could search the car for the registration. Finally, the court said because the cars light was out, Rosanelli could have the car towed and the search was constitutional under the whats that thing? It would be inevitable --[.] Chandler pled guilty to all counts and admitted the allegations. The trial court sentenced Chandler to the low term of three years on count 3 and the low term of two years on count 1 to run concurrently. The court stayed sentencing on counts 2 and 4 pursuant to Penal Code section 654.

DISCUSSION

Chandler does not dispute the legality of the stop or its duration. He argues, however, the trial court erroneously denied his motion to suppress because after denying consent to search, Rosanelli did not have probable cause to search the car and Vehicle Code section 2805[2] did not authorize the search for the vehicle registration. We agree.[3]

In passing on a renewed motion to suppress, the defendant is entitled to review of the magistrates legal conclusion on the suppression motion and to a de novo determination on any new evidence presented in the superior court. [Citation.] . . . [Citation.] On appeal concerning a renewed motion to suppress, it is the de novo determination of the superior court that is reviewed . . . . (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)

An appellate courts review of a trial courts 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.] The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review. [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 255.)

Probable Cause

Chandler contends Rosanelli did not have probable cause to search his car. The Attorney General claims there was probable cause to search the car because Chandler remained stopped when the traffic light turned green, he acted odd, and there were physical indications he was a chronic drug user. Chandler responds, [h]ogwash. We agree with Chandler there was no probable cause.

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. [Citation.] This right is preserved by a requirement that searches be conducted pursuant to a warrant. However, there are exceptions to this warrant requirement. [] One such exception is for vehicles used on a public thoroughfare or readily capable of such use. If a vehicle is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the search of the vehicle . . . . [] . . . [] [P]robable cause to justify a warrantless search of an automobile must be based on objective facts that could justify the issuance of a warrant by a magistrate . . . . [Citation.] [Citations.] In determining probable cause we must make a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Citation.] (People v. Allen (2000)

78 Cal.App.4th 445, 448-450.)

Here, based on all the circumstances, we cannot conclude Rosanelli had probable cause to search Chandlers car. Although Chandler remained stopped at a green light for approximately 10 seconds in a vehicle with a burnt out front headlight and expired registration tags, we cannot say this demonstrates there was a fair probability he possessed contraband. It is plausible that at approximately 2:00 a.m., Chandler was tired, as he explained to Rosanelli when asked why he was stopped at the green light. Nor do we think Rosanellis additional observations constituted probable cause to search the car.

When Rosanelli asked Chandler why he would not look him in the eyes, Chandler said it was because he was shining the flashlight in his eyes. When he did look Rosanelli in the eyes, Rosanelli concluded Chandler was a chronic methamphetamine user. However, Rosanelli admitted the field sobriety tests were inconclusive, and he could not say whether Chandler was under the influence. Finally, the fact Chandler could not produce his vehicle registration, or that the cars front headlight was burnt out, does not establish probable cause for an officer to believe he possessed contraband. Chandler produced his drivers license and insurance card, and explained he did not have vehicle registration because he had recently had the car smogged. Based on all the circumstances, we cannot conclude there was a fair probability contraband would be found in Chandlers car. That, however, does not end our inquiry. We must now determine whether section 2805 authorized Rosanelli to search the car.

Section 2805

Chandler argues Rosanellis search of his car was not authorized pursuant to section 2805 because there is no evidence his primary responsibility was to conduct vehicle theft investigations, and his purpose was not to determine vehicle ownership, but instead to search for contraband. We agree.

Section 2805, subdivision (a), states: For the purpose of locating stolen vehicles, (1) any member of the California Highway Patrol, or (2) a member of a city police department, a member of a county sheriffs office, or a district attorney investigator, whose primary responsibility is to conduct vehicle theft investigations, may inspect any vehicle of a type required to be registered under this code, or any identifiable vehicle component thereof, on a highway or in any public garage, repair shop, terminal, parking lot, new or used car lot, automobile dismantlers lot, vehicle shredding facility, vehicle leasing or rental lot, vehicle equipment rental yard, vehicle salvage pool, or other similar establishment, or any agricultural or construction work location where work is being actively performed, and may inspect the title or registration of vehicles, in order to establish the rightful ownership or possession of the vehicle or identifiable vehicle component. (Italics added.) The reasonableness of an officers search pursuant to section 2805 depends upon the unique facts of each case. (People v. Lindsey (1986) 182 Cal.App.3d 772, 777, fn. 5.)

In In re Arturo D. (2002) 27 Cal.4th 60, 64-65 (Arturo D.), the California Supreme Court, in two companion cases, addressed the issue of whether an officer may conduct a warrantless search for vehicle registration or personal identification upon the officers request when a driver who has been detained for citation for a Vehicle Code infraction fails to produce the documentation, and, if so, the permissible scope of such a search. After citing to the Vehicle Code sections that require drivers to provide valid vehicle registration and a drivers license to an officer upon demand,[4] and providing the applicable Fourth Amendment principles, the court discussed the leading case of People v. Webster (1991) 54 Cal.3d 411 (Webster). (Arturo D., supra, 27 Cal.4th at pp. 68-71.) The Arturo D. court explained the Webster court, relying on section 2805, subdivision (a), held: At the outset, we conclude [the officer] acted properly when he . . . entered the car for the limited purpose of finding the registration . . . . [Citation.] . . . [Citations.] Within constitutional limits, such statutes authorize an officer to enter a stopped vehicle and conduct an immediate warrantless search for the required documents. [Citations.] [Citations.] (Id. at pp. 69-70, fn. omitted.)

In addressing the reasonableness of the search in one of the cases, the Arturo D. court rejected minors assertion that the fact he gave the officer his name, address, and date of birth rendered further investigation unnecessary. Minor did not produce any of the required documentation. The court explained the location of the stop, the time, and the fact minor admitted the vehicle did not belong to him or his passengers raised suspicions. (Arturo D., supra, 27 Cal.4th at p. 83.) The court concluded, the officers decision to conduct a limited search to find vehicle registration and/or minors identification was reasonable. (Id. at p. 84.)

Relying on Arturo D., supra, 27 Cal.4th 60, the Attorney General argues section 2805 does not apply only to law enforcement officers whose primary responsibility it is to conduct vehicle theft investigation. It argues section 2805 is to be read broadly to authorize officers to conduct appropriate limited searches for registration documents in vehicles stopped or found on public roads. We conclude the facts do not demonstrate the object of the search was registration documents.

The Arturo D. court explained section 2805 must be interpreted broadly concerning who could conduct the searchnot just California Highway patrol officers, but also sheriffs and police officers. (Arturo D., supra, 27 Cal.4th at pp. 69-70, fn. 5.) The court explained, Within constitutional limits, such statutes authorize an officer to enter a stopped vehicle and conduct an immediate warrantless search for the required documents. [Citations.] (Id. at p. 70.)

Although any law enforcement officer may search a vehicle to verify ownership, the search must be limited and appropriate, i.e., within constitutional limits. Section 2805 permits warrantless administrative inspections only [f]or the purpose of locating stolen vehicles[.] (People v. Potter (2005) 128 Cal.App.4th 611, 619-620.) The purpose of the statute, to eliminate trafficking in stolen cars and the illegal interchange of stolen auto parts, has been stated expressly in every amendment to the statute over the last 45 years. (People v. Woolsey (1979) 90 Cal.App.3d 994, 1002.)

Here, the only evidence Rosanelli believed the car was stolen was his generalized suspicion that when he sees expired registration tags he thinks the vehicle might be stolen. Rosanelli never testified to any additional basis for believing the car Chandler was driving was stolen. In fact, Rosanellis testimony supports the opposite conclusion. He looked at Chandlers drivers license and insurance card, and determined both were valid and returned the insurance card. Rosanelli testified he could not remember whether the insurance card matched Chandlers drivers license or the car, and he did not call dispatch to determine whether the car was stolen. Finally, he did not attempt to match the vehicle identification number on the car to the vehicle identification number on the insurance card.

The Attorney General states we cannot assume Chandlers insurance card demonstrated his identity and ownership of the car because not all insurance cards include that information. That may be true. However, by statute, insurance cards are required to include certain information, including the insureds name and vehicle make. ( 4000.37, subd. (a).) Perhaps more importantly, after reviewing Chandlers drivers license and insurance card, Rosanelli believed they were valid and returned the insurance card at this point. He did not conduct any further investigation to determine whether the car was stolen. In fact, when Rosanelli asked Chandler what he was doing, and Chandler replied he was looking for his vehicle registration, Rosanelli said, Its all right. Dont worry about it. The quest to locate the vehicle registration appears to have been abandoned. The totality of circumstances does not evince an officer who suspects a car may be stolen. Instead, it demonstrates an officer who is focused on searching for contraband.

The cases the Attorney General relies on to support its claim are distinguishable. In Arturo D., supra, 27 Cal.4th at page 65, minor did not produce a drivers license, vehicle registration, or insurance card, and he could not explain who owned the truck. In Webster, supra, 54 Cal.3d at pages 430-431, defendant denied owning the car, as did the passengers.

Here, as we explain above, Chandler produced his drivers license and insurance card. After explaining why he did not have vehicle registration, Rosanelli reviewed the documents, and apparently satisfied Chandler was who he said he was and the car belonged to him, conducted no further investigation as to the ownership of the car.

Based on our review of the preliminary hearing transcript and the video tape, we conclude Rosanelli had only one purpose in searching the vehiclesearching the vehicle for contraband based on his belief Chandler was acting odd. It was not to search the vehicle for registration for the purpose of locating a stolen vehicle as required by section 2805. Thus, the Attorney Generals dual purpose contention is unpersuasive.

DISPOSITION

The judgment is reversed. The trial court is ordered to vacate Chandlers guilty plea and its order denying the motion to suppress, and enter a new order granting the motion to suppress.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] The facts are taken from Rosanellis testimony presented at the dual preliminary and motion to suppress hearing.

[2] All further statutory references are to the Vehicle Code, unless otherwise indicated.

[3] The Attorney General does not argue the search was constitutional pursuant to the inevitable discovery doctrine. It does not cite to any authority to support the proposition the Vehicle Code violations committed by Chandler would have resulted in his car being impounded. Therefore, we will not discuss this issue further.

[4] Sections 4462 and 12951.