Claypool v. Superior Court of Sacramento Cnty.

85 Cal.App.5th 1092

301 Cal.Rptr.3d 858

Brandon James CLAYPOOL, Petitioner,

v.The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent;

The People, Real Party in Interest.

C096620

Court of Appeal, Third District, California.

Filed December 6, 2022

Amanda Benson, Public Defender, Alice Michel and Dena Stone, Assistant Public Defenders, for Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Christopher J. Renchand and Darren K. Indermill, Supervising Deputy Attorneys General, for Real Party in Interest.

Robie, Acting P.J. Petitioner Brandon James Claypool brought this timely petition for writ of mandate or prohibition to challenge the denial of a motion to suppress evidence and dismiss the charges. Petitioner is charged with possession of a firearm by a felon, unlawful possession of ammunition by a felon, unauthorized alteration of a firearm, and carrying a loaded firearm in a vehicle, along with an enhancement for a prior strike pursuant to the three strikes law. The evidence at issue was found in a locked glove box in petitioner's car during a parole search of a back seat passenger. Petitioner, who was both the driver and owner of the car, was neither on searchable probation nor parole at the time. Police used a key to open the glove box and found a gun containing ammunition.

The People argue the parole search of the back seat passenger permissibly extended to the locked glove box because officers could reasonably expect the parolee could have secreted contraband there after he became aware of the police. But, absent additional evidence, we find the facts do not support such an attenuated inference. The parolee was not independently capable of accessing the glove box. Nor did police observe anything suggesting the occupants of the car were maneuvering to get the gun from the back seat passenger into the glove box and lock it. Our conclusion is further bolstered by other relevant factors identified by our state Supreme Court, including petitioner's own privacy interests. (See People v. Schmitz (2012) 55 Cal.4th 909, 149 Cal.Rptr.3d 640, 288 P.3d 1259 ( Schmitz ).) We shall issue a peremptory writ of mandate and direct respondent court to grant petitioner's motion.

BACKGROUND

Petitioner initially moved to suppress the evidence at the preliminary hearing. Accordingly, the facts are taken from the evidence adduced at that hearing.

Petitioner was driving a Honda Accord with two passengers, Malcolm Clay in the front passenger seat, and parolee Carlos Olivia in the rear seat on the passenger's side. An officer testified that police first saw petitioner's car in an area where the officer had "contacted multiple known gang members" and "personally made multiple gun arrests." Police observed that the front seat occupants appeared to "be leaned back" when they passed the police car traveling the other way and decided to make a U-turn and follow the car. There is no evidence police saw the occupants turn toward the back seat so as to exchange or pass anything, nor any other indication of unusual interaction among the occupants. Police followed petitioner's car as it made an abrupt turn onto a side street until it stopped, blocking a residential driveway. Police observed that blocking a driveway is a violation of the Vehicle Code. (See Veh. Code, § 22500, subd. (e)(1).)

After confirming their location for purposes of officer safety, police approached the car and contacted its occupants. An officer testified that he could not recall whether he saw petitioner remove the keys from the ignition. By the time petitioner was visible in the bodycam footage, the car keys were in his lap and the engine was off. Petitioner also had a cellphone and a wallet in his lap, which bodycam footage reflects that he picked up at different points during the encounter with police. At one point, petitioner inadvertently set off the car alarm, indicating he picked up or otherwise touched the keys as well. Police saw a bottle of cognac in the back seat near rear passenger Olivia, which he acknowledged was his. It had been opened and was not completely full. Olivia advised police he was on parole, and they decided to do a parole search of the passenger compartment.¹

Officers directed each of the occupants to exit the car in turn. Although front seat passenger Clay did not himself provide the justification for the search, one officer said he noticed Clay was visibly sweating and appeared nervous at that time. The video evidence is not dispositive, but petitioner correctly observes that signs of nervousness or sweating are not readily apparent. An officer testified nervousness was typical for a variety of reasons, including being on probation or parole or having outstanding warrants or contraband. Further, an officer testified that he thought Clay responded, "I don't know," when asked if there was a gun in the car.

Petitioner was asked to leave items on the dashboard as he exited the car, and police were apparently able to retrieve his keys during the search. Police used a key on petitioner's keychain to unlock the glove box, revealing the evidence at issue. One officer testified he "believe[d]" that key "was the same key used for the ignition."

In moving to suppress at the preliminary hearing, petitioner claimed insufficient evidence supported the connection between Olivia and the locked glove box, and the otherwise lawful parole search exceeded its legitimate scope. The magistrate disagreed, emphasizing Clay's nervousness, his noncommittal response when asked if there was a gun, and evidence it was a high crime area. Ultimately, the magistrate found it reasonable to believe that Olivia could have quickly handed a gun up front for his compatriots to lock in the glove box. The magistrate characterized this search as extending to its "outer [permissible] limits" but found it not "beyond reason."

Petitioner moved to dismiss the information pursuant to Penal Code ² sections 995 and 1538.5 in respondent court, arguing the evidence should be suppressed. In denying the motion, the court agreed with the magistrate and found this to be within the scope of a reasonable parole search of Olivia. The court further emphasized "the keys of the vehicle were no longer in the ignition, but were in the actual possession of the defendant who was seated in the driver's seat."

Petitioner then brought the current petition for writ of mandate or prohibition to challenge that decision. We issued a stay of trial and, following review of preliminary opposition, an order to show cause.

DISCUSSION

The facts come from the preliminary hearing transcript as no additional evidence was presented before respondent court. Accordingly, any express or implied factual determinations of the magistrate that are supported by substantial evidence guide our review rather than such determinations by respondent court. ( People v. Romeo (2015) 240 Cal.App.4th 931, 941, 193 Cal.Rptr.3d 96 ; § 1538.5, subd. (i).) We otherwise exercise our independent judgment to apply the law and determine whether the search at issue was reasonable under the Fourth Amendment. ( People v. Redd (2010) 48 Cal.4th 691, 719, 108 Cal.Rptr.3d 192, 229 P.3d 101 ; Romeo , at pp. 941-942, 193 Cal.Rptr.3d 96.)

A parole search of a car based on a passenger's status as a parolee requires a nexus between the area or item searched and the parolee, as most fully articulated by our state Supreme Court in Schmitz . Relevant factors include the nature of the area or item, how close and accessible it is to the parolee, the privacy interests at stake, and the government's interest in the search. ( Schmitz , supra , 55 Cal.4th at p. 923, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) In considering the government interest at stake, the state Supreme Court recognized interests it characterized as "substantial," including that parolees were more likely to commit offenses and pose safety concerns, the parolees’ need for effective supervision, and parolees’ incentive to conceal criminal activities by quickly disposing of evidence. ( Id. at pp. 923-924, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) But that did not obviate all privacy interests of other individuals. A permissible search based on a passenger's parole status is limited to "those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity." ( Id. at p. 926, 149 Cal.Rptr.3d 640, 288 P.3d 1259.)

In a footnote, the Schmitz court addressed the issue we face here -- the search of "closed compartments of the car like the glove box, center console, or trunk." ( Schmitz , supra , 55 Cal.4th at p. 926, fn. 16, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) The court noted these were not at issue and the court therefore expressed "no opinion" of whether a search of "such closed-off areas could be based solely on a passenger's parole status." ( Ibid. ) But the court emphasized: "The reasonableness of such a search must necessarily take into account all the attendant circumstances, including the driver's legitimate expectation of privacy in those closed compartments, the passenger's proximity to them, and whether they were locked or otherwise secured." ( Ibid. )

The analysis in Schmitz is instructive. The state Supreme Court upheld a vehicle search where a male passenger in the front seat was on parole. ( Schmitz , supra , 55 Cal.4th at p. 914, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) A woman with a child was a passenger in the back seat, where police found a woman's purse, a bag of chips, and a pair of shoes. ( Ibid. ) Police found two syringes in the bag of chips and methamphetamine in the shoes. ( Ibid. ) The Supreme Court emphasized that the People did not attempt to justify a search inside the purse; only the search of the bag of chips and shoes were at issue. ( Id. at p. 914, fn. 1, 149...