People v. Baker

164 Cal.App.4th 1152

79 Cal. Rptr. 3d 858

THE PEOPLE, Plaintiff and Respondent, v. WENDY NICHOLE BAKER, Defendant and Appellant.

No. F052913.

Court of Appeals of California, Fifth District.

July 15, 2008.

Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, J.

PROCEDURAL AND FACTUAL SUMMARIES

On February 6, 2007, appellant Wendy Nichole Baker was charged by information filed in Kern County Superior Court with possession of methamphetamine, a violation of Health and Safety Code section 11377, subdivision (a). The information further alleged that Baker had served a prior prison term within the meaning of Penal Code¹ section 667.5, subdivision (b). After her motion to suppress evidence was denied, Baker entered a plea of no contest to misdemeanor possession of methamphetamine. At sentencing, the court suspended imposition of sentence and placed Baker on probation for three years pursuant to section 1210.1. After obtaining a certificate of probable cause, Baker appeals from the denial of her motion to suppress.

Baker was arrested after the car she was riding in as a passenger was stopped for speeding. When the officer approached the car after initiating the stop, the driver, a male, stated that he was on active parole. After confirming this information, the officer decided to conduct a search of the car pursuant to the terms of the driver's parole. Baker was the only passenger in the car and seated in the front passenger seat. Her purse was sitting at her feet. The officer asked Baker to exit the car so he could conduct the search. Baker did so without taking her purse and without asserting ownership of the purse. The officer searched the entire car and found nothing. He then searched the purse and found a folded tinfoil packet inside one of the two outside pockets of the purse containing a small usable amount of methamphetamine. After finding the drugs, the officer looked inside the purse and found Baker's California identification card. Baker admitted the purse was hers.

DISCUSSION

Baker claims the motion to suppress should have been granted because the search of her purse cannot be justified by the driver's parole search condition. We agree and will reverse.

On appeal from the denial of a motion to suppress (§ 1538.5), our standard of review is settled. We defer to the trial court's express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the trial court's factual findings in determining the legality of the search. (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 102 [59 Cal.Rptr.3d 633]; People v. Balint (2006) 138 Cal.App.4th 200, 205 [41 Cal.Rptr.3d 211].) Appellate review "is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling." (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27 [39 Cal.Rptr.2d 257].)

(1) The Fourth Amendment guarantees individuals the "right ... to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." (U.S. Const., 4th Amend.) Under the Fourth Amendment, a warrantless search is unreasonable per se unless it falls within one of the "specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 88 S.Ct. 507].) One of these exceptions to the warrant requirement is the so-called "automobile exception." (See, e.g., California v. Acevedo (1991) 500 U.S. 565, 566 [114 L.Ed.2d 619, 111 S.Ct. 1982]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1667 [45 Cal.Rptr.2d 16].) The exception permits a warrantless search of an automobile and its contents if their search is supported by probable cause. (California v. Acevedo, supra, at p. 579; United States v. Ross (1982) 456 U.S. 798, 809 [72 L.Ed.2d 572, 102 S.Ct. 2157].) There is no argument made by the People that there was probable cause to search the vehicle, and we find no facts to support a finding of probable cause. The driver was stopped for speeding; no other criminal activity was suspected before or during the stop until the purse was searched. There were no furtive movements, nothing to suspect that narcotics were being used or transported in the car, and no suspicion of any criminal endeavor. (Cf. Wyoming v. Houghton (1999) 526 U.S. 295, 305 [143 L.Ed.2d 408, 119 S.Ct. 1297] [strong governmental interest to search passenger's property where there is reason to believe passenger and driver were engaged in common enterprise or that driver had time and occasion to conceal item in passenger's property surreptitiously or with friendly permission].) There was no reason expressed to believe that anyone in the automobile was armed or dangerous. (See State v. Friedel (Ind.Ct.App. 1999) 714 N.E.2d 1231, 1238.)

(2) A second exception permits searches, even without probable cause, where one of the occupants of a car is subject to lawful arrest. In New York v. Belton (1981) 453 U.S. 454, 460 [69 L.Ed.2d 768, 101 S.Ct. 2860], the United States Supreme Court held that the lawful custodial arrest of a vehicle's occupant permits officers to contemporaneously search the passenger compartment and any containers. (Id. at p. 460 & fns. 3 & 4; see also People v. Mitchell (1995) 36 Cal.App.4th 672, 674 [42 Cal.Rptr.2d 537].) In order for the Belton exception to apply, four circumstances must be present: (1) there must be a lawful custodial arrest; (2) the search must be contemporaneous to the arrest; (3) the search is limited to the passenger compartment; and (4) arrestee must be a driver, passenger, or recent occupant of the vehicle. (People v. Stoffle (1991) 1 Cal.App.4th 1671, 1679-1680 [3 Cal.Rptr.2d 257]; see also Wyoming v. Houghton, supra, 526 U.S. at pp. 305-306 [balancing of competing interests (relatively weak privacy interest in automobiles versus law enforcement need to investigate suspicious behavior) allows search of container in automobile without regard to ownership because it may contain contraband that officer has reason to believe is in car].) There is no contention in this case that any of the vehicle's occupants were under arrest at the time Baker's purse was searched, and we know of no authority for expanding the analysis of Belton to a nonarrest case. The cases cited by the People in support of the search are distinguishable because they involve the arrest of one of the vehicle's occupants. (See People v. Mitchell, supra, 36 Cal.App.4th at p. 674 [wife may not object to search of purse where she is passenger in vehicle stopped for traffic violation when stop resulted in driver's arrest for driving with suspended license]; People v. Stoffle, supra, 1 Cal.App.4th 1671 [car was searched incident to lawful arrest of driver on outstanding warrants; officer would open closed canister found under driver's seat].)

(3) A third exception with potential application here permits warrantless searches even without probable cause where the officer has legally obtained adequate consent. (See People v. Woods (1999) 21 Cal.4th 668, 674 [88 Cal.Rptr.2d 88, 981 P.2d 1019] (Woods), citing Schneckloth v. Bustamonte (1973) 412 U.S. 218 [36 L.Ed.2d 854, 93 S.Ct. 2041].) In California, probationers and/or parolees may validly consent in advance to warrantless searches in exchange for the opportunity to remain on or obtain release from a state prison. (Woods, supra, at p. 674.) The California Supreme Court has repeatedly said such searches are lawful. (Id. at p. 675.) And, these searches have repeatedly been evaluated under the rules governing consent searches, albeit with the recognition that there is a strong governmental interest supporting the consent conditions—the need to supervise probationers and/or parolees and to ensure compliance with the terms of their release. (Id. at p. 681; see also People v. Bravo (1987) 43 Cal.3d 600, 605 [238 Cal.Rptr. 282, 738 P.2d 336].) "A consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.]" (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408 [12 Cal.Rptr.2d 172].)

(4) Baker, however, was not on probation or parole. Therefore, the issue is whether the driver's consent, given in advance as a condition of his parole, reaches Baker's purse. Valid consent may be given by a third party who possesses common authority over the property at issue. (Illinois v. Rodriguez (1990) 497 U.S. 177, 179 [111 L.Ed.2d 148, 110 S.Ct. 2793].) "It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary.... [¶] ... `[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' [Citations.] The `common authority' theory of consent rests `on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.' [Citations.]" (Woods, supra, 21 Cal.4th at pp. 675-676, citations omitted.)

(5) When executing a parole or probation...