Filed 12/24/19 P. v. Svedise CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

VINCENT IGNACIOUS SVEDISE,

Defendant and Appellant.

A155797

(County of San Mateo

Super. Ct. No. 17NF010852A)

Vincent Ignacious Svedise (defendant) appeals from a judgment entered after he pleaded no contest to possession of methamphetamine for sale (Health & Safety Code, section 11378) and the trial court sentenced him to two years in prison. He contends the judgment must be reversed because the court erroneously denied his motion to suppress evidence obtained from a search of his backpack immediately following his arrest. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information was filed on February 6, 2018 charging defendant with possessing methamphetamine for sale (Health & Saf. Code, § 11378, count 1), driving under the influence of a drug (Veh. Code, § 23152, subd. (2), count 2), and being under the influence of a controlled substance (Health and Saf. Code, § 11550, subd. (a), count 3). The information alleged defendant had three prior convictions that left him ineligible for probation (Pen. Code § 1203, subd. (e)(4)) and that one of those convictions qualified as a strike (Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b)).

Defendant pleaded not guilty, denied the priors, and filed a motion to suppress evidence (Pen. Code, § 1538.5), which the trial court denied. The parties then entered into a negotiated disposition whereby defendant agreed to plead no contest to count 1 (possession of methamphetamine for sale) and admit a strike in exchange for a dismissal of counts 2 and 3, a maximum 32-month prison sentence, and a promise from the court that it would consider a motion to strike or dismiss defendant’s prior strike conviction (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497). The court accepted the plea, dismissed counts 2 and 3, granted defendant’s motion to strike his prior conviction, and sentenced him to two years in prison.

DISCUSSION

Motion to Suppress Evidence – Factual Background

At about 11 p.m. on August 30, 2017, Brisbane Police Officer Jason Quan (Quan) was on duty driving a marked police car. As Quan proceeded through an intersection, a motorcyclist—later identified as defendant—“cut [him] off,” causing Quan to “slam” on his brakes in order to avoid a collision. Quan followed defendant in order to conduct a traffic enforcement stop and ultimately stopped defendant as he parked his motorcycle in the driveway of a house.

Quan parked in front of the house, exited his car, and spoke to defendant, who displayed several objective signs and symptoms of someone possibly under the influence of a controlled substance. At Quan’s request to remove his backpack, defendant removed the backpack he was wearing and threw it on the ground; defendant said he was not consenting to a search. Quan then conducted a “11550 test”—a series of evaluations to determine whether an individual is under the influence—and concluded defendant was under the influence of a controlled substance, most likely a central nervous system stimulant. Quan arrested defendant, handcuffed him, and placed him in his police car. Quan searched the backpack “incident to arrest” and found therein a little over three ounces of methamphetamine, a methamphetamine pipe, a digital scale, and unused Ziploc baggies.

The trial court denied defendant’s motion to suppress evidence of the items found in the backpack, stating “not only is [the backpack] something associated with the defendant’s person closely, such as a purse or a bag, but . . . it was [also] in his immediate control and . . . the search was not remote in time or place. . . ”

Defendant’s Contention

Defendant contends the trial court erred in denying his motion to suppress evidence. We reject his contention.

“In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.” (People v. Troyer (2011) 51 Cal.4th 599, 605.) “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

“The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365.) “ ‘ “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” [Citation.] . . . “Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” [Citation.] ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ [Citation.] The burden is on the People to establish an exception applies. [Citations.]” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212–1213.)

One exception to the warrant requirement is for a search incident to arrest. This exception provides that an officer who makes a lawful arrest may conduct a contemporaneous warrantless search of the (1) arrestee’s person and (2) the area within the arrestee’s immediate control, i.e., “ ‘the area into which the arrestee might reach to retrieve a weapon or destroy evidence.’ [Citation.]” (People v. Ingham (1992) 5 Cal.App.4th 326, 330 (Ingham).) In United States v. Robinson (1973) 414 U.S. 218, 224, 225 (Robinson), the United States Supreme Court noted the search incident to arrest exception is well settled and “no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee.” The Court rejected the argument that a search incident to arrest must be justified on a case-by-case basis: “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (Id. at p. 235.) The Court concluded: “Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct.” (Id. at p. 236.)

In United States v. Edwards (1974) 415 U.S. 800, 805 (Edwards), the United States Supreme Court held police could seize the defendant’s clothing and conduct tests for evidence incident to an arrest that had occurred 10 hours earlier. The Court noted officers delayed seizing the defendant’s clothing immediately upon arrest because “it was late at night; no substitute clothing was then available.” (Id. at p. 805.) “This was no more than taking from [the defendant] the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that [the defendant] was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention.” (Ibid.)

“The exception has its limits, however.” (People v. Macabeo, supra, 1 Cal.5th at p. 1214.) In United States v. Chadwick (1977) 433 U.S. 1, 15 (Chadwick), overruled on another ground by California v. Acevedo (1991) 500 U.S. 565, 576–579, the United States Supreme Court held that officers could not conduct a warrantless search of a 200-pound footlocker the defendants were transporting at the time of their arrest. The Court reasoned the usual justifications for searches incident to arrest did not apply once officers had taken the defendants’ property away from them and into their exclusive control because “there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence.” (Ibid.) Accordingly, a search of that property could not be justified as incident to the arrest. (Ibid.) Similarly, in Chimel v. California (1969) 395 U.S. 752, 768 (Chimel), the Court concluded that a search of an entire house incident to an arrest occurring inside the house “went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.”

The California Supreme Court observed that the reason the searches in Robinson (package of cigarettes) and Edwards (clothing) were lawful, while the search in Chadwick (footlocker) was not, is because there is a distinction between searches of an arrestee’s “person” on the one hand, and “searches ‘of possessions within an arrestee’s immediate control’ ” on the other. (People v. Diaz (2011) 51 Cal.4th 84, 93 (Diaz), abrogated on another ground by Riley v. California (2014) 573 U.S. 373, 386.) The Court stated: “The former searches [of an arrestee’s person] . . . are ‘justified by’ the ‘reduced expectations of privacy caused by the arrest’; the latter [search of a possession in the arrestee’s immediate control] are not.” (Diaz, supra, 51 Cal.4th at p. 93.) Thus, where the property to be searched is “merely within the ‘area’ of [the arrestee’s] ‘immediate control,’ ” a search of that property is justified only where there is a danger the arrestee might gain access to the property to seize a weapon or destroy evidence. (Ibid.)

Here, defendant asserts the search was unlawful because he had already been placed in the back of a patrol car at the time of the search; thus, there was no way he could access the backpack or destroy any evidence inside it. A backpack, however, has been held to be a “ ‘normal extension of the person subject to search as an item “customarily carried by an arrested person. . . .” ’ ” (Ingham, supra, 5 Cal.App.4th at p. 331 [purse]; see also, People v. Flores (1979) 100 Cal.App.3d 221, 230 [canvas shoulder bag]; People v. Belvin (1969) 275 Cal.App.2d 955, 959 [purse]; In re Humberto O. (2000) 80 Cal.App.4th 237, 243–244 [backpack].) Thus, in In re Humberto O., supra, for example, the officers’ search of a backpack, which revealed a dagger, was lawful even though it occurred “after defendant was handcuffed.” (80 Cal.App.4th at pp. 240, 244 [noting that other jurisdictions have similarly upheld searches of backpacks, purses, and bags as lawful searches of the arrestee’s person incident to arrest].) Because the backpack that Quan searched was a personal item closely associated with defendant and considered a part of his “person,” defendant had a reduced expectation of privacy over it upon his arrest and the justifications for a search of property merely “within the area of [his] ‘immediate control’ ”—i.e., danger of gaining access to the property or destroying evidence—were not required. (Id. at p. 243.)

Moreover, courts have held that as long as the personal item “is in use by the arrestee at the time of . . . arrest, it does not need to be on [the arrestee’s] person at that moment to be subject to search. [Citation.]” (Ingham, supra, 5 Cal.App.3d at p. 331.) “ ‘The potential dangers lurking in all custodial arrests make warrantless searches of items [on the arrestee’s person and] within the [arrestee’s] “immediate control” area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.’ ” (Id. at p. 331.) Thus, searches incident to arrest “may be made whether or not there is probable cause to believe the arrestee may have a weapon or is about to destroy evidence.” (Id. at pp. 330–331.) Accordingly, Quan’s search of defendant’s “person”—i.e., the backpack he was carrying immediately before being arrest—conducted contemporaneously with defendant’s arrest, was lawful. The trial court did not err in denying defendant’s motion to suppress evidence of the items found in the backpack.

DISPOSITION

The judgment is affirmed.

 

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Fujisaki, J.

A155797/People v. Svedise