Filed 1/27/20 P. v. Reyes CA2/6

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

ARIEL REYES,

Defendant and Appellant.

2d Crim. No. B295401

(Super. Ct. No. BA458566)

(Los Angeles County)

OPINION ON REHEARING

This is a car registration search case in which the driver, a gang member, was found in possession of cocaine and a loaded semiautomatic handgun. Ariel Reyes appeals his conviction by plea to possession of sale of a controlled substance (Health & Saf. Code, § 11351), entered after the trial court denied his motion to suppress. (Pen. Code, § 1538.5.) Appellant was sentenced to three years felony jail. (§ 1170, subd. (h)(1).) We affirmed the conviction in an unpublished opinion based on In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.). After our Supreme Court in People v. Lopez (2019) 8 Cal.5th 353, 381 (Lopez) overruled Arturo D., we granted rehearing. We affirm on the ground that warrantless car “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the [Fourth Amendment] exclusionary rule.” (Davis v. United States (2011) 564 U.S. 229, 232 (Davis).)

Facts

On June 5, 2017, Los Angeles Police Officer Thomas Redshaw detained appellant after he parked a vehicle with tinted windows in a red zone. Appellant “sported” East Coast Crip gang tattoos – a “76” on the side of his face, a large “C” on his left shoulder, a New York tattoo, and a Union 76 ball tattoo worn by 76 East Coast gang members. Officer Redshaw, an experienced gang officer, was concerned because it was the day before “Hood Day,” the day gangs congregate and celebrate gang tradition. There were complaints about East Coast Crips drug sales in the area, arrests of gang members with firearms, and a rash of burglaries in which firearms were stolen. Appellant admitted that he was not the registered owner but indicated that the registration papers were in the car.

Officer Redshaw did not see the registration papers in the glove box and opened the center console. Inside the console, in plain view, was a bindle of 11.12 grams of cocaine. Concerned about officer safety, Officer Redshaw looked in the console lower compartment and found a loaded semiautomatic Glock handgun.

Lopez – Warrantless Car Searches

Appellant argues that the search violated the Fourth Amendment but in 2017, when the search was conducted, an officer could detain a motorist for a traffic infraction and search the vehicle in places where one might reasonably find the vehicle registration. (People v. Webster (1991) 54 Cal.3d 411, 431; Arturo D., supra, 27 Cal.4th at p. 71 [glass pipe and methamphetamine found under driver’s seat].) The trial court found that Officer Redshaw saw the bag of cocaine while looking for the car registration papers, and once the officer saw the cocaine he was “justified . . . to now search the whole car.”

Arturo D. was the prevailing law in California until November 15, 2019, when our Supreme Court held that Arturo D. should no longer be followed because a prearrest search of a vehicle for identification is not permitted by federal constitutional law. (Lopez, supra, 8 Cal.5th at pp. 364-368 [citing Arizona v. Gant (2008) 556 U.S. 332].) “[W]e now hold the Fourth Amendment does not contain an exception to the warrant requirement for searches to locate a driver’s identification following a traffic stop.” (Lopez, supra, at p. 381.)

The same Fourth Amendment principle applies to warrantless searches of a vehicle for a car registration. But that is not the end of the matter. In Lopez, the Attorney General argued that the officer acted in good faith on existing state law. The court declined to consider the issue “[b]ecause the Court of Appeal did not have occasion to consider the issue, [and] we express no views on it.” (Lopez, supra, 8 Cal.5th at p. 381.)

Counsel have submitted letter briefs on Lopez. We hold that Officer Redshaw acted in good faith based on binding state appellate precedent, and the trial court did not error in denying appellant’s motion to suppress the fruits of the search. (Davis, supra, 564 U.S. at p. 232; see, e.g., People v. Macabeo (2016) 1 Cal.5th 1206, 1221 [good faith warrantless search of cell phone]; People v. Sandee (2017) 15 Cal.App.5th 294, 301, fn. 4 [same; warrantless search of cell phone based on search conditions in defendant’s probation order]; People v. Jimenez (2015) 242 Cal.App.4th 1337, 1365 [blood draw of intoxicated motorist conducted in objectively reasonable reliance on then-binding precedent].) “This is a species of the ‘good faith’ exception to the exclusionary rule.” (People v. Youn (2014) 229 Cal.App.4th 571, 579.)

Disposition

The judgment (order denying motion to suppress evidence) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
Craig Richman, Judge

Superior Court County of Los Angeles

______________________________

Richard B. Lennon, Executive Director, Nancy Gaynor, Staff Attorney, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stacy S. Schwartz, Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.