Filed 12/12/19 P. v. Daniels CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ARLANCE DION DANIELS,

Defendant and Appellant.

E073099

(Super.Ct.No. BAF1800757)

OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan and Randall Donald White,† Judges. Reversed.

Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Following a search of his vehicle by law enforcement, defendant and appellant Arlance Dion Daniels was found with a gun and ammunition in his car. After the trial court denied defendant’s motion to suppress the gun and ammunition discovered in his vehicle, defendant pleaded guilty to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1)) and being a felon in possession of ammunition (§ 30305, subd. (a); count 2). He also admitted that he had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (e)(1)). The trial court subsequently granted defendant’s motion to strike his prior strike conviction and sentenced him to a total term of 16 months in state prison with 34 days of credit for time served.

On appeal, defendant contends the trial court erred in denying his suppression motion because: (1) the impoundment of his vehicle was not authorized; (2) the good faith exception to the exclusionary rule did not apply; (3) the impoundment of his vehicle was not achieved pursuant to a policy concerning the exercise of discretion; and (4) the impoundment of the vehicle did not serve a community caretaking function. The People concede that defendant’s suppression motion should have been granted because the officers did not have probable cause to search the vehicle, and the inventory search conducted by the officers was a pretext for an investigatory search and did not serve a community caretaking function. We agree with the parties and reverse the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2018, at 8:35 p.m., a Hemet Police officer, J.F., was dispatched to a gas station on North State Street in Hemet in response to a call reporting a Black male adult, approximately 25 years old, wearing a white shirt, black pants, and a bandage on his right hand, trying to sell a gun. Dispatch reported that the man was in a dark gray Ford Explorer, with a particular license plate number, and was parked along the curb of north Alessandro Avenue. When Officer J.F. arrived at the gas station, he did not see the Ford Explorer. However, Hemet Police corporal, I.B., located the Ford Explorer and a man, later identified as defendant, who matched the description provided by dispatch, two blocks west of the gas station.

Officer J.F. and Corporal I.B. approached defendant and advised him why they were contacting him. Corporal I.B. asked defendant whether he had a gun, and defendant responded, “No.” The officers asked defendant if they could search his vehicle, and defendant responded in the negative and refused to provide consent. At some point, dispatch informed the officers that defendant’s vehicle registration for his Explorer had expired on January 12, 2018. The dispatcher did not tell the officers the registration had been expired for more than six months. The dispatcher simply gave the officers the expiration date of the vehicle registration. Officer J.F. and Corporal I.B. both mistakenly believed (purportedly due to a mathematical calculation error) that defendant’s registration had expired six months and one day earlier, rather than five months and one day earlier. Based on this mistaken belief, the officers decided to impound defendant’s vehicle under Vehicle Code section 22651.

Officer J.F. and Corporal I.B. had been police officers for approximately 10 years. Officer J.F. explained that they chose to impound defendant’s vehicle, not based upon a belief that it was a danger to the community, but rather to bypass the requirement of getting a warrant to search it. Officer J.F. acknowledged that the vehicle was not a danger to the community. He also stated that once defendant declined to give consent, the “normal procedure” at that point was to “[s]end him on his way.” When defense counsel asked Officer J.F., “Couldn’t you have gotten a warrant,” Officer J.F. answered, “We could’ve.” Officer J.F. also stated, “In this type of situation, we wouldn’t generally get a warrant.” When defense counsel asked Corporal I.B. if there was an option to get a search warrant, the officer answered, “It is an option. But that would’ve been an unreasonable amount of time to detain him.” When defense counsel asked Corporal I.B. if the vehicle was towed to avoid having to get a search warrant, he responded, “It was an option. I don’t know that it was the ultimate reason.” Corporal I.B. also stated that anytime a vehicle’s registration is expired for more than six months “we have the option to tow it” and “it is liable to be towed.”

Before the officers had the vehicle towed and impounded, Corporal I.B. conducted an inventory search of defendant’s car pursuant to department policy and procedure to document the items inside the vehicle on a “CHP 180 Form” for liability reasons. Officer J.F. explained that “Any time we tow a vehicle, we’re mandated to do an inventory search,” that it is a policy and procedure of the Hemet Police Department, and it is “[m]ore of a liability issue.” Officer J.F. also stated, “We need to inventory everything in the vehicle and then write it down—if anything of importance is in there in the vehicle.” Corporal I.B. asserted that the Hemet Police Department’s policy regarding inventory searches is that “we need to make a count of vehicle damage, high-dollar items, and fill out the CHP 180 form.”

During the search, Corporal I.B. found a 9 mm semiautomatic handgun and a magazine containing 11 unexpended rounds inside a blue bag. Thereafter, the officers ran defendant’s criminal rap sheet and determined that he had previously been convicted of four or five felonies. The officers then placed defendant under arrest for being a felon in possession of a firearm.

After finding the gun and ammunition, Officer J.F. contacted the reporting party “Teresa.” Teresa informed Officer J.F. that she was sitting in her vehicle when a male transient by the name of “John” walked up to her, and told her that a Black male adult standing next to a Ford Explorer had asked him if he wanted to buy a gun. “John” pointed out the man and the vehicle to Teresa, and she called 911. Teresa identified defendant as the person John had pointed out to her.

On July 2, 2018, defendant filed a motion to suppress the gun and ammunition evidence found in his vehicle.

On July 25, 2018, the People filed opposition to defendant’s suppression motion, arguing the search was a lawful inventory search and the officers made a mistake of fact and did not act in bad faith.

A hearing on defendant’s suppression motion was held on July 25, 2018, along with the preliminary hearing. At that time, defense counsel argued that the officers had conducted an improper inventory search because: (1) defendant’s registration had been expired for only five months rather than six, as required by Vehicle Code section 22651; and (2) the inventory search was not performed for a community caretaking purpose.

The prosecutor argued that the officers had the statutory authority to tow the vehicle, regardless of whether they were acting for a community caretaking purpose, if six months had elapsed. The prosecutor also argued that although the officers were incorrect about how many months the registration had been expired, they did not act in bad faith and therefore the court should deny the suppression motion under the good faith exception to the exclusionary rule.

The trial court acting in its capacity as magistrate inquired whether the officers had probable cause to search based upon Teresa’s call to police, explaining: “[T]he facts are such that somebody reports to the police that there’s a man trying to sell a gun on the streets. And it’s a very, very specific description. It seems to be very consistent with the defendant’s appearance. And then there’s a car that’s described with a very specific license plate. And it’s clear that the gun is being sold without following any of the federal regulations for the gun sales because he’s just offering it on the street. So I think that’s a fair inference. So what about the argument that the police just had a right based on all that information that was consistent to just search the car?”

Defense counsel argued there was no probable cause because the call to police was based upon an anonymous tip, which did not allow the officers to evaluate the tipster’s credibility. The trial court then opined that it would have endangered the public for the officers to just send defendant on his way when they knew he might have a gun in his car that he was trying to dispose of in an illegal fashion and that might “just be [an] exigent circumstance.” Thereafter, the court then denied defendant’s motion to suppress, explaining: “Well, I don’t think there was any bad faith with the officers. I think it was poor counting, I guess, as you might call it. And I don’t think that—I’m almost convinced that they could’ve searched the car anyway under those circumstances because of the specificity to the description of what was going on. So the motion in this case is denied.”

On November 19, 2018, defendant renewed his suppression motion before the superior court (§ 1538.5, subd. (i)). He also filed a motion to set aside the information (§ 995). Following argument, the superior court denied defendant’s renewed motion to suppress and motion to set aside the information.

On May 2, 2019, defendant pleaded guilty to being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and being a felon in possession of ammunition (§ 30305, subd. (a)). He also admitted that he had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (e)(1)).

On June 17, 2019, the trial court granted defendant’s motion to strike his prior strike conviction and sentenced him to a total term of 16 months in state prison.

On June 27, 2019, defendant filed a timely notice of appeal from the denial of his suppression motion.

III

DISCUSSION

Defendant argues the trial court erred when it denied his motion to suppress the gun and ammunition found in his car. Specifically, he argues (1) Vehicle Code section 22651, subdivision (o)(1)(A), did not give the officers authority to impound his car since his registration had been expired for only five months, rather than six, as required by the statute; and (2) the court improperly determined that the good faith exception to the exclusionary rule applied because the officers used the investigatory search as a pretext to conduct a warrantless search of the car. The People agree that defendant’s motion to suppress the evidence should have been granted because the inventory search was a pretext to conduct an investigatory search and did not serve a community caretaking function, and the officers did not have probable cause to search defendant’s vehicle.

A. Standard of Review and General Principles

We evaluate challenges to the admissibility of a search or seizure solely under the Fourth Amendment. (People v. Carter (2005) 36 Cal.4th 1114, 1141; People v. Evans (2011) 200 Cal.App.4th 735, 742 (Evans).) When reviewing the denial of a suppression motion, we defer to the trial court’s express or implied findings if supported by substantial evidence, but independently assess, as a matter of law, whether the challenged search or seizure was reasonable under the Fourth Amendment. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Hughes (2002) 27 Cal.4th 287, 327.) “Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952, 979.)

The Fourth Amendment protects individuals against unreasonable searches and seizures by law enforcement and other government officials. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9.) A search conducted without a warrant is presumed to be illegal. (People v. Williams (2006) 145 Cal.App.4th 756, 761 (Williams).) At trial, the “prosecution has the burden of establishing the reasonableness of a warrantless search” (People v. Jenkins (2000) 22 Cal.4th 900, 972), and it is the prosecutor’s burden to establish the officers’ actions were justified by an exception to the warrant requirement. (Williams, at p. 761.) A prosecutor can justify a warrantless search of an automobile on a variety of grounds, including: (1) the search was part of the inventory of a lawfully impounded vehicle (South Dakota v. Opperman (1976) 428 U.S. 364, 375-376 (Opperman)); and (2) the vehicle was readily mobile and there was probable cause to believe it contained contraband (Maryland v. Dyson (1999) 527 U.S. 465, 466-467). On appeal, it is defendant’s burden to demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)

B. Inventory Search

The United States Supreme Court has recognized that automobiles are frequently impounded as part of a local police agency’s community caretaking function, and police agencies will routinely secure and inventory a vehicle’s contents in that process. (Opperman, supra, 428 U.S. at pp. 368-369.) The Supreme Court has deemed such warrantless inventory searches reasonable under the Fourth Amendment. (Id. at p. 373.) “As part of their ‘“community caretaking functions,”’ police officers may constitutionally impound vehicles that ‘jeopardize . . . public safety and the efficient movement of vehicular traffic.’ [Citation.] Whether ‘impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.’ [Citation.] If officers are warranted in impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a standardized procedure is constitutionally reasonable. [Citation.] . . . Although a police officer is not required to adopt the least intrusive course of action in deciding whether to impound and search a car [citation], the action taken must nonetheless be reasonable in light of the justification for the impound and inventory exception to the search warrant requirement. Reasonableness is ‘[t]he touchstone of the Fourth Amendment.’ [Citation.]” (Williams, supra, 145 Cal.App.4th at pp. 761-762, quoting Opperman, supra, 428 U.S. at pp. 368-369, 372.)

The prosecution must prove the existence of a standard policy governing searches following the impoundment of a vehicle and it must also prove that the police followed that policy. (People v. Williams (1999) 20 Cal.4th 119, 138, citing Florida v. Wells (1990) 495 U.S. 1, 4-5.) “Just as inventory searches are exceptions to the probable cause requirement, they are also exceptions to the usual rule that the police officers’ ‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’. . . [C]ourts will explore police officers’ subjective motivations for impounding vehicles in inventory search cases, even when some objectively reasonable basis exists for the impounding.” (People v. Torres (2010) 188 Cal.App.4th 775, 787-788.)

In this case, we agree with the parties that the People did not meet its burden of establishing that the search was authorized by the impound inventory search doctrine. First, it is undisputed that the registration on defendant’s vehicle had expired on January 12, 2018, and the search was conducted on June 13, 2018. It is undisputable that defendant’s vehicle registration had been expired for five months and one day, not six months. Hence, the officers mistakenly relied on Vehicle Code section 22651 to impound defendant’s vehicle. Second, Officer J.F. admitted that he and Corporal I.B. decided to tow defendant’s vehicle, not because it posed a danger to the community, but rather because they could then bypass the search warrant requirement.

Neither officer testified regarding the existence of a standard policy governing impound inventory searches, or that the officers complied with that policy. There is no evidence in the record of a standard police policy governing impound inventory searches, what the policy was, or whether the officers conducted themselves in compliance with the policy. It was the People’s burden to establish the foregoing. (People v. Williams, supra, 20 Cal.4th at p. 138.) Absent such evidence, the trial court’s ruling was erroneous.

Moreover, a reasonably well-trained officer would have known the search was illegal, even if defendant’s registration had been expired for six months. As such, the good faith exception to the exclusionary rule did not apply. (See People v. Harris (2015) 234 Cal.App.4th 671, 700 [the exclusionary rule is inapplicable to evidence obtained by “‘nonculpable, innocent police conduct.’”])

The evidence in this case demonstrates that the inventory search in this case was not done for any community caretaking purpose pursuant to a standard policy governing impound inventory searches and was a pretext for an investigatory search. Accordingly, the search was not a constitutionally valid inventory search.

C. Probable Cause to Search

Under this exception, “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (Evans, supra, 200 Cal.App.4th at p. 753; see United States v. Ross (1982) 456 U.S. 798, 821; People v. Johnson (2018) 21 Cal.App.5th 1026, 1034.) “In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” (Ross, at p. 809.) “In other words, the police may search without a warrant if their search is supported by probable cause.” (California v. Acevedo (1991) 500 U.S. 565, 579.)

When police have no basis for suspicion other than an anonymous tip, we must decide whether, under the totality of circumstances, the tip “gave the detaining officers a ‘“particularized and objective basis” for suspecting legal wrongdoing.’” (People v. Dolly (2007) 40 Cal.4th 458, 472, Kennard, J., concurring.) Whether an anonymous tip gives police a particularized and objective basis for suspecting illegal activity depends on both the information conveyed by the tip and its degree of reliability. (See Navarette v. California (2014) 572 U.S. 393, 397; Florida v. Harris (2013) 568 U.S. 237, 244-245.)

“[A]n allegation by an informer cannot by itself supply probable cause for a warrant unless it meets the requirements of Aguilar v. Texas (1964) 378 U.S. 108 . . . as refined in Spinelli v. United States (1969) 393 U.S. 410 . . . . Under the Aguilar-Spinelli test, hearsay information of criminal activity will support a search warrant only if affidavits establish that the informant spoke with personal knowledge and that his [or her] information was reliable. [Citation.]” (People v. Kershaw (1983) 147 Cal.App.3d 750, 753-754, fn. omitted (Kershaw).) When probable cause is based upon hearsay, the “‘veracity,’” “‘reliability,’” and “‘basis of knowledge’” of the person supplying the hearsay are relevant factors for the court to consider. (People v. Camarella (1991) 54 Cal.3d 592, 600-601 (Camarella).) Different rules thus apply when determining the reliability and veracity of hearsay statements made by informants, who are agents of the police, “‘citizen informants,’” who are witnesses to or victims of crime, and anonymous tipsters. (People v. Ramey (1976) 16 Cal.3d 263, 268-269 (Ramey); accord People v. Scott (2011) 52 Cal.4th 452, 475-476.)

Private citizens or citizen informants who are witnesses to or victims of a criminal act are generally considered reliable without any corroboration, absent circumstances that would cast a doubt upon their information. Thus, neither a previous demonstration of reliability nor subsequent corroboration is ordinarily required to establish probable cause when a witness to or a victim of criminal activity reports his or her observations in detail to the authorities. (Ramey, supra, 16 Cal.3d at p. 269; Kershaw, supra, 147 Cal.App.3d at p. 756; People v. Brown (2015) 61 Cal.4th 968, 982.) However, this rule presumes that the police are aware of the identity of the person providing the information and of his or her status as a true citizen informant. (Ramey, at p. 269.)

“[U]nverified information from an untested or unreliable informant” is ordinarily insufficient to establish probable cause “unless it is ‘corroborated in essential respects by other facts, sources or circumstances.’” (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved on other grounds in Camarella, supra, 54 Cal.3d at p. 606, fn. 6; see People v. Gotfried (2003) 107 Cal.App.4th 254, 265 [“‘Any rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant’”]; People v. Spencer (2018) 5 Cal.5th 642, 664.) Corroboration of an anonymous tip may be adequate to support a finding of probable cause if police investigation uncovers probative indications of criminal activity along the lines suggested by the tipster. (Gotfried, at p. 264.) Even observations of seemingly innocent activity can constitute corroboration, if the anonymous tip casts the defendant’s activity in a suspicious light. (Ibid.; see, e.g., Illinois v. Gates (1983) 462 U.S. 213, 225-227 [anonymous letter predicted a detailed travel pattern on a certain date of a couple making a drug run to Florida; the date and travel pattern was corroborated by police surveillance].)

Here, the record demonstrates that a transient named “John” told “Teresa” that defendant tried to sell him a gun. John pointed defendant out to Teresa, who provided a detailed description of defendant and the car he was driving to 911. The fact that Officer J.F. was able to contact Teresa after defendant’s arrest showed that she had provided some type of contact information to police, although the record is unclear as to how that transpired. Nonetheless, Teresa did not personally observe defendant trying to sell the gun, so she was not a witness or a victim, and she had no firsthand knowledge of defendant’s alleged criminal activity. (See People v. Smith (1976) 17 Cal.3d 845, 852 [“An untested citizen-informant who has personally observed the commission of a crime is presumptively reliable”].) Teresa was merely reporting what John had observed, and there was no evidence that the officers or the dispatcher had information relating to John’s identity or his contact information.

In Florida v. J.L. (2000) 529 U.S. 266 (J.L.), an anonymous caller reported to police that a young African-American male standing at a particular bus stop in a plaid shirt was carrying a gun. Some unspecified time after police received the tip, officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three Black males, one of whom, J.L., was wearing a plaid shirt. “Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct.” (Id. at p. 268.) They saw no firearm, “and J.L. made no threatening or otherwise unusual movements.” (Ibid.) The officers approached J.L., frisked him, and seized a gun from his pocket. (Ibid.)

The high court held that the anonymous tip was insufficient to justify the detention and search “absent some independent corroboration of the reliability of the tip and tipster’s assertion of illegal conduct. [Citation.] As the court stated, ‘[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.’ [Citation.] The high court stressed that the tip contained no ‘predictive information’ (such as predicting the suspect’s future behavior) that might demonstrate the tipster had inside information of concealed criminal activity.” (People v. Wells (2006) 38 Cal.4th 1078, 1084 (Wells).)

In Wells, supra, 38 Cal.4th 1078 an anonymous caller reported that a blue van was “‘weaving all over the roadway’” on a certain stretch of highway. (Id. at p. 1081.) Police located a van matching the description given, but it was neither weaving nor speeding, and the driver was apparently obeying all relevant traffic laws. However, based solely on information provided in the anonymous tip, police stopped the vehicle, found the driver appeared to be intoxicated, and arrested her. (Ibid.) Our Supreme Court upheld the search and seizure, distinguishing J.L. because a drunk driver weaving on the highway posed “a far more grave and immediate risk to the public than a report of mere passive gun possession [as in J.L.]” (Wells, at p. 1087); the state had a strong interest in preventing drunk driving (ibid.); the anonymous caller had presumably viewed the van weaving, and therefore had personal knowledge of the crime (ibid.); the level of personal intrusion accompanying a traffic stop is considerably less than a patdown search such as that conducted in J.L. (Wells, at p. 1087); drivers have a reduced expectation of privacy when in their cars on public roadways due to the state’s pervasive driving regulations (ibid.); and the anonymous caller’s description of the van was sufficiently detailed to support an inference that it was reliable (id. at p. 1088).

Here, unlike in Wells, Teresa had no personal knowledge of defendant trying to sell the gun. She was not a witness or a victim, and she had no firsthand knowledge of defendant’s alleged criminal activity. And because John was an anonymous tipster, his tip required corroboration to establish probable cause. Neither Officer J.F. nor Corporal I.B. testified to anything they had observed that would have corroborated John’s claim defendant had tried to sell him a gun. Furthermore, Teresa’s accurate description of defendant’s location and appearance was insufficient to establish John’s claim was reliable. (J.L., supra, 529 U.S. at pp. 268, 271-272.) Accordingly, there was no probable cause to support the search of defendant’s car.

Based on the foregoing, we agree with the parties that the trial court erred in denying defendant’s motion to suppress the gun and ammunition found in his vehicle.

IV

DISPOSITION

The judgment is reversed. The parties may file a stipulation for immediate issuance of the remittitur pursuant to California Rules of Court, rule 8.272(c)(1).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.