People v. Le

• Decision Date: 12 June 1985
• Citation: 215 Cal.Rptr. 106,169 Cal.App.3d 186
• Parties: The PEOPLE, Plaintiff and Respondent, v. HAI MINH LE, Defendant and Appellant. F003676.
• Court: California Court of Appeals Court of Appeals

Page 106

215 Cal.Rptr. 106

169 Cal.App.3d 186

The PEOPLE, Plaintiff and Respondent, v. HAI MINH LE, Defendant and Appellant.

F003676.

Court of Appeal, Fifth District, California.

June 12, 1985.

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Allan H. Keown, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., James T. McNally, Supervising Deputy Atty. Gen., and Thomas Y. Shigemoto, Deputy

Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant was convicted by a jury of five counts of robbery (Pen.Code, § 211), two counts of attempted murder (Pen.Code, §§ 664, 187), two counts of robbery within an inhabited dwelling (Pen.Code, §§ 459, 460). He was also found to have used a firearm (Pen.Code, § 12022.5) in the commission of each of the counts and of having caused great bodily injury (Pen.Code, § 12022.7) in the commission of one of the attempted murder counts and one of the robbery counts.

The single contention raised on appeal is that appellant's automobile was illegally searched, as a result of which several pieces of property that had been stolen during one of the robberies and the gun used to shoot one of the victims were found. The statement of facts will be limited to those necessary to the disposition of this issue.

FACTS

On June 22, 1983, police investigating a series of robberies and one shooting developed probable cause to arrest appellant for those crimes. Appellant was spotted by the police while he was driving his car accompanied by his wife, his sister and his two children. The car was stopped and appellant was arrested. Probable cause to stop the automobile and arrest appellant is not being challenged. Shortly after appellant was arrested Officer Mart, who was present during the arrest but did not actually participate in it, was assigned the job of moving appellant's car out of a traffic lane onto a frontage road. The occupants of the car were taken to the police station and the car was towed to police headquarters.

The car was not searched until appellant's wife signed a form consenting to the search of the car and the apartment she shared with appellant. The search of the car was conducted by Officer Mart.

The trial court ruled that the consent to search the apartment was invalid due to the extended detention of appellant's wife prior to the police's obtaining her written consent for the search and suppressed the evidence found in the apartment. The consent as to the search of the car was likewise held to be invalid. However, the court upheld the search of the car based on New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 and United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.

DISCUSSION

Our Supreme Court has held that the "right to truth in evidence" provision of the California Constitution (Cal. Const., § 28, subd. (d)) abrogates California's independent exclusionary rule and that the exclusion of evidence is not mandated unless the seizure thereof was in violation of the federal exclusionary rule under the Fourth Amendment to the United States Constitution. (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)

As mentioned, the trial court expressly upheld the search of the car on the authority of United States v. Belton, supra, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 and United States v. Ross, supra, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. Belton held that if an occupant of a car is subject to lawful arrest the officer may make a lawful contemporaneous search of the passenger compartment of the car incident to the arrest.

In Ross, the United States Supreme Court held that officers who legitimately stop a vehicle and have probable cause to believe contraband is within it may conduct as thorough a search of the entire vehicle as any magistrate could authorize in a search warrant. (United States v. Ross, supra, 456 U.S. at p. 800, 102 S.Ct. at p. 2160.) Moreover, if an immediate search on the street is permissible without a warrant, a search soon thereafter at the police station is also permissible if the vehicle has been impounded. (Id., at p. 807, fn. 9, p. 809, 102 S.Ct. at p. 2163, fn. 9, p. 2164.) Further, in Michigan v. Thomas (1982) 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750, the high court upheld a warrantless search of a vehicle after the defendant had been arrested and the vehicle impounded. In Florida v. Meyers (1984) 466 U.S. 380, 104 S.Ct. 1852, 80 L.Ed.2d 381, the court upheld the warrantless search of a vehicle which had been impounded for approximately eight hours.

Belton and Ross and their progeny furnish adequate justification for the search of the vehicle in this case. The validity of the stop and arrest of appellant, who was driving, is not challenged. Moreover, the searching officer, Officer Mart, was "aware of facts that would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search" (loot from the robberies and weapons) could be found in the car. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 571, 128 Cal.Rptr. 641, 547 P.2d 417.) Probable cause to search the car is founded upon the fact that Officer Mart was present when appellant was arrested for the robberies and other offenses. He knew appellant was driving the vehicle. Some of the property which appellant stole during the series of robberies was expensive jewelry which could be hidden in a car. In addition, a few hours before appellant's arrest he had attempted to get a jeweler to appraise some of the stolen jewelry. The jeweler recognized one of the pieces of jewelry as being stolen property, and when appellant left the store the jeweler wrote down appellant's license plate number as well as a description of the car. The jeweler then called the police and reported the information. Officer Mart was aware of the information from the jeweler prior to appellant's arrest. Furthermore, Officer Mart had previously seen appellant at one of the robbery locations during a stakeout and followed appellant as he drove away from the location in the same car in which he was arrested.

However, relying upon People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205 and Mestas v. Superior Court (1972) 7 Cal.3d 537, 102 Cal.Rptr. 729, 498 P.2d 977, appellant argues that when Officer Mart conducted the search of the car he was subjectively relying upon appellant's wife's consent as a basis for the search, having waited until the consent was obtained and having searched the car immediately after the consent was obtained. Therefore, appellant argues, because Officer Mart relied upon consent as the basis for the search, the search cannot be upheld on the basis of Belton and Ross.

In Simon, the defendant was arrested for Vehicle Code violations and subsequently searched. The search produced a small amount of marijuana, and defendant was prosecuted for possession of marijuana. At the preliminary hearing the arresting officer testified that he arrested the defendant for equipment violations (the lights on his car did not work) and took him into custody because the defendant did not have any identification on him. (People v. Superior Court (Simon), supra, 7 Cal.3d at p. 198, 101 Cal.Rptr. 837, 496 P.2d 1205.) The trial court held that the search could not be justified incident to an arrest for a minor traffic infraction and therefore suppressed the evidence.

On appeal, the Attorney General argued that the police officer had probable cause to arrest defendant for car theft and therefore the search could be based on defendant's arrest for a felony. (Id., at pp. 192-193, 101 Cal.Rptr. 837, 496 P.2d 1205.) The Supreme Court held that objectively the facts did not support a finding of probable cause to arrest defendant for car theft and, in addition, there had been no showing that the police officer believed defendant was guilty of car theft. (Id., at p. 198, 101 Cal.Rptr. 837, 496 P.2d 1205.) The court then went on to say:

"Indeed, there is no showing that the officer in fact believed defendant was guilty of automobile theft: he did not inform defendant that such was the ground for the arrest, and at the preliminary examination he testified only that he arrested defendant for the equipment violations and took him into custody because of his lack of identification. The purpose of the exclusionary rule--to deter unreasonable searches and seizures by law enforcement officers--would clearly be frustrated if the courts were required to uphold a search conducted on unreasonable grounds simply because the prosecuting authorities belatedly managed to devise an alternative theory on which the arresting officer could have acted reasonably if he had known of it. Compliance with the fundamental guarantees of the Fourth Amendment is not a game to be won by inventive counsel, but a practical, day-to-day responsibility of law enforcement personnel. Accordingly, just as a warrantless arrest or search cannot be justified by facts of which the officer was wholly unaware at the time [citations], so also it cannot be justified on theories thereafter invented for the consumption of reviewing courts [citations]." (People v. Superior Court (Simon), supra, 7 Cal.3d at p. 198, 101 Cal.Rptr. 837, 496 P.2d 1205; fn. omitted.)

In Mestas v. Superior Court, supra, 7 Cal.3d 537, 102 Cal.Rptr. 729, 498 P.2d 977, the defendant was arrested for prowling, and his car was impounded and searched. The search of the vehicle's trunk produced evidence which tied defendant to recent residential burglaries. In the trial court the district attorney attempted to justify the search as an inventory search. However, based on Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84, the Supreme Court held that the...