People v. Boissard

• Citation: 5 Cal.App.4th 972,8 Cal.Rptr.2d 738
• Decision Date: 15 January 1992
• Docket Number: No. E008980,E008980
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Vernon BOISSARD, Defendant and Appellant.

Page 738

8 Cal.Rptr.2d 738

5 Cal.App.4th 972

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Vernon BOISSARD, Defendant and Appellant.

No. E008980.

Court of Appeal, Fourth District, Division 2, California.

Jan. 15, 1992.

[5 Cal.App.4th 974] A. William Bartz, Jr., Manhattan Beach, under appointment by the Court of Appeal, for defendant and appellant.

[5 Cal.App.4th 975] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Sara Gros-Cloren, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

HOLLENHORST, Associate Justice.

Following the denial of his Penal Code section 1538.5 motion, defendant pleaded guilty to possessing methamphetamine for sale in violation of Health and Safety Code section 11378. He appeals, contending the trial court erroneously denied the suppression motion because (1) the officers lacked probable cause to arrest him, (2) the officers' search of the automobile was not incidental to his arrest, and (3) the officers' arrest of him for a violation of Penal Code section 148.9 was a pretext to search the automobile. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

During the hearing on defendant's motion to suppress, the only witnesses were two sheriff's deputies who testified:

At approximately 7:30 a.m., on September 2, 1990, they received a radio dispatch that a named informant had reported two men were "walking truck to truck trying to sell drugs" to several truck drivers at a Unocal 76 station in Blythe. The informant said "one [man] was white and one was Mexican. They both were wearing ponytails." The white male had brown hair and was wearing shorts. The informant also said that the men "were in a white Celebrity that was currently parked next to a Ryder u-haul that was towing a red Ford Escort."

When the deputies arrived at the Unocal 76 station, they saw the described two men standing next to "a car that matched the description [they] were given." The two men looked at the black and white sheriff's unit the deputies were driving and started walking away in different directions. As defendant walked away at "a fast or quick pace," one of the deputies told him "to stop and come back."

When the deputy asked defendant his name, he responded "John Victor Bouschard" and spelled the last name. Defendant, who did not have any identification on him, told the deputy "he had a Texas driver's license four years ago."

The deputy believed defendant had lied about his name because: defendant's companion, "John," said defendant's name was "Rick"; when the deputy asked defendant "his middle name ... [h]e paused again and said it was Victor"; and defendant "paused a lot between each spelling. He also refused to respell his name again," saying: "You already got it."

In an attempt to confirm defendant's identity, the deputy asked the dispatcher to check the system, giving her defendant's "[l]ast name, middle name, first name and date of birth. Also asked her to check Texas for a DO state." The dispatcher was unable to find any reference "in any state including Texas," although it "[s]till should have been in the system."

During a consent search of defendant's person, the deputy found a set of car keys. The deputy thought this was unusual because defendant had denied driving a vehicle, saying he "and his friend were just hitchhiking." At this point, the experienced deputy did not believe defendant "[b]ecause the description matched both the cars and the Ryder truck and both the suspects' descriptions matched exactly what the informant had [reported]. And [the deputy] had no reason to think that the informant would just call in and say people were selling drugs."

Because defendant had the car keys, the deputy "asked [him] for consent to search the car [for drugs], and he declined."

At this point, the deputy arrested defendant for giving a false name (Pen.Code, § 148.9) although he "had made that decision long before." The experienced deputy had decided to arrest defendant because he considered defendant's conduct suspicious, defendant's companion had identified defendant as "Rick," and the deputy "couldn't confirm [defendant's] identity even through Texas."

After he arrested defendant, the deputy learned defendant's true name and confirmed it by checking the system. When the deputy asked defendant why he had given a false name, defendant replied: "Old habits die hard."

Defendant was standing "[r]ight next to" the described white Celebrity when the deputy arrested him. After arresting defendant, the deputy "secured the other suspect" before searching the car. The deputy found 2.2 grams of drugs "underneath the right front passenger seat on top of [a] pair of black nylon shorts." He then told the two men he was arresting them for possession of drugs for sale, and defendant responded, "I know." At some point during the detention and arrest of defendant, the deputy received information that defendant had been driving the car with the permission of the owner.

Approximately five to ten minutes after the deputies arrived and about five minutes after defendant had been arrested, the other deputy went to talk to a citizen informant who said "that while he was working in the truck wash base, a white male wearing brown hair pulled back in a ponytail and shorts had asked him if he wanted to buy some crystal ... [and pointed out defendant as] the white guy...." There were no "other white males in shorts with a ponytail at the truck stop."

In support of his motion to suppress, defendant argued: (1) the deputies lacked probable cause to arrest him for a Penal Code section 148.9 misdemeanor offense, (2) the deputies' search of the car was not incidental to his arrest, and (3) the deputies' arrest of him for the misdemeanor offense was a pretext to search the car. The People responded: (1) defendant was lawfully arrested for the misdemeanor offense, (2) probable cause existed to arrest him for a drug-related offense, and (3) the warrantless search of the car was lawful as an incident to the arrest. The trial court denied defendant's suppression motion "on the basis that the search was pursuant to a lawful arrest under 148.9." Defendant appealed.

STANDARD OF REVIEW

In reviewing defendant's motion to suppress, we are bound by the trial court's factual findings, whether express or implied, if they are supported by substantial evidence. However, we review questions of law independently to determine whether the challenged seizure meets constitutional standards of reasonableness. (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436; People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

DISCUSSION

On appeal, defendant contends the trial court erroneously denied his suppression motion, arguing (1) the deputies lacked probable cause to arrest him for a Penal Code section 148.9 misdemeanor offense, (2) the deputies' search of the car was not incidental to his arrest, and (3) the deputies' arrest of him for the misdemeanor offense was a pretext to search the car. We affirm.

A. Probable Cause to Arrest Defendant:

"Probable cause to arrest exists when facts known to the arresting officers would lead a man of ordinary care and prudence to believe or to entertain a strong suspicion that the person to be arrested has committed a crime. [Citations.]" (People v. Hernandez (1988) 47 Cal.3d 315, 341, 253 Cal.Rptr. 199, 763 P.2d 1289.) Furthermore, this rule should not be understood as placing the ordinary man and the experienced officer in the same class. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827, 91 Cal.Rptr. 729, 478 P.2d 449.) And, " '[e]ach case must be decided on its own facts and circumstances [citations]--and on the total atmosphere of the case. [Citations.]' [Citation.]" (Ibid.) ²

In People v. Hunt (1990) 225 Cal.App.3d 498, 275 Cal.Rptr. 367, the defendant, who was a passenger in a car which was stopped for a traffic violation, identified himself as Paul Hunt. A record and driver's license check with the Department of Motor Vehicles reported that Paul Hunt was five feet seven inches tall. Because the defendant was obviously taller, the officer asked the defendant to step out of the car. After confirming his impression that defendant was six feet two inches tall, the officer arrested defendant for giving false information to a police officer (Pen.Code, § 148.9). The reviewing court concluded the seven-inch "discrepancy in height gave the officer probable cause to arrest defendant for violation of section 148.9" and affirmed. (Id., at p. 506, 275 Cal.Rptr. 367.)

In this case, the deputy testified he arrested defendant for falsely identifying himself to the deputy because: defendant's companion (John) said defendant's name was "Rick," but defendant said his name was "John Victor Bouschard," pausing after his first and second names, and between each letter as he spelled his last name; defendant did not have any identification on him; and he refused to spell his unusual last name again after the dispatcher found no reference in the system to the name and date of birth provided by defendant despite his claim to a Texas driver's license four years previously. And, after the deputy found the car keys while searching defendant with his consent and he denied driving the car, saying he "and his friend were just hitchhiking," the experienced deputy believed defendant was lying because defendant, his companion and their car "matched exactly" the description provided by the informant. Furthermore, the deputy had observed defendant's attempt to leave the scene when he saw the uniformed deputies arrive in the black and white sheriff's unit.

The "total atmosphere" of this case--the different names given, defendant's hesitancy in giving his full name and in spelling his last name, his refusal to spell again his...