People v. Jones

• Decision Date: 10 August 2011
• Docket Number: B220777
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SANDRA JEAN JONES, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. SANDRA JEAN JONES, Defendant and Appellant.

B220777

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date: August 10, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. PA065180)

APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant, Sandra Jean Jones, appeals from her conviction for cocaine possession and two prior prison term findings. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 667.5, subd. (a).) After the denial of her Penal Code section 1538.5 suppression of evidence motion, defendant pled nolo contendere and admitted the truth of the two special allegations. On appeal, she challenges the correctness of the trial court's ruling on the suppression of evidence motion. We affirm.

Officer Marco Gaiser testified he saw defendant's Toyota Corolla at 2 a.m. on August 9, 2009, parked near Memory Park Avenue on Parthenia Place in a red zone. When asked to describe the place where defendant had parked the Toyota, Officer Gaiser testified, "It's a high gang and narcotics area." Defendant was seated in the driver's seat and a passenger was also present. In the center console was an open container of alcohol. There was condensation around the bottle of alcohol. When Officer Gaiser approached the Toyota, he could smell alcohol. Officer Gaiser did not know to whom the alcohol belonged and he wished to investigate that issue. Officer Gaiser thought that the crime of driving under the influence of alcohol was committed if the driver was in complete control of the vehicle.

Officer Gaiser asked defendant if she had been drinking. She responded, "No." Officer Gaiser also asked defendant if she was on probation or parole and she responded in the negative. Officer Gaiser asked defendant to get out of the Toyota so he could conduct a driving under the influence investigation. Officer Gaiser handcuffed defendant as she alighted from her Toyota. Officer Gaiser explained why he handcuffed defendant: "Because depending on a D. U. I. investigation, we handcuff just in case of - - they either decide - - for their safety and our safety, and she was being detained." When asked why safety was an issue, Officer Gaiser testified, "Because at the time, I didn't know how under the influence she was or if she was at all, and suspects can turn on you or start a fight." Officer Gaiser, who was assigned to handle gang and narcotics cases, also stated the location impacted his decision to handcuff defendant. Officer Gaiser said he routinely handcuffed driving under the influence of alcohol suspects when they werebrought out of a car. Officer Gaiser explained why he routinely handcuffed driving under the influence suspects, "Because we don't know if they're under the influence of anything else, like P.C.P. or anything." Officer Gaiser stated he did not routinely handcuff persons being issued a citation for a parking violation.

Officer Gaiser described what he did in terms of investigating the possibility defendant was under the influence, "Just looked - - just looked at her demeanor, what she was doing, and the things she was doing, symptoms." Defendant was asked if she had anything on her and she responded: "No." Defendant was asked, "Do you mind if we check?" Defendant responded either "No" or "You can check." Defendant was asked whether she could be searched and she responded, "Yes" or "Go ahead." The consent was secured as defendant was walked from the car door to the curb but while she was handcuffed. At the time he secured the consent to search, all Officer Gaiser knew for certain was that the Toyota was parked in a red zone and there was an open container in her car. He had not yet ascertained the state of defendant's sobriety.

Officer Gaiser told defendant a female officer would be summoned to conduct the search. Defendant responded, "That's fine." While awaiting the arrival of the female officer, Officer Gaiser filled out a field interview card. Officer Gaiser had not ruled out the possibility defendant was intoxicated while he was filling out the field interview card. While seeking information to write on the field interview card, Officer Gaiser spoke with defendant. Officer Gaiser concluded defendant was not under the influence of alcohol. It took 5 to 10 minutes before Officer Gaiser concluded defendant was not under the influence of alcohol. Officer Gaiser did not perform any field sobriety tests on defendant. Officer Gaiser was also looked in and around the Toyota to verify if defendant had dropped anything.

During this time frame, defendant remained handcuffed. Officer Gaiser did not remove the handcuffs because he was awaiting the arrival of Officer Caressa Andreas who would conduct the search. Officer Gaiser was not permitted to search defendant because she is a woman. Officer Gaiser kept defendant in handcuffs in order for her to besearched. By the time Officer Andreas arrived, it was determined that the passenger in the Toyota was under the influence of alcohol. Officer Andreas testified she arrived five minutes after receiving the radio request to conduct the search.

Officer Andreas asked defendant for permission to search. In response, according to Officer Gaiser, defendant, said, "Yes." Officer Andreas described the consent provided buy defendant slightly differently: "I approached [defendant], asked her if she had anything on her or if I could search her, and she said: "No. Go ahead." Officer Andreas had previously talked to defendant. Officer Andreas described their rapport during those prior encounters as good. During the search, defendant and Officer Andreas engaged in small talk. Officer Andreas found a bindle of rock cocaine in the center line of defendant's panties.

It was further determined there was beer in the bottle in the console. Prior to the seizure of drugs on defendant's person, Officer Gaiser never saw her in possession of any drugs. Officer Gaiser testified 25 minutes elapsed between the initiation of the contact with defendant and the arrival of Office Andreas. When Officer Gaiser requested consent to search and summoned Officer Andreas, he was conducting his investigation. Officer Gaiser acknowledged the encounter could be characterized as a "fishing expedition" type of search.

First, because Officer Gaiser had probable cause to arrest defendant, he possessed the constitutional authority to search her or direct another person to do so. Officer Gaiser saw there was an open container in the Toyota and smelled alcohol as he walked up to the car which was parked in a red zone. Vehicle Code section 23223, subdivision (a)¹prohibits a driver from possessing an open bottle containing alcohol on a highway. A violation of Vehicle Code section 23223, subdivision (a) is an infraction. (Veh. Code, § 40000.1 et seq.) As Officer Gaiser saw the open container in the console, viewed objectively, there was probable cause to believe defendant was violating Vehicle Code section 23223, subdivision (a). (People v. Monroe (1993) 12 Cal.App.4th 1174, 1182, fn. 4 [probable cause to arrest when the officer observed an open container on the floor of the car in front of the defendant]; People v. McCloskey (1990) 226 Cal.App.3d Supp. 5, 10 [conviction upheld where an open beer container was in the console between the defendant and a front seat passenger]; People v. Lopez (1987) 197 Cal.App.3d 93, 99 [highway for purposes of Veh. Code, § 23223 includes a parking place adjoining a paved roadway.)

An arrest for an infraction is reasonable under the Fourth Amendment. In Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323-324, the plaintiff in a federal civil rights action was stopped while driving her car for a seat belt violation. The plaintiff was arrested. She filed suit pursuant to title 42 United States Code section 1983 alleging she was subject to an unreasonable seizure. (Id. at p. 325) After reviewing its search and seizure jurisprudence, the United States Supreme Court held: "Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause 'applie[s] to all arrests, without the need to "balance" the interests and circumstances involved in particular situations.' Dunaway v. New York [(1979)] 442 U.S. 200, 208. If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." (Atwater v. City of Lago Vista, supra, 532 U.S. at p. 354; see Brendlin v. California (2007) 551 U.S. 249, 263, fn. 7; Maryland v. Pringle (2003) 540 U.S. 366, 370.) The fact that a state or federal statute does not permit an arrest is irrelevant to the Fourth Amendment reasonableness calculus. (Virginia v. Moore (2008) 553 U.S. 164, 167, 169, fn. 2, 172 [defendant arrested in violation of a Virginia statute that required only a summons be issued for driving with a suspended license]; Whren v. United States(1996) 517 U.S. 806, 815 [District of Columbia regulation limiting authority of unmarked police car to make a stop irrelevant to Fourth Amendment reasonableness issue]; Cooper v. State of California (1967) 386 U.S. 58, 60-61 [state forfeiture law irrelevant as to whether the car search was reasonable].) Also,...