People v. Keller, No. D054772 (Cal. App. 4/30/2010)

• Decision Date: 30 April 2010
• Docket Number: No. D054772.,D054772.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CATHY KELLER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. CATHY KELLER, Defendant and Appellant.

No. D054772.

Court of Appeals of California, Fourth District, Division One.

Filed April 30, 2010.

Appeal from a judgment of the Superior Court of San Diego County, No. SCD212111, Kerry Wells, Judge. Affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O'ROURKE, J.

After the trial court partially denied her Penal Code section 1538.5 motion to suppress evidence, defendant Cathy Keller pleaded guilty to possession of a forged driver's license (Pen. Code, § 470b) in the present case and to receiving stolen property (Pen. Code, § 496, subd. (a)) as alleged in another felony complaint (Super. Ct. San Diego County, 2008, No. SCD212465 (case No. SCD212465)) as well as an on-bail enhancement (Pen. Code, § 12022). After Keller reoffended while out on bail, the trial court sentenced her to three years formal probation with 365 days in local custody. Keller appeals, contending the warrantless search of her purse was unreasonable and unlawful under the Fourth Amendment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts from the preliminary hearing transcript, which by stipulation provided the factual basis for Keller's guilty plea.

On February 22, 2008, San Diego Police Officer Jeffrey Wuehler was patrolling an area around Sports Arena Boulevard in San Diego when at about 7:32 p.m. he pulled over a vehicle after noticing it had no license plates, a violation of Vehicle Code section 5200. According to the officer, the vehicle's rear bumper had a faded dealer placard on it without any temporary registration or tags in the windshield or rear window. He approached the driver's door, at which time the driver held out a temporary operating permit. Officer Wuehler saw that the temporary permit had been "rewritten over" and that the occupants of the vehicle seemed to want to leave. The condition of the permit led the officer to suspect the registration was invalid or fraudulent.¹ Officer Wuehler asked the driver, who identified herself as Alexa Samoiloff, for her license. When Samoiloff advised him she did not have a driver's license or identification, Keller, who was in the passenger seat, offered that she had a license and could drive. Keller reached into her purse and pulled out a wallet, but did not tilt it toward the officer's flashlight. She gave the officer what appeared to be a current California driver's license and told him the car belonged to her.

Suspecting Samoiloff's driver's license was suspended and desiring to separate the women for his safety,² Officer Wuehler instructed Samoiloff to exit the vehicle and placed her in the back seat of his patrol car. He then returned to the car and instructed Keller to step outside as well, to get her away from her purse. When Keller started to take it, he told her to leave the purse inside the car. Because she was wearing a jacket that could conceal a small weapon, the officer patted Keller down and had her sit on the curb, then asked her if she had anything illegal in her vehicle. She told him no. The officer asked her if he could check and she responded, "Yeah, go ahead."

Officer Wuehler took the purse from the vehicle and held it out, asking Keller whether it was hers. She confirmed it was and he searched inside the purse, removing a metal card holder that contained a driver's license having Keller's photograph with the name of "Rebecca Sandeback," as well as a credit card in Sandeback's name. Officer Wuehler then searched the rest of the vehicle, finding a computer tower and printer behind the driver's and passenger's seats. He took three to five minutes to run a computer check, which showed Keller was subject to a Fourth Amendment waiver and that Sandeback was a victim of a burglary. He then called Sandeback, who reported her identity had been stolen. The officer handcuffed Keller, placed her in the backseat of his vehicle, and continued his search of her car, finding a wig and a lamination machine. Between 7:50 and 7:59 p.m., the officer learned that Samoiloff had an outstanding warrant for her arrest in San Bernardino County.

Keller was charged in the present case with possession of a forged driver's license (Pen. Code, § 470b, count 1) and obtaining personal identifying information with the intent to defraud (Pen. Code, § 530.5, subd. (c)(1), count 2). She thereafter moved to suppress evidence under Penal Code section 1538.5 on grounds she was detained without warrant or probable cause; that she was "subjected . . . to a prolonged detention that had nothing to do with the investigation as to the car's registration or the driver having a license."

At Keller's preliminary hearing, counsel elicited the above-summarized evidence from Officer Wuehler and addressed the suppression motion. The People argued that Officer Wuehler searched Keller's purse out of fear for his safety, and that his placement of the driver, Samoiloff, in his patrol car constituted a custodial arrest, rendering the vehicle search lawful as a search incident to arrest under New York v. Belton (1981) 453 U.S. 454 (Belton).³ Keller's counsel argued that Samoiloff's placement in the officer's vehicle was a prolonged detention, not a custodial arrest that would justify the search under Belton. He argued Officer Wuehler had no reasonable basis or suspicion of criminal activity to justify either the pat down of his client or the search of her purse within the vehicle.

The trial court granted in part and denied in part the suppression motion. It found the initial detention of the vehicle was lawful, and that, with respect to the forged driver's license found in Keller's purse, the search was lawful as a search incident to arrest under Belton, supra, 453 U.S. 454. Keller unsuccessfully renewed her suppression motion in the superior court, which found the prior judge had made an implied finding of consent to search the purse. She later entered a plea of guilty to count 1 in the present case as well as to the receiving stolen property charge and enhancement in case No. SCD212465. Thereafter she filed the present appeal.

DISCUSSION

I. Standard of Review

"`In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]' [Citation.] In evaluating whether the fruits of a search or seizure should have been suppressed, we consider only the Fourth Amendment's prohibition on unreasonable searches and seizures." (People v. Brendlin (2008) 45 Cal.4th 262, 268.)

"Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, `the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.'" (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.) We resolve all factual conflicts in the manner most favorable to the trial court's ruling. (People v. Martin (1973) 9 Cal.3d 687, 692.) When the lower court does not make express findings of fact, we imply the trial court made whatever findings are necessary to support the judgment or order. (People v. Fulkman (1991) 235 Cal.App.3d 555, 560.) We independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. (People v. Hughes (2002) 27 Cal.4th 287, 327.)

II. Keller Validly Consented to the Search of Her Purse

Here, the historical facts — elicited during the preliminary hearing — are not in dispute. There is no dispute that Keller's vehicle lacked license plates, and also lacked a visible or correctly displayed temporary operating permit. The absence of plates "has long been recognized as a legitimate basis for a traffic stop." (People v. Saunders (2006) 38 Cal.4th 1129, 1136 [vehicle had one license plate and a temporary permit; because those circumstances were mutually exclusive under DMV regulations, the officer had ample justification to stop the truck to investigate]; In re Raymond C. (2008) 45 Cal.4th 303, 307 [officer saw neither license plates nor a temporary permit in the rear window before making the traffic stop, and thus his stop was justified under the Fourth Amendment]; People v. Dotson (2009) 179 Cal.App.4th 1045, 1051-1052 [absence of license plates provides reasonable suspicion that the driver is violating the law]; see also People v. Hernandez (2008) 45 Cal.4th 295, 300-301.) Thus, Officer Wuehler had ample articulable suspicion that the law was being violated and justification for ordering a traffic stop. (Saunders, at pp. 1136-1137.) The officer's stop was a detention of both of its occupants, who could then challenge the basis for the stop. (Brendlin v. California (2007) 551 U.S. 249; Arizona v. Johnson (2009) 555 U.S. ___, ___ .)

Thereafter, it is undisputed that Officer Wuehler asked Keller to exit her car and, though he instructed her to leave her purse inside, obtained her permission to search for "anything illegal" within the vehicle. "Consent to a search is a recognized exception to the Fourth Amendment's warrant requirement." (People v. Cantor (2007) 149 Cal.App.4th 961, 965; see People v. James (1977) 19 Cal.3d 99, 106.) When the state attempts to justify a search based on a defendant's consent, it has the burden of showing "consent was in fact...