People v. Tran

• Decision Date: 24 October 2019
• Docket Number: D074605
• Citation: 255 Cal.Rptr.3d 26,42 Cal.App.5th 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Kien TRAN, Defendant and Appellant.

42 Cal.App.5th 1

255 Cal.Rptr.3d 26

The PEOPLE, Plaintiff and Respondent,

v.Robert Kien TRAN, Defendant and Appellant.

D074605

Court of Appeal, Fourth District, Division 1, California.

Filed October 24, 2019

Law Office of Scott M. Schlegel and Scott M. Schlegel, San Diego, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

A jury convicted Robert Tran of reckless driving, in violation of Vehicle Code section 23103, subdivision (a). Tran was sentenced to three years' probation with 30 days in custody.

Tran appeals, contending the trial court erred in denying his pretrial motion to suppress evidence obtained from the warrantless search of his backpack and seizure of his dashboard camera. Tran claims exigent circumstances did not exist; thus, law enforcement was not excused from first obtaining a warrant.

After reviewing the parties' briefs and the record in this matter, we determined the primary issue presented was whether the seizure of Tran's dashboard camera was constitutional. Therefore, we requested the parties submit letter briefs addressing the following issue: "[W]hether exigent circumstances allowed for the warrantless seizure of [Tran's] dashboard camera under United States v. Place (1983) 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 [ ( Place ) ]." We requested such supplemental briefing because we were satisfied that the evidence proffered at the hearing on Tran's motion to suppress was fully developed to analyze the constitutionality of the seizure of the dashboard camera and no additional evidence was needed. As such, we did not deem our request to violate Green v. Superior Court (1985) 40 Cal.3d 126, 219 Cal.Rptr. 186, 707 P.2d 248. (See id. at pp. 137-138, 219 Cal.Rptr. 186, 707 P.2d 248 [acknowledging that California courts "refused to allow the prosecution to assert a new theory on appeal to support or defeat the trial court's suppression ruling" but noting that such a restriction may not apply if the new theory is supported by the record in the suppression hearing and no additional evidence is needed].) However, in an abundance of caution, we informed the parties that if they did not believe the record was sufficiently developed to address the question presented, they could make that argument in their supplemental briefs and detail what additional evidence was needed.

We received supplemental letter briefs from the parties. Neither party took the position that additional evidence was needed to address the issue raised in our order. After reviewing the supplemental briefing, the record, and the original briefs, we conclude the seizure of the dashboard camera did not run afoul of the Fourth Amendment of the United States Constitution. Consequently, we find the trial court did not err in denying Tran's motion to suppress, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The issue before us concerns the trial court's denial of Tran's motion to suppress evidence. As such, we eschew the typical discussion of the underlying facts of Tran's offense, and instead, focus on the evidence offered at the hearing on Tran's motion to suppress.

In November 2016, Tran was involved in a vehicular collision with a motorcycle when his vehicle crossed a double yellow line on a sharp curve in the road. At the time of the accident, the motorcycle rider sustained serious injuries, and it was believed that he could die from those injuries.

Before his trial, Tran filed a motion under Penal Code section 1538.5 to suppress the search of the backpack¹ and the seizure of the dashboard camera. At the hearing on the motion, California Highway Patrol Sergeant Brad Palmer was the only witness. Palmer testified that during the 30 to 45-minute drive to the scene, he was informed that the collision involved a potential fatality and the motorcycle rider was being airlifted to a trauma center. Once at the scene, medical personnel informed Palmer that the victim would likely die from his injuries. Palmer testified that he observed tire friction marks on the roadway providing evidence that Tran had drifted into the other lane of traffic on a two-lane roadway as he attempted a very sharp right turn. The friction marks from the vehicle indicated Tran was traveling at a high rate of speed before the collision.

At the site of the accident, Officer Gilbert Ontiveros briefed Palmer. Ontiveros explained that, based on the tire friction marks, scuffing on the exterior sidewalls of the vehicle's left side tires, and witness statements, Tran's vehicle was traveling at a high rate of speed in a reckless manner. A witness to the accident told Palmer that he estimated Tran's speed before the curve was between 35 and 40 miles per hour.

Ontiveros also told Palmer that Tran had removed a dashboard camera from his vehicle. Palmer testified that in his experience with dashboard cameras, they are breakable and easily hidden. He further added that, at the time, he thought he was investigating a potentially fatal collision caused by a reckless driver, traveling at a high-speed, colliding with a motorcycle after crossing into the opposing lane.

When Palmer contacted Tran at the scene, Tran had a backpack on the ground near him. Palmer initially asked Tran if he was okay. Then he asked him if he had a dashboard camera. Tran admitted he had one. Palmer then asked Tran if he had removed the camera from his vehicle, and Tran stated that he had. Palmer next asked Tran where the camera was. At the hearing on the suppression motion, he explained that he asked this question because he was concerned about "exigent circumstances." Palmer believed he "needed to get that dashboard camera because it had evidence, and [he] was concerned with the little SD cards that could be in it. It could be destroyed by putting your fingers in your pockets. It could be chucked. It could be stepped on."

Tran told Palmer that he had the camera, and it was in his backpack. Palmer asked Tran if he had any weapons in his backpack. Tran told the sergeant that he had a "fixed-blade-type knife" in his backpack. Palmer then asked Tran to get the camera for him but to make sure he did not grab the knife. Although Tran eventually agreed to get the camera, Palmer described Tran as "very slow to" get the camera, like it appeared that he "didn't really want to."

Tran ultimately retrieved the dashboard camera from his backpack and then Palmer said that he was going to seize the camera because it "ha[d] evidence of [Tran's] driving." Palmer explained that Tran "didn't really want to give [the camera] to [him]" and asked about the sergeant's authority to take the camera. Seeing Tran's hesitation, Palmer warned him that if he did not turn over the camera he would be "obstructing this investigation." Although Tran "kind of hemmed and hawed about it[,]" he eventually gave the camera to Palmer.

The prosecutor probed Palmer's reasoning for seizing the camera without a warrant through the following exchange:

"Q Let me ask you this: Why did you not get a warrant before seizing that camera?

"A My—my thinking was I needed to get it right then. Because that—he told me it was in the backpack. But also, I've been lied to before. And if it wasn't in the backpack—and if I take the backpack and get a warrant or if I do a warrant there at that point, it could have been in his back pocket, the SD card broken; in his front pocket, the SD card broken; or maybe with his wife, broken. [¶] So the longer length of time it took, that that evidence could have been destroyed or removed or thrown down the mountain or stomped on or anything of that nature. So my immediate aspect was I needed to find that dashboard camera right now because of the circumstances and the type of offense we were investigating.

"Q Did you feel, based on what you knew from talking with Officer Ontiveros and hearing that that camera was at one point potentially in the car and the defendant removed it and the fact that it was not in a backpack, did you feel like the defendant was trying to conceal that?

"A Yeah. I mean, if there was no evidence, that would have been of, in essence, kind of guilt or have evidence against a person, then they wouldn't be taking evidence from something and trying to conceal it. For that reason, I thought there was definitely evidence on that device that was going to be destroyed or removed, or it wouldn't have been removed or destroyed in the first place or concealed in a backpack or not in their hand and, in essence, trying to hide it from us."

Palmer gave the dashboard camera to Ontiveros and instructed him to obtain a search warrant for the contents of the dashboard camera before viewing the content on it. Three days later, a search warrant was obtained to view the contents of the camera.

Tran was not arrested on the day of the collision. A warrant for Tran's arrest was issued in March 2017, over four months after the accident.

After hearing Palmer's testimony as well as argument from the parties at the hearing on the motion to suppress, the court took the matter under submission. In a subsequently issued written order, the court denied the motion. Tran timely appealed.

DISCUSSION

"Our review of issues related to the suppression of evidence seized by the police is governed by federal constitutional standards." ( People v. Lenart (2004) 32 Cal.4th 1107, 1118, 12 Cal.Rptr.3d 592, 88 P.3d 498 ; see Cal. Const., art. I, § 28, subd. (f)(2).) "In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment." ( Lenart , at p. 1119, 12...