People v. Zabala

• Citation: 227 Cal.Rptr.3d 878,19 Cal.App.5th 335
• Decision Date: 11 January 2018
• Docket Number: H043328
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Saul ZABALA, Defendant and Appellant.

19 Cal.App.5th 335

227 Cal.Rptr.3d 878

The PEOPLE, Plaintiff and Respondent,

v.Saul ZABALA, Defendant and Appellant.

H043328

Court of Appeal, Sixth District, California.

Filed January 11, 2018

Attorneys for Plaintiff/Respondent: Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General

Attorneys for Defendant/Appellant: Gabriel Bassan, Attorney at Law, Under Appointment by the Court of Appeal

Grover, J.Defendant Saul Zabala was convicted of transporting a controlled substance, possessing a controlled substance for sale, and driving with a suspended license. He challenges the trial court's order denying his motion to suppress methamphetamine found in his car behind the dashboard console. As we will explain, the removal of the console here exceeded the scope of a permissible inventory search. But the search was supported by probable cause and was therefore lawful under the automobile exception to the warrant requirement.

Consistent with defendant's rehearing request, we will vacate the trial court's imposition of a three-year sentencing enhancement under former Health and Safety Code section 11370.2, subdivision (c), in light of the newly enacted version of that statute effective January 1, 2018, and affirm the judgment as modified.

I. BACKGROUND

Defendant was driving with a suspended license when he was stopped by a Santa Clara County Sheriff's deputy for a traffic infraction. The vehicle was searched following the deputy's decision to impound it, and methamphetamine was found in a hidden compartment behind the dashboard console. Defendant was charged with possession for sale of methamphetamine ( Health & Saf. Code, § 11378 ; count 1), transportation of methamphetamine ( Health & Saf. Code, § 11379, subd. (a) ; count 2), and driving with a suspended license ( Veh. Code, § 14601.1, subd. (a) ; count 3). The information alleged four prior narcotics convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c).

Defendant moved to suppress the methamphetamine as the fruit of an unlawful inventory search. At the hearing on defendant's motion, Deputy Grant Dorsey, who found the methamphetamine, testified that the deputy who had initiated the traffic stop found four blue baggies filled with a white substance in a paper bag under the driver's seat. She showed those baggies to Deputy Dorsey, who was searching the passenger side area, and he thought the substance could have been cocaine. He elaborated: "There was a white powdery substance in all of the bags. And all of the bags were in the same equal size and were in packaging material, indicative of illegal narcotics. And the white powdery substance, upon examination, looked like it could possibly be cocaine." Deputy Dorsey had a field kit to test for narcotics in his patrol car, but he did not test the substance at that time. Deputy Dorsey testified at the preliminary hearing that "[b]ased on the way the substance looked, the way it was packaged and where it was placed in the vehicle, ... it was highly likely [the baggies contained] illegal controlled substances." After field testing produced negative results, he concluded it was a cutting agent to be mixed with a controlled substance to increase its volume.

After examining the baggies found under the seat, Deputy Dorsey noticed that the radio console "looked loose, like it had been manipulated previously." He explained: "The clearance between the actual dashboard and the plastic trim console looked enlarged, like it had been removed and replaced and I thought it could have been indicative of a hidden compartment in the vehicle." Using his pocket knife, Deputy Dorsey removed the console, which was in fact loose, and between the air conditioning ducts behind the stereo he found several bags of a white crystalline substance that he recognized as methamphetamine.

Deputy Dorsey was trained in recognizing how illegal drugs are packaged and transported, and he was accepted by the trial court as an expert in recognizing controlled substances. Based on his training and experience, he knew that persons who use and sell illegal drugs will hide their contraband, and that persons who possess illegal drugs or cutting agents will often have additional bags hidden in their vehicle.

Deputy Dorsey explained that the Sheriff's Department protocol for inventory searches allowed officers to search places in a vehicle where people commonly put items of value, including under the seat, the glove compartment, the center console, and the trunk. The Sheriff's Department inventory policy also allowed officers to open closed containers within a vehicle.

The trial court denied the motion to suppress, finding that Deputy Dorsey's search behind the dashboard console was within the scope of a normal inventory search. In the trial court's view, "Deputy Dorsey was performing the normal community caretaker function of searching the vehicle for valuables and in the course of doing that, he found a hidden compartment. He looked into it. It is no different in my view than if he found a glove box or closed container in the vehicle. The point is to safeguard [sic ] valuables and if a vehicle owner has a compartment in their vehicle whether it's unusual or not, that's where they put valuable things, whether it's a watch or wallet or arguably their dope, which is also a valuable thing."

The court found that the decision to impound the vehicle and perform an inventory search had been made before the suspicious powder was discovered under the seat. It did not consider whether the search was independently supported by probable cause, which the parties disputed, because the suspicious powder under the driver's seat did not affect the deputies' ability to continue the inventory search.

Defendant pleaded no contest to the three charged offenses, and he admitted the prior felony allegations. He was sentenced pursuant to a negotiated disposition to three years on count 2 and a consecutive three-year term for one of the prior conviction allegations. The court stayed a two-year sentence on count 1 under Penal Code section 654, imposed a 10-day concurrent jail term on count 3, and struck the additional punishment for the remaining allegations. We will modify the judgment to reflect the change to Health and Safety Code section 11370.2, subdivision (c) effective January 1, 2018 (Stats. 2017, ch 677, § 1), which eliminated the three-year penalty for the prior narcotics offenses sustained by defendant.

II. DISCUSSION

"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." ( People v. Lenart (2004) 32 Cal.4th 1107, 1119, 12 Cal.Rptr.3d 592, 88 P.3d 498.) We exercise our independent judgment in determining whether, on the facts presented, a search or seizure was reasonable under the Fourth Amendment. ( Ibid . ) We may affirm the trial court's ruling if it is correct under any theory of the law applicable to the case, even if the ruling was based on an incorrect reason. ( D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.) We examine a challenged search under an objective standard of reasonableness without regard to the officer's state of mind. ( Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168.)

A. REMOVAL OF THE DASHBOARD CONSOLE EXCEEDED THE SCOPE OF AN INVENTORY SEARCH

The United States Supreme Court has recognized that automobiles are frequently impounded as part of a local police agency's community caretaking function, and police agencies will routinely secure and inventory a vehicle's contents in that process. ( South Dakota v. Opperman (1976) 428 U.S. 364, 368–369, 96 S.Ct. 3092, 49 L.Ed.2d 1000.) The Supreme Court has deemed such warrantless inventory searches reasonable under the Fourth Amendment where the process is aimed at securing or protecting a car and its contents. ( Id . at p. 373, 96 S.Ct. 3092.) "Inventory searches are not subject to the warrant requirement because they are conducted by the government as part of a ‘community caretaking’ function, ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ " ( Colorado v. Bertine (1987) 479 U.S. 367, 381, 107 S.Ct. 738, 93 L.Ed.2d 739 ( Bertine ).) An inventory "using a standard inventory form pursuant to standard police procedures," which included the contents of an unlocked glove compartment, was deemed reasonable in Opperman . ( Opperman , at pp. 366, 376, 96 S.Ct. 3092.) The Opperman court explained that standard automobile inventories will include a search of the glove compartment because it is "a customary place" for ownership and registration documents and for "the temporary storage of valuables." ( Id. at p. 372, 96 S.Ct. 3092.)

In Bertine , the United States Supreme Court upheld as reasonable a vehicle inventory search that extended into canisters located in a closed backpack behind the driver's seat. ( Bertine , supra , 479 U.S. at p. 369, 107 S.Ct. 738.) The officer was following standardized procedures searching a van that was being impounded after arresting the driver for driving under the influence of alcohol. ( Id . at pp. 368, 372, 107 S.Ct. 738.) The inventory was not performed in bad faith or for the sole purpose of investigation, and the standardized procedures mandated the opening of closed containers and the listing of their contents. ( Id . at p. 374, fn. 6, 107 S.Ct. 738.) Bertine rejected the state court's view that police should weigh the individual's privacy interest in a container against the possibility it may contain valuable or dangerous items, in part to allow for the prompt and efficient completion of a...