Filed 9/30/16 P. v. Clahr CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A145419
v.
CHRISTOPHER CLAHR,                                                   (San Francisco County
                                                                     Super. Ct. No. 14015015)
         Defendant and Appellant.


         Following the denial of his motion to suppress, defendant Christopher Clahr
entered a plea of nolo contendere to carrying a concealed dirk or dagger. (Pen. Code,
§ 21310.)1 Clahr contends the knife and additional evidence were obtained from an
unlawful search that cannot be justified as a search incident to arrest, and the trial court
erred in denying his motion to suppress. We agree and reverse.
                                                 BACKGROUND
         Around 2:00 a.m. on June 5, 2014, San Francisco Police Officer Christina Hayes
and her partner were on duty in their patrol car when they noticed Clahr driving a green
van. Clahr parked in front of a smoke shop on Polk Street with the van in “the red and
partially the yellow” parking zones. There was a disabled placard on the rearview mirror
of the van. Hayes observed Clahr and a passenger get out of the van and walk into the
smoke shop. Neither of them appeared to be disabled.



         1
             Further undesignated statutory references are to the Penal Code.


                                                             1
       Hayes parked and went into the smoke shop. She asked Clahr whether he or his
passenger was disabled, and he said no. She asked if he had a valid driver’s license, and
he said no. Clahr was cooperative but appeared very nervous, and he was sweating and
shaking. Hayes and Clahr walked out of the shop to the sidewalk. At this point, she
“knew he was not a valid driver, he [was] in violation of a misdemeanor.”
       On the sidewalk, Hayes patted Clahr down. She felt an object under his shirt at
the neck area, and Clahr told her it was a knife. She removed a double-edged knife from
around his neck.
       The officers learned from dispatch that Clahr’s driver’s license was either
suspended or revoked. Hayes told Clahr his license was suspended and took his keys
from him. A metallic container was attached to the keys. Hayes was familiar with metal
containers of this type, and they usually held narcotics. She opened the container and
found a baggie containing a crystalline substance, which she suspected was
methamphetamine. She said, “I see you like ice.” Clahr responded, “Yes, I do meth, but
I am doing good.” Hayes placed Clahr in handcuffs and told him he was under arrest. In
response to the prosecutor’s question whether anyone “conduct[ed] a search incident to
arrest,” Hayes said that she did, and she found a Visine bottle with brown liquid in it and
a foam container in Clahr’s pants pocket that held baggies containing a white powder.2
       Hayes testified at a joint preliminary and suppression hearing that it was her
“practice to pat down everybody because I like to make sure nobody has a weapon.” She
testified, “When someone commits a violation in my presence, yes, I pat down
everybody,” and this was her practice at any time of day or night and for any violation of
law committed in her presence. Hayes further stated, “It can be someone crossing the
street on a red light or someone who is on a suspended license, yes. I pat everybody
down.”



       2
        Per police policy, they gave Clahr 20 minutes to call someone to pick up the van,
so it would not have to be towed. A friend of Clahr’s with a valid license showed up and
took the van.


                                             2
       The District Attorney filed a three-count complaint against Clahr alleging felony
possession of a controlled substance, cocaine (count 1; Health & Saf. Code, § 11350,
subd. (a)), misdemeanor possession of a controlled substance, methamphetamine (count
2; Health & Saf. Code, § 11377, subd. (a)), and misdemeanor carrying a dirk or dagger
(count 3; § 21310).
       Clahr moved to suppress the items found on his person and his statements to the
officers. He argued the patdown search was unlawful because Hayes had no reasonable,
articulable suspicion that he had a weapon, and the search of the closed container
attached to his key ring was unlawful because it was not a search incident to arrest. The
magistrate denied the motion, finding “[p]robable cause [to arrest] existed prior to both
searches and the searches were substantially contemporaneous with the arrest.” The
magistrate observed, “As [Clahr] concedes, at the time officers conducted the pat down
search they had probable cause to arrest him for driving on a suspended or revoked
license based on his own statement during his initial encounter with the police that he
was not a valid driver.”
       The District Attorney then filed a four-count information charging the three counts
alleged in the complaint, plus misdemeanor unlawful display of a disabled person placard
(count 4; Veh. Code, § 4461, subd. (c)). Clahr moved to set aside the information
pursuant to section 995, arguing again that the evidence was obtained from unlawful
searches. The trial court denied Clahr’s motion. The same day, the court granted the
District Attorney’s oral motion to amend the information to change count 1 from a felony
to misdemeanor possession of cocaine, pursuant to Proposition 47.
       After count 1 was reduced to a misdemeanor, Clahr again moved to suppress the
evidence, this time pursuant to section 1538.5, subdivision (g).3 The parties stipulated to

       3
          Section 1538.5, subdivision (g) provides in part, “If the property or evidence
relates to a misdemeanor complaint, the motion shall be made before trial and heard prior
to trial at a special hearing relating to the validity of the search or seizure.” (See Chivers
v. Municipal Court (1976) 59 Cal.App.3d 929, 933 [after felony charges were reduced to
misdemeanors, two defendants were entitled to a special hearing on their motion to
suppress under section 1538.5, subdivision (g), even though the issue had been litigated

                                              3
hearing the motion based on the preliminary hearing transcript. Although it expressed
concern about Hayes’ practice of patting down everyone she observes committing a
violation of law, the trial court denied the motion. The court reasoned that a search is
allowed incident to arrest, and an arrest “can be based on any infraction or misdemeanor
crimes that are committed in the presence of the officer, which we had here” because
Clahr was seen driving with a disabled placard. The officer thought Clahr was guilty of a
misdemeanor, and it is “permissible for an officer to search first and [then] arrest.” The
court found the search lawful as a search incident to arrest, not as a patdown search for
officer safety, although the court observed, “I think some of the facts can bear that out in
this case. It’s two in the morning; you’re in the Tenderloin. But she [Officer Hayes]
didn’t really get into that. She really focused on what the crime was, the fact she was
arresting him for this misdemeanor.”
       On June 10, 2015, pursuant to a plea agreement, Clahr entered a plea of nolo
contendere to count 3, carrying a dirk or dagger, and the remaining three counts were
dismissed. Imposition of sentence was suspended, and Clahr was granted probation for a
period of three years.
                                        DISCUSSION
       The only issue in this appeal is the legality of the warrantless patdown search of
Clahr.4 Clahr claims it was an unconstitutional warrantless search. The Attorney
General’s sole justification for the search is that it was a lawful search incident to arrest.
Standard of Review
       “ ‘An appellate court’s review of a trial court’s ruling on a motion to suppress is
governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial
court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies


in a prior motion to suppress at a preliminary hearing when the defendants were charged
with felony offenses].)
       4
        We have appellate jurisdiction even though the only felony charge was reduced
to a misdemeanor under Proposition 47. (People v. Lynall (2015) 233 Cal.App.4th 1102,
1105.)


                                               4
the latter to the former to determine whether the rule of law as applied to the established
facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these
inquiries is, of course, subject to appellate review.” [Citations.] [¶] The court’s
resolution of the first inquiry, which involves questions of fact, is reviewed under the
deferential substantial-evidence standard. [Citations.] Its decision on the second, which
is a pure question of law, is scrutinized under the standard of independent review.
[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is
however predominantly one of law, . . . is also subject to independent review.’ ” (People
v. Alvarez (1996) 14 Cal.4th 155, 182.)
       “In reviewing the denial of a motion to suppress, we examine ‘the record in the
light most favorable to the trial court’s ruling.’ [Citation.] All presumptions favor the
trial court’s exercise of its power to judge the credibility of the witnesses, resolve any
conflicts in the testimony, weigh the evidence, and draw factual inferences, ‘ “and the
trial court’s findings on such matters, whether express or implied, must be upheld if they
are supported by substantial evidence.” ’ ” (People v. Turner (2013) 219 Cal.App.4th
151, 159.)
Legal Principles
       “Warrantless searches are presumed to be unreasonable, ‘ “subject only to a few
specifically established and well-delineated exceptions.” ’ [Citations.] The prosecution
bears the burden of demonstrating a legal justification for such a search. [Citations.] If
there is a legitimate reason for a search or seizure, an officer’s subjective motivation is
generally irrelevant.” (People v. Evans (2011) 200 Cal.App.4th 735, 742.)
       One such legal justification is a search conducted incident to arrest. (People v.
Evans, supra, 200 Cal.App.4th. at p. 744 [“a police officer who makes a lawful arrest
may conduct a warrantless search of an arrestee’s person and the area within his or her
immediate control”].) The United States Supreme Court has “held that the authority to
conduct a full field search as incident to an arrest [is] a ‘bright-line rule,’ which [is] based
on the concern for officer safety and destruction or loss of evidence, but which [does] not
depend in every case upon the existence of either concern.” (Knowles v. Iowa (1998) 525


                                               5
U.S. 113, 118 (Knowles); see People v. Diaz (2011) 51 Cal.4th 84, 90 [“As the high court
has explained: ‘When a custodial arrest is made, there is always some danger that the
person arrested may seek to use a weapon, or that evidence may be concealed or
destroyed. . . . The potential dangers lurking in all custodial arrests make warrantless
searches of items within the “immediate control” area reasonable without requiring the
arresting officer to calculate the probability that weapons or destructible evidence may be
involved’ ”], overruled on another ground by Riley v. California ___ U.S. ___ [134 S.Ct.
2473, 2485].)
Analysis
       Clahr concedes that Officer Hayes had probable cause to arrest him for
misdemeanor violations of unlawful use of a disabled person placard and driving on a
suspended or revoked driver’s license before she patted him down and discovered the
knife. But he argues the patdown search cannot be justified as a search incident to arrest
because he was not arrested for either of these traffic violations. We agree. Clahr was
not under arrest at the time Hayes patted him down, and there is no evidence that he was
ever arrested for these offenses and taken into custody or transported to the police station
on account of them.
       To be sure, there was nothing to stop Hayes from arresting Clahr for displaying
the disabled placard or for driving with a suspended or revoked license. (Veh. Code,
§§ 4461, subd. (c); 14601.1, subd. (b)(1); 40303, subd. (b)(10).) Moreover, under
Atwater v. City of Lago Vista (2001) 532 U.S. 318, “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.” (Id. at
p. 354; see People v. McKay (2002) 27 Cal.4th 601, 613, 619; People v. Espino (2016)
247 Cal.App.4th 746, 763, review granted Aug. 24, 2016, S235540.5) But that is not


       5
        Our Supreme Court granted review in People v. Espino, and ordered briefing
deferred pending decision in People v. Macabeo, S221852 (previously at 229
Cal.App.4th 486), which presents the following issue: “May law enforcement officers
conduct a search incident to the authority to arrest for a minor traffic offense, so long as a

                                              6
what happened. The officer simply walked out to the sidewalk with Clahr and searched
him.
       The United States Supreme Court made clear in Knowles, supra, 525 U.S. 113,
that there can be no search incident to arrest if the officer does not arrest the defendant.
In that case, a police officer issued the defendant, Knowles, a citation for a speeding
violation, although the officer could have arrested him. The officer then searched
Knowles’ car, found marijuana and a pipe, and then arrested him for violation of the
state’s controlled substances law. (Id. at p. 114.) Even though Knowles could have been
arrested for speeding, he was not, as the officer opted to issue a citation instead. Knowles
moved to suppress the evidence on the ground that it was not a constitutional search
incident to arrest, and the Supreme Court unanimously agreed. The high court rejected
the Iowa Supreme Court’s rationale that so long as the arresting officer had probable
cause to make a custodial arrest, there need not in fact have been one to justify the search,
and declined to adopt a “ ‘search incident to citation’ ” exception to the warrant
requirement. (Id. at pp. 116, 118–119; see People v. McKay, supra, 27 Cal.4th at p. 613,
fn. 6 [noting that the Supreme Court in Knowles “held that the exception for a search
incident to a custodial arrest could not be applied where no custodial arrest had
occurred”].)6


custodial arrest (even for an unrelated crime) follows?” (See California Supreme Court’s
“Pending Issues: Criminal,” at https://www.courts.ca.gov/13648.htm> [as of Sept. 30,
2016].)
       6
          Courts in other jurisdictions support this point. (See, e.g., Bennett v. City of
Eastpointe (6th Cir. 2005) 410 F.3d 810, 824 [“The mere fact that an officer has the
authority to arrest an individual does not, and never has, automatically, permitted the
officer to conduct a patdown search should he choose not to effectuate the arrest.
[(Knowles, supra, 525 U.S. at pp. 117–119.)] For an officer to conduct a search incident
to arrest, there must be an actual arrest. Otherwise, unless the officer points to specific
facts that demonstrate reasonable suspicion that the individual is armed and dangerous,
the Fourth Amendment tolerates no frisk.”]; United States v. Jackson (7th Cir. 2004) 377
F.3d 715, 717 [Knowles “instantiates the principle that the reasonableness of a search
depends on what the officers actually do, not what they might have done” and “explained
it is custody, and not a stop itself, that makes a full search reasonable”].)


                                              7
       In the matter before us, Clahr was arrested for carrying a dirk and dagger, but only
after Hayes had pat searched him and found it (and eventually the cocaine and
methamphetamine). The search that resulted in the seizure of the dirk and dagger was not
permissible under the search-incident-to-arrest exception to the warrant requirement of
the Fourth Amendment.
       The Attorney General’s counterarguments are not persuasive. She contends that
the patdown search was a lawful search incident to arrest because it was “substantially
contemporaneous” with Clahr’s arrest. She cites In re Lennies H. (2005) 126
Cal.App.4th 1232, 1239–1240, Rawlings v. Kentucky (1980) 448 U.S. 98, 111
(Rawlings), and People v. Gonzalez (1989) 216 Cal.App.3d 1185 (Gonzalez). It is true
that these cases generally stand for the proposition, “The fact that a defendant is not
formally arrested until after the search does not invalidate the search if probable cause to
arrest existed prior to the search and the search was substantially contemporaneous with
the arrest.” (In re Lennies H., supra, 126 Cal.App.4th at pp. 1239–1240; see Rawlings,
supra, 448 U.S. at p. 111 [“Where the formal arrest followed quickly on the heels of the
challenged search of petitioner’s person, we do not believe it particularly important that
the search preceded the arrest rather than vice versa.”]; Gonzales, supra, 216 Cal.App.3d
at p. 1189 [“If [the officer] had probable cause to believe [the defendant] possessed
illegal drugs, the search and seizure are justifiable as incident to a lawful arrest. It
matters not that they occurred before a formal arrest”].) But in each of these cases, the
arresting officer had, at the time of the search, probable cause to arrest the defendant for
an offense for which the defendant was subsequently arrested.7 We do not read these

       7
         In In re Lennies H., supra, 126 Cal.App.4th at pages 1239–1240, a police officer
was investigating a carjacking and already had probable cause to arrest the defendant for
the carjacking at the time he was searched and the keys to the stolen car were found in
defendant’s pocket; he was arrested immediately thereafter for the carjacking. In
Rawlings, a defendant claimed ownership of a sizeable quantity of illegal drugs in plain
view, in front of police officers, who were in a house executing a search warrant. (448
U.S. at pp. 100–101.) An officer searched the defendant and then placed him under
formal arrest. (Id. at p. 101.) He was then indicted on drug charges. (Ibid.) Similarly, in
Gonzalez, the Court of Appeal concluded that probable cause to arrest a defendant for

                                               8
cases to mean that whenever an officer has probable cause to arrest a suspect for a traffic
violation or other offense, the officer may conduct a search without ever arresting the
suspect for the original offense, and then the officer may arrest the suspect for offenses
related to the fruits of the search. If that were the rule, Knowles would have come out
differently. Again, a search cannot be justified as incident to arrest when there is no
custodial arrest for the offense for which probable cause existed at the time of the search.
(Knowles, supra, 525 U.S. at p. 118.) This is because it is the “ ‘potential danger[]
lurking in all custodial arrests,’ ” not the existence of probable cause to arrest, that
justifies a search incident to arrest. (People v. Diaz, supra, 51 Cal.4th at p. 90, italics
added; Knowles, at p. 118.)
       Clahr points out that Hayes “did not effect a full custodial arrest for these [traffic]
offenses, nor did she say she would have made such an arrest.” The Attorney General
argues that it does not matter whether Hayes subjectively intended to arrest Clahr for the
traffic violations when she patted him down. The Attorney General misses the point.
The patdown search here was only legal if it occurred incident to arrest. In this context,
Clahr’s observation that Hayes did not testify that she intended to arrest Clahr for the
traffic violations is relevant in illustrating that the prosecution failed to meets its
evidentiary burden to show the patdown search was conducted incident to an arrest.
(Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [when defendant shows absence of
warrant, “the burden then rests on the prosecution to show proper justification” for the
legality of the search and seizure]; Caskey, Cal. Search & Seizure (2016) § 3.5, p. 308
[“once this fact [that the search was without a warrant] is established . . . , the burden of
presenting evidence shifts to the prosecution”].)
       Finally, the Attorney General contends that Clahr failed to establish that the
“offenses for which there existed probable cause at the time of the search were not among




possession of illegal drugs existed before an officer searched the defendant, found drugs
in his pants pocket, and arrested him. (216 Cal.App.3d at pp. 1188–1189.)


                                                9
the offenses for which he was arrested.”8 But, as we have mentioned, it was the
prosecution’s duty, not Clahr’s, to prove the asserted justification for the warrantless
search. (Badillo v. Superior Court, supra, 46 Cal.2d at p. 272.) Even though it was
undisputed that Hayes had probable cause to arrest Clahr for Vehicle Code violations, she
never did, and it was not until after the preliminary hearing and initial motion to suppress
that the district attorney added a Vehicle Code charge to the information. This was more
than three months after Clahr was arrested.
       We conclude that although there was probable cause to arrest Clahr for driving
with a suspended license and unlawfully displaying a disability placard, he was not
placed under custodial arrest for these offenses, and the search that ensued cannot be
justified as a search incident to arrest. Because the Attorney General does not offer any
other justification for the search, we need not address Clahr’s other arguments. The
motion to suppress was erroneously granted.
                                      DISPOSITION
       The order denying Clahr’s motion to suppress evidence is vacated, and the matter
is remanded to the trial court with instructions that Clahr be permitted to withdraw his
guilty plea.




       8
         The Attorney General mistakenly refers to the potential charges that might have
been filed against Clahr relating to driving with a suspended or revoked license as
codified in Penal Code sections; they are actually found in the Vehicle Code, and were
never charged.


                                              10
                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




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