Filed 8/15/16 P. v. Adams CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B259870
                                                                           (Super. Ct. No. NA097184)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

LEE ADAMS,

     Defendant and Appellant.



                   During a traffic stop, police officers searched appellant Lee Adams’s car
and discovered methamphetamine. He was charged with possession of a controlled
substance. (Health & Saf. Code, § 11377, subd. (a).) The trial court denied his motion to
suppress the evidence. (Pen. Code, § 1538.5.) A jury convicted him, and he received a
suspended sentence and placement on formal probation for three years with terms and
conditions including four days in jail.1
                   Adams contends that the trial court erred in denying his suppression motion
because the warrantless search of his vehicle violated his Fourth Amendment rights. He



         1
        Subsequently, the trial court granted Adams’s petition for resentencing under the
Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18) and designated his
conviction as a misdemeanor.
further requests that we review the trial court’s denial of his Pitchess motion.2 We
reverse and remand for further factual findings to determine whether the search fell
within the “automobile exception” to the Fourth Amendment.3 In addition, we conclude
that there is discoverable Pitchess material that must be provided to Adams.
                     FACTS AND PROCEDURAL BACKGROUND
                                   Prosecution Evidence
              Long Beach police officers Joshua Brearley and Andrew Fox and parole
agent Kashifalighita were part of a drug enforcement team.4 While on patrol they saw
Adams stopped at a red light at the intersection of Del Amo and Long Beach Boulevards.
When the light turned green, they saw Adams make a right turn cutting across two lanes
of traffic. They activated their lights and siren and followed him for a block. Adams
pulled to the curb and legally parked on a residential street.
              The three officers approached the driver’s side of Adams’s vehicle, and
Brearley asked him to roll down the window. When Adams failed to do so, Brearley
opened the driver’s door. He immediately detected “a strong odor of marijuana [smoke]
coming out of the vehicle.” Brearley asked Adams for his driver’s license. After patting
his pockets and checking the center console, Adams told Brearley that he did not have it
on him. At that time Brearley saw clear green plastic containers “consistent with . . . a
medical marijuana container” in the driver’s door pocket and the center console. The
container in the center console had a label on the outside indicating a particular strain of
marijuana.
              Brearley asked Adams to step out of the vehicle and stand in front of it.
Brearley conducted a records check that revealed that Adams’s license had been

       2
          (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
       3
          (See United States v. Ross (1982) 456 U.S. 798, 800 [holding that “police
officers—who have legitimately stopped an automobile and who have probable cause to
believe that contraband is concealed somewhere within it—may conduct a probing search
of compartments and containers within the vehicle whose contents are not in plain
view . . . that is as thorough as a magistrate could authorize in a warrant ‘particularly
describing the place to be searched’ ”].)
       4
          The record does not disclose Agent Kashifalighita’s first name.
                                              2
suspended. Because “[d]riving on a suspended license is towable under [section] 14602.6
of the Vehicle Code,” 5 the officers decided to tow Adams’s vehicle. Adams was not
under arrest and was not issued a written citation for driving with a suspended license.
                Fox conducted an inventory search of the vehicle and discovered a plastic
baggie containing methamphetamine inside the green plastic container in the center
console. The vehicle did not contain marijuana or smoking pipes, although there were
burnt items in the ashtray.
                                       Defense Evidence
                Adams testified that his windows were already down when he was stopped.
He had his driver’s license but was never given an opportunity to show it to Brearley.
Fox approached the driver’s side door and stated, “Let’s just say we smell marijuana and
make him get out.” There was no marijuana odor in the vehicle. Adams had rented the
car a few weeks earlier.
                While Fox and Brearley searched Adams’s car, Kashifalighita asked Adams
about his gang associations, telling him “over and over that he knew who [Adams] was.”
Brearley handcuffed Adams and told him he was under arrest.
                                     Suppression Hearing
                The trial court found it could not presume Adams had the required
knowledge that his license was suspended because the Department of Motor Vehicles
(DMV) notice had been returned as unclaimed or undeliverable. The trial court denied
the motion to suppress, however, finding there was probable cause to arrest Adams for
reckless driving (§ 23103) and the search was valid incident to that.
                                        DISCUSSION
                                  Search of Adams’s Vehicle
                On review of a ruling denying a motion to suppress evidence, we view the
facts in the light most favorable to the prosecution and uphold the trial court’s factual
findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668,


       5
           All further statutory references are to the Vehicle Code.
                                               3
673.) We decide independently whether the search or seizure was reasonable under the
Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.)
              We agree with Adams that the police could not have searched his car
incident to an arrest for driving recklessly or with a suspended license because he was not
“within reaching distance of the passenger compartment at the time of the search” and it
was not “reasonable to believe the vehicle contain[ed] evidence of the offense of arrest.”
(Arizona v. Gant (2009) 556 U.S. 332, 351.) “[W]hen a [vehicle’s] recent occupant is
arrested for a traffic violation, there will be no reasonable basis to believe the vehicle
contains relevant evidence.” (Id. at p. 343.)
              We also agree with Adams that the police had no authority to impound his
car and perform an inventory search. The People assert that Brearley “had probable
cause to arrest [him] for the offense of driving with a suspended license.” Both the
prosecutor below and the People here acknowledge that Adams “ ‘technically could not
have been arrested for [driving on a suspended license],’ ” yet rely on Brearley’s
purported “ ‘good-faith belief that [he] could be.’ ” It is a bedrock principle of
constitutional law that “simple ‘ “good faith on the part of the arresting officer is not
enough.”. . . If subjective good faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be “secure in their persons, houses,
papers and effects,” only in the discretion of the police.’ [Citation.]” (Terry v. Ohio
(1968) 392 U.S. 1, 22.) “[I]t is imperative that the facts be judged against an objective
standard: would the facts available to the officer at the moment of . . . the search
‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?
[Citations.]”6 (Id., at pp. 21-22.)


       6
        The officer’s subjective motivations are relevant when performing an inventory
search of a vehicle impounded under the community caretaking exception to the Fourth
Amendment because, unlike other warrantless searches, it does not require probable
cause. (See People v. Torres (2010) 188 Cal.App.4th 775, 787-788, citing Whren v.
United States (1996) 517 U.S. 806, 811.) Even then, the search is valid only if the facts
objectively show a need to perform a community caretaking function. (See People v. Ray
(1999) 21 Cal.4th 464, 476-477 [“The appropriate standard under the community
                                                4
              The offense for which the prosecution argued Brearley had probable cause
to arrest Adams—and thus to impound and search his vehicle—contains a knowledge
element. (See § 14601, subd. (a) [“No person shall drive a motor vehicle at any time
when that person’s driving privilege is suspended for [certain reasons] if the person so
driving has knowledge of the suspension”]; accord § 14601.1, subd. (a).) While that
knowledge is “conclusively presumed” if the DMV notifies the driver by mail (ibid.),
Adams received no such notice, as the trial court found, and the People failed to show
that Brearley had any other reason to think that Adams knew about the suspension. The
DMV record on which Brearley relied to determine that Adams had a suspended license
indicated that Adams’s notice of suspension had been “return[ed] unclaimed.” At the
bottom of the record was an advisement: “verbal or personal service needed.” Brearley
explained that this means he can tell the driver about the suspension and have the driver
sign a form that he sometimes carries in his patrol vehicle, which puts the driver on
notice of the suspension.
              The People turn their burden of proof on its head, contending that “the
record did not demonstrate that Officer Brearley was actually aware of any issues
concerning the notice of service or [Adams’s] subjective knowledge of the suspension.”
It was the People’s burden, however, to show that Brearley reasonably believed that all
elements of the offense—including knowledge—had been met. (See, e.g., People v.
Redd (2010) 48 Cal.4th 691, 719 [“A warrantless search is presumed to be unreasonable,
and the prosecution bears the burden of demonstrating a legal justification for the
search”].)



caretaking exception is one of reasonableness: Given the known facts, would a prudent
and reasonable officer have perceived a need to act in the proper discharge of his or her
community caretaking functions?”] (plur. opn. of Brown, J.).) Brearley’s stated purpose
for the search was “to make sure there is no contraband or illegal items inside [the
vehicle] so those items don’t end up in the tow yard.” We need not consider his
subjective motivation, i.e., whether the impound was “for the sole purpose of
investigation” (Colorado v. Bertine (1987) 479 U.S. 367, 372), because we conclude that
under the circumstances the impound was objectively unreasonable.
                                             5
              As evident from his testimony, Brearley was unaware that knowledge of the
suspension was required. When asked if “part of [the] investigation takes into account
whether the person had notice of the suspension,” he responded, “It makes no difference
in terms of enforcement action.” When asked what would happen “if there was some sort
of indication that the person had not been given notice,” he stated, “They are still driving
on a suspended license.” Although an officer’s reasonable but incorrect interpretation of
an ambiguous law may support probable cause (Heien v. North Carolina (2014) 135 S.Ct.
530), here the statute was clear and the mistake unreasonable. It would be Kafkaesque to
arrest persons who are unaware of a license suspension without first informing them that
they are no longer allowed to drive.
              In arguing that Brearley had probable cause to arrest Adams for driving on
a suspended license, the People rely on People v. Auer (1991) 1 Cal.App.4th 1664,
disapproved on another ground in People v. Williams (1999) 20 Cal.4th 119, 125. That
case, however, involved a defendant who admitted to the arresting officer that “his
license was still suspended.” (Id. at p. 1667.) Here, Adams made no such admission and
there is no other evidence that he had the requisite knowledge.
              Regardless of probable cause, the People maintain that “the inventory
search was proper because it served a community caretaking function.” Yet they “did not
offer any community caretaking function served by impounding [Adams’s vehicle]. The
prosecution failed to show [it] was illegally parked, at an enhanced risk of vandalism,
impeding traffic or pedestrians, or could not be driven away by someone other than
[Adams].” (People v. Torres, supra, 188 Cal.App.4th at p. 790.) “To the contrary,
Officer [Brearley] testified that [Adams] appropriately pulled over to the curb when he
was stopped in a residential neighborhood.” (United States v. Cervantes (9th Cir. 2012)
703 F.3d 1135, 1141.) When asked why they decided to tow Adams’s vehicle, Brearley’s
only explanation was that “driving on a suspended license is towable under [section]
14602.6.”
              The People point to “the additional circumstances that there was no other
person available to drive the vehicle from the scene . . . and the vehicle was rented.”

                                             6
They again improperly attempt to shift the burden of proof to Adams, asserting that
“there was no evidence that the vehicle was stopped near [his] residence.” Framing the
issue correctly, there was no evidence that the vehicle was parked far from Adams’s
home. Nor was there any indication that Adams, who was not under arrest, could not
have resolved the issue with his license or made alternate arrangements for the vehicle’s
return to the rental company. There was no testimony at the suppression hearing that
Brearley even knew that the car was rented or that Adams was the only one on the
contract.7 “[T]he government . . . thus failed to meet its burden to show that the
community caretaking exception applied. [Citations.]” (United States v. Cervantes,
supra, 703 F.3d at pp. 1141-1142; see People v. Torres, supra, 188 Cal.App.4th at
p. 792.)
              The People rely on several cases that are materially distinguishable. In
both People v. Shafrir (2010) 183 Cal.App.4th 1238 and People v. Green (1996)
46 Cal.App.4th 367, the vehicle was impounded and searched after the driver was
arrested. As one leading commentator has explained, when a driver who is not arrested
“cannot himself operate the car because of an expired license, impoundment of the
vehicle is improper unless the driver is ‘unable to provide for its custody or removal.’ ”
(3 LaFave, Search and Seizure (5th ed. 2012) § 7.3(c), quoting United States v. Ibarra
(10th Cir. 1992) 955 F.2d 1405, 1408.) We agree with Minnesota’s highest court, which
has repeatedly addressed this issue, that “cases in which the driver of a vehicle is arrested
are fundamentally different from cases in which the driver remains free. [Citation.]”
(State v. Rohde (Minn. 2014) 852 N.W.2d 260, 266.) When the driver is arrested, it “may
[be] necessary to do something with the vehicle,” giving the police a reason to take
responsibility for it. (State v. Gauster (Minn. 2008) 752 N.W.2d 496, 507.) When the
driver is not arrested, however, it is “not necessary for the police to take [the] vehicle into
custody in the first place.” (Ibid.; see Ibarra, at p. 1409 [community caretaking

       7
        At trial, Officer Fox testified that Adams stated that it was a rental car and “he
was the only driver of the vehicle.” Neither he nor his partner followed up on this
information.
                                               7
exception did not apply where person in charge of vehicle was not under arrest and not
given opportunity to provide for its custody]; State v. Lizee (Vt. 2001) 783 A.2d 445, 448
[“In determining whether impoundment was necessary, courts have focused on whether
reasonable alternatives were available, such as whether ‘the vehicle can be parked and
locked without obstructing traffic or endangering the public,’ . . . whether the driver
could make alternative arrangements to have the vehicle moved . . . , and whether the
owner was under arrest or otherwise incapable of driving the vehicle”].)
               Adams was not even being issued a citation when the inventory search
began. His vehicle was legally parked in a residential area. Unlike People v. Steeley
(1989) 210 Cal.App.3d 887, 892, his car was not blocking a driveway so that it needed to
be moved as soon as possible. There simply was no need to impound it. (See People v.
Williams (2006) 145 Cal.App.4th 756, 762-763 [police search of arrestee’s legally parked
rental car where there was no showing it was in danger was not a valid community
caretaking function].)
               In People v. Benites (1992) 9 Cal.App.4th 309, the reviewing court noted
several factors that collectively justified impounding the vehicle under the community
caretaking doctrine: “the van and trailer were parked off the highway approximately
three miles from [the nearest town] and any public phones; it was a dark, lonely and
isolated stretch of road . . . ; it was very late at night; and the van and trailer could be
vandalized if left on the highway.” (Id. at p. 326.) None of those circumstances were
present here. The one factor cited in Benites that the People rely on here—“the
possibility that [the unlicensed driver] would simply drive off once [the officer] left”
(ibid.)—is not a valid community caretaking function. (See United States v. Caseres
(9th Cir. 2008) 533 F.3d 1064, 1075 [doubting that Benites stands “for the proposition
that impounding an unlicensed driver’s car to prevent its continued unlawful operation is
itself a sufficient community caretaking function”]; People v. Torres, supra, 188
Cal.App.4th at p. 792 [“[I]f the community caretaking function extended so broadly as to
include the deterrence of future illegal activity, it ‘would expand the authority of the
police to impound regardless of the violation, instead of limiting officers’ discretion to

                                                8
ensure that they act consistently with their role of “caretaker of the streets.” ’ ”].) We
decline to follow Benites and People v. Auer, supra, 1 Cal.App.4th 1664 to the extent that
they hold otherwise.
              The People argue that “the presence of statutory authority to impound the
vehicle is [sufficient] by itself to establish the constitutionality of the impound and
inventory search.” They assert that People v. Redd, supra, 48 Cal.4th 691 “upheld the
constitutionality of a vehicle impound based solely on the presence of statutory
authority.” They are mistaken. In a conflict between state law and the Fourth
Amendment, the Fourth Amendment prevails.8 (See Knowles v. Iowa (1998) 525 U.S.
113 [reversing unconstitutional application of state law permitting full vehicle search
upon citation for speeding]; Sibron v. New York (1968) 392 U.S. 40, 61 [“The
question . . . upon review of a state-approved search or seizure ‘is not whether the search
[or seizure] was authorized by state law. The question is rather whether the search was
reasonable under the Fourth Amendment”]; see also Cal. Const., art. I, § 24 [“In criminal
cases the rights of a defendant . . . to be free from unreasonable searches and seizures . . .
shall be construed by the courts of this state in a manner consistent with the Constitution
of the United States”].)
              That leaves only the People’s final justification for the warrantless vehicle
search: the automobile exception to the Fourth Amendment. “[A] warrantless search of

       8
         It is doubtful that section 14602.6 provided authority for the impound here, as the
People claim. It provides in relevant part that “[w]henever a peace officer determines
that a person was driving a vehicle while his or her driving privilege was suspended . . . ,
the peace officer may either immediately arrest that person and cause the removal and
seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the
removal and seizure of the vehicle without the necessity of arresting the person . . . .”
(§ 14602.6, subd. (a)(1).) A California appellate court has interpreted this language to
mean the arrest, if required, must occur before the vehicle search. (Thompson v. City of
Petaluma (2014) 231 Cal.App.4th 101, 110 [section 14602.6 does not permit officers to
“impound a vehicle when the driver has not been arrested and the vehicle has not been
involved in an accident”].) Regardless, it would be surprising if the statute authorized an
officer to “arrest” a suspect—indeed, required arrest as a condition of the impound in
most cases—without probable cause that the suspect had committed some crime. We
need not resolve this issue of state law.
                                              9
an automobile is permissible so long as the police have probable cause to believe the car
contains evidence or contraband. [Citation.]” (Robey v. Superior Court (2013)
56 Cal.4th 1218, 1225.) “Both federal and California laws generally prohibit the use,
possession, cultivation, transportation, and furnishing of marijuana.” (City of Riverside v.
Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 737.)
Consequently, “the odor of . . . marijuana . . . may furnish probable cause to search a
vehicle under the automobile exception to the warrant requirement.” (People v. Waxler
(2014) 224 Cal.App.4th 712, 719.)
              In New York v. Belton (1981) 453 U.S. 454, a police officer stopped a
speeding car. “While asking for the driver’s license and registration, the officer smelled
burnt marijuana and observed an envelope on the car floor marked ‘Supergold’—a name
he associated with marijuana. Thus having probable cause to believe the occupants had
committed a drug offense,” the officer had “a basis for searching the passenger
compartment of [the] arrestee’s vehicle and any containers therein.” (Arizona v. Gant,
supra, 556 U.S. at pp. 339, 344.) Similarly here, the police claimed that they observed
Adams driving recklessly, detected the odor of burnt marijuana coming from his vehicle,
and saw a container inside labeled with the name of a marijuana strain, all strongly
suggesting Adams was using marijuana before or while he was driving. If Officer
Brearley’s testimony was credited, the officers were entitled to search Adams’s car,
including the container, for further evidence of his marijuana possession and use.
              Adams argues that the marijuana evidence was conflicting, as it is
undisputed that no marijuana was found in his vehicle and he testified that he heard the
officers conspiring to lie about smelling marijuana as a pretext for the search. He asserts
that we should remand this case so that the trial court can explicitly resolve this factual
dispute. We agree. Although normally we defer to the trial court’s implied factual
findings (People v. Tully (2012) 54 Cal.4th 952, 979), here the trial court effectively
declined to resolve the factual dispute regarding the odor of marijuana when it denied the
suppression motion on another ground. Therefore, we will remand for the trial court to
resolve the factual conflict. (See People v. Urziceanu (2005) 132 Cal.App.4th 747, 792;

                                             10
cf. People v. Brooks (1980) 26 Cal.3d 471, 483 [“Where, as here, the trial court elects to
bifurcate the suppression hearing, grants the defendant’s motion on the first ground
presented, and is subsequently reversed on appeal, the reviewing court should remand to
the trial court for disposition of the alternate grounds for suppression”].)
                                       Pitchess Motion
                Prior to trial, Adams moved to discover information in Brearley’s and
Fox’s personnel files regarding complaints and allegations of excessive force, dishonesty,
and acts of moral turpitude. In the ensuing in-camera hearing, the trial court found no
documents it deemed discoverable. Adams asks us to independently review the sealed
transcripts and materials from the in-camera proceedings on his Pitchess motion. We
have done so.
                Although Adams requested review of the records of both officers, the trial
court confined its review to complaints against Officer Brearley involving allegations that
he filed a false police report. It did not consider, as Adams requested, complaints against
Officer Fox or allegations against Brearley involving fabrication of evidence or other
dishonest conduct except for allegations involving false reporting. The record is silent as
to the trial court’s reasons for curtailing its review and whether it informed Adams of the
limitations.
                Our examination discloses discoverable items within the scope of Adams’s
request. (See Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Adams testified it
was Fox who said, “Let’s just say we smell marijuana.” The trial court should not have
limited its review to complaints against Brearley. Moreover, by considering only
complaints of false reporting, the trial court unduly excluded “instances of [alleged]
officer misconduct related to the misconduct asserted by the defendant.”9 (Warrick v.
Superior Court (2005) 35 Cal.4th 1011, 1021.)



       9
         In particular, citizen’s complaint No. 2012-0067 was germane to the issue of
officer misconduct. In concluding that there are discoverable items, we do not refer to a
complaint made by Adams that the trial court “would have ordered . . . to be turned over”
                                              11
              Adams’s theory was not just that the police filed a false report, but that they
fabricated a story about smelling marijuana in order to illegally impound and search his
vehicle. He had good cause for requesting complaints of “fabrication of charges,
fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal
search/seizure . . . , perjury, [and] dishonesty.” On remand, the trial court shall turn over
any such materials involving Brearley and Fox. Adams’s request for complaints of
excessive force, bias, and coercive conduct was overly broad and thus properly denied.
(People v. Jackson (1996) 13 Cal.4th 1164, 1220.)
                                       DISPOSITION
              The judgment is reversed. On remand, the trial court shall determine
whether the warrantless search of Adams’s vehicle was justified under the automobile
exception to the Fourth Amendment. In addition, the trial court shall conduct an
in-camera review of the Pitchess materials involving both Fox and Brearley and turn over
any discoverable materials involving either officer.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              TANGEMAN, J.




if it had been available at the in-camera hearing in 2014. Any error in not disclosing that
document was harmless, since Adams obviously was aware of its existence.
                                             12
                                Halim Dhanidina, Judge


                         Superior Court County of Los Angeles
                           ______________________________




             Katherine J. Galston, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney
General, for Plaintiff and Respondent.




                                          13
