Filed 4/9/13 P. v. Perez-Isidoro CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063780
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. MF0009762A)
                   v.

CARLOS PEREZ-ISIDORO,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice,
Judge.
         William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
       Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5),
appellant, Carlos Perez-Isidoro, pled guilty to possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a)). The court imposed the 16-month lower term.
       On appeal, appellant‟s sole contention is that the court erred in denying appellant‟s
suppression motion. We affirm.
                                          FACTS
       California Highway Patrol (CHP) Officer Jason Blais testified that on August 20,
2011, at approximately 2:35 p.m., he was on patrol when he stopped a vehicle for
speeding on State Route 58 in Kern County.1 After determining that the driver did not
have a valid driver‟s license, Officer Blais decided to impound the vehicle.
       Appellant and another person were passengers in the vehicle. CHP Officer Robert
Main “was called to [the] scene” to transport the vehicle‟s occupants in his patrol vehicle
“[o]ff the freeway to a safe location” while Officer Blais impounded the vehicle.
       At some point thereafter, appellant told Officer Blais that he (appellant) had left
his backpack in the vehicle. Officer Blais escorted appellant back to the vehicle where
appellant retrieved the backpack. Next, Officer Blais escorted appellant to Officer Main,
who had arrived on the scene and who, for reasons of “[o]fficer safety,” “searched”
appellant.
       Officer Main testified to the following: When he first made contact with
appellant, appellant had his backpack “on him.” Officer Main “removed the backpack
from [appellant‟s] person” and searched it for reasons of “[o]fficer safety, before placing
it in [the officer‟s] patrol vehicle.” Inside the backpack, Officer Main found, among
other things, “numerous baggies,” each containing a white crystalline substance he
suspected was methamphetamine, and three glass smoking pipes of the kind used for
“[s]moking controlled substances.” Officer Main also conducted a patdown of appellant.

1      Our factual statement is taken from testimony at the suppression motion hearing
and, except as otherwise indicated, from Officer Blais‟s testimony.


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                                       DISCUSSION
       “The Fourth Amendment to the United States Constitution, made applicable to the
states by the Fourteenth Amendment, guarantees the right to be free of unreasonable
searches and seizures. (U.S. Const., 4th Amend. .…)” (People v. Gallegos (2002) 96
Cal.App.4th 612, 622.) Appellant contends the search of his backpack was
constitutionally unreasonable.
       “The standard of appellate review of a trial court‟s ruling on a motion to suppress
is well established. We defer to the trial court‟s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
       At the outset we note what is not at issue. Appellant does not challenge the
legality of the vehicle stop, the impoundment of the vehicle, or the police decision to
transport him and the vehicle‟s other occupants to a safe location.
       In addition, although generally a patdown conducted for officer safety reasons
requires specific and articulable facts suggesting the person searched was armed and
dangerous (Terry v. Ohio (1968) 392 U.S. 1, 21), and here there was no indication
appellant presented a danger to the officers, appellant does not challenge the legality of
the search of his person. As appellant recognizes, the need to transport a person in an
officer‟s patrol vehicle creates an exigency that entitles the officer to conduct a limited
search for weapons, even where the officer has no reason to believe the person is armed
and dangerous. (People v. Brisendine (1975) 13 Cal.3d 528, 537 (Brisendine) superseded
by constitutional amendment on other grounds as stated in In re Lance W. (1985) 37
Cal.3d 873 [where “exigencies of the situation require that officers travel in close
proximity with arrestees, a limited weapons search is permissible”]; People v. Tobin
(1990) 219 Cal.App.3d 634, 641 [patdown of passenger justified before transport];
People v. Mack (1977) 66 Cal.App.3d 839, 848 [patdown search for weapons warranted


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by need to transport traffic misdemeanant to magistrate]; People v. Ramos (1972) 26
Cal.App.3d 108, 112 [patdown of suspected witness before transport was a sensible
precaution; officers have been attacked and killed by back seat passengers with concealed
guns and knives].) In such a situation, the increased danger to the officer warrants the
minor intrusion of a protective search. (Brisendine, at pp. 537-538; Tobin, at p. 641
[exigency and need for public safety supported minimally intrusive patdown].) “„[T]he
officer risks the danger that the [person] may be armed with and draw a weapon. This
danger is not necessarily eliminated by handcuffing the [person] as he may still be able to
reach a weapon secreted on his person. And, incident to the entire process of
transportation, it may be impossible for the officer to keep the [person] under constant
surveillance by reason of the requirements of driving the vehicle and other
responsibilities.‟” (Brisendine, at p. 537, fn. omitted.)
       Appellant argues, “The exigency which existed and the need for public safety that
supported the patsearch of appellant‟s outer clothing did not at the same time support or
justify the search of his backpack.” The search of the backpack, he argues, was
“extraneous to officer safety.” In support of this claim, he asserts neither weapons nor
contraband were found on his person during the patsearch or on any of his companions;
his behavior was not “suspicious”; he “did not appear threatening”; and “there was
nothing inherently suspicious about [his] backpack ....”
       The factors cited by appellant are irrelevant because, as indicated above, the
exigency which we consider here justifies a limited intrusion even in the absence of any
indication the person subject to the intrusion is armed and dangerous. Whether the search
of appellant‟s backpack was justified on exigency grounds requires consideration of other
factors.
       We recognize that in each of the cases cited above, the search that passed
constitutional muster on the grounds that police officers were about to travel in close
proximity with the subject of the search was a search of one or more persons, rather than


                                              4
the search of a container, such as a backpack, in the subject‟s possession. As indicated
above, a limited search such as that in each of the cases cited can be justified, in part,
because of the possibility that the person being transported, even if handcuffed, could
reach a weapon secreted on his person. As appellant suggests, this particular
consideration does not necessarily apply here, in that the backpack could have been
secured in the trunk of the patrol car in which appellant was being transported. However,
this point is not dispositive.
       We reiterate the other consideration articulated by our Supreme Court in
Brisendine: “„[I]ncident to the entire process of transportation, it may be impossible for
the officer to keep the [person] under constant surveillance by reason of the requirements
of driving the vehicle and other responsibilities.‟” (Brisendine, supra, 13 Cal.3d at p.
537, fn. omitted, italics added.) For the officer transporting appellant, there existed the
risk of a traffic accident bringing the vehicle to a stop, or some emergency requiring that
the officer stop voluntarily. Just as there is a danger that even a handcuffed passenger in
a patrol vehicle can reach a weapon secreted on his person, in the confusion that could
ensue as a result of a traffic accident or some other unforeseen circumstance that causes
the patrol car to stop, even a locked trunk may not be a foolproof impediment to a
passenger who is seeking to retrieve a weapon from a container in the trunk of the patrol
car. Under such circumstances, the difficulties an officer would face in keeping a
passenger “in constant surveillance” (ibid.) could be great. It is not reasonable to require
a police officer transporting a person in a patrol vehicle to take the risk of also
transporting a backpack, which could easily conceal a weapon, when the officer does not
know the contents of the backpack. (See Pennsylvania v. Mimms (1977) 434 U.S. 106,
108-109 [in evaluating validity of an officer‟s investigative or protective conduct, the
“touchstone of our analysis ... is always „the reasonableness in all the circumstances of
the particular governmental invasion of a citizen‟s personal security‟”].) Thus, under
Brisendine, supra, 13 Cal.3d 528, at least one of the bases of the rule allowing a minimal


                                               5
patsearch of person about to be transported by police also applies to the search of
appellant‟s backpack and any container located therein.2 Thus, the search at issue here
did not violate appellant‟s Fourth Amendment rights.
       The court did not err by denying appellant‟s suppression motion.
                                      DISPOSITION
       The judgment is affirmed.




2      In their written opposition to appellant‟s motion, the People stated that the
contraband was found in a cardboard box in the backpack.


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