Filed 4/22/15 P. .v Smartt CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)


THE PEOPLE,                                                                                  C075619

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F03904)

         v.

AHMAD SMARTT,

                   Defendant and Appellant.



         Defendant Ahmad Smartt appeals from a judgment entered after the trial court
denied his motion to suppress and he pleaded no contest to possession of a short-barreled
shotgun. (Pen. Code, § 33210.)1 Defendant contends the trial court erred in denying his
motion to suppress. He also asks us to conduct an independent review of the Pitchess
hearing. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We shall affirm
the judgment.
                                                 BACKGROUND
         On September 11, 2013, an information was filed charging defendant with
possession of a short-barreled shotgun. (§ 33210.) The information alleged that


1   Undesignated statutory references are to the Penal Code.

                                                             1
defendant possessed the shotgun in association with a criminal street gang. (§ 186.22,
subd. (b)(1).) Defendant pleaded not guilty and denied the gang association allegation.
        On September 30, 2013, defendant filed a Pitchess motion, which the trial court
granted. The trial court conducted an in camera hearing on October 24, 2013, but found
that there was no discoverable evidence.
        On October 25, 2013, defendant filed a motion to suppress evidence pursuant to
section 1538.5. At the hearing on the motion, Sacramento County Sheriff’s Deputy
Dennis Peyton testified that he was on routine patrol with his partner, Sergeant Chris
Guerrero, on the afternoon of June 18, 2013. Sergeant Guerrero was driving an
unmarked car. As they drove past the Economy Inn on Watt Avenue, Deputy Peyton
observed four men loitering in the parking lot. One of the men was wearing clothing that
caused Deputy Peyton to believe that he might be affiliated with a criminal street gang.
Deputy Peyton recognized defendant from two previous contacts, one of which involved
a vehicle stop of a car in which defendant was a passenger. On that occasion, a handgun
was found in the glove box directly in front of defendant.
        Upon seeing the unmarked car, defendant “stood up, grabbed a backpack, slung it
over his shoulder, [and] quickly started walking away.” Deputy Peyton suspected that
the backpack contained a heavy object, judging from the way defendant picked it up and
slung it over his shoulder.
        Sergeant Guerrero drove up alongside defendant, who had by then reached the
perimeter of the parking lot. Deputy Peyton exited the car and addressed defendant,
saying, “hey, I remember you.” Defendant came over to Deputy Peyton and shook his
hand.
        Deputy Peyton then asked defendant “if he had any weapons or anything on him.”
Defendant responded that Deputy Peyton could “go ahead and check.” Defendant turned,
set his backpack down, and turned back to face Deputy Peyton. Deputy Peyton then
conducted a patsearch of defendant, which revealed nothing of evidentiary value.

                                             2
       During the patsearch, Deputy Peyton asked defendant whether he had any
outstanding warrants. Defendant responded that he had taken care of them. As part of
their conversation, “probation was mentioned as an outcome to the previous warrants.”
However, defendant did not say whether his probation included search terms. Deputy
Peyton did not confirm defendant’s probation status until after his arrest. The record
does not disclose whether defendant’s probation included search terms.
       After Deputy Peyton completed the patdown search, he asked defendant about his
backpack. Defendant told Deputy Peyton that the backpack contained a BB gun.
       Deputy Peyton then picked up the backpack. As he did so, the backpack struck
him in the knee. Deputy Peyton believed that the backpack was too heavy for a BB gun,
and asked defendant whether he had a sawed-off shotgun in the pack. Defendant
responded by “kind of” looking away and hanging his head. Deputy Peyton handcuffed
defendant, opened the backpack, and discovered the sawed-off shotgun.
       After hearing argument, the trial court denied the motion to suppress, stating,
“Whether the issues that have been raised by defense, I do think overall, given the
conduct the defendant immediately seeing the officer and walking away, his movement
indicating the weight and the backpack, his looking away, the officer demonstrated he
looked down and away when confronted there’s a shotgun in that. When the defendant
said it was a BB gun, and all that, in my mind indicates suspicious behavior on his part,
and I agree with the People. It is basically [an] admission that it was not a BB gun, and
that it was something else that was illegal. The officer actually patting down the pack by
simply picking it up to see that it was substantially heavier than the BB gun I think is
minimal given the suspicious nature of the circumstance, the other people there in gang
colors, his prior contact with the defendant, and being around firearms. The motion to
suppress would be denied.”
       After the trial court denied the motion to suppress, defendant entered a plea of no
contest to the charge of possessing a sawed-off shotgun (§ 33210) and admitted the gang

                                             3
association allegation (§ 186.22, subd. (b)(1)). Defendant was then sentenced to one year
in county jail and five years probation.
       Defendant filed a timely notice of appeal.
                                      DISCUSSION
                                             I
                                    Motion to Suppress
       Defendant argues the trial court erred in denying his motion to suppress evidence.
He contends the evidence of the short-barreled shotgun was the product of an illegal
search of his backpack. We disagree.
       A. Standard of Review
       “In reviewing a suppression ruling, ‘we defer to the superior court’s express and
implied factual findings if they are supported by substantial evidence, [but] we exercise
our independent judgment in determining the legality of a search on the facts so found.’ ”
(People v. Lomax (2010) 49 Cal.4th 530, 563.) We will affirm the trial court’s ruling if
correct on any theory of applicable law. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
       B. Fourth Amendment Principles
       The Fourth Amendment to the United States Constitution bans all unreasonable
searches and seizures. (United States v. Ross (1982) 456 U.S. 798, 825 [72 L.Ed.2d 572,
594].) “The ultimate standard set forth in the Fourth Amendment is reasonableness.”
(Cady v. Dombrowski (1973) 413 U.S. 433, 439 [37 L.Ed.2d 706, 713].) “The test of
reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application. In each case it requires a balancing of the need for the particular
search against the invasion of personal rights that the search entails.” (Bell v. Wolfish
(1979) 441 U.S. 520, 559 [60 L.Ed.2d 447, 481].) “ ‘[Whether] a search and seizure is
unreasonable within the meaning of the Fourth Amendment depends upon the facts and
circumstances of each case . . . .’ ” (South Dakota v. Opperman (1976) 428 U.S. 364,
375 [49 L.Ed.2d 1000, 1009].)


                                              4
       Warrantless searches are presumed to be unreasonable, “ ‘subject only to a few
specifically established and well-delineated exceptions.’ ” (People v. Diaz (2011)
51 Cal.4th 84, 90.) One “recognized exception to the Fourth Amendment’s proscription
against warrantless searches is a search that is based upon consent.” (People v. Superior
Court (Walker) (2006) 143 Cal.App.4th 1183, 1198.)
       “A consensual search may not legally exceed the scope of the consent supporting
it.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) “The standard for
measuring the scope of a suspect’s consent under the Fourth Amendment is that of
‘objective’ reasonableness -- what would the typical reasonable person have understood
by the exchange between the officer and the suspect?” (Florida v. Jimeno (1991)
500 U.S. 248, 251 [114 L.Ed.2d 297, 302] (Jimeno).) The burden is on the prosecution to
prove a warrantless search was within the scope of the consent given. (People v. Cantor
(2007) 149 Cal.App.4th 961, 965.) “ ‘Whether the search remained within the
boundaries of the consent is a question of fact to be determined from the totality of
circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s
determination.’ ” (Ibid.)

       C. Substantial Evidence Supports the Trial Court’s Implied Finding That
          Defendant Consented to the Search of his Backpack
       Defendant contends his consent was limited to a patdown search of his person. He
argues Deputy Peyton exceeded the scope of his consent when he picked up the
backpack, opened it, and found the short-barreled shotgun inside. The People, for their
part, argue it was objectively reasonable for Deputy Peyton to believe that defendant’s
backpack was included within the scope of his consent. We agree with the People.
       “The scope of a search is generally defined by its expressed object.” (Jimeno,
supra, 500 U.S. at p. 251.) Here, the expressed object of the search was “weapons or




                                             5
anything.”2 Defendant consented to the search, saying that Deputy Peyton “could go
ahead and check.” Defendant did not place any express limitations on the scope of the
search.
       “When an individual gives a general statement of consent without express
limitations, the scope of a permissible search is not limitless. Rather it is constrained by
the bounds of reasonableness: what a police officer could reasonably interpret the
consent to encompass. [Citation.]” (United States v. Strickland (11th Cir. 1990)
902 F.2d 937, 941.) We conclude Deputy Peyton could reasonably interpret the scope of
defendant’s consent to include his backpack.
       Defendant was wearing the backpack when Deputy Peyton asked “if he had any
weapons or anything on him.” Generally, when a police officer specifies the subject of a
search, the scope of consent should be interpreted to include those areas where the officer
might reasonably expect to find the items that are the subject of the search. (See, e.g.,
Jimeno, supra, at p. 251 [consent to search for drugs in car “included consent to search
containers within that car which might bear drugs”]; People v. $48,715 United States
Currency (1997) 58 Cal.App.4th 1507, 1516 [consent to search for drugs “impliedly
extended to any area where drugs could be hidden”]; see also United States v. Romero
(10th Cir. 2007) 247 Fed.Appx. 955, 965 [“consent to search for specific items includes
consent to search those areas and containers that might reasonably contain those items”].)
Here, a reasonable person would have understood that weapons and other contraband
(“anything else”) could be found in a backpack. Thus, a reasonable person would have
interpreted the scope of defendant’s consent to encompass the backpack.




2 The record does not reveal what Deputy Peyton meant by the words “or anything.” We
assume that they were intended to encompass other types of contraband that could be
carried on or about defendant’s person.

                                              6
       In the absence of any California authorities directly on point, we find support for
our conclusion in an Oregon Court of Appeals case, State v. Quale (2009) 225 Or.App.
461 [201 P.3d 273] (Quale). In Quale, the police officer contacted the defendant wearing
a backpack and walking on the side of the road in the early morning hours. (201 P.3d at
p. 275) The defendant consented to a search for weapons. (Ibid.) The officer searched
the defendant and found “ ‘a small piece of foil’ ” in his pocket. (Ibid.) The officer
opened the foil and found a dark brown substance that was later identified as opium.
(Ibid.) The officer read the defendant his Miranda rights and then asked for permission
to search his backpack. (Ibid.) The defendant consented, and the officer found a metal
spoon containing methamphetamine residue. (Ibid.)
       On appeal, the defendant argued that the officer exceeded the scope of his consent
by unfolding the foil in his pocket. (Quale, supra, 201 P.3d at p. 276.) The Oregon
Court of Appeals agreed, noting there was no evidence in the record from which a
reasonable person could conclude that the foil contained a weapon. (Ibid.)
       Next, the defendant argued that the search of his backpack was the result of the
unlawful search of the foil in his pocket. (Quale, supra, 201 P.3d at p. 277.) The Oregon
Court of Appeals rejected the defendant’s contention, noting that defendant’s initial
consent included consent to a search of the backpack. (Id. at pp. 277-278) As the
Oregon Court of Appeals explained, “Defendant placed no limitations on his consent, so
it extended to any place that weapons might be found, including his backpack.” (Id. at p.
278; see also People v. Jenkins (2000) 22 Cal.4th 900, 975 [“open-ended consent to
search normally does not suggest that the person consenting would expect the search to
be limited in any way, and that a general consent to search includes consent to pursue the
stated object of the search by opening closed containers”].) We find the Quale court’s
reasoning persuasive and likewise conclude that an objectively reasonable officer would
have interpreted defendant’s response to Deputy Peyton (“go ahead and check”) as



                                             7
consent to search carried containers in which weapons might be found, including his
backpack.
       Defendant contends he limited his consent by placing the backpack on the ground
behind him. “A suspect may of course delimit as he chooses the scope of the search to
which he consents. But if his consent would reasonably be understood to extend to a
particular container, the Fourth Amendment provides no grounds for requiring a more
explicit authorization.” (Jimeno, supra, 500 U.S. at p. 252.) Defendant contends he
implicitly excluded the backpack from the scope of his consent by placing it on the
ground behind him. However, as the People observe, Deputy Peyton could have
reasonably believed that defendant was taking the backpack off to facilitate the search.
Deputy Peyton could have also believed that defendant’s placement of the backpack on
the ground behind him was noncommunicative, particularly since a person removing a
heavy backpack from his shoulder might naturally tend to place the pack on the ground
behind him. (See People v. Miranda (1993) 17 Cal.App.4th 917, 922 [“we view the
record in the light most favorable to the trial court’s ruling and defer to its findings of
historical fact, whether express or implied, if they are supported by substantial
evidence”].)
       Furthermore, though defendant was not required to specifically object to the
search of the backpack, his silence gave Deputy Peyton an additional reason to believe
that the backpack was included within the scope of his consent. (See United States v.
Gordon (10th Cir. 1999) 173 F.3d 761, 766 [“We consistently and repeatedly have held a
defendant’s failure to limit the scope of a general authorization to search, and failure to
object when the search exceeds what he later claims was a more limited consent, is an
indication the search was within the scope of consent”].) Under the circumstances, and
viewing the record in the light most favorable to the trial court’s ruling, we conclude that
substantial evidence supports the trial court’s implied finding that Deputy Peyton
reasonably believed defendant consented to the search of the backpack he was carrying at

                                               8
the time of contact, despite the fact that he subsequently removed the pack and placed it
on the ground behind him.
        Relying on the Second District Court of Appeal’s opinion in People v. Pellecer
(2013) 215 Cal.App.4th 508 (Pellecer), defendant argues that a reasonable person would
have understood the question “if he had any weapons or anything on him” to refer solely
to weapons or contraband on his person, and not to any such items in containers he may
have been carrying. We disagree, and conclude that Pellecer is inapposite here.
        In Pellecer, police officers responding to a burglary call found the defendant
“leaning on a closed backpack” in a nearby park. (Pellecer, supra, 215 Cal.App.4th at p.
511.) Inside the backpack, officers found three shuriken throwing knives. (Ibid.) The
defendant was convicted of carrying a concealed dirk or dagger on his person in violation
of former section 12020, subdivision (a)(4), which provided criminal penalties for anyone
who “[c]arries concealed upon his or her person any dirk or dagger.” (Id. at pp. 512, 510;
former § 12020, subd. (a)(4), now § 21310.)3 The Court of Appeal reversed the
conviction, emphasizing the distinction between the phrases “ ‘upon his or her person’ ”
and “ ‘on or about the person.’ ” (Pellecer, at p. 513.) As the Court explained, “giving
the words of [former section 12020, subdivision (a)(4)] their ordinary and usual meaning,
a dirk or dagger inside an adjacent container, such as the backpack upon which defendant
was leaning, or even inside a carried container, is not ‘upon his or her person.’ The
knives in defendant’s backpack may have been on or about defendant’s person, but the
statute does not criminalize carrying a dirk or dagger on or about the person, only
carrying a dirk or dagger ‘upon’ the person.” (Ibid.) Defendant’s reliance on Pellecer is
misplaced.




3   Section 12020 was repealed effective January 1, 2012. (Stats. 2010, ch. 711, § 4.)

                                              9
       Defendant implies that Deputy Peyton requested consent to search “upon his
person,” thereby excluding the backpack from the scope of the search by analogy to
Pellecer. However, there is nothing in the record to suggest that Deputy Peyton used
either of the phrases discussed in Pellecer. Certainly, there is nothing to suggest that
Deputy Peyton asked defendant if he had any weapons “upon his person.” Instead,
Deputy Peyton testified that he asked defendant “if he had any weapons or anything on
him.” On this record, the trial court could have reasonably concluded that an objectively
reasonable person would have understood Deputy Peyton to be using the informal phrasal
verb “[to] have (something) on (you),” which means “to be carrying (something).”
(Have, Merriam-Webster Learner’s Dictionary <http://www.learnersdictionary.com/
definition/have> [as of Apr. 17, 2015]; see also Have Something On You, MacMillan
Dictionary <http://www.macmillandictionary.com/us/dictionary/american/have-
something-on-you> [as of Apr. 17, 2015] [defining “[to] have something on you” as “to
be carrying something, for example in a pocket or bag”].) Although we do not believe
that Deputy Peyton intended to invoke either of the formulations discussed in Pellecer,
we note that the expression “[to] have (something) on (you)” encompasses carried
containers, such as bags or backpacks, and is therefore closer to the phrase “on or about
the person” (which would presumably include a carried container) than “ ‘upon his or her
person’ ” (which would not). (Pellecer, supra, 215 Cal.App.4th at p. 513.) Thus,
Pellecer, to the extent relevant at all, actually supports our conclusion that a reasonable
person would have understood the question “if he had any weapons or anything on him”
to encompass both his person and his backpack.
       Defendant also argues for the first time in his reply brief that: (1) Deputy Peyton
subjectively believed that defendant’s consent was limited to a patsearch of his person;
and (2) the search of the backpack constituted a separate, second search which required
fresh consent. We do not consider arguments made for the first time in a reply brief.
(People v. Tully (2012) 54 Cal.4th 952, 1075 [“It is axiomatic that arguments made for

                                             10
the first time in a reply brief will not be entertained because of the unfairness to the other
party”].) In any event, defendant’s untimely arguments lack merit. We perceive nothing
in the record to suggest that Deputy Peyton subjectively believed that defendant’s consent
was limited to a patsearch of his person. Likewise, there is nothing in the record to
suggest that the search of the backpack constituted a separate, second search. Thus, we
conclude that substantial evidence supports the trial court’s implied finding that
defendant consented to the search of his backpack.
       Under the totality of the circumstances discussed ante, we affirm the trial court’s
denial of the suppression motion, although we base our conclusion on different grounds.
Having concluded the search was justified by defendant’s consent, we need not address
whether defendant’s probation status, the doctrine of inevitable discovery or probable
cause constitute alternative bases for upholding the search.
                                             II
                                      Pitchess Hearing
       Next, defendant asks us to conduct an independent review of the Pitchess
proceedings to determine whether all relevant material was disclosed. Defendant’s
Pitchess motion requested pretrial discovery of all materials relating to illegal searches
and seizures in Deputy Peyton’s personnel records. The trial court (Judge Goodman)
granted the motion and conducted an in camera hearing, but found there was no
discoverable evidence.
       We review the trial court’s determination for an abuse of discretion. (People v.
Jackson (1996) 13 Cal.4th 1164, 1220-1221.) We have reviewed the sealed record of the
in camera proceedings and have determined that the custodian of records for the
Sacramento County Sheriff’s Department was duly sworn. We find the transcript
sufficiently detailed, as each item produced was orally described for the record. (See
People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review of the sealed
transcript, we conclude that the trial court properly exercised its discretion in determining


                                              11
that no documents existed within the scope of the Pitchess motion, and that no documents
or information should be disclosed to the defense as a result of the review.
                                      DISPOSITION
       The judgment is affirmed.


                                             BLEASE                   , Acting P. J.


We concur:


         HULL                      , J.


         BUTZ                      , J.




                                            12
