Filed 11/24/14 P. v. Lagrange CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065065

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250169)

HAROLD WILLIAM LAGRANGE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.

Brannigan and Eugenia Eyherabide, Judges. Affirmed in part and remanded with

directions.

         Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and

Respondent.
       After his motion to suppress evidence pursuant to Penal Code1 section 1538.5 was

denied, Harold William Lagrange entered into a plea agreement. Pursuant to that

agreement, Lagrange entered a guilty plea to one count of possession of a firearm by a

felon (§ 29800, subd. (a)(1)). The remaining counts were dismissed. Lagrange was

granted probation for three years, subject to certain conditions.

       Lagrange appeals contending the trial court erred in denying his motion to

suppress evidence on Fourth Amendment grounds. He also contends that the minute

order reflects the court imposed two conditions not mentioned in the court's oral

pronouncement of the grant of probation. He further contends the provisions are

overbroad and unrelated either to the crime or his rehabilitation.

       We will assume, for the sake of argument, that police could not lawfully search

Lagrange's bag incident to lawful arrest under the facts of this case. However, even if the

search was unlawful the evidence would have lawfully been discovered when the

belongings were impounded at the police department. (Nix v. Williams (1984) 467 U.S.

431, 445-446.) Because there is a conflict between the minute order and the court's oral

pronouncement, and since the two challenged conditions were not discussed in the trial

court, we will remand the case to the trial court with directions to address the question of

whether the challenged conditions should be imposed, modified or rejected. We will

affirm the trial court's denial of the motion to suppress evidence.




1      All further statutory references are to the Penal Code unless otherwise specified.

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                                 STATEMENT OF FACTS

       Since the conviction arises from a guilty plea, and the principal issue on appeal

relates to a motion to suppress evidence, we will summarize the facts from the motion

hearing held on October 30, 2013.

       On the evening of August 16, 2013, San Diego Police officers were patrolling the

area of 4700 Pacific Highway in the City of San Diego. The officers observed three men,

who the officers suspected were drinking alcohol, in a dark parking lot. As the patrol car

pulled into the lot Lagrange put down his beer and began to walk away. Police ordered

him to stop. Lagrange hesitated but eventually put down the plastic bag he was carrying

and walked back to where the other two men were standing.

       A record check revealed a stay away order that prohibited Lagrange from being at

that location. Lagrange was arrested for violating the order. He was handcuffed and

placed in the back seat of the patrol car.

       After Lagrange was placed in the patrol car, an officer picked up the plastic bag

which was about 10 to 15 feet away and brought it to the police car. He opened the bag

and found a closed rifle case inside the plastic bag. The officer cut the small lock off of

the rifle case and discovered a rifle and component parts in the case.

       Both police officers testified that standard procedure required that they take

control of the suspect's property as they could be liable if they abandoned it. The officers

testified that when the property of an arrested suspect is brought to the station the




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containers must be opened and the contents inventoried in order to protect valuables and

to prevent false claims of loss.

                                      DISCUSSION

                                              I

                                   SEARCH OF THE BAG

       Lagrange contends the search of the bag which contained the rifle was unlawful.

He argues that the bag, being 10 to 15 feet away from him could not be searched incident

to lawful arrest and that the search could not be justified as a preinventory search. The

respondent contends the bag was lawfully searched incident to the lawful arrest of

Lagrange. In any event, respondent contends the contents would have been inevitably

discovered through the lawful inventory.

       While it is tempting to weigh in on the somewhat unique nature of the search

incident to arrest, the evidence clearly establishes the contents of the bag would have

inevitably been discovered when it arrived at the police station as part of a lawful

inventory process. Accordingly, our focus will only be on the impound/inventory issue.

                                   A. Standard of Review

       When we review a trial court's decision on a motion to suppress evidence we

follow a recognized two-step process. First we review the trial court's determination of

the historical facts. We apply the substantial evidence standard of review in that step.

Once we have determined there is substantial evidence to support the trial court's factual

findings we review the legal conclusions flowing from such facts under the independent,



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or de novo standard of review. (People v. Brendlin (2008) 45 Cal.4th 262, 268; People v.

Leyba (1981) 29 Cal.3d 591, 596-598.)

       In reviewing a prosecution claim of inevitable discovery we examine the entire

record to determine if substantial evidence supports a finding, by a preponderance of the

evidence, that the item seized would have inevitably been discovered notwithstanding the

alleged error in its actual discovery. (People v. Carpenter (1999) 21 Cal.4th 1016, 1040.)

We examine the objectively established facts surrounding the discovery, but do not

consider whether the officers acted in good faith when they made the tainted seizure.

(Nix v. Williams, supra, 467 U.S. at pp. 445-446.) The question to be decided is whether

the prosecution has shown by a preponderance of the evidence that even though the

evidence was actually found unlawfully, it would have inevitably been discovered by a

lawful process.

                                       B. Analysis

       Although we do not decide whether the evidence was lawfully seized incident to

the arrest, we will conclude that even if the search was unlawful, lawful inventory

procedures in this case would have lawfully discovered the same evidence

       The prosecution presented unrebutted testimony that police were required to take

custody of Lagrange's property. They could not simply abandon it and there is no

evidence of any alternative means of securing the property. The testimony established

the process and reasonableness of police procedure to inventory arrested suspect's

property that is to be impounded in police custody. The trial court heard the testimony



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and indicated it found the testimony truthful and accurate. Thus we proceed on the basis

the officers' testimony was accurate and reliable. The doctrine of inevitable discovery

has been established as an exception to the exclusionary rule which would ordinarily call

for exclusion of evidence which was otherwise unlawfully seized.

       The leading case on inevitable discovery is Nix v. Williams, supra, 467 U.S. 431.

In that case police officers had unlawfully interrogated Williams who had been indicted

and represented by counsel. Williams took police to the location of the body of the

murder victim, which had been dumped in a field in rural Iowa. Following his

conviction, Williams's case was addressed in Brewer v. Williams (1977) 430 U.S. 387.

There the court found a violation of the Sixth Amendment lead to the defendant's actions

in helping police locate the body.

       On retrial the state offered evidence that a search had been underway for the child

who had been kidnapped and killed by Williams. The trial court, after hearing testimony

about the search pattern and the frozen condition of the body, found the state had proved

it would have inevitably discovered the body. On habeas corpus the Eighth Circuit Court

of Appeals overturned the conviction because the state had not shown the absence of bad

faith on the part of the officers who initially violated Williams's Sixth Amendment rights.

       The Supreme Court in Nix v. Williams, supra, 467 U.S. at pages 445 to 446, held

inevitable discovery was a proper exception to the rule of exclusion for constitutional

errors. The court held that it was not necessary for the police to demonstrate the absence

of bad faith in order to invoke the doctrine of inevitable discovery.



                                             6
       We turn then to the issue of whether police may lawfully impound and inventory

the belongings of persons who have been arrested and are going to be booked into a

custodial facility.

       In Illinois v. Lafayette (1983) 462 U.S. 640, the court addressed the question of

whether an incarcerated person's belongings could be impounded and inventoried. In that

case the defendant was arrested for an offense and was taken to jail. At the jail the

contents of the bag were examined and inventoried. During that process a small quantity

of illegal drugs was discovered. The Supreme Court held that a routine inventory of the

belongings of a person who has been arrested and will be incarcerated is lawful. (Id. at

p. 648.) The court reasoned that such inventory would be reasonable where the suspect

will be placed in jail. The fact there might be less intrusive means to protect the property

did not render such inventory unreasonable. Thus the court found evidence of a crime

which was discovered during a lawful inventory is admissible in a criminal case. (Ibid.;

see South Dakota v. Opperman (1976) 428 U.S. 364.)

       As we have noted there was testimony, which was believed by the trial court, that

the bag in this case would have inevitably been opened and the contents examined at the

police station during an established inventory process. Thus, as was the case in Nix v.

Williams, supra, 467 U.S. at pages 445 to 446, the rifle found in the bag was admissible

as against a claim of a Fourth Amendment violation.




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                                               II

                             THE PROBATION CONDITIONS

       In the court's written order granting probation the court imposed conditions 10-a

and 10-g, which require the probation officer to approve Lagrange's residence and

employment. There was, however, no mention of these conditions in the court's oral

statements regarding the conditions of probation. Lagrange contends we should strike the

conditions because the oral record of proceedings should control over the written

minutes. If we do not strike the conditions on that ground, Lagrange contends we should

find them unconstitutionally vague. We decline to do either.

       There is indeed a conflict between the written order, bearing the court's stamped

signature, and the transcript of the sentencing proceedings. We think the better way to

resolve the conflict is to remand the case to the trial court in order for that court to decide

if the conditions were imposed and to address the challenge to their validity in this case.

(People v. Smith (1983) 33 Cal.3d 596, 599; People v. Price (2004) 120 Cal.App.4th 224,

244-245.)

       Lagrange is still on probation and the trial court is in the best position to determine

if the challenged conditions are appropriate and/or whether they should be either stricken

or modified. We express no opinion as to the validity of the conditions on this record.




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                                      DISPOSITION

       The case is remanded to the trial court with directions to reconsider probation

conditions 10-a and 10-g and to determine whether the conditions should be imposed,

modified or stricken. In all other respects the judgment is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:


                  McDONALD, J.


                   O'ROURKE, J.




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