Filed 2/18/16 P. v. Laszlo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070102
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF152741A)
                   v.

LASZLO LASZLO, JR.,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kern County. Michael B. Lewis,
Judge.
         Tutti Hacking, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Peña, J.
       After the trial court denied his motion to suppress evidence, defendant Laszlo
Laszlo, Jr., pled no contest to possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)). The court granted him three years’ probation. On appeal, he
contends the court erred in denying the motion to suppress because (1) his consent to the
search of his person was coerced by the deputy’s threat to arrest and search him, and (2)
there was insufficient evidence that the deputy intended to or legally could have arrested
him for driving with an expired license because he was driving in a private parking lot.
We affirm.
                                     BACKGROUND
I.     Evidence
       At the suppression hearing, the parties stipulated that a search, seizure, or
detention was accomplished without a search warrant or arrest warrant.
Prosecution Evidence
       Deputy Patrick Klawitter testified that on January 4, 2014, at about 6:22 p.m., he
noticed a vehicle driving in the parking lot of the Vagabond Inn with no illumination on
the rear license plate in violation of the Vehicle Code. Deputy Klawitter initiated a traffic
stop. He contacted defendant, who was the driver, and asked if he could search him.
Defendant said he could not. After 15 to 30 seconds, and without further comment by
Deputy Klawitter, defendant turned around, placed his hands on top of his head, and told
Deputy Klawitter to go ahead.
       Deputy Klawitter testified he was alone, did not pull out his gun, and did not
threaten to handcuff defendant. When Deputy Klawitter searched defendant’s person, he
found a small plastic bag containing methamphetamine in defendant’s right front coin
pocket.
       On cross-examination, Deputy Klawitter testified that during those 15 to
30 seconds, he and defendant engaged in casual conversation until defendant turned


                                              2
around and consented to the search. The casual conversation included Deputy
Klawitter’s asking defendant what he was doing there and defendant’s saying he was
staying in one of the rooms.
Defense Evidence
       Defendant testified he was outside of his car and had already turned the car off
about 20 seconds before Deputy Klawitter turned on his lights. Deputy Klawitter
approached and asked defendant what he was doing there. Defendant responded. Then
Deputy Klawitter said, “[Y]ou don’t mind if I search you.” Defendant said, “[Y]eah,
actually I do. No reason to search me. I know my rights.” Deputy Klawitter asked again
and defendant refused again. Deputy Klawitter said, “[W]ell, I could just be an a-hole
and arrest you for driving on an expired license and have your car impounded.” At that
point, defendant said, “[W]ell, do what you got to do,” and he turned around and let
Deputy Klawitter search him.
       On cross-examination, defendant admitted he was driving on an expired license.
He denied knowing or seeing what Deputy Klawitter found in his pocket during the
search, even though the object was in his own pocket. He had never seen it before. He
had heard of methamphetamine, but he had never seen, possessed, or used it.
Rebuttal Evidence
       On rebuttal, Deputy Klawitter testified that he was driving around the Vagabond
Inn parking lot when he saw a car driving in the parking lot with its rear license plate
lamp out. Deputy Klawitter pulled up behind the car and activated his forward facing red
light to initiate a traffic stop. Deputy Klawitter explained, “I activated my light. The
vehicle pulled in the parking lot—the north parking lot of the hotel. [Defendant] got out,
closed the door and was standing next to the vehicle.” Deputy Klawitter approached and
explained why he was stopping him. As they talked, defendant told Deputy Klawitter his
license was either suspended or expired. Deputy Klawitter told him that technically he
could arrest him immediately for that reason and search him. He asked defendant if he

                                             3
had anything illegal on him. Defendant said he did not. When Deputy Klawitter asked to
search him, he refused. Then Deputy Klawitter told him, “[W]ell, sir, due to the fact you
have either a suspended or expired driver’s license, I can technically arrest you and then
search you incident to [the] arrest.” They talked further, engaging in the casual
conversation to which Deputy Klawitter had referred. Then defendant turned around and
said, “[G]o ahead,” and gave him consent to search.
II.    Argument
       Following presentation of this evidence, the prosecutor argued:

             “Thank you, your Honor. I don’t believe that there is much to speak
       on with the Vehicle Code violation. The deputy pulled up and saw a
       Vehicle Code violation, stopped the defendant.

               “As to the consensual search, it seems very clear that the deputy
       initially asked the defendant and the defendant’s initial answer was, in fact,
       no.

              “The deputy did state the fact, then, that at this point in time, he
       could, in fact, place the defendant under arrest for driving with an expired
       license, which he could, and do a search incident to arrest; but that—at that
       point didn’t seem the deputy was going to act on that.

              “He began having a casual conversation with the defendant, asked
       where he was staying, what he was up to. No showing of force, no guns
       pulled, no handcuffs pulled out, no officers showed up at the scene at that
       time.

              “And then, after the casual conversation, the defendant it seemed
       like had a change of heart, turned around and said go ahead, and placed his
       hands on his head and in a search position.

              “Given the break in time from the initial asking for consent stating
       that he could be searched any way and then continuing on with just a
       conversation, it seems to me that this was a voluntary consent.

              “Based on the way the testimony came out, even if your Honor does
       not believe that it was voluntary, I would argue that it’s inevitable
       discovery due to the fact that the deputy could, in fact, place the defendant



                                             4
       under arrest on what he had already known search incident to arrest. So the
       search would have happened whether or not the defendant gave consent.”
       Next, defense counsel argued:

              “Your Honor, consensual search must be freely and voluntarily
       given. [¶] This is a situation where Deputy Klawitter essentially browbeat
       [defendant] into agreeing to a search, essentially threatening to impound his
       vehicle. [¶] As to whether or not Deputy Klawitter could have eventually
       searched [defendant] should he have decided to arrest him I think is really
       irrelevant. What happened in this particular situation he forced consent by
       threatening [defendant]. [¶] I would submit on that.”
III.   Trial Court’s Ruling
       The court then stated the following:

                “The Supreme Court has taken search incident to arrest to the extent
       that if the officer had arrested [defendant] for even a minor traffic violation
       that he would have been justified in searching.

              “But to assume that because he had a minor traffic violation that the
       officer was going to arrest or—and then subsequently search is not based
       on any of the evidence presented to the court.

              “But the coercive—the statements made to [defendant] in that 15- to
       30-second period while may have had some coercive intent, that short
       period of discussion under those circumstances with one officer even late at
       night or even at 6:00 p.m. at night is insufficient for [the] court to find that
       the subsequent consent was not freely and voluntarily given.

              “I will deny the motion to suppress ….”
                                       DISCUSSION
I.     Law
       The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement personnel. A warrantless search or seizure is presumed
to be unlawful. (U.S. Const., 4th Amend.; Mincey v. Arizona (1978) 437 U.S. 385, 390.)
“The prosecution always has the burden of justifying the search [or seizure] by proving
[it] fell within a recognized exception to the warrant requirement.” (People v. Williams
(2006) 145 Cal.App.4th 756, 761.) “It is ‘well settled that one of the specifically


                                              5
established exceptions to the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent.’” (People v. Woods (1999) 21 Cal.4th 668,
674.) A search conducted pursuant to consent “is a constitutionally permissible and
wholly legitimate aspect of effective police activity.” (Schneckloth v. Bustamonte (1973)
412 U.S. 218, 228 (Schneckloth).)
       To be valid, the consent to search must be freely and voluntarily given.
(Florida v. Royer (1983) 460 U.S. 491, 497; People v. Boyer (2006) 38 Cal.4th 412, 445
(Boyer).) Voluntariness is a question of fact to be determined from the totality of
circumstances. (Schneckloth, supra, 412 U.S. at p. 227; Boyer, supra, at p. 445; People
v. Rupar (1966) 244 Cal.App.2d 292, 298.) “If the validity of a consent is challenged, the
prosecution must prove it was freely and voluntarily given—i.e., ‘that it was [not]
coerced by threats or force, or granted only in submission to a claim of lawful
authority.’” (Boyer, supra, at p. 446, citing Schneckloth, supra, at p. 233.)
       When we review a trial court’s ruling on a suppression motion pursuant to Penal
Code section 1538.5, “[w]e view the record in the light most favorable to the trial court’s
ruling, deferring to those express or implied findings of fact supported by substantial
evidence,” including findings on the issue of consent. (People v. Jenkins (2000) 22
Cal.4th 900, 969; People v. Miller (1999) 69 Cal.App.4th 190, 202-203.) “Trial courts
may accept an officer’s testimony that [the] defendant freely consented to the search even
in the face of conflicting testimony from defense witnesses.” (People v. Miller, supra, at
p. 203.) In determining whether the search or seizure was reasonable under the Fourth
Amendment, based on those supported factual findings, we exercise our independent
judgment. (People v. Jenkins, supra, at p. 969.)
II.    Analysis
       Defendant contends Deputy Klawitter coerced his consent by threatening to arrest
him for driving on an expired driver’s license and search him incident to that arrest.
Defendant argues the circumstances were inherently coercive. He says the undisputed

                                             6
facts show he was influenced by Deputy Klawitter’s threat to arrest and search him, and
thus his consent was merely a submission to an assertion of authority.
       The People respond that the record supports the trial court’s finding that
defendant’s consent was not coerced. Furthermore, Deputy Klawitter had probable cause
to arrest defendant for two separate traffic violations—having a defective rear license
plate lamp (Veh. Code, § 24601) and driving without a valid driver’s license (Veh. Code,
§ 12500).
       The trial court found that the circumstances did not coerce defendant to consent to
the search and that he freely and voluntarily consented. The facts supported by
substantial evidence and viewed in the light most favorable to that ruling indicated that
Deputy Klawitter initiated a traffic stop based on a nonfunctioning rear license plate
lamp. After defendant refused to consent to a search, he and Deputy Klawitter continued
to converse casually for 15 to 30 seconds. During this time, defendant told
Deputy Klawitter he was driving on an expired driver’s license. Deputy Klawitter told
him he could just arrest him for that offense and search him pursuant to the arrest. As
they talked, defendant turned around, put his hands on his head, and agreed to the search.
At no time did Deputy Klawitter, who was alone, make a show of force by drawing a
weapon or threatening to handcuff defendant.
       It is settled that a search incident to a lawful arrest is an established exception to
the Fourth Amendment requirement for a warrant. (People v. Diaz (2011) 51 Cal.4th 84,
90.) Regardless of the offense for which the arrest is made, an officer may always
thoroughly search a defendant incident to an arrest when the defendant is taken into
lawful custody. (U.S. v. Robinson (1973) 414 U.S. 218, 234-236; Gustafson v. Florida
(1973) 414 U.S. 260, 263-266; People v. Monroe (1993) 12 Cal.App.4th 1174, 1195.)
Even a minor criminal offense punishable by a fine, such as a traffic offense, can support
a custodial arrest and a search incident to that arrest. (Atwater v. Lago Vista (2001) 532
U.S. 318, 323, 339-345; People v. McKay (2002) 27 Cal.4th 601, 606-619; see People v.

                                               7
Redd (2010) 48 Cal.4th 691, 721 [during traffic stop, officers were entitled to arrest
defendant and search him incident to that arrest when he failed to provide valid
registration to officers and gave a false name in violation of Veh. Code].) Accordingly,
when an officer arrests a defendant for driving without a valid driver’s license, the officer
may search him incident to that arrest. (U.S. v. Robinson, supra, at p. 224 [upon
custodial arrest for driving on revoked driver’s license, officer was entitled to search a
defendant incident to arrest, inspect crumpled cigarette pack, and seize heroin capsules];
Gustafson v. Florida, supra, at p. 266 [upon custodial arrest for driving vehicle without
possession of a valid driver’s license, officer was entitled to search defendant incident to
arrest, inspect box of cigarettes found in defendant’s pocket, and seize homemade
cigarettes the officer believed contained marijuana].)
       Deputy Klawitter, therefore, was legally entitled to arrest defendant for driving
without a valid driver’s license and then search him incident to that arrest.1 Furthermore,
Deputy Klawitter was entitled to inform defendant of that possibility without necessarily
coercing his consent with an assertion of authority. In other words, Deputy Klawitter’s
statement that he could arrest and search defendant was not inherently coercive. Deputy
Klawitter did not threaten to do anything other than what he had a legal right to do.
(People v. Rupar, supra, 244 Cal.App.2d at p. 298 [consent not coerced where officers
told defendant they could wait for a search warrant; defendant realized officers could
search by legal means without her consent; “no threat of the officers’ doing anything
other than what they had a legal right to do”]; People v. Ward (1972) 27 Cal.App.3d 218,
224 [consent not coerced where officer told handcuffed defendant if he did not consent to
search of house, police would have to apply for and possibly get a search warrant, which
would involve a wait]; People v. McClure (1974) 39 Cal.App.3d 64, 69-70 [consent not


1      Defendant did not dispute this in the trial court although he argued the issue was
irrelevant. (See infra.)


                                              8
coerced where officers offered defendant a choice of consenting to a search or waiting
until they obtained a search warrant; fact that officers stated they would obtain a search
warrant did not vitiate defendant’s consent to search, since this statement threatened
nothing more than what the officers had a legal right to do].) Because substantial
evidence supported the finding that the totality of the circumstances, including Deputy
Klawitter’s statement, were not coercive, the trial court did not err in denying the motion
to suppress.
       For the first time on appeal, however, defendant asserts that the prosecution failed
to present sufficient evidence that Deputy Klawitter could have legally arrested him for
driving on an expired license. He argues that Deputy Klawitter only observed him
driving without a license in a private parking lot, not on a street. We conclude defendant
has forfeited this claim by failing to raise it below.
       In People v. Williams (1999) 20 Cal.4th 119, the Supreme Court explained that
defendants moving to suppress evidence under Penal Code section 1538.5 “must inform
the prosecution and the court of the specific basis for their motion. [¶] … [¶] [W]hen
the basis of a motion to suppress is a warrantless search or seizure, the requisite
specificity is generally satisfied, in the first instance, if defendants simply assert the
absence of a warrant and make a prima facie showing to support that assertion. Of
course, if defendants have a specific argument other than the lack of a warrant as to why
a warrantless search or seizure was unreasonable, they must specify that argument as part
of their motion to suppress and give the prosecution an opportunity to offer evidence on
the point. [Citation.] For example, defendants who believe the police failed to comply
with the knock-notice requirement of Penal Code section 844 cannot simply bring a
motion to suppress alleging a warrantless search or seizure and then wait until the appeal
to raise the knock-notice issue. Rather, defendants must specify the knock-notice issue in
the course of the trial court proceeding. [Citations.]



                                               9
       “Moreover, once the prosecution has offered a justification for a warrantless
search or seizure, defendants must present any arguments as to why that justification is
inadequate. [Citation.] Otherwise, defendants would not meet their burden under [Penal
Code] section 1538.5 of specifying why the search or seizure without a warrant was
‘unreasonable.’ This specificity requirement does not place the burden of proof on
defendants. [Citation.] As noted, the burden of raising an issue is distinct from the
burden of proof. The prosecution retains the burden of proving that the warrantless
search or seizure was reasonable under the circumstances. [Citations.] But, if defendants
detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must
object on that basis to admission of the evidence or risk forfeiting the issue on appeal.
       “In sum, we conclude that under [Penal Code] section 1538.5, as in the case of any
other motion, defendants must specify the precise grounds for suppression of the
evidence in question, and, where a warrantless search or seizure is the basis for the
motion, this burden includes specifying the inadequacy of any justifications for the search
or seizure. In the interest of efficiency, however, defendants need not guess what
justifications the prosecution will argue. Instead, they can wait for the prosecution to
present a justification. Moreover, in specifying the inadequacy of the prosecution’s
justifications, defendants do not have to help the prosecution step-by-step to make its
case. The degree of specificity that is appropriate will depend on the legal issue the
defendant is raising and the surrounding circumstances. Defendants need only be
specific enough to give the prosecution and the court reasonable notice. Defendants
cannot, however, lay a trap for the prosecution by remaining completely silent until the
appeal about issues the prosecution may have overlooked.” (People v. Williams, supra,
20 Cal.4th at pp. 129-131.)
       Here, defendant’s motion to suppress simply asserted that a warrantless search and
seizure occurred. In response, the prosecution opposed the motion on the ground that
defendant validly consented to the search. At the suppression hearing, the prosecutor

                                              10
argued that Deputy Klawitter could have arrested defendant for driving with an expired
license and then could have searched him incident to the arrest. In response, defendant
argued that Deputy Klawitter threatened him and coerced his consent, but he did not
argue that Deputy Klawitter could not have legally arrested him. As a result, the
prosecution did not receive notice of this argument and did not have the opportunity to
develop the legal and factual issues, such as whether Deputy Klawitter observed
defendant driving on the street before he entered the parking lot. By failing to address
the issue below, he has forfeited it here.2
       In sum, substantial evidence supported the trial court’s conclusion that defendant
freely and voluntarily consented to the search of his person. The court did not err in
denying the motion to suppress.
                                      DISPOSITION
       The order denying the motion to suppress is affirmed.




2      Defendant also argues on appeal that the prosecution failed to present sufficient
evidence that Deputy Klawitter was going to (i.e. intended to) arrest defendant. But
Deputy Klawitter’s subjective intentions are not relevant to our consideration. For
example, in Whren v. U.S. (1996) 517 U.S. 806, the United States Supreme Court
rejected “any argument that the constitutional reasonableness of traffic stops depends on
the actual motivations of the individual officers involved.” (Id. at p. 813.) The court
concluded: “Subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.” (Ibid.) In People v. Bradford (1997) 15 Cal.4th 1229, our
Supreme Court noted that “the [United States] Supreme Court has commented that
subjective intent by itself, “‘does not make otherwise lawful conduct illegal or
unconstitutional.”’” (Id. at p. 1306, fn. 11, quoting Whren v. U.S., supra, at p. 813.)
        For the same reason, the trial court’s comment that the evidence did not support
the conclusion that Deputy Klawitter was actually going to arrest and search defendant
for the traffic violation has no bearing on whether his statement that he could do so
coerced defendant to consent.


                                              11
