Filed 2/13/14 P. v. Chavez CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B247842

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA074188)
         v.

ARTHUR JOSE CHAVEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden
A. Zacky, Judge. Affirmed.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellant Arthur Jose Chavez pled guilty, following the denial of his Penal Code1
section 1538.5 motion to suppress evidence, to one count of possession of a controlled
substance in violation of Health and Safety Code section 11350, subdivision (a), and one
count of resisting an executive officer in violation of section 69. He admitted he had
suffered a prior strike conviction within the meaning of sections 667, subdivisions (b)
through (i), and 1170.12. The court sentenced appellant to the agreed upon term of four
years in state prison.
       Appellant appeals from the denial of his motion to suppress, contending the
warrantless search of his person during the traffic stop violated the Fourth Amendment.
We affirm the judgment of conviction.


                                            FACTS
       On July 28, 2012, at about 9:05 p.m., Los Angeles Police Sergeant Nakamura,
Officer Coleman and Officer Wood were on patrol when they noticed that they could not
read the license plate of appellant’s car from 50 feet away. One of the license plate lights
was not working. They stopped appellant for a violation of Vehicle Code section 24601.
       A violation of Vehicle Code section 24601 is an infraction, and is punishable by a
citation, unless the motorist fails to present his driver’s license or other satisfactory proof
of registration, refuses to give his written promise to appear or demands an immediate
appearance before a magistrate. (Veh. Code, § 40302.)
       Sergeant Nakamura and Officer Coleman walked over to appellant’s car.
Appellant was the driver and sole occupant of the vehicle. Sergeant Nakamura asked
appellant for his driver’s license, registration and insurance. He also asked appellant if he
was on probation or parole. Appellant replied that he was on formal probation for a
burglary. The sergeant asked appellant to step out of the car. Appellant complied, and
Officer Wood searched him. The officer found a small package containing heroin in one
of appellant’s pockets.

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

                                               2
         The officers arrested appellant and took him to the police station. There, they
began a strip search of him. When appellant bent over to take his shoes off, he took
something from his groin area and put it in his mouth. The officers tried to restrain
appellant, but he was able to take the object from his mouth and throw it into the toilet.
Appellant attempted to flush the toilet, and a struggle ensued between the officers and
appellant. Once appellant was restrained, Officer Wood retrieved the object from the
toilet. It was a bindle containing cocaine and methamphetamine.


                                         DISCUSSION
         Pursuant to section 1538.5, appellant moved to suppress the evidence obtained in
the pre-arrest and booking searches on the ground that the warrantless searches were
unreasonable. This motion was denied. He renewed this motion to suppress when he
made a motion to dismiss pursuant to section 995. Both motions were denied. The trial
court found the warrantless search of appellant was not a valid probation search because
police did not know that appellant had a search condition.2 The court found the search
was nonetheless valid as a search incident to arrest. Appellant contends that since there
was no arrest for the infraction prior to the search, the trial court erred in denying the
motion to suppress. We do not agree.
         In ruling on a motion to suppress, the trial court finds the historical facts, selects
the applicable rule of law and applies the law to the facts to determine whether the law
has been violated. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) The trial court's
determination of the historical facts is reviewed under a deferential substantial evidence
standard, but the trial court's selection of law and application of the law to the facts are
subjected to independent review. (Ibid.) Issues relating to the suppression of evidence
derived from police searches and seizures are reviewed under federal constitutional
standards. (People v. Robles (2000) 23 Cal.4th 789, 794.)


         2
             The trial court was correct. (People v. Hoeninghaus (2004) 120 Cal.App.4th
1180.)
                                                 3
       “With the passage of Proposition 8, we are not free to exclude evidence merely
because it was obtained in violation of some state statute or state constitutional provision.
Our state Constitution . . . forbids the courts to order the exclusion of evidence at trial as
a remedy for an unreasonable search and seizure unless that remedy is required by the
federal Constitution as interpreted by the United States Supreme Court. [Citations.]”
(People v. McKay (2002) 27 Cal.4th 601, 608.)
       Under the federal Constitution, a warrantless search is presumed to be illegal.
(United States v. Chadwick (1977) 433 U.S. 1, 6 [97 S.Ct. 2476, 53 L.Ed.2d. 538].) A
search incident to a lawful arrest is an exception to the Fourth Amendment’s warrant
requirement. (United States v. Robinson (1973) 414 U.S. 218, 224, 230 [94 S.Ct. 467, 38
L.Ed.2d 427].) In this context, a lawful arrest is one which is based on probable cause
and so complies with federal constitutional constraints. (Virginia v. Moore (2008) 553
U.S. 164, 176-177 [128 S.Ct. 1598, 170 L.Ed.2d 559] (“Moore”).)
       The U.S. Supreme Court has made it clear that a police officer who witnesses the
commission of even a very minor criminal offense has probable cause to arrest the
offender. (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354 [121 S.Ct. 1536, 149
L.Ed.2d 549] [violation of Texas law requiring passengers in front seat of vehicle to wear
seat belts].) The fact that a state or federal statute does not permit an arrest for the
offense is irrelevant to a Fourth Amendment reasonableness analysis. (Moore, supra,
553 U.S. at pp. 164, 167, 169, fn. 2, 172 [defendant arrested in violation of a Virginia
statute that required only a summons be issued for driving with a suspended license];
Whren v. United States (1996) 517 U.S. 806, 815 [116 S.Ct. 1769, 135 L.Ed.2d 89]
[District of Columbia regulation limiting authority of unmarked police car to make a stop
irrelevant to Fourth Amendment reasonableness issue]; Cooper v. State of California
(1967) 386 U.S. 58, 60-61 [87 S.Ct. 788, 17 l.Ed.2d 730] [state forfeiture law irrelevant
as to whether the car search was reasonable].)
       The California Supreme Court has recognized this body of law and “[concluded],
in accordance with United States Supreme Court precedent, that custodial arrests for fine-
only offenses do not violate the Fourth Amendment and that compliance with state arrest

                                               4
procedures is not a component of the federal constitutional inquiry.” (People v. McKay,
supra, 27 Cal.4th at p. 605.)
       The U.S. Supreme Court has held that officers may search someone incident to
arrest before the formal pronouncement of arrest. (Rawlings v. Kentucky (1980) 448 U.S.
98, 111 [100 S.Ct. 2556, 65 L.Ed.2d 633] (“Rawlings”) [“Where the formal arrest
followed quickly on the heels of the challenged search of petitioner’s person, we do not
believe it particularly important that the search preceded the arrest rather than vice
versa.”].) The Court in Rawlings imposed no limitations on such a search, apart from the
requirements that probable cause to arrest exist before the search and the arrest quickly
follow the search. (Ibid.)
       Appellant contends that the holding of Rawlings was impliedly limited by the U.S.
Supreme Court’s later holding in Knowles v. Iowa (1998) 525 U.S. 113 [119 S.Ct. 484,
142 L.Ed.2d 492] (“Knowles”), and that Knowles requires an actual custodial arrest to
search a person stopped for a traffic violation or other minor infraction. He further
contends this holding in Knowles was reaffirmed in Moore, supra, 553 U.S. 164.
       We see nothing in Knowles which requires a search to be made only after a formal
arrest in cases involving minor infractions. At issue in Knowles was an Iowa law which
had been interpreted to authorize police officers to conduct a search of a vehicle and its
driver “in those cases where police elect not to make a custodial arrest and instead issue a
citation – that is, a search incident to citation.” (Knowles, supra, 525 U.S. at p. 115.)
The U.S. Supreme Court held only that searches incident to citation are not permissible
under the U.S. Constitution. (Id. at pp. 115-116 [“the Iowa Supreme Court upheld the
constitutionality of the search under a bright-line ‘search incident to citation’ exception to
the Fourth Amendment’s warrant requirement . . . . We . . . now reverse.”]
       We also see nothing in Moore which supports appellant’s interpretation of
Knowles. Moore involved the exclusion of evidence obtained during a search incident to
an arrest which was not authorized by Virginia state law. (Moore, supra, 553 U.S. at p.
167.) The arrest was permissible under federal constitutional standards. (Id. at p. 176.)
The Virginia Supreme Court believed that Knowles applied and required the exclusion of

                                              5
evidence seized from Moore. (Id. at pp. 168, 177.) The U.S. Supreme Court first
distinguished Knowles, pointing out that “[o]fficers issuing citations do not face the same
danger [as officers making arrests], and we therefore held in Knowles v. Iowa, 525 U.S.
113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), that they do not have the same authority to
search. We cannot agree with the Virginia Supreme Court that Knowles controls here.
The state officers arrested Moore, and therefore faced the risks that are ‘an adequate
basis for treating all custodial arrests alike for purposes of search justification.
[Citation.]” (Moore, supra, 554 U.S. at p. 177.) The U.S. Supreme Court next noted that
“[t]he Virginia Supreme Court may have concluded that Knowles required the exclusion
of evidence seized from Moore because, under state law, the officers who arrested Moore
should have issued him a citation instead.” (Ibid.) The U.S. Supreme Court explained
that “the arrest rules that the officers violated were those of state law alone” and the
Fourth Amendment “does not require the exclusion of evidence obtained from a
constitutionally permissible arrest.” (Id. at p. 178.) The Court in Moore said nothing
about the situation present here, where the officers did not issue a citation or arrest the
suspect before the search.
       Since Moore and Knowles do not limit the holding of Rawlings, we are bound by
Rawlings, which allows a search incident to arrest to precede the arrest. The
requirements in Rawlings were met here. The officers observed a violation of the
Vehicle Code and so had probable cause to arrest appellant before they searched him.
The arrest quickly followed the search.3
       In the alternative, appellant argues if searches preceding an arrest are
constitutionally permissible in infraction cases, the arrest must be imminent and
inevitable. Rawlings contains only a requirement that an arrest “follow quickly on the
heels” of a search. (Rawlings, supra, 448 U.S. at p. 111.) Appellant’s standard of
“imminent and inevitable” is not the equivalent of the standard in Rawlings.

       3
        We note that in Moore the officers arrested the suspect for a traffic violation, but
the suspect was ultimately charged only with possession of cocaine, which was found
during the search after arrest. (Moore, supra, 553 U.S. at pp. 166-167.)
                                               6
        “Fourth Amendment reasonableness ‘is predominantly an objective inquiry.’
[Citation.]” (Ashcroft v. al-Kidd (2011) __ U.S. __ [131 S.Ct. 2074, 2080, 179 L.Ed.2d
1149] (“Ashcroft”).) “This approach recognizes that the Fourth Amendment regulates
conduct rather than thoughts, [citation]; and it promotes evenhanded, uniform
enforcement of the law, [citation].” (Ibid.)
        The analysis in Rawlings is an objective one, which considers what actually
happened: Did the arrest quickly follow the search or not? Appellant’s standard requires
a subjective analysis, which inquires into the police officer’s state of mind. Such an
inquiry asks: Immediately before beginning the search, did the officer actually intend to
arrest the suspect (making the arrest imminent) and to do so regardless of the outcome of
the search (making the arrest inevitable)? Thus, appellant’s “imminent and inevitable”
standard is not consistent with the objective inquiry identified in Ashcroft, supra, __ U.S.
at p. __ [131 S.Ct. at p. 2080] and the cases cited therein.
        Perhaps attempting to meet this objective reasonableness requirement, appellant
implies that an arrest can never be considered imminent and inevitable in a minor traffic
violation case because such a violation is “not the crime of the century nor one for which
we would expect police to usually make a custodial arrest.” This is simply an attempt to
create a bright line rule requiring an arrest before a search in traffic violation cases. As
we have discussed, the U.S. Supreme Court has not created such a rule. Rather, the U.S.
Supreme Court permits searches before lawful arrests. (Rawlings, supra, 448 U.S. at p.
111.)
        Appellant contends that our view of the law would result in law enforcement
always conducting an immediate search during a routine traffic stop and only deciding
whether to issue a citation and release the detainee or to arrest him after learning the
results of that warrantless search. He argues that this is not an incentive which the U.S.
Supreme Court intended when it authored Knowles and Moore. Nothing in the Fourth
Amendment would penalize the officer for arresting a motorist for a minor infraction, and
thus nothing in Knowles or Moore gives an officer an incentive to search before arrest.


                                               7
                                    DISPOSITION
      We affirm the judgment of conviction.
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           MINK, J.*


We concur:




      TURNER, P. J.




      KRIEGLER, J.




      *
        Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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