Opinion
B181398
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. PAUL TONY BACA II, Defendant and Appellant.
Peter A. Vance and Bruce M. Margolin for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Paul Tony Baca II appeals his convictions for one count of possession for sale of marijuana and one count of sale or transport of marijuana. Baca asserts the trial court erred in denying his motion to suppress evidence discovered after police stopped his car for a minor traffic infraction and thereafter searched the vehicle for Bacas identification. Baca claims the search of his vehicle violated the Fourth Amendment because it was not supported by probable cause or any other exception to justify a warrantless search and that the scope of the search was unreasonable. Baca also argues that evidence discovered in a subsequent search of his residence should have been suppressed. He claims the warrant supporting the search was defective because it lacked an oath or affirmation attesting to the truth of the facts contained in the statement of probable cause. None of Bacas claims warrant reversal of his convictions. Sufficient evidence supported the courts finding that safety concerns justified the officers search of Bacas vehicle rather than allowing Baca to retrieve his identification. In addition, the court properly concluded the officers search for the identification was reasonably limited in scope. Finally, we conclude the defect in the oath supporting the warrant and statement of probable cause is a technical defect in form, rather than substance and it does not render the warrant deficient. Consequently, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The following evidence concerning the traffic stop and search of Bacas vehicle and home was presented at the preliminary hearing in this matter.
At approximately 8:30 p.m. on February 18, 2004, Glendale Police Officer Robert Rosas observed a gold-colored Cadillac Escalade SUV driving near an intersection in La Crescenta. According to Rosas, it was difficult to see in the interior of the SUV because drivers side windows and passenger side windows were tinted dark in violation of Vehicle Code section 26708, subdivision (a)(1). Rosas decided to stop the SUV and issue a citation for the tinted windows. Rosas sent a radio dispatch of the vehicles license place but apparently did not receive any response concerning the vehicle. Rosas activated the lights on his patrol car to initiate a traffic stop and the driver of the SUV, later identified as Baca, promptly pulled over.
Officer Rosas approached the passenger side of the vehicle and saw Baca was alone in the SUV. Rosas asked Baca for his license and registration. Baca did not verbally respond to the officer. Instead Baca immediately began reaching behind the center console into the back seat of the SUV. Even with his flashlight illuminated, Officer Rosas stated he could not see where (and for what) Baca was reaching and the officer became concerned for his safety. He asked Baca to stop and step out of the vehicle. Baca complied and walked to the curb at the back of the SUV. Rosas noticed Baca smelled of alcohol, had watery eyes and looked tired. Rosas suspected Baca might be "under the influence." Baca told Rosas that he had consumed two beers earlier in the evening. Baca consented to a pat down search; Baca was unarmed and did not have any identification on his person. Rosas called for the assistance of a back-up police officer.
Rosas testified it was the practice of his department that if during a traffic stop the officer requests identification and thereafter if the driver places his or her hands somewhere the officer cannot see or determine, then the officer should order the driver to stop and step out of the vehicle. He further testified that if the driver did not have the identification readily available (i.e., on their person), the officer would not allow the driver to return to the vehicle to retrieve it.
At some later point during the stop, officers determined Baca was not impaired by alcohol.
Rosas testified he would have conducted a pat down search of Baca irrespective of whether Baca had consented based on the totality of the circumstances—the actions of Baca reaching towards the backseat, the tinted windows and the fact Baca wore baggy clothing.
Rosas testified that while they waited for the other officer to arrive, he told Baca about his concern for officer safety and he asked Baca about his identification. Baca told Officer Rosas his identification was in the backseat of the SUV. Officer Rosas asked Baca if he could retrieve it from the SUV and Baca gave his consent for the officer to search. Rosas stated it was about 4-5 minutes between the stop and when the second officer arrived. Rosas testified that at no time before his back-up arrived did he have the opportunity to look into the SUV for the identification; he stated that it would compromise officer safety to take his eyes off of Baca before the other officer arrived at the scene.
When Officer Hoover arrived, Officer Rosas stated that he noticed Baca appeared to be "very nervous and started looking from side to side." Rosas stated that Bacas tone of voice changed and he asked why he could not retrieve the identification from the car by himself. Officer Rosas asked Baca why he was so nervous and Baca stated that "I know I seem nervous, but Id just rather get my license myself." According to Officer Rosas, Baca told him that he did not have his license with him and that he left it at home. Then Baca unequivocally told Baca that he did not want Rosas to search his vehicle.
Officer Rosas decided to look for the identification. He opened the back passenger door of the SUV and saw the backseat area contained a childs car seat and a plaid jacket on the floor well behind the drivers seat. Rosas did not see any identification on the backseat. Rosas stated that he would still not have allowed Baca to retrieve the identification at that point for officer safety concerns because he had no way of knowing what was under the jacket. Officer Rosas stated the jacket appeared to have a bulky object in one of the sleeves. He testified that he thought the bulky object could have been a wallet or another item that could contain identification cards such as a mini-folder or small organizer. Rosas simultaneously felt the object and lifted up the sleeve. He observed the object was a baggy of something at the cuff area. The baggy contained a couple of ounces of marijuana. Baca admitted to the officers the baggy of marijuana belonged to him. Rosas continued to search the jacket and found Bacas wallet containing his identification in the breast pocket. The wallet contained approximately $378 in cash in assorted denominations of bills. Baca was arrested. According to Officer Rosas, the entire interaction between the initial stop and the arrest lasted between nine and ten minutes.
Bacas testimony concerning the stop differed from Officer Rosass in a few respects. Baca stated that he was not asked for consent for the officer to search his vehicle until after Officer Hoover arrived and that although he initially agreed to the search he immediately withdrew his consent. He also testified that he repeatedly told the officer that he opposed the search and even gave the officer his California drivers license number. He stated that when he was initially stopped he was attempting to retrieve his identification from his jacket but that the officer stopped him from doing so. Baca denied that he ever told the officers he did not have his identification.
Baca further testified that he had placed the baggy of marijuana in the middle of the sleeve, rather than in the cuff area and that he had placed his jacket on the seat, not the floor.
Thereafter, Glendale police obtained a search warrant to search Bacas home. In a converted garage area where Baca had the only access, officers found approximately one-half of a pound of marijuana in three bags, a scale, packaging material and a heat sealer. According to the investigating officer, Detective Magtoto, the items found indicated Baca had possessed the marijuana for sale. Detective Magtoto also testified that he recalled Baca had a cell phone when he was arrested, but did not know why the phone had not been booked into evidence.
Baca was charged in Count 1 with possession for sale of marijuana in violation of Health and Safety Code section 11359 and in Count 2 with sale or transport of marijuana in violation of Health and Safety Code section 11360, subdivision (a).
Baca pled not guilty. At the preliminary hearing he filed a motion pursuant to Penal Code section 1538.5 to suppress the evidence obtained as a result of the search of his vehicle. Baca argued the search for his identification violated the Fourth Amendment of the Constitution because he did not give his consent for the search and the search was not supported by probable cause, reasonable suspicion or any other theory or exception to justify a warrantless search. He argued that he should have been allowed to retrieve his wallet and the scope of the search was unreasonable.
The magistrate denied the motion concluding that the officer properly ordered Baca out of the vehicle and then having done so, based on the totality of the circumstances, Officer Rosas was justified based on officer safety concerns in searching for the identification himself. The court further concluded the search was not excessively broad.
Shortly before trial, Baca renewed his motion to suppress and filed a motion to dismiss pursuant to Penal Code section 995. He asserted the same arguments he made at the preliminary hearing and also challenged the validity of the search warrant for his residence. He complained the affidavit supporting the search warrant for his home contained a number of factual assertions at odds with Officer Rosass preliminary hearing testimony and the warrant was invalid on its face because it did not contain a declaration executed under the penalty of perjury, that the facts it contained were true. The trial court denied the motions.
Baca subsequently changed his plea and pled guilty to both counts. Imposition of the sentence was suspended; Baca was ordered to spend 180 days in county jail and placed on probation for three years.
Baca timely appeals.
DISCUSSION
On appeal Baca challenges the search of his SUV and the validity of the warrant to search his home. We examine each challenge in turn.
I. Search of the SUV
On appellate review of a trial courts ruling on a motion to suppress evidence, this court accepts the trial courts resolution of disputed facts and its assessment of the credibility of witnesses if supported by substantial evidence. (People v. Ayala (2000) 24 Cal.4th 243, 255.) The trial court has the power to decide "what the officer actually perceived, or knew, or believed, and what action he took in response." (People v. Leyba (1981) 29 Cal.3d 591, 596.)
In the second step of its review of the denial of a motion to suppress, the appellate court is required to independently apply the law to the factual findings. (Ornelas v. United States (1996) 517 U.S. 690, 699; People v. Ayala, supra, 24 Cal.4th at p. 255.) The appellate court must determine if the factual record supports the trial courts conclusions as to whether or not the police action met the constitutional standard of reasonableness. (Ornelas, supra, 517 U.S. at pp. 696-697 [determination of reasonable suspicion a mixed question of law and fact]; People v. Lawler (1973) 9 Cal.3d 156, 160.)
Federal constitutional standards govern appellate review of issues that arise from the suppression of evidence obtained from police searches and seizures. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.)
Baca contends the court should have granted his motion to suppress the evidence found in his SUV (and also the evidence found in his home) because Officer Rosass search of the vehicle was unreasonable. He claims the facts known to the officer did not provide probable cause to conduct a warrantless search of any area of his vehicle nor could it be justified based on any other exception to the warrant requirement. He claims he did not refuse to produce his identification but instead was prevented from doing so because the officer ordered him out of the vehicle. He maintains Officer Rosas did not have a legitimate concern for his safety, but even if he did, a concern about officer safety is not sufficient, standing alone, to justify a warrantless search for a drivers identification. Baca asserts that absent a reasonably perceived danger, he should have been allowed to retrieve his identification himself. He further argues the officers search for his identification was beyond the scope of the limited search area.
Our analysis of his contention requires a consideration of the law governing searches and seizures and in particular warrantless police searches of automobiles.
The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures and applies to the states through the Fourteenth Amendment. (U.S. Const., 4th & 14th Amends.; People v. Camacho (2000) 23 Cal.4th 824, 829-830; see Mapp v. Ohio (1961) 367 U.S. 643, limited on another ground in United States v. Leon (1984) 468 U.S. 897, 906.) Under the Fourth Amendment, reasonableness is determined by balancing the need to search against the invasion that the search entails. (Terry v. Ohio (1968) 392 U.S. 1, 20-21.)
Although motorists have a privacy interest against unreasonable searches and seizures, it is also well established that in view of the pervasive regulation of vehicles, individuals have a reduced expectation of privacy while driving on public roadways. (In re Arturo D. (2002) 27 Cal.4th 60, 68.)
This reduced expectation of privacy extends to property transported in cars, "`which "trave[l] public thoroughfares," [citation], "seldom serv[e] as . . . the repository of personal effects," [citation], are subjected to police stop and examination to enforce "pervasive" governmental controls "[a]s an everyday occurrence," [citation], and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny. [Citation.]" (People v. Hart (1999) 74 Cal.App.4th 479, 490, quoting Wyoming v. Houghton (1999) 526 U.S. 295, 303.)
It is well settled that an officer may stop a motorist to conduct a brief investigation when the facts and circumstances known to the officer support a reasonable suspicion that the driver has violated the Vehicle Code, as occurred in this case. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200.) In connection with the investigatory stop, the police officer may also order the occupants of the vehicle out of the car. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111.) In Mimms, the Supreme Court ruled that in view of the inherent danger posed to police officers during routine traffic stops, the intrusion into the drivers personal liberty occasioned by an order to get out of the car is de minimis; "[w]hat is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officers safety." (Id. at p. 111.) (Hereafter referred to as a "Mimms detention.")
Tinted windows is a violation of Vehicle Code section 26708, subdivision (a) and provides in pertinent part: "(a)(1) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows. [¶] (2) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the drivers clear view through the windshield or side windows."
However, "[w]hile the concern for officer safety in this context may justify the `minimal additional intrusion of ordering a driver and passengers out of the car [i.e., a Mimms detention], it does not by itself justify the often considerably greater intrusion attending a full field-type search." (Knowles v. Iowa (1998) 525 U.S. 113, 117.) Minor traffic infractions do not reasonably suggest the presence of weapons. An officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon. (People v. Superior Court (Simon), supra, 7 Cal.3d at p. 206; Michigan v. Long (1983) 463 U.S. 1032, 1049; Terry v. Ohio, supra, 392 U.S. at p. 30.) The degree of suspicion required for an officer to lawfully conduct a protective search of a cars passenger compartment is the same as that required for a protective search of a suspect under Terry. The deputy needs to express articulable facts to support reasonable suspicion to search a limited area of the car for contraband. (Michigan v. Long (1983) 463 U.S. 1032, 1049; Williams v. Superior Court (1985) 168 Cal.App.3d 349, 359.) Reasonable suspicion is not a finely tuned standard and does not equate to absolute certainty. (Ornelas v. United States, supra, 517 U.S. at p. 696; New Jersey v. T.L.O. (1985) 469 U.S. 325, 346.) In addition, "`[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . ." (People v. Souza (1994) 9 Cal.4th 224, 233.) It is the totality of the circumstances "`as understood by those versed in the field of law enforcement" that makes a suspicion a reasonable one. (Id. at p. 240, quoting from United States v. Cortez (1981) 449 U.S. 411, 418.)
As part of this investigatory stop, police are authorized to request the driver produce his drivers license and evidence registration of the vehicle. (Veh. Code, §§ 4462 & 12951; In re Arturo D., supra, 27 Cal.4th at p. 67.) An officer who has properly stopped a vehicle for a traffic infraction needs to determine the identities of the driver and the owner of the vehicle to include that information on the citation he or she will issue. (Ibid.) When the driver refuses or fails to produce registration or other identifying documentation on demand, the officer may conduct a limited warrantless search of the vehicle in the area where the necessary documentation may be expected to be found. (Id. at pp. 78-79.) Arturo D. labeled such a search a "Webster-type search" based on the case of People v. Webster (1991) 54 Cal.3d 411 (Webster), "the leading case on this subject." (Arturo D., supra, 27 Cal.4th at pp. 68, 73.) In Webster the officer conducting the traffic stop removed the occupants from the car in order to look for the registration documents. (Webster, supra, 54 Cal.3d at p. 429.) All of the occupants had disclaimed ownership, and the court concluded that the officer was entitled to search personally for the papers in the interest of his own safety. (Id. at pp. 429, 431.) The court found that the officer had properly confined his search to the visor and glove compartment where auto registration documents are traditionally kept. (Id. at p. 431.) As stated in Arturo D., "[p]rior to and subsequent to Webster . . . , California courts have held in analogous circumstances that it is constitutionally proper for an officer to conduct a limited warrantless search of a vehicle for the purpose of locating registration and other related identifying documentation." (See Arturo D., supra, 27 Cal.4th at p. 71 and cases cited therein.)
Webster and Arturo firmly established the "document search exception" to the warrant requirement. In so doing the California Supreme Court described the common justifications for such a search, namely that the driver is unable to or has refused to produce the documentation. In Arturo D., as in Webster, the driver could not provide proof of registration or his license; the driver told the officer that he did not have a license and that vehicle did not belong to him. Although the Arturo D. court found the officers search was justified based on a failure to produce the requested documentation, the court also recognized that the search may have been justified for an independent reason — officer safety concerns. (Id. at p. 85, fn. 23 & p. 87, fn. 28.) In recognizing "officer safety concerns" as a permissible independent basis to conduct a limited document search of a vehicle, the Supreme Court cited People v. Faddler (1982) 132 Cal.Appp.3d 607, 610-611 and People v. Hart (1999) 74 Cal.App.4th 479 for the proposition that "[i]n the ordinary situation where the safety of the officer or the public is not endangered thereby, a driver may himself retrieve and present his license for examination by an investigating officer." (People v. Faddler, supra, 132 Cal.App.3d at p. 610.) If officer safety warrants, however, the officer may control the movements of the vehicles occupants and retrieve the license himself. (Ibid.; accord, People v. Webster (1991) 54 Cal.3d at p. 431.)
The Supreme Court considered the Arturo case along with another appeal in People v. Hinger that raised the same challenges to a warrantless search and involved a similar situation where the driver told the officer that he did not have his drivers license or any documentation concerning the car. (In re Arturo D., supra, 27 Cal.4th at pp. 66-67.)
In Faddler, an officer observed a vehicle being driven erratically at 2:00 a.m. A passenger was leaning out of a window holding a liquor bottle. When the officer executed a stop, he found three men in the car. One of the passengers appeared intoxicated, and the other was boisterous. The driver told the officer his drivers license was in the glove compartment and started to retrieve it, but the officer ordered him to stay where he was and opened the front passenger door to get the license. When he opened the door, he found, in plain view, a baggie containing marijuana. (132 Cal.App.3d at p. 609.) The Third District Court of Appeal held the search was lawful because to have allowed the driver to "rummage about" in the car would have "diminish[ed] the officers control over a potentially dangerous situation and creat[ed] a potential threat to his safety and that of the public. [Citations.]" (Id. at pp. 610-611.) The Court concluded: "We are satisfied that no constitutional rights are implicated by the type of minimal intrusion which occurred here, given its limited objective, legitimate purpose, and the exigent circumstances which practically prohibited the accomplishment of that purpose in any other way than was done." (Id. at p. 611.)
In Hart the court upheld a search of a purse inside a van for identification purposes. In Hart, a police officer asked the defendant for identification. After the defendant searched the floor of the van for several minutes, the officer asked the defendant to step out of the van. Because the officer was concerned for his safety, he searched the van for weapons. (People v. Hart, supra, 74 Cal.App.4th at p. 485,) During his search he noticed a purse, which he searched for identification. (Ibid.)
In light of these standards, we agree with the trial court and conclude Officer Rosass actions were constitutionally reasonable. Preliminarily Officer Rosas acted within his authority under Mimms in ordering Baca out of the vehicle. Officer Rosas testified he ordered Baca from the SUV because he became concerned for his safety after he observed Baca reach behind the center console. Once outside the vehicle, notwithstanding the facts Baca was unarmed and told the officer he was merely attempting to retrieve his license, officer safety concerns persisted. According to Officer Rosas, Bacas tone of voice and demeanor changed—he was very nervous and smelled of alcohol. Baca gave, then withdrew his consent for the officer to search the vehicle and according to Rosas, at one point told the officer he had left his identification at home. In view of this evidence, we cannot say Rosass articulated concern for his safety was unfounded.
In contrast to Arturo or Webster, Baca did not expressly refuse to produce his license — he claimed his inability to produce it resulted from the officer ordering him from the SUV. But as recognized in dicta in Arturo D. and clearly articulated in Faddler, the officers search for documents may nonetheless, be justified based on a concern for his safety.
Contrary to the authority upon which Baca relies, People v. Medina (2003) 110 Cal.App.4th 171, this is not a situation where the officer sought to justify his search based on conditions unrelated to Baca and his actions. Here in contrast, Officer Rosas refused to allow Baca to retrieve his wallet from the SUV precisely because Baca acted in a manner that made the officer concerned for his safety. Under Faddler, Officer Rosas was not required to allow Baca to get his license himself, but was entitled to conduct a limited search for the identification. In the instant case, allowing Baca to "rummage about" behind the center console would have "diminish[ed] the officers control over a potentially dangerous situation and creat[ed] a potential threat to his safety." (People v. Faddler, supra, 132 Cal.App.3d at pp. 610-611.) A police officer cannot wait until the last minute to decide whether a suspect might be reaching for a gun under the guise of looking for a requested document. "[R]oadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect." (Michigan v. Long, supra, 463 U.S. at p. 1049.)
The Court of Appeal in Medina reversed the trial courts order denying the defendants motion to suppress evidence obtained during a police search incident to a traffic stop. In Medina, at about midnight in a high crime area, the officer pulled over the defendants car for driving with a broken taillight. (People v. Medina, supra, 110 Cal.App.4th at p. 175.) The officer approached the defendants car and immediately ordered him out. Though officers admitted there was not anything specific about the defendant that caused them to believe the defendant was armed or dangerous, police decided to search him. During the search police found rock cocaine in his pocket. The defendant moved to suppress the evidence challenging the validity of the search. The trial court denied the motion reasoning that given the time of night and the location of the stop in a known gang and drug area, the search was justified. (Id. at pp. 175-176.) The Court of Appeal rejected that analysis, concluding, time and location of encounter are not sufficient standing alone, to justify search of car or driver. The justification for the search must be based at least in part on the activities or conduct of the driver. (Id. at pp. 176-177.)
In reaching our conclusion, we note, but do not endorse Bacas concern the combined application of a Mimms detention coupled with an Arturo D. document search will "overwhelm" all privacy protections afforded by the Fourth Amendment. Baca claims that a driver who has committed a traffic infraction and is lawfully ordered out of his vehicle under Mimms will (once outside of the vehicle) often be unable to readily comply with an officers request to produce identification or registration. Thus, Baca claims under Arturo D. "in every single instance, the officer will be permitted to enter the vehicle and conduct a search of the citizens automobile." Baca protests too much. His argument neglects a significant admonition concerning document searches implicit in Webster and Arturo and explicit in Faddler. Specifically, where the circumstances of the stop, and in particular the conduct of the vehicles occupants do not pose a danger to the officer or the public, a driver should be permitted to return to the car and retrieve the requested documentation himself. Thus, not every instance of a Mimms detention would justify an officers search for documentation under Arturo.
Viewing the totality of the circumstances in this case, we uphold the trial courts decision that, based on specific and articulable facts, Officer Rosas reasonably acted on his concerns for officer safety and searched the backseat area rather than have Baca do so.
Our conclusion should not be read as based on the apparent general policy of the Glendale Police Department to ask a driver to exit his or her vehicle when he or she places their hands in an area out of the officers line of sight or the policy to refuse to allow a driver to return to the vehicle to retrieve his or her license once outside the car. Instead, our conclusion is based on the totality of the circumstances that arose after Baca exited the vehicle and consented to the pat down search. Specifically we are persuaded by the facts of the situation—Bacas changing story as to the location of his identification, his nervous demeanor, tone of voice and his appearance of impairment. Given all of these circumstances, Officer Rosas conclusion that Baca posed a threat to his safety was not unreasonable, and under Arturo D. and the cases upon which it relied, Officer Rosas search was not legally impermissible.
In addition, we also agree with the Attorney General the scope of the search was reasonably confined, since the officer searched only that area, "where such documents reasonably may be expected to be found." (In re Arturo D., supra, 27 Cal.4th at p. 86; see also Terry v. Ohio, supra, 392 U.S. at p. 30.) Baca told the officer his identification was located in the backseat. Upon observing the backseat contained a childs safety seat and a jacket the officer limited his search to the jacket. He observed a bulky item in the sleeve of the jacket, which in Officer Rosass experience taught him could be a wallet or mini-folder holding a drivers license. According to Rosas, he simultaneously felt and looked into the sleeve. In light of the officers experiences and the fact that this jacket was reachable from the passengers compartment, Officer Rosass search of the jacket was not unreasonable. (People v. Butler (2003) 111 Cal.App.4th 150, 159-160 [Police officers "draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person" and such inferences and deductions "deserve deference"].)
Finally, although Baca argues Officer Rosass statements about the various locations where people store their drivers licenses and the officers belief that the "bulky item" in the sleeve could be his wallet is unbelievable, we are bound by the trial courts finding that the officers testimony was credible. (People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Green (1996) 46 Cal.App.4th 367, 372.)
Accordingly, after balancing appellants diminished privacy interests against Officer Rosass concerns for his safety and the governmental interest in requiring drivers to identify themselves as reflected in the Vehicle Code, we conclude that appellant suffered no Fourth Amendment violation. (Wyoming v. Houghton, supra, 526 U.S. 295 at pp. 299-300.) The trial court properly denied appellants motion to suppress the evidence found in the vehicle.
II. Validity of the Search Warrant for Bacas House
On appeal Baca also challenges the validity of the warrant to search his home. Specifically he claims the search warrant was legally insufficient because the affidavit signed by police officer, detective Magtoto attests to only the officers belief that he had probable cause to search the property. Baca points out that nowhere in the warrant did Detective Magtoto expressly attest that the facts in the statement of probable cause in support of the warrant were true.
The search warrant contained the following: "Pat Magtoto, having already been sworn under oath, says that on the basis of the information contained within this Search Warrant and Affidavit and the attached and incorporated Statement of Probable Cause, he/she has probable cause to believe and does believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524 as indicated below, and is now located at the locations set forth below. Whereas, affiant requests that this Search Warrant be issued." Detective Magtoto signed as the affiant.
Baca observes that in People v. Leonard (1996) 50 Cal.App.4th 878, the court found a search warrant supported by an affidavit nearly identical to the one under consideration here, was legally defective. In Leonard the court concluded that although the affidavit "incorporated" the Statement of Probable Cause and "was undoubtedly intended to include the officers sworn statement that the facts in it were true," such an effort did not pass muster under the Fourth Amendment or the California Constitution. (Id. at pp. 883-884.) The Leonard court concluded the oath in the affidavit did no more than attest to the belief of the officer he had probable cause to conduct the search; the oath did not also apply to the facts underlying the Statement of Probable Cause. The court concluded the failure to swear to the truth of the information provided to the magistrate was a defect of substance, not form. Thus, the factual assertions in the Statement of Probable Cause amounted to little more than unsworn testimony that cannot be used as a basis for issuing a warrant. (Ibid.)
The oath in the search warrant in Leonard stated: "Shane Redmond, being sworn says that on the basis of the information contained within this Search Warrant and Affidavit and the attached and incorporated Statement of Probable Cause, he/she has probable cause to believe and does believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524 as indicated below, and is now located at the locations set forth below. Wherefore, your Affiant request [sic] that this Search Warrant be issued." (Id. at p. 882.)
Baca further contends that assuming the warrant is invalid under Leonard, the evidence discovered during the search should have been suppressed. Baca asserts the respondent cannot rely upon the "good faith" exception to the exclusionary rule because: (1) they could not claim ignorance of the deficiency as Leonard apprised the law enforcement community that the officer preparing the statement of probable cause must clearly swear to the truth of the facts included in the statement; and (2) the affidavit contained factual statements at odds with Officer Rosass preliminary hearing testimony.
In United States v. Leon (1984) 468 U.S. 897 the United States Supreme Court held "that the exclusionary rule should not be applied when the officer conducting the search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid." The Leon court made clear that the state has the burden of establishing "objectively reasonable" reliance and it described four limited situations in which such reliance would not be established, and in which suppression would remain an appropriate remedy: (i) the issuing magistrate was misled by information that the officer knew or should have known was false; (ii) the magistrate "wholly abandoned his judicial role"; (iii) the affidavit was "`so lacking in indicia of probable cause" that it would be "entirely unreasonable" for an officer to believe such cause existed; and (iv) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid. (468 U.S. at pp. 923-924.)
The judgment in Leonard was upheld under Leon. The Leonard court concluded that although the affidavit supporting the warrant was defective, the officer relying on it acted in good faith. (People v. Leonard, supra, 50 Cal.App.4th at p. 885.) The court concluded: "were it not for the Leon exception, we would be compelled to declare the warrant invalid and the search illegal"; and also admonished: "[w]e trust those responsible for the defect at issue will take the necessary measures to avoid repetition of this error." (Id. at p. 886.)
The Attorney General, points out that in People v. Hale (2005) 133 Cal.App.4th 942, Division Six of this district considered the same affidavit and same arguments as in Leonard. The Hale court disagreed with Leonard and rejected its analysis and conclusion that the affidavit was legally defective. In the Hale courts view:
"The oath appearing on the face of the warrant states more than the officers belief he has probable cause to conduct a lawful search. It also states the belief is based on the incorporated statement of probable cause. This necessarily implies that the facts contained in the statement of probable cause are true. No officer could have a belief in a lawful search based on a false statement of probable cause. The test of the sufficiency of an officers oath in support of a search warrant is whether he can be prosecuted for perjury should his statement of probable cause prove false. [Citation.] The oath here meets that test. Although we agree it would be better practice for the officer to specifically swear that the facts contained in the statement of probable cause are true, the failure to do so here does not render the warrant deficient. Unlike Leonard we view this warrant to suffer from at best a `technical defect of form, not substance." (People v. Hale, supra 133 Cal.App.4th at p. 947)
We find Hale s analysis persuasive and adopt its reasoning here. The "incorporation" of the Statement of Probable Cause into the affidavit and search warrant does sufficiently tether the factual assertions to the oath. Any defect in the oath is technical, rather than one of substance. As observed in Leonard, a search warrant affidavit is reviewed in "a realistic and common sense fashion," and "slavish adherence to technical pleading requirements is not appropriate." A realistic and common sense view of this matter leads us to conclude that the oath was intended to and does extend to factual assertions contained in the Statement of Probable Cause. Consequently, the warrant is not invalid and the trial court properly upheld it.
We also agree with Hale that it would be better practice to have the officer separately swear to the truth of the facts in the Statement of Probable Cause. This simple alteration of the warrant form would no doubt moot future claims similar to those made here.
Irrespective of whether Detective Magtoto believed he was subject to prosecution for perjury if he provided false information in the affidavit, we believe Detective Magtoto intended to include only truthful information in the affidavit. During his cross-examination at the preliminary hearing he was asked about a factual reference in the affidavit that stated that officers recovered a cell phone from Baca when he was arrested. Bacas counsel pointed out that no cell phone had been booked into evidence, and asked Detective Magtoto whether it was possible that the reference to the cell phone in the search warrant affidavit was a "mistake or an error." Detective Magtoto responded it could not be a mistake or an error. He emphasized he would not have included the reference if it had not been true. From this exchange concerning the cell phone, we infer that Detective Magtoto included only those factual assertions in the affidavit that he believed were accurate and truthful.
In view of our conclusion we do not reach Bacas argument concerning the good faith exception to the exclusionary rule.
ZELON, J.
While individuals in todays mobile society have a reduced expectation of privacy while in their cars in public, their right to privacy has not ceased to exist. In this case, although I concur in the majoritys conclusion that, under the circumstances, the officer properly asked Baca to exit his car, I respectfully dissent from the conclusion that those circumstances also justified the search that followed.
As the majority concludes, existing authority recognizes that a request to exit a car during a legitimate traffic stop is a minimal incremental intrusion on the drivers rights. Pennsylvania v. Mimms (1977) 434 U.S. 106, 109. To go beyond that to conduct a pat-down or vehicle search, however, requires a separate analysis. In Knowles v. Iowa (1998) 525 U. S. 113, the Supreme Court declined to approve a full vehicle search, even where an arrest could have been made, without a showing beyond that required to order a driver out of his car. Instead, the Court noted that officer safety concerns were satisfied by permitting a pat-search where there was a reasonable suspicion that the driver or passengers might be armed and dangerous, or a search of the passenger compartment "upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon." (525 U.S. at p. 118.) Applying those standards, the search performed in this case was not justified.
Baca did not fail to find his identification after a reasonable search; instead, he was removed from the car when he turned to retrieve it. He made no threatening gestures or statements; instead he was cooperative in exiting the car promptly and voluntarily consenting to a search of his person—a search that revealed he was unarmed. Based on the officers testimony, Baca did nothing suspicious or alarming until after he had been searched and asked to wait, and even at that point the testimony concerning his demeanor was that he appeared nervous and smelled of alcohol. These are not circumstances that courts in California have held to justify vehicle searches.
In re Arturo D. (2002) 27 Cal.4th 60, defined the permissible scope of an identification search. There, the Court upheld a limited vehicle search after the driver, stopped for a traffic investigation, failed to produce identification after he was given an opportunity by the officer to do so. The Court accepted as appropriate a search limited to an area where identification could be expected to be found because the driver refused or failed to produce the identification on demand. (Id at pp. 78-79.)
The Arturo D. stop took place late at night, and the driver, who was accompanied by two companions in the vehicle, claimed he had no identification. After holding the search justified on these grounds, the Court also recognized, as a secondary justification, that the facts in that case could support a concern for officer safety sufficient to justify an officers choice to conduct a limited document search rather than allowing the driver to access the cars interior. The cases on which the Court relied for that exception presented specific articulable facts that formed the basis for the rulings. In People v. Faddler (1982) 132 Cal.App.3d 607, the stop occurred late at night. There were three men in the car, at least one of who was clearly intoxicated; another was described as boisterous. In People v. Hart (1999) 74 Cal.App.4th 479, the defendant searched unsuccessfully for the identification for several minutes before the officer began a search; the defendant was in a van which had a bed in the rear, raising a concern that another individual could be hidden; the stop took place late at night; and the driver refused to acknowledge any reason for being present in that location.
Each of these cases presented objective circumstances supporting a conclusion that allowing the individual to re-enter the vehicle could pose a danger to the officers or the public; that is not the case here. The record in this case is devoid of facts that indicate an "independent reason to suspect criminal activity and present danger." (Pennsylvania v. Mimms, supra, 434 U.S. 106, 110, fn.5.) Instead, the officers own testimony establishes that his actions were taken to comply with the policy of his department: after a stop is made, the driver is to be removed from the vehicle if that driver places his hands somewhere the officer cannot see in response to the demand for identification; if the driver then does not carry his identification on his person, the policy directs the officer not to allow the driver to return to the vehicle to retrieve it. Thus, the determination was not based on an analysis of the actual circumstances to assess whether there would be a risk to the officer or the public, but instead on a policy that presumes that risk and leads to searches as a regular outcome, not an exceptional one.
Even had this general policy not been the basis for the officers actions, however, the facts are not consistent with Arturo D. Baca was given no opportunity to search for his identification nor did he refuse to produce it; instead, he was prevented from doing so. The stop occurred in the early evening, in a populated area, not late at night or in an isolated location. Baca was alone in his vehicle and consented to a voluntary pat-down, which demonstrated that he was unarmed.
To conclude on this record that the refusal to provide Baca with the opportunity to present his identification to the officer justified the subsequent search would be to conclude that the standard for a vehicle identification search is no different than the standard for removing a driver from his car in the course of the stop. But the standards are not the same: a vehicle search, even a limited one, represents a recognizably greater intrusion on the privacy of the driver than a request to exit that vehicle. Moreover, the critical importance of allowing officers to act where there is a reasonable basis to believe there is a threat to their safety, or the safety of members of the public, is not a concept without content. Only where there are facts that support that conclusion can the intrusion on otherwise constitutionally protected privacy rights be sanctioned by the courts. By approving the adoption of a policy like the one at issue here, every vehicle stop, regardless of the time and place, would potentially be converted into a vehicle search, provided only that the driver maintain his identification in some location where he or she would have to reach to retrieve it. Arturo D., and the cases on which it relied, did not expand the scope of search in this way; I would decline to do so.
DISPOSITION
The judgment is affirmed.
I concur:
PERLUSS, P.J.