Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA041646, Lisa M. Chung, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Jackson, J.
INTRODUCTION
The People charged defendant Dathan Eugene Brown with second degree commercial burglary (Pen. Code, § 459) in count 1; making a false financial statement (§ 532a, subd. (1)) in count 2; forgery of a driver’s license (§ 470a) in count 3; making a counterfeit seal (§ 472) in count 4; and identity theft (§ 530.5, subd. (a)) in count five. The People further alleged that defendant had suffered a prior serious or violent felony conviction or juvenile adjudication (§§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Penal Code.
Following the denial of his motion to suppress evidence (§ 1538.5), defendant pled guilty to count 5 and was sentenced to state prison for the upper term of three years. Defendant appeals, challenging the denial of his suppression motion. We affirm.
The facts are derived from the preliminary hearing transcript and defendant’s motion to suppress hearing.
On March 14, 2008, the security guard at the EZ 8 Motel in Palmdale contacted sheriff’s deputies. The guard told the deputies that he was receiving complaints about loud music and marijuana smoke from room 232. Deputy Robert McGaughey checked with the clerk at the motel and determined that the room was registered to defendant. He approached the room alone and smelled the odor of burnt marijuana.
Deputy McGaughey knocked on the door and after approximately a minute, defendant answered the door. The room smelled of burnt marijuana and was filled with smoke. There were several people seated on the bed, and one person in the back of the room stood up and ran into the bathroom. The smoke was so thick, Deputy McGaughey couldn’t determine the race or the gender of the person. The deputy pulled out his gun and waited until the person came out of the bathroom. He was concerned that the person may have been retrieving a weapon or concealing or destroying evidence. He patted down all six people in the room for weapons, and then he had them stand outside the door while he checked the bathroom to see if anyone else was in there. When he was coming out of the bathroom, he noticed an open dresser drawer. There was a California driver’s license in plain sight in the dresser drawer with a picture of defendant on it. The name on the card was Lionel White. It did not appear to be a valid driver’s license.
Deputy McGaughey asked defendant where he had obtained the license. Defendant said he had paid a friend $40 for it. He was placed under arrest and the room was searched. No marijuana or marijuana smoking devices were found. Defendant told Deputy McGaughey “that they had just got done smoking.”
During the search, Deputy McGaughey found in the same dresser drawer a valid Social Security card in the name of Lionel White, an envelope containing a McMahan’s charge account agreement in Lionel White’s name, and a sales receipt in Lionel White’s name for $1,840.14. Defendant told deputies that he found the Social Security card, had signed Lionel White’s name to a payment agreement in an attempt to buy furniture, but was denied credit.
Deputy McGaughey contacted Lionel White. He informed Deputy McGaughey that he had lost his Social Security card and had not given anyone permission to use it.
The financial manager at McMahan’s Furniture was contacted and indicated that defendant had filled out a credit application in the name of Lionel White, but his credit application was denied.
Defendant testified on his own behalf, and his account of the incident was different than Deputy McGaughey’s. According to defendant, Deputy McGaughey asked if he could enter, was told no but came in anyway. No one ran to the bathroom. As the six occupants of the room stood against the wall, Deputy McGaughey began to search. He opened the dresser drawer and found the driver’s license and Social Security card. After the entire room was searched, defendant was placed in a patrol car. Defendant denied using marijuana that night.
The trial court found Deputy McGaughey’s testimony to be credible. The trial court found the entry without consent was justified on the ground of exigent circumstances based upon the odor of burning marijuana.
DISCUSSION
The applicable standard of review is well-stated in People v. Middleton (2005) 131 Cal.App.4th 732: “In reviewing the denial of a motion to suppress, an appellate court defers to the trial court’s express or implied findings of fact that are supported by substantial evidence, but must independently determine the relevant legal principles and apply those principles to the trial court’s findings of facts to determine whether the search was constitutionally reasonable. [Citations.] ‘[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.’ [Citation.] If factual findings are unclear, the appellate court must infer ‘a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.’ [Citation.] However, if the undisputed facts establish that the search or seizure was constitutionally unreasonable as a matter of law, the reviewing court is not bound by the lower court’s ruling. [Citation.]” (Id. at pp. 737-738.)
The Fourth Amendment protects against arbitrary and unreasonable searches and seizures in a person’s residence, including a hotel room in which the person is registered. (People v. Middleton, supra, 131 Cal.App.4th at p. 738.) A residence search conducted without a warrant is presumed to be unreasonable unless it comes within one of the well-established exceptions. (Ibid.) These exceptions include the existence of exigent circumstances or emergency (People v. Wharton (1991) 53 Cal.3d 522, 577), inevitable discovery (People v. McDowell (1988) 46 Cal.3d 551, 564), and search incident to an arrest (People v. Mendoza (1986) 176 Cal.App.3d 1127, 1132).
“A defendant meets the initial burden of raising the issue of an unreasonable warrantless search or seizure by ‘simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion.’ [Citation.] After the defendant sufficiently raises the issue, it is the prosecution’s burden to justify a warrantless search or seizure. [Citation.] A defendant then must present any arguments as to why that justification is inadequate. [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 296.) “The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.]” (People v. Williams (1999) 20 Cal.4th 119, 130.)
Search Incident to Arrest
Defendant contends that the search of his motel room following his arrest was not a valid search incident to his arrest, because he was arrested outside the room. Therefore, he claims, the Social Security card, the McMahan’s charge account agreement and the sales receipt in Lionel White’s name were inadmissible.
The People argue that regardless of the admissibility of evidence seized following defendant’s arrest, the sole count to which he pled guilty was established by the evidence found in plain view prior to the arrest, i.e., the false identification card. The People also argue that, even if the evidence discovered post-arrest was not admissible under the search-incident-to-arrest exception to the Fourth Amendment warrant requirement, it nevertheless would have been admissible under the exigent circumstances and/or inevitable discovery exceptions.
The trial court’s decision was made prior to Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710, 173 L.Ed.2d 485]. In Gant, the defendant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. (Id. at p. ___ [129 S.Ct. at p. 1715].) The Supreme Court upheld the state court’s conclusion that the search was unreasonable. (Id. at p. ___ [129 S.Ct. at p. 1724].)
The Supreme Court held that law enforcement may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. (Arizona v. Gant, supra, ___ U.S. at p. ___ [129 S.Ct. at p. 1714].) The decision was an attempt to clarify the holding in New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768]. Belton held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of [the] automobile” and any containers there. (Id. at p. 460, fns. omitted.) Under a broad reading of Belton, a vehicle search would be an authorized incident to every arrest of a recent occupant even though in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. (Gant, supra, at p. ___ [129 S.Ct. at p. 1719].) In Gant, the court clarified Belton and held that law enforcement search of a vehicle incident to an occupant’s recent arrest would only be authorized if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. (Ibid.) The Supreme Court in Gant also concluded that the circumstances unique to a vehicle context would justify a search when it would be reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. (Ibid.)
The Supreme Court further distinguished Belton. In Belton, a single officer was confronted with four unsecured arrestees. In Gant, five officers outnumbered three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched Gant’s car. Gant was not within reaching distance of his car. In addition, Belton was arrested for a drug offense, Gant was arrested for driving with a suspended license. (Gant, supra, ___ U.S. at p. ___ [129 S.Ct. at p. 1719].)
While the instant case involves a search of a motel room and Gant involved the search of a vehicle, the principle established in Gant is clear. The search incident to an arrest is commensurate with the purpose of protecting the arresting officers and safeguarding any evidence that an arrestee might conceal or destroy. After defendant was arrested, he was taken outside the motel room with the other persons who had been in the room. There was no evidence that, at that point, defendant had any access to any evidence in the motel room that he could conceal or destroy. Under Gant, there were no circumstances that would justify a search of the motel room incident to the arrest.
Evidence Obtained Prior to Illegal Search
The People concede that Gant may affect the validity of the post-arrest search of defendant’s motel room. They argue, however, that the evidence found prior to his arrest—the false driver’s license—not challenged by defendant on appeal supports his conviction. We disagree.
Defendant pled guilty to count five, identity theft in violation of section 530.5. That conviction is not supported by the false driver’s license without the evidence found in the illegal search and its fruit: the Social Security card, the McMahan’s charge account agreement, the receipt from McMahon’s and the evidence obtained through the follow-up investigation with McMahon’s. Defendant correctly points out that section 530.5, subdivision (a), requires proof that a person used another person’s identification to obtain goods or services without the other person’s consent and not that he simply possessed another person’s identification.
Section 530.5, subdivision (a), punishes “[e]very person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person....”
Exigent Circumstances
The People opine that the search of the motel room was justified based upon exigent circumstances. We disagree.
Exigent circumstances include “‘“emergency situation[s] requiring swift action to prevent imminent danger or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts know to the officers.”’” (People v. Wharton, supra, 53 Cal.3d at p. 577.) If the facts known to the officers would warrant a person of reasonable caution to believe exigent circumstances existed and an immediate search or seizure was appropriate, the search or seizure will be deemed reasonable. (People v. McDowell, supra, 46 Cal.3d at p. 563.)
Deputy McGaughey was justified in entering the room based upon the smell of marijuana. Once he entered defendant’s motel room, he could seize contraband or incriminating evidence in plain view and arrest defendant based on the contraband or evidence found. (People v. Breault (1990) 223 Cal.App.3d 125, 131-132.) No warrant was required. However, after defendant was arrested and the room was secured, there no longer were any exigent circumstances justifying a warrantless search of the motel room and seizure of evidence. There was no imminent danger that a suspect would escape or any evidence contained in the room would be destroyed. (People v. Wharton, supra, 53 Cal.3d at p. 577.)
Inevitable Discovery
The People suggest that the evidence nonetheless was admissible under the inevitable discovery doctrine. “Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine ‘is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.’ (Murray v. United States (1988) 487 U.S. 533, 539 [108 S.Ct. 2529, 2534, 101 L.Ed.2d 472].) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. (Nix v. Williams (1984) 467 U.S. 431, 443, fn. 4 [104 S.Ct. 2501, 2509, 81 L.Ed.2d 377].)” (People v. Robles (2000) 23 Cal.4th 789, 800.)
The People acknowledge that the prosecution did not advance any argument regarding inevitable discovery during the hearing on defendant’s suppression motion, and the trial court did not discuss or base its decision on this theory. We do not have to rely on the reasons stated by the trial court, however, but may affirm the decision on any grounds supported by the record. (People v. Zapien (1993) 4 Cal.4th 929, 976; see, e.g., People v. Boyer (2006) 38 Cal.4th 412, 449 [appellate court found inevitable discovery doctrine justified denial of suppression motion, even though the prosecution had not raised it in the trial court].)
In In re Rudy F. (2004) 117 Cal.App.4th 1124, 1136, where the prosecution failed to raise the issue in the trial court and failed to make a record with which to establish it, the court found the exception did not apply. Here, however, while it is true that the prosecution failed to raise the issue in the trial court and relied on the exigent circumstances, the record does indicate that evidence presented at the suppression hearing supports the inevitable discovery exception. Deputy McGaughey was justified in entering the motel room without a warrant because of the smell of marijuana. After the entrance, he discovered in plain view the false driver’s license which defendant admitted he paid $40 to obtain. Based on this evidence, a search warrant inevitably would have been issued. (People v. McDowell, supra, 46 Cal.3d at p. 564.) The evidence thus is sufficient to meet the prosecution’s “burden of proving by a preponderance of the evidence that evidence otherwise unlawfully obtained would have been inevitably discovered.” (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1217.)
While United States v. Echegoyen (9th Cir. 1986) 799 F.2d 1271, 1280, footnote 7 states that “to excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment,” the decisions of the United States Court of Appeals are not precedent in California, and are merely persuasive authority. (People v. Burnett (2003) 110 Cal.App.4th 868, 882.)
Defendant contends that the warrantless search should not justify the use of the inevitable discovery doctrine, relying on People v. Robles, supra, 23 Cal.4th 789. Robles is distinguishable, however. In Robles, the police entered a garage without a warrant after viewing a stolen car through an opening in the garage door. (Id. at p. 793.) The court reaffirmed “that, in the absence of exigent circumstances, a police officer is required to obtain a warrant to enter a residence even if contraband is clearly displayed in a window and the officer observes the contraband from a place in which he or she has a right to be.” (Id. at p. 801.)
Here, exigent circumstances justified the initial entry into the motel room when Deputy McGaughey smelled marijuana. It was only after he was lawfully in the room, had observed the false driver’s license, and arrested defendant that he searched the room and discovered the Social Security card and information from McMahan’s Furniture in the name of Lionel White. Robles does not preclude a finding that the inevitable discovery doctrine applies under these circumstances.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.