Opinion
C078537
02-26-2020
THE PEOPLE, Plaintiff and Appellant, v. MARIA ELENA LOPEZ, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF143400) OPINION ON REMAND
This matter returns to us after our Supreme Court reversed our decision in People v. Lopez (2016) 4 Cal.App.5th 815, in which we reversed the trial court's orders granting defendant Maria Elena Lopez's motion to suppress evidence and dismissing the case in furtherance of justice. (People v. Lopez (2019) 8 Cal.5th 353, 359, 381 (Lopez).)
The basic facts of the challenged search can be briefly stated: defendant was outside her car when a police officer, who watched her park the car, asked whether she had a driver's license; when defendant said she did not, the officer asked whether she had any identification and defendant said she thought it was in the car; the officer then secured her in handcuffs and another officer retrieved a purse from the car; the subsequent search of the purse for identification uncovered a small amount of methamphetamine.
On these facts, we concluded the search for identification was reasonable under In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.) and, contrary to the trial court's ruling on the suppression motion, the United States Supreme Court's decision in Arizona v. Gant (2009) 556 U.S. 332 (Gant) did not compel suppression of the evidence. Although our Supreme Court agreed with our assessment that the challenged search "was conducted in accordance with Arturo D.'s general guidance" (Lopez, supra, 8 Cal.5th at p. 362), and further agreed "that Gant is not directly applicable . . . because it concerned a different exception to the Fourth Amendment's warrant requirement" (id. at p. 364), the court nevertheless concluded the reasoning of Gant "call[ed] for a reappraisal of the proper balance of interests" at stake in the context of an Arturo D. search for identification. (Lopez at p. 367.) That reappraisal led the court to overrule Arturo D. and hold "the Fourth Amendment does not contain an exception to the warrant requirement for searches to locate a driver's identification following a traffic stop." (Lopez at p. 381.)
The matter returns to us on remand for our determination as to whether, as the Attorney General argues, "the trial court should nevertheless have denied [defendant's] motion to suppress . . . because the officer acted in good faith based on the existing state of the law," and/or whether, as defendant argues, "the People have forfeited any such argument" for failure to raise it either in the trial court or before this court in their initial appellate briefing. (Lopez, supra, at p. 381.) We now hold the Attorney General's belated argument seeking to justify reversal of the trial court's suppression decision on the basis of the good faith exception to the exclusionary rule is forfeited. We shall therefore affirm the trial court's orders granting the motion to suppress and dismissing the case against defendant.
BACKGROUND
On the morning of July 4, 2014, Officer Jeff Moe of the Woodland Police Department was in his patrol car when he received a dispatch regarding a report of a particular car "driving erratically" at a certain intersection not far from his location. The officer drove to that intersection, but did not locate the car. He then had the dispatch officer search the license plate number that was provided during the initial report and drove to the address associated with that license plate, which was one block away. The car was not there either, prompting the officer to resume his normal patrol duties. Later in the day, the officer received another dispatch regarding the same car. This dispatch advised that a person identified as "Marlena" was driving at a different intersection, not far from where the first report of erratic driving was claimed to have occurred, and that "Marlena had been drinking all day." The officer again responded to the intersection identified in the report. Again unable to locate the car, the officer returned to the address associated with the car's license plate and parked nearby. A few minutes later, the car the officer was looking for pulled up and parked on the street in front of that address.
Defendant was the driver of the car in question. Officer Moe did not notice anything erratic about how she was driving and noted no Vehicle Code violations. The officer approached defendant as she got out of her car, which caused "[s]omewhat of a panicked look" to appear on her face as she walked away from the officer. Concerned that it seemed defendant "did not want to be present for [his] investigation," and not wanting to "give her a chance to go . . . anywhere," the officer asked whether she had a driver's license. Defendant said she did not have a license, prompting the officer to ask whether she had any identification at all, to which defendant responded, "there might be identification in the vehicle." Defendant neither smelled of alcohol nor appeared to be intoxicated during the conversation. Officer Moe secured defendant in handcuffs as another officer looked into her car and noticed a purse on the front passenger seat. The latter officer retrieved the purse from the car and handed it to the former, who opened it in search of defendant's identification. A small amount of methamphetamine was found in a side pocket.
Defendant moved to suppress the methamphetamine found in the purse. During the hearing on the suppression motion, Officer Moe testified to the foregoing facts. In opposition to the motion, the prosecutor argued the officer was justified in detaining defendant to investigate whether she was driving under the influence based on the report of her driving erratically that morning, the more recent report of her driving after drinking all day, and the fact that defendant appeared "nervous and panicked" when she saw him. Because defendant did not provide the officer with identification, the prosecutor argued, "[c]ase law says that the officer could enter the vehicle to retrieve a purse to search for identification," which the officer was doing when he found the methamphetamine.
In response, defense counsel argued Officer Moe, having witnessed no violations of the law, detained defendant without any "articulable suspicion whatsoever" because the reports he was investigating proved to be unreliable when defendant parked the car without incident, was not "falling all over[]" herself when she got out of the car, and did not smell of alcohol. According to defense counsel, defendant's "no" in response to the officer's question regarding whether she had a license and her attempt to walk away amounted to her declining to participate in a consensual interaction with the officer that resulted in her unjustified detention. The trial court then asked defense counsel to assume the detention was lawful and address the subsequent car search. In that regard, counsel argued the United States Supreme Court's decision in Gant, supra, 556 U.S. 332, required suppression of the methamphetamine because it was not reasonable for the officer to believe evidence relevant to the crime of arrest, i.e., driving without a license, would be found in the car.
With respect to the Gant decision (Gant, supra, 556 U.S. 332 ), the prosecutor responded by arguing that case was distinguishable because defendant was not under arrest, but rather "merely being detained," and therefore, Officer Moe was "not necessarily looking for evidence of a crime," but simply for defendant's identification, which California case law allows.
The trial court took the matter under submission and thereafter issued a written order granting the suppression motion. The trial court found the initial interaction between Officer Moe and defendant did not amount to a detention, but was instead a consensual encounter, during which the officer asked defendant whether she had a driver's license. Defendant's response that she did not have a license provided the officer with probable cause to arrest her for driving without a license. However, the officer did not have probable cause to arrest defendant for driving under the influence of alcohol or drugs. Thus, the trial court reasoned, under Gant, supra, 556 U.S. 332 , the search of defendant's car was justified only if she was "within reaching distance of the vehicle," which she was not, or if it was "reasonable to believe the vehicle contain[ed] evidence of criminality related to [her] arrest" for driving without a license. "But the court in Gant, on facts similar, concluded that when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. [¶] . . . The Court reasoned that allowing law enforcement to search a vehicle for a driver's license, registration or insurance after an arrest for a traffic violation would effectively totally undercut its declaration that the search incident to arrest exception to the Fourth Amendment warrant requirement should be narrowly tailored." Explaining that it was "compelled to follow Gant," the trial court granted the suppression motion and thereafter dismissed the case against defendant in furtherance of justice.
The People appealed. We reversed, holding the search for identification was reasonable under Arturo D., supra, 27 Cal.4th 60 and further holding Gant did not compel a contrary result. Our Supreme Court granted review and reversed our decision. Guided by the reasoning of Gant, the court overruled Arturo D. and held "the Fourth Amendment does not contain an exception to the warrant requirement for searches to locate a driver's identification following a traffic stop." (Lopez, supra, 8 Cal.5th at p. 381.) The court also made clear its view that the search in this case "was no less unreasonable" than the same search would have been if conducted incident to defendant's arrest, in violation of Gant. (Lopez at pp. 375-376.) We now turn to the issues properly before us on remand.
DISCUSSION
The Attorney General urges this court to again reverse the trial court's orders granting defendant's suppression motion and dismissing the case, arguing for the first time before this court that Officer Moe "fully complied with then-existing controlling precedent" and therefore the good faith exception to the exclusionary rule applies to render suppression of the evidence unwarranted. In response, defendant argues the People have forfeited this claim for failure to raise the good faith exception to the exclusionary rule either in the trial court or before this court in their initial appellate briefing. We agree with defendant.
"Exclusion of evidence due to a Fourth Amendment violation is not automatic. As the high court stated: 'The Fourth Amendment protects the right to be free from 'unreasonable searches and seizures,' but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.' [Citation.] 'The rule . . . operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." ' [Citation.]" (People v. Macabeo (2016) 1 Cal.5th 1206, 1219-1220.)
For this reason, "when the police act with an objectively 'reasonable good-faith belief that their conduct is lawful, [citation], or when their conduct involves only simple, 'isolated' negligence, [citation], the ' "deterrence rationale loses much of its force," ' and exclusion" is not warranted. (Davis v. United States (2011) 564 U.S. 229, 238 (Davis).) This is known as the good faith exception to the exclusionary rule. It applies in various factual settings, such as when the police conduct a search in reasonable reliance on a search warrant that is subsequently determined to be invalid for lack of probable cause (United States v. Leon (1984) 468 U.S. 897, 922 (Leon)), or, as the Attorney General argues occurred in this case, "when the police conduct a search in objectively reasonable reliance on binding judicial precedent." (Davis, supra, 564 U.S. at p. 239.)
However, although exclusion of evidence does not follow inexorably from a conclusion the evidence was obtained in violation of the Fourth Amendment, the burden of proving applicability of the good faith exception rests squarely on the People. (People v. Willis (2002) 28 Cal.4th 22, 37; People v. Pearl (2009) 172 Cal.App.4th 1280, 1292-1293.) Failure to raise the good faith exception in the trial court generally precludes the People from asserting the theory on appeal. (Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 941 (Higgason); United States v. Lara (9th Cir. 2016) 815 F.3d 605, 612-613; United States v. Wurie (1st Cir. 2013) 728 F.3d 1, 13-14.) The reason for this rule of forfeiture was stated by our Supreme Court in People v. Miller (1972) 7 Cal.3d 219: "[T]he People cannot introduce on appeal a new theory to justify the search, in view of the defendant's lack of opportunity to present evidence in response to it, to cross-examine the prosecuting witnesses on testimony supporting the new theory, or to argue before the trier of fact the theory's invalidity or inapplicability." (Id. at p. 227.)
Here, the People did not raise the good faith exception to the exclusionary rule in the trial court. Nor was the good faith exception raised by the Attorney General before this court when the matter came to us the first time. Only now has this new theory of admissibility been brought to our attention. The argument is therefore forfeited unless "a limited exception to this rule" of forfeiture applies: " 'If a question of law only is presented on the facts appearing in the record, the change in theory may be permitted by the reviewing court. [Citation.]' [Citation.]" (Higgason, supra, 170 Cal.App.3d at p. 942.)
In Higgason, our colleagues at the Fourth Appellate District held the People's failure to raise the good faith exception in the trial court forfeited the issue on appeal because application of the exception did "not present a pure issue of law." (Higgason, supra, 170 Cal.App.3d at pp. 944-945.) There, applicability of the good faith exception was predicated on the assertion the officers who seized cocaine while executing a search warrant did so in reasonable reliance on the validity of the warrant, i.e., "the good faith exception delineated in Leon." (Id. at p. 942.) The Higgason court quoted various passages from Leon supporting the conclusion "the good faith exception depends upon ascertaining and evaluating the facts about the police investigation." (Higgason, supra, at p. 942.) For example, Leon holds " 'suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis . . . .' " (Ibid.) Leon also set forth certain factual circumstances in which " 'the officer will have no reasonable grounds for believing that the warrant was properly issued,' " such as where the officer relied " 'on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." [Citations.]' " (Id. at p. 943, internal italics omitted.) Based on these passages from Leon, among others, the court explained, "application of the good faith exception requires a factual presentation of the officers' activity which is then measured against a standard of objective reasonableness" and concluded the record on appeal did not permit such a determination as a matter of law. (Id. at pp. 944-945.)
Here, although a different form of the good faith exception is at issue, we reach the same conclusion. As previously mentioned, the good faith exception delineated in Davis applies "when the police conduct a search in objectively reasonable reliance on binding judicial precedent." (Davis, supra, 564 U.S. at p. 239.) This is not a pure question of law. Like its Leon counterpart (Leon, supra, 468 U.S. 897), this exception to the exclusionary rule also requires an assessment of the officer's conduct. It first requires the officer to have actually relied on an exception to the warrant requirement set forth in binding judicial precedent. It also requires the officer's assessment of that precedent's applicability to have been objectively reasonable. Whether or not the precedent is binding can be determined as a matter of law. And where the facts are undisputed, so too can the officer's reasonable reliance thereon. (See Davis, supra, at p. 235 ["Davis acknowledged that the officers' search fully complied with 'existing Eleventh Circuit precedent' "].) But here, the facts surrounding the search were disputed. And although the record on appeal was sufficient for us to conclude in our original opinion that Arturo D., supra, 27 Cal.4th 60 applied to the facts of this case, because the People did not raise the good faith exception in the trial court, defendant had no opportunity to cross-examine Officer Moe in an attempt to cast doubt on his actual reliance on that decision in searching her purse; nor did defendant have an opportunity "to argue before the [trial court] the theory's invalidity or inapplicability." (People v. Miller, supra, 7 Cal.3d at p. 227.) It would be patently unfair, both to defendant and to the trial court, for this court to reverse the trial court's decision granting suppression on a new theory to which defendant was unable to respond with evidence or argue against in the trial court. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 198 [permitting the People to raise a new theory on appeal " 'would deprive the [defendant] of a fair opportunity to present an adequate record in response' "].) For these reasons, we cannot conclude the record on appeal is adequate for us to determine as a matter of law that Officer Moe reasonably relied on binding precedent when he conducted the search at issue in this case.
Because the applicability of the belatedly-raised good faith exception "turns upon a determination of facts not presented to the trial court, the People's new theory is not subject to review." (People v. Chapman (1990) 224 Cal.App.3d 253, 260; United States v. Lara, supra, 815 F.3d at pp. 612-613; United States v. Wurie, supra, 728 F.3d at pp. 13-14.)
DISPOSITION
The trial court's orders granting defendant's motion to suppress evidence and dismissing the case are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
DUARTE, J.