Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF091751
RAYE, P. J.Defendant Miguel Angel Lopez appeals the trial court’s denial of his motion to suppress evidence. The evidence includes a handgun the police found in a search underneath the center console of a Chevrolet Suburban that defendant was driving. The search was conducted as a “parole search”-a passenger in the far back of the Suburban was on parole. Defendant argued below, as he does on appeal, that the search underneath the center console cannot be justified as a parole search. For the reasons that follow, we agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is based on evidence presented at the suppression hearing.
According to Officer Brent Slade of the Yuba City Police Department, on July 15, 2009, while on duty, he observed a blue Chevrolet Suburban stopped at an intersection in Sutter County. Officer Slade noticed the front passenger was not wearing his seat belt. The front passenger looked over at Officer Slade and promptly fastened his seat belt. The Suburban continued through the intersection headed eastbound, and Officer Slade observed that a rear seat passenger, sitting immediately behind the front seat passenger, was also riding without a seat belt. Officer Slade followed the Suburban for one to two minutes, and after it turned onto another street, Officer Slade initiated a traffic stop.
According to Officer Slade, the Suburban had four doors and three rows of seating. Six occupants, including the driver, were inside. As Officer Slade looked into the vehicle, he did not suspect any criminal activity aside from the seat belt infractions. Officer Slade asked the driver, defendant, for his driver’s license. Defendant could not provide his driver’s license but did “identify himself verbally.”
After defendant verbally identified himself, Officer Slade asked all the vehicle occupants if they were on probation or parole. Jose Lopez, a passenger in the third row on the passenger side of the vehicle, stated that he was on parole. Officer Slade asked Jose for the name of his parole agent, which Jose supplied. Officer Slade then obtained the names of the remaining occupants. The front seat passenger identified himself as Quintan Ontiveros, a name which Officer Slade recognized from a gang-related investigation.
Although Jose Lopez and defendant have the same surname, there is no indication in the record that they are related. To avoid confusion, Jose Lopez will be referred to by his first name.
Officer Slade had dispatch run a records check on all the occupants and requested a backup unit. As dispatch was running the records check, Officer Jurado arrived on the scene. In addition, Officers Sharma and Moe with the gang suppression team advised that they would be en route. Officer Slade waited five to 10 minutes for the additional officers to arrive.
The records check confirmed that Jose was on parole. According to Officer Slade, “[a]fter everything was confirmed, I went and advised them all I was going to do a parole search and asked each individual to step out one at a time.” All the passengers complied and Officer Slade conducted a parole search. Officer Slade entered the front of the vehicle through the passenger door, while Officer Sharma was at the driver’s side door. Officer Slade grasped the center console in order to look inside it. As he did so, he noticed the whole center console unit was loose, although it was bolted down at the back and “kind of hinged up.” Officer Slade then raised the whole center console unit, looked in the space underneath, and saw a white rag. Inside the white rag, Officer Slade found a black semiautomatic handgun. Subsequently, defendant, the driver, was arrested.
In their briefing the People represent that the center console unit hinged upward “from the front.”
At the suppression hearing Officer Slade testified that the gun was found “in” the white rag. In their appellate brief the People state the gun was found “wrapped in” the white rag. In defense counsel’s motion to suppress he similarly stated that the gun was found “wrapped inside” a white towel. The parties’ agreement on this point is consistent with Officer Slade’s testimony at the preliminary hearing that he found the gun “inside” the white rag after grabbing the rag and opening it up.
A day or two later, one of defendant’s family members brought his license to the police station.
Officer Slade acknowledged there was no reason to believe that Jose, the parolee, owned, or had “custody or control of, ” the Suburban. Jose was seated in the third row, between four and seven feet from the center console, and other individuals were in front of him. Jose could not reach the center console while seated in the third row. When asked at the suppression hearing whether Jose could reach the center console while standing in the third row, Officer Slade responded, “[p]robably not.”
On August 21, 2009, defendant was charged with three crimes: carrying a loaded firearm (count 1), carrying a concealed weapon in a vehicle (count 2), and participation in a criminal street gang (count 3). The first count further alleged that defendant was not the registered owner of the firearm, and consequently the offense was charged as a felony. Similarly, the second count alleged that defendant was not in lawful possession of the firearm, and consequently that offense was also charged as a felony. The first two counts were accompanied by an allegation that the offenses were committed for the benefit of a criminal street gang.
On August 26, 2009, defendant filed a motion to suppress the evidence seized during the parole search. The court heard and denied the motion on September 4, 2009. In its oral ruling, the court stated: “Mr. Jose Lopez was on parole. A person on parole may validly consent in advance to a warrantless search. Mr. Jose Lopez was, in fact, in the third seat, but this is a four-door vehicle. To get into the third seat, he has got to pass through presumably the second row. The evidence here is such that it becomes a question of fact as to whether or not [defendant] and Mr. Jose Lopez had access to the same area. [¶] The court concludes that the area searched by Officer Slade had, at some point before the subjects left on its [sic] drive, access to that area of the console. The court finds that Officer Slade had articulable facts to conduct the search. It was a consensual search regarding Jose Lopez. Officer Slade was in the area that he had the right to be. He had the authority to seize what he seized and the motion to suppress is denied.”
Subsequently, on September 9, 2009, the information was amended to reduce counts 1 and 3 to misdemeanors, and defendant pled no contest to those counts. Count 2, with associated enhancements, was dismissed. The court suspended imposition of the sentence and placed defendant on probation for a three-year period. This timely appeal followed.
I. DISCUSSION
A criminal defendant may move under Penal Code section 1538.5 to suppress evidence obtained as a result of an unreasonable search or seizure. (See § 1538.5, subd. (a).) “‘Generally, in reviewing a determination on a motion to suppress, we defer to the trial court’s factual findings which are supported by substantial evidence and independently determine whether the facts of the challenged search and[/or] seizure conform to the constitutional standard of reasonableness.’ [Citation.]” (People v. Ferguson (2003) 109 Cal.App.4th 367, 371; see also People v. Redd (2010) 48 Cal.4th 691, 719 (Redd).)
A threshold issue in Fourth Amendment search cases, often referred to (incorrectly) as “standing” (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3), is whether the defendant had a legitimate expectation of privacy in the realm searched (People v. Carter (2005) 36 Cal.4th 1114, 1141). On appeal, no party has addressed whether defendant had a legitimate expectation of privacy in the area underneath the center console or in the area underneath the white rag in which the gun was found. In the briefing below, in a one-sentence argument, defendant contended that he had “standing.” At the suppression hearing, no evidence was introduced as to whether defendant owned the Suburban or how he came to be its driver. Nor was there any evidence as to whether the white rag, in which the gun was found, belonged to defendant. Nevertheless, the People never contested whether defendant had a legitimate expectation of privacy in the realm searched by Officer Slade. Because the People failed to contest this issue at the trial court level, it is forfeited on appeal. (People v. Erwin (1997) 55 Cal.App.4th 15, 18, fn. 1; People v. Lindsey (1986) 182 Cal.App.3d 772, 776-777.)
A. Parole Search
A warrantless search, like the one conducted by Officer Slade, is “‘per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.’ [Citation.]” (Arizona v. Gant (2009) 556 U.S. ___, ___ [173 L.Ed.2d 485, 493]; see also Redd, supra, 48 Cal.4th at p. 719.) A search pursuant to a properly imposed parole search condition is one such exception. (People v. Reyes (1998) 19 Cal.4th 743, 751 (Reyes); People v. Smith (2009) 172 Cal.App.4th 1354, 1360 (Smith).) California parolees are subject to a standard search condition permitting a search without a warrant of their person, residence, and any property under their control by any law enforcement officer. (Cal. Code Regs., tit. 15, § 2511, subd. (b).)
Although permissible without probable cause or reasonable suspicion, parole searches are subject to constitutional limits. “‘[A] parole search could become constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.’ [Citations.]” (Reyes, supra, 19 Cal.4th at pp. 753-754.) In addition, the scope of a parole search may render the search constitutionally unreasonable. (Smith, supra, 172 Cal.App.4th at p. 1362; People v. Baker (2008) 164 Cal.App.4th 1152, 1161 (Baker).) Consistent with the ambit of the standard parole search condition, when executing a parole search, the searching officer may look into areas/containers that he or she reasonably believes are in the complete or joint control of the parolee. (Baker, supra, 164 Cal.App.4th at p. 1159; People v. Boyd (1990) 224 Cal.App.3d 736, 745, 749; People v. Britton (1984) 156 Cal.App.3d 689, 703, disapproved on another ground in People v. Williams (1999) 20 Cal.4th 119, 135; Cal. Code Regs., tit. 15, § 2511, subd. (b).)
No party disputes that Officer Slade had knowledge that Jose was on parole and was authorized to conduct a parole search. (Smith, supra, 172 Cal.App.4th at p. 1360 [officer was aware the defendant was on parole and was therefore authorized to conduct parole search]; People v. Middleton (2005) 131 Cal.App.4th 732, 739-740 [same].) Rather, the parties dispute whether the scope of Officer Slade’s search went beyond the parameters of a legitimate parole search. As there was no evidence that Jose owned or possessed the Suburban (or its center console), for Officer Slade’s parole search to be reasonable, other indicia of Jose’s control over the realm searched were necessary.
The trial court focused on whether Jose had “access” to the area underneath the center console. The trial court found that even though Jose “was, in fact, in the third seat” of the four-door Suburban, “[t]o get into the third seat, he has got to pass through presumably the second row.” Thus, the trial court concluded, “at some point before the subjects left on [their] drive” Jose had “access to that area of the console.” Given this “access, ” the court upheld the parole search.
We defer to express or implied factual findings when supported by substantial evidence. To be substantial, the evidence “‘must be “of ponderable legal significance... reasonable in nature, credible, and of solid value.”’ [Citations.]” (People v. DeCosse (1986) 183 Cal.App.3d 404, 408; see also People v. Miller (2004) 124 Cal.App.4th 216, 224.) Understandably, the trial court did not find that Jose had access to the area underneath the center console while he was situated in the third row of the Suburban. Instead, the trial court found that Jose had access to that area during his entry into the third row of the Suburban.
Below, no evidence explained how Jose entered the Suburban. The trial court simply assumed that Jose entered through one of the passenger doors (as opposed to the rear of the vehicle). Even crediting this assumption, there is no substantial evidence to support the factual finding that Jose traveled from a passenger door to the third row of the Suburban in a manner that actually gave him access to the area underneath the center console. This finding by the trial court was based on speculation, not on evidence.
At the suppression hearing no evidence was presented regarding the specific seating dimensions/configuration in the Suburban’s second row, or how or whether the second row could be maneuvered to permit entry into the third row. This type of evidence is critical to the issue of access. For example, if the Suburban had bucket seats in the second row, Jose (or another passenger) could have folded the bucket seat down and pushed it forward to permit entry to the rear of the vehicle. In that scenario, Jose could have entered the vehicle without passing by the center console or coming close to the area underneath the center console (in fact, access to that area likely would have been blocked by the forward position of the seat). Alternatively, if the Suburban had a bench seat in the second row that slid forward to permit entry to the third row of seating, upon entry, Jose could have passed through the space between the bench and the side of the Suburban without ever coming within reach of the center console or the area underneath it, which could not be reached from behind because it was hinged at the rear.
Given the lack of specifics regarding the Suburban’s second row of seating and the multiple plausible ways in which a passenger could enter the third row of seating without having access to the area underneath the center console, there is no evidence to support the finding that Jose necessarily entered the Suburban in a manner that gave him access to that area. Accordingly, we do not defer to the court’s finding.
In the absence of evidence indicating that Jose had access to the area underneath the center console, we cannot conclude that Officer Slade confined his parole search to an area he reasonably believed was in the joint control of the parolee. Consequently, we cannot uphold the parole search.
B. The Inevitable Discovery Doctrine
The People argue that even if the parole search of the area underneath the center console was invalid, the fruit of that search (the gun) need not be suppressed because inevitably it would have been lawfully discovered by Officer Slade. According to the People, the inevitable discovery doctrine is an independent basis upon which to affirm the trial court’s ruling. The People mentioned the inevitable discovery doctrine only briefly during the suppression hearing, and the trial court did not base its ruling on the doctrine. Nevertheless, we may affirm the trial court’s ruling if its decision to deny the motion was ultimately correct even if its underlying reasoning was erroneous. (See Green v. Superior Court (1985) 40 Cal.3d 126, 138.) Accordingly, on appeal, we may consider the People’s inevitable discovery argument, but only if its factual basis is “fully set forth in the record.” (People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7 (Robles); see also People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1214, fn. 28 (Walker).)
Contrary to defendant’s contention, the trial court did not determine that the evidence was insufficient to warrant application of the inevitable discovery doctrine. A close reading of the suppression hearing transcript reveals that the trial court did not consider the doctrine’s applicability. In any event, even had the trial court determined that the evidence was insufficient to uphold the search under the inevitable discovery doctrine, we would agree with that determination.
“[T]he doctrine of inevitable discovery... recognizes that if the prosecution can establish by a preponderance of the evidence that the information inevitably would have been discovered by lawful means, then the exclusionary rule will not apply.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62 (Coffman and Marlow), citing Nix v. Williams (1984) 467 U.S. 431, 443-444 [81 L.Ed.2d 377] (Nix).) The prosecution’s “showing must be based not on speculation but on ‘demonstrated historical facts capable of ready verification or impeachment.’” (Hughston, supra, 168 Cal.App.4th at p. 1072, quoting Nix, supra, 467 U.S. at pp. 444-445, fn. 5.) The inevitable discovery doctrine requires the court to determine what “would have” happened “regardless of” the illegal police conduct (Coffman and Marlow, supra, 34 Cal.4th at p. 62), or “‘“viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.”’ [Citation.]” (Hughston, supra, 168 Cal.App.4th at p. 1072, italics omitted.)
Elsewhere, the prosecution’s burden has been described as requiring a showing of a “‘reasonable probability that [the challenged evidence] would have been procured in any event by lawful means.’ [Citation.]” (Walker, supra, 143 Cal.App.4th at p. 1215.) These two formulations of the prosecution’s burden appear to be “substantively identical.” (People v. Hughston (2008) 168 Cal.App.4th 1062, 1071, fn. 4 (Hughston).)
Because the inevitable discovery doctrine requires an examination of what would have happened factually as well as thelegalityof that conduct, the prosecution bears the burden of demonstrating “factually” and “legally” that the doctrine applies. (Robles, supra, 23 Cal.4th at p. 801.) The purpose of the doctrine is “to prevent the setting aside of convictions that would have been obtained without police misconduct.” (Id. at p. 800.)
Citing In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), the People argue that because defendant was unable to produce a driver’s license when requested by Officer Slade, this gave Officer Slade the authority to “search the areas of the vehicle in which [defendant] may have been hiding his license.” The People maintain that, in searching those areas, Officer Slade inevitably would have discovered the gun under the center console, which the People contend is a “place where [defendant’s] license could have reasonably been located.” Despite their argument, the People’s showing is “factually” and “legally” deficient. (Robles, supra, 23 Cal.4th at p. 801.)
Factually, in the proceedings below, no evidence was presented that Officer Slade would have searched the Suburban for defendant’s driver’s license regardless of, or had he not conducted, the parole search. Nor was any evidence presented as to wherein the vehicle Officer Slade would have searched for the license, let alone that he would have searched for it underneath the center console unit or inside the white rag. The People have not cited any evidence to factually support their theory.
The suppression hearing transcript reveals that the only evidence even remotely touching upon what would have happened regardless of, or absent, the parole search came in on redirect examination of Officer Slade. On redirect, he testified briefly that the Yuba City Police Department has a “procedure” for individuals driving without a valid driver’s license. Officers are to “identify” the individual, and if he or she cannot be identified, officers are to search his or her “person” or “vehicle” for proof of identification. For a few reasons, this brief testimony is insufficient to factually demonstrate the applicability of the inevitable discovery doctrine.
First, Officer Slade did not explain what is required to “identify” a person under department procedure. Officer Slade conceded that defendant did “identify himself verbally, ” and Officer Slade utilized this verbal identification to run a records check. Accordingly, it is unclear whether defendant’s verbal identification, standing alone or when coupled with the records check, was sufficient to “identify” defendant under department procedure. By extension, it is equally unclear whether a search of defendant or the vehicle was even necessary under department procedure.
Officer Slade may have also utilized defendant’s verbal identification to fill out a citation he issued to defendant for driving without his driver’s license. (Veh. Code, § 12500, subd. (a).) On the citation, a copy of which is in the augmented clerk’s transcript as part of the larger case record, Officer Slade wrote defendant’s name and placed a slash mark in the space for the driver’s license number, suggesting that he completed the citation without the license. The citation, however, was not received in evidence at the suppression hearing-in fact, it was not even mentioned-and therefore, we will not consider it on appeal. (People v. Fisher (1995) 38 Cal.App.4th 338, 341; People v. Neighbours (1990) 223 Cal.App.3d 1115, 1120.)
Second, assuming the verbal identification was insufficient under department procedure, thus necessitating a search of defendant or the Suburban, Officer Slade never testified that he would have searched the Suburban for defendant’s driver’s license (or other proof of identification). Even assuming Officer Slade would have searched the Suburban, there is no evidence as to where in the vehicle Officer Slade would have searched for defendant’s license. Officer Slade did not testify as to where inside a vehicle an officer is obligated to search under department procedures; if department procedures simply authorize a “vehicle” search without further specificity, Officer Slade never testified as to where in the vehicle he would have looked for defendant’s license. The evidence leaves open the factual question whether a search underneath the center console unit would have ensued.
Apart from factual insufficiency, the People’s position is legally deficient. The People have not demonstrated that Arturo D. applies here and would have authorized a search of the area underneath the center console unit.
Arturo D. analyzed “whether, when a driver who has been detained for citation for a Vehicle Code infraction fails to produce vehicle registration or personal identification documentation upon the request of the citing officer, the officer may conduct a warrantless search for such documentation, and, if so, the permissible scope of such a search.” (Arturo D., supra, 27 Cal.4th at pp. 64-65.) Answering both questions, the court held: “[l]imited warrantless searches for required registration and identification documentation are permissible when, following the failure of a traffic offender to provide such documentation to the citing officer upon demand, the officer conducts a search for those documents in an area where such documents reasonably may be expected to be found.” (Id. at p. 86.) The limited searches sanctioned by Arturo D. were those “conducted for the narrow purpose of discovering required documentation that the driver had failed to produce upon demand and that was needed for the officer to issue a citation.” (Id. at p. 75, italics added.)
Arturo D. actually involved two separate cases, both dealing with vehicle searches for identification and registration documentation. One case concerned defendant Arturo D., and the other concerned defendant Randall Ray Hinger. In discussing Arturo D.’s case, the court noted that, in looking under the driver’s seat for required documentation, the officer at issue was “attempting to verify and ascertain the driver’s identity (and, indeed, whether he in fact was licensed as a driver), so that the citation could be issued in the driver’s true name and show his true address.” (Arturo D., supra, 27 Cal.4th at p. 84.) In discussing Hinger’s case, the court observed that in searching the glove compartment, the area underneath the driver’s seat, and the area beneath the front passenger seat for required documentation, the searching officer “was preparing to issue a traffic citation and therefore needed to learn the true identity of the person to be cited.” (Id. at p. 87.) It is apparent that the documentation searches Arturo D. addressed were those undertaken to facilitate the preparation of a citation.
The People’s reliance on Arturo D. is unpersuasive. To begin with, the People have not cited any authority suggesting that the area underneath the center console unit (let alone the area underneath the white rag) was a space in which defendant’s driver’s license “reasonably may be expected to be found.” (Arturo D., supra, 27 Cal.4th at p. 86, italics omitted.) In any event, no evidence was presented that regardless of, or absent, the parole search, Officer Slade would have searched the Suburban for defendant’s driver’s license to facilitate the preparation of a traffic citation. Indeed, there was no evidence at the suppression hearing that Officer Slade even issued defendant a citation. Assuming, arguendo, that Officer Slade cited defendant for the infraction he personally committed, i.e., driving without his license, there is no evidence that Officer Slade would have attempted to locate defendant’s license so that he could prepare defendant’s citation for driving without it.
Because the People have not met their burden of factually and legally demonstrating the applicability of the inevitable discovery doctrine, the search underneath the center console cannot be justified on this basis. With no other justification advanced for the search, we cannot uphold the trial court’s ruling.
DISPOSITION
For the reasons set forth above, we reverse the trial court’s ruling on defendant’s motion to suppress. We vacate defendant’s no contest plea and the associated judgment of conviction and remand with instructions to hold additional proceedings to permit defendant to withdraw his plea.
We concur: NICHOLSON, J., HULL, J.