Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR910775
Jenkins, J.
Defendant Jason McCord Patten appeals from the entry of judgment and sentence following his plea of nolo contendere to the charge of burglary. Appellant appeals the denial of his motion to suppress evidence by the trial court pursuant to Penal Code section 1538.5, subdivision (m) and California Rules of Court, rule 8.304(b)(4)(A). After review of the record, we affirm.
PROCEDURAL BACKGROUND
On June 14, 2007, the District Attorney for Lake County filed an information charging appellant in count one with first degree burglary (Pen. Code, § 459) and in count two with the unlawful receipt, sale, withholding, and concealment of stolen property (§ 496, subd. (a)). These charges stemmed from theft of personal property, belonging to and taken from the home of Douglas Patten, appellant's uncle, on July 17, 2006. With respect to count one, the information noticed that the offense was a serious felony (§ 1192.7, subd. (c)) and a violent felony (§ 667.5, subd. (c)). With respect to both counts one and two, the information alleged that appellant had suffered a prior conviction of a serious or violent felony (strike) (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)); that appellant was released from custody on bail and on his own recognizance at the time of the commission of the offense (§ 12022.1); that appellant had suffered two prior felony convictions, for each of which a prison term was served (§ 667.5), and that appellant did not remain free of prison custody for the five-year period following his terms of imprisonment (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code unless otherwise noted.
On August 15, 2007, appellant filed a motion to suppress the evidence seized without a search warrant on or about August 21, 2006, namely, a 1987 Volvo and the contents thereof. On February 1, 2008, a hearing on the motion to suppress was held and the motion was denied. On April 28, 2008, pursuant to a plea agreement, appellant entered a plea of nolo contendere to count one and admitted the special allegation that he had one prior strike conviction under section 1170.12. Under the plea agreement, count two and the special allegations listed in the information were dismissed and the court agreed to hear appellant’s Romero motion at the time of sentencing. On August 8, 2008, the court denied appellant’s Romero motion and sentenced appellant to four years in state prison on count one, which was doubled to eight years as a result of his previous strike conviction. On August 19, 2008, appellant filed a timely notice of appeal.
After appellant was arrested, his 1987 Volvo was towed and impounded. Subsequently, a search warrant was obtained and police searched the vehicle at its place of impoundment (see, post). Appellant’s motion to suppress challenged the seizure and impoundment of his vehicle. In his motion to suppress, appellant stated he “reserves the right to... pursue a motion to quash and or a motion to traverse said warrant, depending on the outcome of the court’s ruling on this initial phase of the proceedings.” However, appellant never filed a motion to quash or to traverse the search warrant for his vehicle, and neither the warrant nor the supporting affidavit is included in the record.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [holding that a trial court may utilize section 1385 to strike or vacate a prior strike for purposes of sentencing under the three strikes law, “subject, however, to strict compliance with the provisions of [Penal Code] section 1385 and to review for abuse of discretion”].)
FACTS
At the hearing on the motion to suppress, held on February 1, 2008, the People stipulated that no search warrant existed at the time of the contested seizure. In opposition to the motion, the prosecution called Lake County Deputy Sheriff Joe Dutra, State Parole Agent Douglas Eckenrod, and Lake County Sheriff's Department Detective Corey Paulich.
Dutra testified that he was one of the three police officers present at the scene when appellant was arrested on August 21, 2006. The others were Deputies Hockett and Thomas. Dutra was the officer in charge of impounding the vehicle at issue, a “silver-colored” Volvo. Dutra was directed to impound the vehicle by Parole Officer Eckenrod, who also was at the scene. Dutra stated he impounded the vehicle pursuant to Vehicle Code section 22655.5. Dutra had no independent basis for seizing the Volvo and did so solely at Eckenrod’s direction. Dutra inspected and performed a brief inventory on the vehicle before impounding it but had no further contact with the Volvo following its seizure. Dutra removed nothing from the vehicle and could not recall what the Volvo contained at the time it was impounded. Dutra was shown the inventory form he had completed prior to impounding the Volvo and noted that it contained those items that he had observed during his inspection of the vehicle including two cell phones, a black bag, books, and bolt cutters.
Dutra testified appellant was arrested outside a private residence located approximately 25 yards from a rural road. Deputy Hockett was the arresting officer. Dutra could not remember if there were any other dwellings near to the house where appellant was arrested or if there were any other vehicles parked nearby. Dutra testified that, when he arrived on the scene, he recognized appellant, who was either standing on the porch or near the residence, and saw that the Volvo was parked next to the porch. Dutra had been informed by Eckenrod that appellant was driving a silver Volvo, although he could not recall if Eckenrod had given him the license number of the car. Dutra was aware that the vehicle was registered to a Michael Baker at the time it was impounded. Dutra could not recall if any keys to the Volvo had been found but noted that the form indicated that no ignition key had been inventoried. Dutra believed that Eckenrod partially searched the vehicle and looked inside of it but could not recall if he had opened the trunk.
Douglas Eckenrod testified that he had been a parole agent for three years. In August 2006, Eckenrod learned that appellant was subject to arrest on a parolee-at-large warrant issued by the Department of Corrections, and also on a warrant issued by the Lake County Sheriff’s Department. Also, Eckenrod was aware appellant had a search condition as a term of his parole and had also learned from Detective Corey Paulich that appellant was a suspect in a recent burglary case. Eckenrod testified that after he received information appellant was at a residence on Highland Springs Road, he drove past the residence and saw appellant standing outside. Eckenrod parked a mile or so down the road from the residence and then contacted the Lake County Sheriff's Department to request assistance in arresting appellant. Subsequently, Eckenrod and the Sheriff’s Deputies who responded to his call for back up drove to the residence to arrest appellant. They arrived at the residence around 6:20 p.m.
The residence was located in a semi-rural area. There was one house next door. Access to both houses was by way of an unpaved driveway which ran between the two dwellings. When Eckenrod arrived, appellant was standing with another individual on a porch area near the front door of the house. Eckenrod instructed appellant to “Put your hands up and turn around.” At the time, Eckenrod knew appellant was driving and living in a light, “faded blue” Volvo sedan. After Eckenrod contacted appellant, Deputy Hockett placed appellant in handcuffs and conducted a search of his person and his immediate area. During this search, Deputy Hockett discovered keys for a Volvo sedan parked on the property. Eckenrod could not recall if the keys were found on appellant’s person or in his immediate vicinity. The description of the vehicle and the keys, along with a large number of personal items visible within the vehicle, led Eckenrod to conclude that the blue Volvo sedan parked at the location of the arrest was appellant’s vehicle.
Eckenrod further testified that at his request one of the deputies opened the trunk of the Volvo with the keys found when appellant was searched. Eckenrod had initially intended to perform a parole search on the trunk of the Volvo at the scene but instead decided to have it impounded and towed. Several items taken in the burglary had been described to Eckenrod, including several “long guns,” a handgun, a briefcase, “some sort of jewelry case,” and other miscellaneous items that he could not recall. When he looked in the trunk, Eckenrod did not see any firearms but he identified several items consistent with the items reported stolen in the burglary intermingled with “lots of clothes and things.” These items included a briefcase and jewelry box. Eckenrod could not recall who had told him that a briefcase was among the items taken in the burglary but “narrowed it down” to Detective Paulich, Parole Agent Pedraza, Deputy Hockett, or a confidential informant, whom he refused to identify. Eckenrod said he did not open or search the briefcase he saw in the trunk during his search. Instead, Eckenrod decided to impound the vehicle so that he could get assistance in performing the search because he was concerned that the burglary investigation could be compromised if he disturbed latent evidence while performing a parole search. Eckenrod requested that the deputies on the scene contact detectives to aid in the searching of the vehicle after impound but did not direct any of the officers to seize either the briefcase or jewelry box, which were the only items he saw consistent with the items he knew to have been involved in the burglary. Eckenrod did not direct the seizure of the items because he did not think that the officers were prepared to go through all the property in the trunk at that time and because it was getting dark.
Detective Corey Paulich testified that on August 11, ten days prior to the seizure of the Volvo and arrest of appellant, he and Detective Kenner went to the home of Doug Patten to follow up on the burglary and obtain additional information regarding what had been taken. Doug Patten told Paulich that several pistols, some counterfeit antique coins, a cell phone, and some cash had been taken in the burglary. Paulich did not recall ever having a direct conversation with Eckenrod or Pedraza about the burglary investigation but believed that Eckenrod was present at an investigators’ meeting where information regarding the burglary and the items stolen was relayed. The burglary of Doug Patten's home was the only burglary discussed at this meeting. Paulich could not recall having any information relating to appellant’s vehicle until he learned of its impoundment. Paulich obtained a search warrant for the Volvo and found several items belonging to appellant as well as a briefcase, which he believed was large enough to hold the stolen handguns. According to Paulich, the briefcase was unlocked and easy to open.
DISCUSSION
A. Standard of Review
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (Citation.)” (People v. Gemmill (2008) 162 Cal.App.4th 958, 963.)
B. Analysis
1.
Appellant contends that his motion to suppress should have been granted because the impoundment of his vehicle following his arrest violated his rights under the Fourth Amendment. In this regard, appellant asserts that as a parolee he retained a residual expectation of privacy to be free from oppressive conduct (citing People v. Sanders (2003) 31 Cal.4th 318), including unreasonably prolonged searches (citing People v. Reyes (1998) 19 Cal.4th 743 (Reyes)). While conceding that his parole status at the time of the search allowed the officers to conduct a search at the scene, he contends “there is no authority for the procedure followed here, where officers simply impounded a vehicle to be searched later.” According to appellant, the prosecution erroneously relied on Vehicle Code section 22655.5 (section 22655.5) for authority to impound his vehicle. Appellant asserts that not only did the prosecution fail to show the officers had probable cause to believe the vehicle contained evidence of a crime, but even if such probable cause existed, the prosecution failed to establish that any items of evidence could not readily be removed. Under these circumstances, appellant concludes, “the impoundment and subsequent search of the vehicle resulted in an ‘ “unreasonably prolonged” ’ search that violated the rights of even a parolee” such as him, citing Reyes, supra, 19 Cal.4th at p. 753.
Section 22655.5 provides in pertinent part: “A peace officer... may remove a motor vehicle from the highway or from public or private property... [w]hen [there is] probable cause to believe... that the vehicle contains evidence, which cannot readily be removed, which tends to show that a crime has been committed.” (§ 22655.5, subd. (b).)
The Attorney General (AG) takes a different view. Relying on Chambers v. Maroney (1970) 399 U.S. 42 (Chambers) and its progeny, the AG contends that because any search of appellant’s vehicle was lawful when the vehicle was seized at the scene, it became no less lawful “if delayed until the vehicle is removed to a more convenient location.” Moreover, the AG asserts that even if the impoundment of appellant’s vehicle did not comply with section 22655.5, such a violation of state law does not require the suppression of evidence under the Fourth Amendment.
In his reply brief, appellant contends the AG’s reliance on Chambers and its progeny is flawed because under Chambers a delayed search following impoundment is reasonable under the Fourth Amendment only if there was probable cause for the search when the vehicle was initially seized. Having considered the competing Fourth Amendment scenarios presented by the parties, we conclude that the impoundment of appellant’s vehicle following his arrest on an outstanding warrant did not violate the Fourth Amendment.
Accordingly, we need not and do not address the AG’s alternate grounds for affirmance that “even if the seizure [and impoundment] of the car was constitutionally impermissible, the connection between the antecedent illegality and the discovery of the evidence was attenuated by the [subsequent] issuance of the search warrant.”
2.
At the time of the seizure of his vehicle, appellant was a parolee with a search condition as a term of his parole. Because of appellant’s status as a parolee with a search condition, parole officer Eckenrod was entitled to search appellant and his possessions without a warrant or any particularized suspicion of wrongdoing on appellant’s part, without running afoul of the Fourth Amendment. Both the California Supreme Court and the high court have so held. (Reyes, supra, 19 Cal.4th at p. 754 [“Where the search is for a proper purpose,... even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy ‘society is “prepared to recognize as legitimate.” ’ (Citations.)”]; Samson v. California (2006) 547 U.S. 843, 857 (Samson) [“[T]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee”].)
It is beyond dispute, therefore, that when Eckenrod confronted appellant on August 21, 2006, he had the legal authority to search appellant’s vehicle without probable cause. Any such search was per se reasonable for Fourth Amendment purposes “as long as it [wa]s not arbitrary, capricious or harassing.” (Reyes, supra, 19 Cal.4th at p. 752.) In this regard, the Reyes court cautioned, “ ‘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.’ ” (Id. at pp. 753-754.) Relying on this cautionary language, appellant contends that Officer Eckenrod’s decision to impound the vehicle “unreasonably prolonged” (Reyes, supra, 19 Cal.4th at p. 753) the parole search in violation of the Fourth Amendment. We disagree.
We agree with the AG’s position that it does not matter for Fourth Amendment purposes whether Eckenrod correctly relied on section 22655.5 when he decided to impound appellant’s vehicle. (See, e.g., People v. McKay (2002) 27 Cal.4th 601, 618 [if officer has probable cause to arrest suspect, the arrest does not violate the Fourth Amendment if it fails to comply with state arrest procedures]; People v. Mateljan (2005) 129 Cal.App.4th 367, 376, [“fact that blood was taken from appellants in violation of [state statute] does not implicate their rights under the Fourth Amendment. Rather, the only Fourth Amendment question we are required to consider is whether, under the circumstances, the blood was in fact taken in a reasonable manner”].)
When tethered in its full context, it is clear that the phrase “unreasonably prolonged” means that a parole search could become constitutionally “unreasonable” if prolonged as a result of “arbitrary or oppressive conduct by the searching officer.” (See Reyes, supra, 19 Cal.4th at pp. 753-754 and cases cited therein.) Here, even if we view impoundment of appellant’s vehicle as prolonging a parole search, Officer Eckenrod’s conduct in arranging for impoundment was neither arbitrary nor oppressive.
We note that impoundment under the circumstances presented here could also be justified as a reasonable exercise of the “community caretaking functions” under which a vehicle may be impounded without violating the Fourth Amendment if it is creating a hazard to other drivers or might be a target for vandalism or theft. (See People v. Williams (2006) 145 Cal.App.4th 756, 761, citing South Dakota v. Opperman (1976) 428 U.S. 364, 368-369; see also People v. Steeley (1989) 210 Cal.App.3d 887, 892 [holding it was not unreasonable for an officer to tow and impound a vehicle after citing defendant for driving without a license where “there was no other licensed driver [in vehicle], the car was blocking a driveway, and [defendant] was not the registered owner of the vehicle”].)
First, appellant’s vehicle was impounded as a direct consequence of the fact that he was arrested and taken into custody upon execution of a lawfully issued warrant, not as a consequence of arbitrary or oppressive conduct by an officer. Second, Eckenrod knew appellant was wanted in connection with a burglary and also knew the nature of the items reported stolen in that burglary. In his brief search of appellant’s vehicle, Eckenrod noticed a briefcase and a jewelry box consistent with the items reported stolen. Eckenrod decided that it would be better to impound the vehicle and obtain assistance in searching the vehicle for fruits of the burglary rather than risk disturbing latent evidence by performing a parole search at the scene. Although the record does not establish exactly who told Eckenrod about the items involved in the burglary, that does not render his conduct based on such information arbitrary or oppressive. Third, Eckenrod also decided to impound appellant’s vehicle in part because it was getting dark and he did not think the officers were prepared to go through all the contents in the truck at that time. This was reasonable under the circumstances and does not amount to arbitrary or oppressive conduct. (Cf. Chambers, supra, 399 U.S. at p. 52 & fn.10 [where probable cause to search vehicle exists, “there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained” and “[i]t was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner’s convenience and the safety of his car to have the vehicle and the keys together at the station house”] [italics added].)
Appellant’s contention would perhaps have some traction if appellant had been fully compliant with the terms of his parole with no outstanding warrants and his vehicle had simply been seized and impounded in order to facilitate a parole search.
At oral argument, appellant suggested that the delay of some nine days, between the time his vehicle was impounded and the time it was searched pursuant to a valid warrant, amounts to a further violation of his Fourth Amendment rights. However, appellant failed to articulate how any cognizable Fourth Amendment interest is implicated where a vehicle remains in impoundment while its owner is in detention and the record is devoid of any other facts bearing on the question.
In sum, the impoundment of appellant’s vehicle was not the result of arbitrary or oppressive conduct by the searching officer and therefore was not an unreasonably prolonged parole search under Reyes, supra. Indeed, under the circumstances demonstrated in this record, Officer Eckenrod’s decision to impound the vehicle was entirely reasonable and did not offend the Fourth Amendment. (See U.S. v. Knights (2001) 534 U.S. 112, 118 [reasonableness is the “touchstone” of the Fourth Amendment].)
Disposition
The judgment is affirmed.
We concur: McGuiness, P.J., Siggins, J.