Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. GA058846 Leslie E. Brown, Judge.
Kelly Cronin Martin, 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, Susan D. Martynec, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
GRIMES, J.
INTRODUCTION
In an amended information, defendant and appellant Larry Serrano was charged in count 1 with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), in count 2 with possession of ammunition (Pen. Code, § 12316, subd. (b)(1)), and in count 3 with transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). The information also alleged defendant had suffered a prior felony conviction (Pen. Code, § 667.5, subd. (b)) and had been released from custody on bail or on his own recognizance in a previous felony case (Pen. Code, § 12022.1).
After the denial of a suppression motion, defendant pled no contest to one count of possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) On appeal, defendant challenges the trial court’s ruling denying his motion to suppress. He contends the arresting officer, a federal law enforcement officer with the United States Forest Service, had no authority to conduct the investigatory detention and, thus, the evidence obtained in the search of his vehicle was the product of the illegal seizure and should have been excluded. We affirm.
STANDARD OF REVIEW
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ [Citations.]” (People v. Redd (2010) 48 Cal.4th 691, 719 (Redd).)
BACKGROUND
On August 27, 2004, David Charles Edgar was working as a law enforcement officer for the United States Forest Service (Forest Service), an agency of the United States Department of Agriculture. Officer Edgar was patrolling the Big Tujunga Canyon Road area and surrounding national forest area, all federal land. Those parking in the federal forest were required to purchase and display a forest adventure pass. At approximately 6:30 a.m. or 7:00 a.m., Officer Edgar noticed an unoccupied Mercedes Benz parked in a day-use picnic area without displaying an adventure pass. Its hood was cold even though the park had been open only since 6:00 a.m. The car did not have a front license plate, and the rear plate was from Pennsylvania.
Officer Edgar returned to the picnic area about 9:00 a.m. and found the unoccupied Mercedes in the same space. He placed on the car a notice of noncompliance for failing to display an adventure pass. He obtained information from his station that the car was registered to a Pennsylvania resident, but the plates had expired in 2003. The California Department of Motor Vehicles had no record that the Mercedes was registered in California.
At about 2:45 p.m., Officer Edgar was driving on Big Tujunga Canyon Road as he returned to the park after having lunch in Sunland. He saw the Mercedes being driven in the opposite direction. Officer Edgar made a U-turn and followed the Mercedes for a short time. Big Tujunga Canyon Road borders and runs through park land. The State of California had given Officer Edgar full authority to perform local law enforcement on federal ground. He had taken a five and one-half month training program at the Federal Law Enforcement Training Center that all law enforcement officers have to complete. For the almost 20 years he had worked for the Forest Service, he had conducted traffic stops and investigations. He carried a violation booklet to assist in issuing state citations. The State of California had mutual aid agreements with many federal agencies to allow federal officers with the required training to enforce state laws.
Officer Edgar activated the lights on his patrol car and stopped the Mercedes to investigate why it had an expired, out-of-state license plate. Officer Edgar parked behind defendant’s car and advised defendant over the public address system to stay in the car. As Officer Edgar approached the Mercedes, defendant rolled down his window, and Officer Edgar could smell raw, not burning, marijuana. As defendant handed his driver’s license and car registration to Officer Edgar, the officer saw a document resembling some form of state identification. Officer Edgar thought it might be a Pennsylvania driver’s license, since the car had an expired Pennsylvania plate. Upon request, defendant reluctantly provided Officer Edgar with the document, an expired medical marijuana card issued in Mendocino County.
Officer Edgar asked defendant if his driver’s license showed his current address in Downey, and defendant said “no.” Defendant said he lived in Palmdale. When Officer Edgar asked him about the Mendocino address, defendant became evasive and did not give any more information about having lived in Palmdale or Mendocino. Officer Edgar tried to engage defendant in conversation to see if there was some reason he was not providing information in response to the officer’s questions. Defendant said he liked to hike in the area and had been hiking “for the last couple of hours, ” but he did not elaborate, and the officer continued to ask questions because he knew defendant’s car had been parked in the picnic area for about eight hours, not just a “couple” hours.
Defendant stated he had recently bought the car, and the new license plates were in the trunk because he had “just” received them. Officer Edgar discovered through the police dispatcher that defendant’s driver’s license was current. Officer Edgar asked defendant to get out of the Mercedes and show him the new plates. Defendant opened the Mercedes’ trunk and showed Officer Edgar current California license plates. The plates were inside a brown envelope with a June 10, 2004 date stamp, indicating they had been received more than two months before, which was inconsistent with defendant’s statement he had “just” bought the car and received the plates.
Officer Edgar asked defendant to show him any other paperwork he might have regarding the purchase of the vehicle and proof of insurance. Defendant said those papers might be in the glove box. Officer Edgar told defendant to walk to the front of the car to get the papers. As defendant approached the right rear door of the Mercedes, he suddenly opened the door, reached inside, grabbed what looked like a baseball bat, and started to pull it out of the car. Officer Edgar backed up, pulled his service weapon, and told defendant to drop the weapon. Defendant did not immediately comply. Instead, he started turning around, still holding the bat, and Officer Edgar kept yelling at him, “Drop the weapon, drop the weapon.” Defendant replied, “It’s just a hiking stick.” Officer Edgar said he didn’t care what it was, and to put it down. Finally, defendant dropped it. Officer Edgar retrieved and threw it a distance from defendant. Officer Edgar ordered defendant to sit down between the two cars. When defendant finally complied with the command to sit down, the officer opened the Mercedes’ glove compartment to look for defendant’s proof of purchase and of insurance.
Officer Edgar smelled marijuana and noticed a small plastic bag sticking out from the center console between the passenger and the driver’s seat. Officer Edgar opened the console and found a black bag containing a clear plastic bag with marijuana in it. Officer Edgar has seen marijuana on several hundred occasions, because marijuana cultivation in the national forests has “become a major problem.” From the car, Officer Edgar noticed defendant was getting agitated and moving on the ground toward the area where the bat/stick was lying. For his own safety, the officer placed defendant in handcuffs. Defendant became even more agitated as the officer tried to cuff him. The officer had to use force to cuff defendant, who resisted, offering to tell where there were other marijuana plantations in the forest if Officer Edgar would not cuff him. Even after defendant was under arrest, he kept struggling to get up, and Officer Edgar had to hold him down. Officer Edgar searched defendant for weapons, found none, and then searched the Mercedes. Behind the driver’s seat, Officer Edgar found a blue backpack and felt the outline of a pistol inside. He opened the backpack and discovered two cell phones, one radio, a loaded pistol, additional ammunition for the pistol, and ammunition for another gun.
At the hearing on the motion to suppress evidence pursuant to Penal Code section 1538.5, when asked if he had a gun in his car at the time of the arrest, defendant answered, “Uh, it was in my backpack. I didn’t know that it was a gun in the backpack.” When asked if he had ammunition in it, defendant answered, “It was in the backpack, not to my knowledge.” When asked, “Was that your backpack?” defendant answered, “No, it wasn’t, ” and said it belonged to his friend “Joe, ” whose last name he did not recall. A defense expert opined that people cannot smell marijuana sealed in Ziploc bags, although the expert admitted it was possible the smell of marijuana may emanate from a Ziploc bag that had been sitting in the hot sun.
After the trial court denied defendant’s motion to suppress, defendant entered a plea of no contest to count 1 (Pen. Code, § 12021, subd. (a)(1)), and the trial court found him guilty on that count. Defendant admitted the allegations pursuant to Penal Code sections 667.5, subdivision (b), and 12022.1. The trial court sentenced defendant to the low term of 16 months, to run concurrently with his sentence in another case.
DISCUSSION
Defendant contends Edgar, as a federal officer, lacked authority to detain and arrest him for a violation of the California Vehicle Code on federal land. We disagree, concluding Edgar acted within the authority set forth in Penal Code section 830.8, subdivision (b): “Duly authorized federal employees who comply with the training requirements set forth in Section 832 are peace officers when they are engaged in enforcing applicable state or local laws on property owned or possessed by the United States government, or on any street, sidewalk, or property adjacent thereto, and with the written consent of the sheriff or the chief of police, respectively, in whose jurisdiction the property is situated.”
It is undisputed that Edgar had satisfied the training requirements of Penal Code section 832. It is also undisputed that defendant was detained and arrested on federal land. Finally, it was undisputed that Officer Edgar was authorized to act as a California peace officer through an agreement between the Los Angeles County Sheriff’s Department and the Forest Service. Officer Edgar had enforced California law on federal land for almost 20 years. During the suppression hearing, he read aloud from the Forest Service manual the provision that appropriate law enforcement personnel may be deputized by state and county authorities to enforce state law. The agreement between the sheriff’s department and the Forest Service was admitted into evidence, and the prosecutor read aloud during argument the provision to the effect that the sheriff’s department had granted authority to properly trained law enforcement officers with the Forest Service the power to act as California peace officers when they enforce state and local laws in specified areas.
In a case similar to the one before us, the Supreme Court recently affirmed the denial of a suppression motion where the defendant argued the arresting park service officer had no authority to stop vehicles to investigate Vehicle Code violations. In Redd, supra, 48 Cal.4th 691, a police officer with the United States Park Police in San Francisco was patrolling near the Golden Gate National Recreation Area and noticed the registration tag was affixed poorly to the license plate of a parked car. After learning from a dispatcher that the vehicle’s registration had expired, the officer requested that Redd, the occupant of the car, produce his vehicle registration and driver’s license. When Redd failed to produce valid identification, the officer handcuffed and searched him and found his driver’s license. The officer discovered there were arrest warrants for Redd, searched the vehicle, and found weapons and ammunition. (Id. at p. 713.) The Supreme Court held the officer had the authority to stop and search Redd pursuant to Penal Code section 830.8, subdivision (b). (Redd, supra, at pp. 711-719.)
Similarly, the evidence in this case established Edgar had authority under Penal Code section 830.8, subdivision (b), to act as a peace officer when he detained, arrested and searched defendant’s vehicle. The Supreme Court in Redd did not need to decide whether the park police officer also had authority to act pursuant to subdivision (a) of section 830.8. (Redd, supra, 48 Cal.4th at p. 719.) Penal Code section 830.8, subdivision (a)(4), grants federal officers of the Forest Service of the Department of Agriculture the authority to enforce California statutes with the written consent of the sheriff in whose jurisdiction they are assigned. Here, the Los Angeles County Sheriff had entered into a cooperative law enforcement agreement with the Forest Service granting Forest Service law enforcement officers who met the training requirements of Penal Code section 832 the right to exercise the powers of arrest of a California peace officer and to enforce state and local laws in Los Angeles County. Thus, we find Officer Edgar also had authority pursuant to Penal Code section 830.8, subdivision (a)(4), to detain, arrest and search defendant.
In contrast, the United States Park Police, which employed the officer in Redd, is a unit of the Department of the Interior, National Park Service (see), which is not one of the agencies empowered under Penal Code section 830.8, subdivision (b), to enforce California law with the written consent of the sheriff in whose jurisdiction they are assigned. Officer Edgar was employed with the Forest Service of the Department of Agriculture, one of the agencies authorized to enforce California law with the written consent of the sheriff’s department.
Turning to the validity of the stop, Vehicle Code section 4000 has long prohibited any person from driving any vehicle upon a highway unless it is registered and the appropriate fees have been paid. Defendant contends he was not driving on a “highway” within the meaning of the Vehicle Code when Officer Edgar detained him because Big Tujunga Canyon Road is on federal land. Defendant relies on Yosemite Park & Curry Co. v. Dept. of Motor Vehicles (1960) 177 Cal.App.2d 448 (Yosemite) for the proposition that the term “highway” excludes roads on federal land. The Yosemite court interpreted taxing and licensing statutes, including the predecessor statute to Vehicle Code section 4000, to decide that the concessionaire that operated hotels and other services in Yosemite Park was not required to register vehicles that were driven only on roads owned, maintained, and policed exclusively by the federal government. The Yosemite court found these federal roads, financed solely by the United States, were not highways within the meaning of the Vehicle Code provisions requiring registration and payment of fees.
Vehicle Code section 360 defines “highway” as follows: “ ‘Highway’ is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.”
We agree with the federal court in United States v. Barner (1961) 195 F.Supp. 103, 107, that “[t]he anomaly of this decision becomes apparent when it is carried to an ultimate conclusion. Such a conclusion would appear to require a finding that there can be no ‘highways’ outside of the confines of the State of California. Patently this neither is, nor can be, so.” To the extent the Yosemite opinion remains good law, it is limited to its unique facts and does not support defendant’s argument that members of the public who drive on state highways are exempt from compliance with California’s registration laws during the time they pass through federal land.
Here, it was objectively reasonable for Officer Edgar to stop defendant. The Pennsylvania license plate on his car had expired three years before, and the car had no current California license plates as required by California law. (Veh. Code, § 4000, subd. (a)(1) [“No person shall drive, move, or leave standing upon a highway... any motor vehicle... unless it is registered and the appropriate fees have been paid”].) Defendant cites People v. White (2003) 107 Cal.App.4th 636 for the proposition that the stop was improper because Pennsylvania requires only one license plate. In People v. White, an officer stopped a car for having only one Arizona license plate, not knowing Arizona law requires only one plate, and the Arizona registration was current. In contrast, defendant’s car was not currently registered in any state, and Officer Edgar was entitled to investigate why defendant was driving a car with no current plates.
In questioning defendant, the officer smelled marijuana and observed defendant to be evasive, possibly lying about his address, where he had been that morning, what he had been doing, and why he had no current license plates on his car. Certainly, the officer had authority to arrest and search defendant when he suddenly opened the rear passenger door and withdrew a bat or stick and did not immediately obey the officer’s command to drop it. With each passing moment, Officer Edgar had a growing number of reasons to search defendant incident to arrest. The officer had to use force to get defendant in handcuffs, during which defendant tried to avoid arrest by offering to show the officer other marijuana plantations. Even after defendant was in cuffs on the ground, he tried to scuttle across the ground toward the bat or stick.
Under New York v. Belton (1981) 453 U.S. 454, 460, and Thornton v. United States (2004) 541 U.S. 615, 620-623, Officer Edgar was entitled, incident to defendant’s arrest, to search the passenger compartment of his car. Moreover, the officer would have been entitled to conduct that search even under the more restrictive rules of Arizona v. Gant (2009) __ U.S. __ [129 S.Ct. 1710], which was decided after the ruling below. Gant authorizes search of a vehicle’s interior incident to a recent occupant’s arrest “if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Id. at p. 1723.) Since Officer Edgar detected the odor of marijuana as soon as defendant rolled down the window, and defendant engaged in additional criminal behavior before, during and after he was handcuffed, it was certainly reasonable for Officer Edgar to believe the car’s interior would contain evidence of narcotics possession and transportation.
We need not address defendant’s argument regarding ineffective assistance of counsel because we find defense counsel adequately raised the ground for the suppression motion that Officer Edgar lacked authority to stop defendant for a Vehicle Code violation on federal land.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, ACTING P. J., O'CONNELL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.