People v. Raya CA5 ( 2023 )

Filed 3/17/23 P. v. Raya CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083571
Plaintiff and Respondent,
(Super. Ct. No. SF020428A)
v.
SALVADOR ARIE RAYA, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and Snauffer, J.
Defendant Salvador Arie Raya challenges the trial court’s decision to deny his
motion to suppress evidence following a traffic stop. Our review of the transcript of the
hearing on defendant’s motion to suppress, and all the evidence submitted during that
hearing, leads us to conclude the trial court’s denial of the motion is supported by the
record and constitutional standards expressed in the law.
PROCEDURAL SUMMARY
On June 20, 2021, an information was filed charging defendant with unlawfully
carrying a loaded firearm on his person, or in a vehicle, in a public place or on a public
street, without being the registered owner of the firearm (Pen. Code, 1 § 25850,
subd. (c)(6), a felony; count 1), and unlawfully concealing in a vehicle under his control a
firearm (§ 25400, subd. (a)(1), a misdemeanor; count 2).
On September 2, 2021, defendant filed a motion to suppress evidence obtained
during a traffic enforcement stop. The motion was denied on October 19, 2021.
Following the ruling on the motion to suppress, defendant entered a plea of no contest to
counts 1 and 2 as alleged in the information.
On November 17, 2021, defendant was placed on probation for a period of
two years with the condition that he serve 180 days for count 1 in the custody of the Kern
County Sheriff. On count 2, probation was denied, but defendant received an additional
sentence of 180 days, which was to be served concurrently with the sentence for count 1.
Defendant filed his notice of appeal challenging the denial of his motion to
suppress on November 18, 2021.
FACTUAL SUMMARY
Deputy Bryan Nakabayashi testified that on May 7, 2021, he was patrolling the
500 block of “F” Street in Wasco when he noticed a vehicle missing a front license plate
and decided to execute a traffic stop. However, before talking to the driver, Nakabayashi
1 All further statutory references are to the Penal Code, unless otherwise specified.
2.
checked the back license plate number on the vehicle and discovered it had been reported
stolen. Nakabayashi’s body camera footage, which was admitted into evidence as
Exhibit 1, reveals he told another deputy who was also at the scene that when he first saw
defendant’s vehicle, he suspected it was spray painted, which was common for stolen
vehicles. Nakabayashi stated this was the reason he checked the license plate number
before approaching defendant.
When Nakabayashi finally engaged with the driver, who he identified as defendant
during the hearing, he asked defendant to provide his license, registration, and insurance.
Defendant responded to this request stating he did not have his actual license with him
but had a copy. Defendant further explained that he did not have the vehicle registration
with his name on it yet, as he had just purchased the vehicle. Defendant then turned to
his passenger seat where there were some papers and produced the photocopy of his
license and a registration for the vehicle with someone else’s name on it. Nakabayashi
testified he noticed defendant making an exaggerated movement toward the front
passenger seat while retrieving the documents. Defendant never provided any proof of
insurance.
After obtaining this information, Nakabayashi returned to his vehicle and
conducted a records check on his computer. During this search, Nakabayashi discovered
defendant had prior arrests for operating a “chop shop” and a firearm related charge.
Based on this information, Nakabayashi decided to check the Vehicle Identification
Number (VIN) on the vehicle. Nakabayashi explained that based on his training and
experience he was aware that “chop shop” operators often “switch or swap VINs.” An
additional fact that appeared to influence Nakabayashi to conduct the search for the VIN
was that the vehicle defendant was driving was a Honda from the 1990’s which, again
based on his experience, he knew to be the most commonly stolen vehicle in Kern
County.
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Before starting the search, Nakabayashi’s body camera video shows him putting
on gloves as he tells another deputy that he is going to pat down defendant before
searching for the VIN because defendant has a prior arrest for an unlawful firearm.
Nakabayashi then approached the vehicle, told defendant to get out of the vehicle, and
patted him down. Defendant started to become agitated, asking many questions about
why he was being searched. Defendant was then told to sit on the sidewalk while the
search for the VIN was conducted. Defendant was not handcuffed at this point.
Nakabayashi then started to search the vehicle by opening the driver side door and
searching in that area. While Nakabayashi was looking under the hood for another VIN,
defendant started questioning him about what he was looking for and made a comment
about being previously arrested for a “chop shop.” Nakabayashi told defendant that was
why he was looking for another VIN, and to verify it had not been swapped. After
closing the hood of the vehicle, Nakabayashi moved to the passenger side door and
opened it. Nakabayashi found two firearms on the front passenger seat under a bag and
the papers defendant had gone through to produce the photocopy of his license and the
registration. Defendant was handcuffed and placed in the back of the patrol vehicle.
During the hearing when asked why he searched the interior of the vehicle when
he said his purpose was to look for a VIN, Nakabayashi explained:
“There are vehicle VIN numbers on the dash, on the dashboard.
There are sometimes underneath the hood, near the firewall of the vehicle.
There’s also vehicle VIN stickers that are located on the insides of the
doors. As well as VIN stickers in various places on parts of the vehicle like
the inside of the trunk.”
Nakabayashi further explained that when he moved to the front passenger side of the
vehicle, he was still looking for the vehicle’s VIN and defendant’s license, current
insurance, and registration documents, and that was why he lifted the papers and a bag on
the front passenger seat, exposing the firearms.
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Next to testify was Tammy Olinger, who works in the administrative offices of the
Kern County Sheriff’s Department. Olinger testified she is responsible for maintaining
dispatch records which are created for deputies when they call in to conduct a search for
information. Olinger is specifically responsible for pulling audio and logs when needed.
Olinger explained the logs are created when officers call in to the dispatch staff who then
create the logs by typing in the information they receive. Olinger then authenticated the
log generated for May 7, 2021, when Nakabayashi called in to dispatch during the traffic
stop involving defendant. This log was admitted into evidence as Exhibit 2. The log
specifically showed that after Nakabayashi made an inquiry, the vehicle defendant was
driving when stopped showed up as a recovered stolen vehicle, and that the license plate
on the vehicle was considered stolen.
DISCUSSION
I. The Search of the Vehicle Was Appropriate
A. The Standard of Review
Warrantless searches are presumptively unreasonable. (People v. Williams (1999)
20 Cal.4th 119, 130 (Williams).) When the search lacks a warrant, the moving party’s
initial burden is to simply establish the absence of a warrant. (Ibid.) “The burden then
shifts to the prosecution to justify the warrantless search.” (People v. Marquez (2019) 31
Cal.App.5th 402, 409, citing Williams, supra, at p. 127.) “The prosecution must prove by
a preponderance of the evidence that the search falls within an exception to the
Fourth Amendment warrant requirement.” (Marquez, at p. 409.)
A traffic stop is considered lawful when the facts and circumstances surrounding
the stop cause the officer to have a reasonable suspicion the driver violated the Vehicle
Code. (People v. Nice (2016) 247 Cal.App.4th 928, 937–938.) Furthermore, an
investigatory detention by police is reasonable under the Fourth Amendment, and
therefore legal, “when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
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manifestation that the person detained may be involved in criminal activity.” (People v.
Souza (1994) 9 Cal.4th 224, 231.) The detention should “be temporary and last no longer
than is necessary to effectuate the purpose of the stop.” (Florida v. Royer (1983) 460
U.S. 491, 500.) If, however, when challenging the search, a defendant has a specific
argument other than just the lack of a warrant as to why the search was unreasonable, that
argument must be made in the motion to suppress to give the People an opportunity to
address that specific point in the trial court and not wait for the appeal. (Williams, supra,
20 Cal.4th at p. 130.)
When reviewing a ruling on a motion to suppress, “ ‘ “we defer to the superior
court’s express and implied factual findings if they are supported by substantial evidence,
[but] we exercise our independent judgment in determining the legality of a search on the
facts so found.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 979.) “ ‘On appeal we
consider the correctness of the trial court’s ruling itself, not the correctness of the trial
court’s reasons or reaching its decision.’ ” (People v. Jimenez (2015) 242 Cal.App.4th
1337, 1360.)
Of relevance to this case, we note the decision in People v. Lopez (2019) 8 Cal.5th
353 (Lopez), in which our Supreme Court considered the issue of a warrantless search of
a person solely to obtain evidence of his or her identity, in light of Arizona v. Gant (2009)
556 U.S. 332. In Gant, the United States Supreme Court was specifically dealing with
the search of a vehicle incident to an arrest that had already occurred. The Gant court
explored the permissible scope of a warrantless automobile search and eventually held:
“[p]olice may search a vehicle incident to a recent occupant’s arrest only 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. When these justifications are absent, a
search of an arrestee’s vehicle will be unreasonable unless police obtain a
warrant or show that another exception to the warrant requirement applies.”
(Arizona v. Gant, supra, 556 U.S. at p. 351.)
6.
Following the decision in Gant, our own Supreme Court reevaluated its own
language in the prior case of In re Arturo D. (2002) 27 Cal.4th 60, where the court stated
a limited warrantless search was permitted in “the context of a valid traffic stop during
which a driver fails to produce the required automobile registration, driver’s license, or
identification documentation upon an officer’s proper demand.” (Id. at p. 68.) While
evaluating the holding in Gant and considering the facts before the court, the Lopez court
concluded “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, emphasis added.) The holding in Lopez has yet to be
extended to searches for automobile registration, insurance, or a VIN, which go to the
question of who owns the vehicle. (See LaFave, Search & Seizure: A Treatise On The
Fourth Amendment (6th ed. Oct. 2022 update) § 7.4(d).)
At the beginning of the hearing held on October 15, 2021, on defendant’s motion
to suppress, the parties agreed that the search at issue was conducted without a warrant.
At this point, therefore, the burden shifted to the People to prove by a preponderance of
the evidence that the search conducted by Nakabayashi came within an exception to the
Fourth Amendment requirement for a warrant.
B. Defendant Forfeited the Right to Argue the Search Constituted a
Prolonged Detention
In his opening brief, defendant argues the constitutionality of the search conducted
by Nakabayashi was in doubt because it was unjustifiably prolonged. This was the first
time defendant raised this specific argument in this matter. The People now contend
defendant has forfeited the opportunity to raise this specific argument on appeal. We
note, defendant did not address the issue of forfeiture in his reply brief to this court.
At the trial court level, defendant submitted moving papers for his motion to
suppress the evidence obtained during the traffic stop, citing the case of Williams, supra,20 Cal.4th 119, for the proposition that:
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“Although a defendant must—at some point in the hearing on the
motion—put forth the specific grounds on which the motion is based, the
Court concluded that he is not required to put these reasons forward in the
initial moving papers. A defendant is obligated to specify ‘the precise
grounds for suppression’ and ‘the inadequacy of any justifications for the
search or seizure’ only after the prosecution offers a justification for the
warrantless act.”
However, when quoting this language, defendant failed to acknowledge additional
language in Williams that went on to state:
“Of course, if defendants have a specific argument other than the
lack of a warrant as to why a warrantless search or seizure was
unreasonable, they must specify that argument as part of their motion to
suppress and give the prosecution an opportunity to offer evidence on the
point.” (Williams, supra, 20 Cal.4th at p. 130.)
For instance, the Williams court noted a defendant could not wait for an appeal to raise
the failure to comply with the knock and announce requirements of section 840 for the
first time. (Williams, supra, 20 Cal.4th at p. 130.) Therefore, while the prosecution
retains the burden of proving that the warrantless search or seizure was reasonable under
the circumstances, if a defendant sees “a critical gap in the prosecution’s proof or a flaw
in its legal analysis,” an objection must be made on that basis, or the defendant will risk
forfeiting the issue on appeal. (Ibid.)
At no point during the hearing on the motion to suppress in the trial court did
defense counsel raise the argument that the search of defendant’s vehicle was
unjustifiably prolonged. Defendant has waived that specific issue here.
C. Probable Cause Existed For the Search
Again, in this case Nakabayashi decided to conduct a traffic stop when he noticed
the vehicle defendant was driving was missing a front license plate. The body camera
video entered as evidence in this matter also showed Nakabayashi had a concern the
vehicle was stolen because it appeared to be spray painted and had a back license plate
that was listed as being stolen. When taking the matter under submission, the trial court
stated:
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“My initial reaction is to consider the totality of the circumstances.
No front license plate, which clearly gave you⸻the deputy authority to stop
the car. A stolen license plate on the back end of the Court⸻car. The
defendant not producing registration, not producing a driver’s license,
which is another violation. Seems to me that the officer should be allowed
to search the car. Because I think we have enough crimes involved there
they could find evidence, but, in an abundance of caution, I’m going to take
it under submission because I want to read this case2 in more detail.”
Without providing any further statement, the trial court denied the motion to suppress on
October 19, 2021.
“Probable cause is a more demanding standard than mere reasonable suspicion.”
(People v. Lee (2019) 40 Cal.App.5th 853, 862.) Probable cause requires
“ ‘particularized suspicion.’ ” (Texas v. Brown (1983) 460 U.S. 730, 742.) “Probable
cause to search exists when, based upon the totality of the circumstances …, ‘there is a
fair probability that contraband or evidence of a crime will be found in a particular
place.’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1098, quoting Illinois v. Gates
(1983) 462 U.S. 213, 238; accord, Ornelas v. United States (1996) 517 U.S. 690, 696
[“the known facts and circumstances” must be “sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime will be found”].)
Again, the trial court stated its belief Nakabayashi had the authority to stop
defendant because of the lack of a front license plate. This is a violation of the Vehicle
Code and a valid reason for the stop. (Veh. Code, §§ 5200, 5202.) The court then cited
the stolen license plate in the back of the vehicle and defendant’s inability to provide a
valid license and registration as valid reasons for justifying a search of the vehicle under
the “totality of the circumstances” standard. While substantial evidence supports each of
these conclusions, it is our responsibility to consider the validity of the court’s ruling
justifying the search undertaken by Nakabayashi. (See People v. Jimenez, supra, 242
Cal.App.4th at p. 1360.)
2 The “case” referenced by the trial court is Lopez, supra, 8 Cal.5th 353.
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Again, the existence of probable cause is determined on the totality of the
circumstances. (People v. Farley, supra, 46 Cal.4th at p. 1098.) The totality of the
circumstances presented to Nakabayashi was the lack of a front license plate on a vehicle
that appeared to be spray painted, a fact he understood through experience might suggest
the vehicle was stolen. A quick check of the back license plate revealed the rear license
plate to the vehicle was reported stolen. When Nakabayashi finally approached
defendant and asked him to provide his license, registration, and insurance, defendant
produced a photocopy of his license, a registration document in another person’s name,
and no proof of insurance. Nakabayashi returned to his vehicle and ran a computer
check, from which he learned defendant had prior convictions for operating a “chop
shop” and firearms related charges. At this point, Nakabayashi decided to conduct a
search to confirm the vehicle’s VIN and to pat down defendant due to the prior weapons
charges on his record.
When Nakabayashi returned to the vehicle and asked defendant to get out so he
could do a quick pat down search, defendant appeared agitated and started questioning
why Nakabayashi needed to do this. After completing the pat down search, defendant
was instructed to sit on the sidewalk, but was not handcuffed. Nakabayashi testified he
started his search for additional information about who owned the vehicle and to verify
the VIN, because he was aware through training and experience that those who operated
“chop shops” would “switch or swap” out VIN numbers on stolen vehicles. When
Nakabayashi was looking under the hood of the vehicle for another VIN, defendant
started verbally challenging him again about what he was looking for. Unprovoked,
defendant then acknowledged his prior for operating a “chop shop” and Nakabayashi
responded noting that was why he was trying to confirm the accuracy of the VIN.
Nakabayashi then turned his attention to the passenger seat in the vehicle where
defendant had turned to retrieve the photocopy of his license and the vehicle registration
document. While looking through the materials on this seat, the video of Nakabayashi’s
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body camera reveals a seat covered in a mess of papers and other materials. We believe
the progression of these events, as they unfolded, provided the level of probable cause
necessary to justify Nakabayashi’s search, which ended at the passenger seat and resulted
in the discovery of the two firearms under all the papers and other materials piled on that
passenger seat. The search conducted by Nakabayashi was supported by probable cause
and did not violate defendant’s Fourth Amendment rights.
D. The Availability of the Good Faith Exception
Although unnecessary to the overall result in this case, we find it necessary to
address the argument raised by the People that Nakabayashi may have been acting in
good faith when searching the interior of the vehicle while still looking for verification of
defendant’s identity. This argument points to the fact that the California Supreme Court
overruled its holding in the earlier case of Arturo D., supra, 27 Cal.4th 60, stating, “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.)
We believe such an argument was unreasonable at the time it was made as In re
Arturo D. had been overruled on the issue of searches for identity over 18 months before
the search occurred in this case.3 We would expect a law enforcement officer who
regularly conducts vehicle stops that could lead to a search would receive regular training
on changes in the law that potentially impact the validity of those searches. The
18-month period here exceeds what we would consider a reasonable period of time for
such training to occur justifying the use of the good faith exception expressed in Davis v.
United States (2011) 564 U.S. 229, 231 [holding the exclusionary rule does not apply
3 Lopez was decided on November 25, 2019, while the search at issue in this case
occurred on May 7, 2021.
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“when the police conduct a search in compliance with binding precedent that is later
overruled”].
DISPOSITION
The order denying defendant’s motion to suppress evidence is affirmed. The
judgment is also affirmed.
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