People v. Rodgers CA6

Filed 11/23/22 P. v. Rodgers CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047232
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1765036)
v. ORDER MODIFYING OPINION
AND DENYING PETITION FOR
LARRY LEE RODGERS, REHEARING
Defendant and Appellant. NO CHANGE IN JUDGMENT
Defendant Larry Lee Rodgers’s petition for rehearing is denied as moot. There is
no change in the judgment. The court orders that the opinion filed October 28, 2022, be
modified as follows:
On page 17, the disposition shall be deleted and replaced with the following:
The judgment is reversed and the matter is remanded to the trial court. On remand, the
trial court shall vacate the portion of its prior order denying the motion to suppress and
enter a new order granting the motion to suppress evidence seized during the search of
the vehicle and backpack. If Rodgers moves to vacate his pleas within 30 days after this
opinion becomes final, the trial court shall vacate the pleas, reinstate the charges in the
information as amended on August 13, 2018, and proceed to trial. If Rodgers does not
move to vacate his pleas, the trial court shall reinstate the original judgment.
____________________________
Greenwood, P. J.
_____________________________ ____________________________
Grover, J. Lie, J.
Filed 10/28/22 P. v. Rodgers CA6 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047232
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1765036)
v.
LARRY LEE RODGERS,
Defendant and Appellant.
Defendant Larry Lee Rodgers pleaded no contest to kidnapping, assault with a
deadly weapon, criminal threats, and vehicle theft. The trial court imposed a total term of
nine years in state prison.
Rodgers appeals from the trial court’s denial of his motion to suppress the fruits of
a warrantless vehicle search. In the course of attempting to locate Rodgers, who had
been detained by private bail bond agents three hours earlier, the police—unaware that
Rodgers had been detained—stopped an SUV driven by another person, detained the
driver, and determined Rodgers was not in the SUV. The police then searched the
vehicle and found a backpack containing a firearm and drugs. The Attorney General
contends the search was reasonable because Rodgers had no reasonable expectation of
privacy in the vehicle or its contents, and the officers relied in good faith on precedent in
effect at the time of the search. (See In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.),
overruled by People v. Lopez (2019) 8 Cal.5th 353 (Lopez).)
For the reasons below, we conclude the trial court erred in denying the motion to
suppress. We will reverse the order denying the motion, vacate the judgment, and
remand for the trial court to grant the motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Rodgers with six counts: count 1—kidnapping (Pen.
Code, § 207, subd. (a))1 ; counts 2 and 3—assault with a firearm (§ 245, subd. (a)(2));
counts 4 and 5—criminal threats (§ 422); and count 6—theft or unauthorized use of a
vehicle (Veh. Code, § 10851, subd. (a)). The prosecution alleged firearm enhancements
on all counts. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (b).) The
prosecution further alleged Rodgers had suffered a prior prison term conviction (§ 667.5,
subd. (b)) and that he committed the offenses while released on bail in another case
(§ 12022.1).
Rodgers moved to suppress evidence the police seized during warrantless searches
of a vehicle and a hotel room. The trial court denied the motion as to the search of the
vehicle but granted it as to the hotel room.
Rodgers pleaded no contest to all counts as charged and admitted the allegations.
In March 2019, the trial court imposed an aggregate term of nine years in prison,
consisting of eight years for count 1 and a consecutive one-year term for count 2. The
court imposed concurrent terms for counts 3 through 6. The court struck the firearm
enhancements as well as enhancements for the prior prison term and the allegation
Rodgers was out on bail at the time of the offenses.
1 Subsequent undesignated statutory references are to the Penal Code.
2
B. Facts of the Offenses
According to evidence presented at the preliminary hearing, Rodgers had been
dating C.T. for several years. The couple fought often, and Rodgers choked C.T. on
multiple occasions.
After midnight one morning, Rodgers called C.T. at home. He was upset and
yelling, and he asked her about a bag. She found the bag and agreed to drive somewhere
to meet him with it. When they met, he pulled out a gun, held it to her head, threatened
to kill her, and told her to drive. After driving for a while, they stopped at a 7-Eleven,
and Rodgers followed C.T. into the store while C.T. believed Rodgers still had the gun
pointed at her.
After the couple returned to the car, C.T. managed to get away and went back into
the 7-Eleven, where she asked the clerk to call 911. Rodgers re-entered the 7-Eleven to
try to force C.T. to leave, but the clerk intervened. Rodgers then drove away in C.T.’s
car.2
As set forth in more detail below, Rodgers was located and taken into custody by
private bail bond agents two days later. Three hours after Rodgers was detained, the
police found a gun and drugs in a backpack during the search of a Porsche Cayenne SUV
he had been driving when the agents detained him.
II. DISCUSSION
Rodgers contends the trial court erred in denying his motion to suppress the
evidence found when the police conducted a warrantless search of a vehicle and
backpack. He argues the police lacked probable cause for the search, and that the
prosecution failed to establish any other valid exception to the Fourth Amendment’s
warrant requirement. The Attorney General contends the search was permissible because
Rodgers lacked any reasonable expectation of privacy in the vehicle and backpack. The
2 Neither the victim nor her car were involved in the search at issue here.
3
Attorney General further argues the police acted in good faith according to the law in
effect at the time of the search. (See Arturo D., supra, 27 Cal.4th 60.)
A. Facts of the Search
The search took place two days after the kidnapping incident. Earlier in the day,
around 3:00 p.m., several private agents for a bail bond company saw Rodgers driving a
Porsche Cayenne SUV with a female passenger.3 The agents stopped Rodgers, forcibly
detained him, and took him to jail. The woman was not arrested and was left behind with
the SUV. The police involved in the subsequent SUV and hotel search were unaware the
bail agents had detained Rodgers.
Around 6:04 p.m., San Jose Police Officer Barry Torres approached a silver
Porsche Cayenne with paper license plates parked in a hotel parking lot. Officer Torres
had received a “be on the lookout” notice for Rodgers with a photograph of him and
information that Rodgers had felony warrants and felony affidavits on file. Officer
Torres had been told Rodgers was driving a silver Porsche Cayenne with paper plates and
that he was possibly carrying a gun. Officer Torres saw a female sitting in the driver’s
seat of the Porsche. He immediately parked nearby and called for other units to respond
to the location. After the first responding officer arrived, Officer Torres saw a man
resembling the photograph of Rodgers come out of a room at the hotel, whereupon the
two officers approached the hotel to detain the man. The police later determined the man
was not Rodgers.
Officer Matthew Croucher was another one of the officers who responded to the
call for assistance. When he arrived, Officer Torres directed him to secure the SUV but
Officer Torres did not ask him to search it. Officer Croucher parked and walked up to the
driver, whom he considered to be a “potential threat” to the police. The windows of the
SUV were slightly tinted, but Officer Croucher could see that the driver was a woman.
3
The stolen vehicle charge in count 6 involved a different vehicle, not the Porsche
Cayenne.
4
He could not see what was in the back seat of the SUV. He saw that it had paper license
plates, but he did not see any registration on them. The SUV moved forward several feet,
and he instructed the driver to put the SUV in park and turn it off. After backing up
several feet, the driver complied, and he ordered her at gunpoint to get out of the SUV,
whereupon she got out and she was placed in handcuffs. At that point, the door was open
and Officer Croucher could see there was nobody else in the front part of the SUV, but he
could not tell if there was anyone else inside other parts of it.
Before searching the SUV, Officer Croucher gleaned the vehicle identification
number from the lower windshield, checked it against DMV records, and determined who
the registered owner was. The driver had not provided him with that information, but she
did tell him the car did not belong to her. She said she had been instructed by someone
she knew to go to the hotel and pick up the SUV. Officer Croucher never asked her for
her driver’s license. She did have a valid driver’s license, however, and she was not on
probation or wanted on any warrants.
Once the driver was placed in the patrol vehicle, Officer Croucher proceeded to
conduct a search of the Porsche. He entered the SUV and immediately saw there was
nobody else inside. He first searched the driver’s compartment and the area that would
be within arm’s reach of the driver, including the center console. He then searched a
woman’s bag on the front passenger’s seat and set it on the hood of the car. He did not
find anything “significant” in the front part of the SUV.
Officer Croucher then began searching the rear portion of the SUV. Directly
behind the back portion of the center console, he found a black backpack. The top
portion of the main section of the backpack was unzipped and open. He pulled the
backpack out, set it down on the driver’s seat, and looked down inside it. Officer
Croucher saw a glass methamphetamine pipe with a circular bulb protruding from the
backpack. He then moved the pipe and saw the handle grip of what appeared to be a
5
firearm, whereupon he opened the unzipped part of the backpack and confirmed that it
contained a firearm. He then took the entire backpack with the firearm out of the SUV.
In a subsequent search of the backpack, police found a wallet with Rodgers’s
credit card, a photograph of him with a small child, suspected cocaine base, and a digital
scale, among other things. In a subsequent search of the SUV’s glovebox, police found a
registration for the Porsche in someone else’s name, and a registration for a BMW in
Rodgers’s name.
The police determined Rodgers had been renting a room at the hotel and they
performed a search of the room, wherein they found several replica firearms and an
illegally extended gun magazine.
B. Legal Principles
“The Fourth Amendment to the United States Constitution prohibits ‘unreasonable
searches and seizures.’ In general, a law enforcement officer is required to obtain a
warrant before conducting a search. [Citation.] Warrantless searches ‘are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.’ [Citations.]” (Lopez, supra, 8 Cal.5th at
p. 359.)
One exception to the warrant requirement is for a vehicle search based on probable
cause the vehicle contains evidence of a crime. (Carroll v. U.S. (1925) 267 U.S. 132.)
Another exception exists for the search of a person incident to a lawful arrest. (U.S. v.
Robinson (1973) 414 U.S. 218, 220.) But when the occupant of a vehicle is arrested, a
search of the vehicle under the incident-to-arrest exception must be limited to the
arrestee’s person and the area within their immediate control—i.e., the area from which
the arrestee could reach a weapon. (Chimel v. California (1969) 395 U.S. 752, 763.)
Police may also search the vehicle incident to the arrest of an occupant if it is “reasonable
to believe evidence relevant to the crime of arrest might be found in the vehicle.”
(Arizona v. Gant (2009) 556 U.S. 332, 343 (Gant).) However, once the police remove
6
and secure the occupant at a safe distance from the vehicle, they may not perform a
vehicle search under the incident-to-arrest exception absent a reasonable basis to believe
the vehicle contains evidence relevant to the crime of arrest. (Id. at pp. 343-344.)
In the absence of a warrant, the prosecution bears the burden of showing the
search was reasonable. (People v. Williams (1999) 20 Cal.4th 119, 130.) On appellate
review, “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.]” (People v. Glaser (1995) 11 Cal.4th 354, 362
(Glaser).) “Although our review of factual determinations is deferential, it is not without
limit. Factual determinations must be supported by substantial evidence.” (People v.
Morton (2003) 114 Cal.App.4th 1039, 1048.) To satisfy the substantial evidence
standard, the evidence supporting the trial court’s findings must be “reasonable, credible,
and of solid value.” (People v. Elder (2017) 11 Cal.App.5th 123, 130 (Elder).)
C. Trial Court Findings and Rulings
Rodgers moved pretrial to suppress the evidence found in the searches of the SUV,
the backpack, and the hotel room. As to the SUV, his motion relied on the same grounds
raised here. The prosecution opposed the motion on the grounds that the search was
lawful under Arturo D., supra. The prosecution further argued that Rodgers no longer
had any expectation of privacy in the SUV once the bail bond agents had removed him
from it because he did not assert a property interest in it, and he no longer had dominion
or control over the vehicle.
At a hearing on the matter, the prosecution presented the testimony of Officers
Torres and Croucher, who testified to the facts of the search as set forth above. The
defense introduced the testimony of one of the bail bond agents who had detained
Rodgers several hours before the vehicle search.
7
The trial court granted the motion to suppress with respect to the evidence found
in the hotel room but denied the motion as to the SUV and backpack. The court made
several factual findings in the course of its ruling. As an initial matter, the court ruled
that Rodgers had shown he had a reasonable expectation of privacy in the SUV and the
backpack at the time of the search. First, the court found there was no indication or
evidence the SUV had been stolen, but that according to police, the SUV was “associated
with” Rodgers. Second, the court found that Rodgers was driving and had control of the
SUV with another party in the vehicle at the time he was detained. Third, the court
further found the SUV had within it property identified with Rodgers—in particular, the
wallet with a credit card and a photograph. Fourth, the court found Rodgers left the SUV
“with apparently someone he trusted and ultimately who was able to remove that
property to another location.” The court rejected the prosecution’s argument that
Rodgers had no expectation of privacy because he had abandoned the vehicle and failed
to express any property interest in it when he was detained by private bail bond agents.
The court then ruled that the police nonetheless acted reasonably based on the
information they had been provided. The court found the police were aware of several
outstanding warrants for Rodgers; that they were unaware of his whereabouts; and that
the SUV was “associated with” him. The court ruled that the police had “every
appropriate authority” to detain the driver and gather information with respect to the
occupancy of the SUV as well as the ownership and identification of the persons
involved. Accordingly, the court ruled it was reasonable for the police to search the area
of the SUV to which the driver had access, including the backpack. The court found that
the backpack was open, and that upon seeing the methamphetamine pipe, the police
looked further into the backpack and saw the butt of a firearm, at which time the officer
took the backpack out of the vehicle and placed it in his patrol car for proper control.
8
The court then cited Vehicle Code section 28054 for the proposition that the police had
the right to establish the rightful ownership or possession of a vehicle if the driver is
properly detained, but the court stated that this code section was not dispositive of its
ruling. The court then ruled that the search of the hotel room was unreasonable in
violation of Rodgers’s Fourth Amendment rights. Accordingly, the court granted the
motion to suppress the fruits of the hotel room search but denied the motion as to the
SUV and backpack.5
Rodgers subsequently filed a motion for reconsideration on the ground that
Vehicle Code section 2805 did not justify the search. Rodgers conceded the police had
reasonable suspicion to stop the SUV and to conduct a plain-view search of the interior to
determine whether Rodgers was inside. Rodgers distinguished Arturo D. on the ground
that the officer’s intent in searching the vehicle was not to establish its ownership or
registration as allowed under the limited exception set forth in Arturo D. The trial court
denied the motion to reconsider based on the same grounds previously set forth at the
hearing on the motion to suppress.
D. The Search of the Vehicle and Backpack Violated the Fourth Amendment
Rodgers concedes the police had reasonable suspicion for the initial detention and
that the police were justified in viewing the interior of the SUV to see whether anyone
else was inside. He argues that the police lacked any valid basis to search the SUV after
they determined nobody was inside it. The Attorney General does not claim the police
had probable cause for the search. Rather, the Attorney General argues first that Rodgers
4 That section provides in part: “For the purpose of locating stolen vehicles, . . . a
member of a city police department . . . whose primary responsibility is to conduct
vehicle theft investigations, may inspect any vehicle of a type required to be registered
under this code . . . in order to establish the rightful ownership or possession of the
vehicle or identifiable vehicle component.” (Veh. Code, § 2805, subd. (a).)
5 The search of the hotel room is not at issue in this appeal.
9
failed to meet his burden of showing he had a reasonable expectation of privacy in the
SUV or the backpack.
1. Rodgers Established an Expectation of Privacy in the SUV and Backpack
The Attorney General contends Rodgers failed to introduce any evidence he had
permission to drive the SUV, which was not registered in his name, and failed to show
any evidence of who owned the backpack. The Attorney General further argues the trial
court improperly shifted the burden to the prosecution to disprove Rodgers’s expectation
of privacy. The Attorney General points out that the search took place three hours after
Rodgers had been driving the car, and that even assuming he had possession of it at the
time he was detained, he failed to establish he had some ongoing permission or authority
to possess the SUV.
“Defendant bears the burden of showing a legitimate expectation of privacy.
[Citation.] Among the factors to be considered are ‘ “ ‘whether the defendant has a
[property or] possessory interest in the thing seized or the place searched; whether he has
the right to exclude others from that place; whether he has exhibited a subjective
expectation that it would remain free from governmental invasion, whether he took
normal precautions to maintain his privacy and whether he was legitimately on the
premises.’ ” ’ [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 507.) “A person . . .
who has the owner’s permission to use a vehicle and is exercising control over it has a
legitimate expectation of privacy in it.” (People v. Leonard (1987) 197 Cal.App.3d 235,
239.)
As set forth above, the trial court made several factual findings in support of its
ruling that Rodgers had established an expectation of privacy in the SUV and backpack.
The court’s findings are supported by substantial evidence. There was no evidence (and
the prosecution did not assert) the SUV was stolen, but a bail bond agent testified
Rodgers was driving the SUV with a passenger when he was detained three hours before
the search. The kidnapping victim also testified that Rodgers was driving the SUV two
10
days before the day of the search, and that he had been driving the vehicle for “[m]aybe a
few months.” There was no evidence Rodgers was driving without the owner’s
permission, even though the vehicle—a Porsche Cayenne SUV—had substantial
monetary value. Furthermore, there was evidence in the SUV and backpack—e.g.,
Rodgers’s wallet, credit cards, and a photograph—that implied he had dominion and
control over the backpack and hence the contents of the SUV. Finally, the trial court
found Rodgers had left the SUV with someone he trusted to take it to another location—
e.g., to the hotel where he had rented a room. Rodgers’ possession and use of the vehicle
over several months, and the backpack containing his personal identification and effects
within the car’s interior were sufficient to establish that Rodgers had a legitimate
possessory interest in the SUV and the ability to control access to it, such that he had
exhibited a reasonable expectation of privacy in the vehicle and its contents.
The fact that Rodgers had failed to show he was the registered owner of the SUV
is not by itself enough to overcome the evidence supporting his asserted expectation of
privacy. It has long been the rule that a person need not show legal ownership or a legal
property interest in the place to be searched in order to establish a reasonable expectation
of privacy in it. (Byrd v. U.S. (2018) __ U.S. __ [138 S.Ct. 1518, 1527] [driver of rental
car had an expectation of privacy in it even though he was not listed as an authorized
driver on the rental agreement].) In that case, Byrd was driving a rental car that had been
rented by someone else when Byrd was stopped by the police, whereupon a search of the
car revealed it contained heroin. (Id. at pp. 1524-1525.) The prosecution argued Byrd
had no reasonable expectation of privacy in the car because the rental agreement did not
list him as an authorized driver of the car. The high court rejected this position, holding
that while property interests may be “instructive” in determining privacy interests, “it is
by now well established that a person need not always have a recognized common-law
property interest in the place searched to be able to claim a reasonable expectation of
privacy in it.” (Id. at p. 1527.) The Court held that while there is no single metric or
11
exhaustive list of considerations in determining whether one has an expectation of
privacy, a person who has lawful possession or control over the property will usually
have a legitimate expectation of privacy by virtue of the right to exclude others from the
property. (Ibid.)
We conclude the record is sufficient to show Rodgers established an expectation
of privacy in the SUV by virtue of his possession and control over it and its contents for
an extended period of time. This conclusion is supported by the trial court’s finding that
Rodgers exercised dominion and control over the SUV as exemplified by his apparent
ability to instruct someone else to drive the vehicle to the hotel where he was staying.
The trial court’s finding that Rodgers stored his backpack with his wallet, credit cards,
and photographs in the car further supports this conclusion. While dominion and control
by itself does not necessarily establish an expectation of privacy—because a person who
has stolen property may have control over it, (Byrd, supra, __ U.S. __ [138 S.Ct. at
p. 1529])—here there was no indication the SUV at issue was stolen or taken without
authorization. (See United States v. Cohen (11th Cir. 2022) 38 F.4th 1364, 1369
[defendant who was not listed as authorized driver on rental car agreement had
reasonable expectation of privacy where he had sole possession of the car as he could
have excluded third parties such as carjackers; there was no indication defendant
otherwise lacked lawful possession of the vehicle; car was rented by mother of
defendant’s girlfriend, who gave him permission to drive it].) The circumstances of
Rodgers’s access and control over a Porsche Cayenne for several months supports the
trial court’s implied findings that he was authorized to drive it and that his personal items
in the backpack established his privacy interest in it.
The Attorney General cites Justice Werdegar’s concurring opinion from People v.
Letner & Tobin (2010) 50 Cal.4th 99, for the proposition that the defendant must show he
or she had the owner’s permission to use the vehicle. (Id. at p. 214 [conc. opn. Of
Werdegar, J.]) That case preceded Byrd, however, and a concurring opinion does not
12
constitute binding authority. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442.) The
Attorney General also relies on People v. McPeters (1992) 2 Cal.4th 1148 (superseded by
statute on other grounds). In that case, defendant was a guest in someone’s home and
asked a cousin to store a gun in the cousin’s bedroom. The court found the defendant had
no expectation of privacy in part because the defendant had no legitimate right of access
to the bedroom or the ability to excluded anyone from it. (Id. at p. 1172.) That case is
inapposite here, where Rodgers’s extended period of control over a Porsche Cayenne
SUV supports a finding that he had legitimate control and dominion over it. The
Attorney General cites Rawlings v. Kentucky (1980) 448 U.S. 98 (Rawlings), in which the
defendant had dumped a large quantity of drugs in a woman’s purse after he had known
the woman for only a few days. The court held the defendant had no expectation of
privacy in the purse because he had admitted he had no subjective expectation of privacy
in it, and the owner of the purse testified the defendant had not previously sought or
received permission to access the purse. (Id. at p. 105.) The facts here are
distinguishable in that Rodgers had control and dominion over the vehicle for an
extended time, supporting an inference that he was permitted to use it.
The Attorney General further argues that the search occurred three hours after
Rodgers had been detained, such that he no longer had control over or access to the
vehicle and the backpack. But the trial court correctly rejected this argument, finding that
Rodgers had not voluntarily abandoned his privacy interests in the vehicle and backpack.
The court rejected the prosecution’s assertion that Rodgers was required to affirmatively
assert his privacy interest in the vehicle at the time he was forcibly detained, noting that
this could constitute a “dangerous precedent.”
We acknowledge the evidence supporting Rodgers’s expectation of privacy in the
SUV was not overwhelming. The Attorney General notes there was no affirmative
evidence the legal owner of the SUV gave Rodgers express permission to drive it. But
permission need not be express; it may be inferred from the circumstances. (See Byrd,
13
supra, __ U.S. __ [138 S.Ct. at p. 1524] [defendant had expectation of privacy where
renter of the car gave the keys to defendant].) We think it is a reasonable inference that
he drove with the owner’s consent given that Rodgers had control over a Porsche
Cayenne for months with no report of it being stolen. But even assuming Rodgers lacked
any expectation of privacy in the SUV, the record establishes he had a reasonable
expectation of privacy in the backpack. The backpack, which the police found in the rear
portion of the SUV, contained Rodgers’s wallet, credit cards, and a photo of him with a
child. The fact that Rodgers kept those items in the backpack and stored it in the rear
portion of a vehicle he controlled shows he had an actual subjective expectation it would
remain private. Here, it is apparent Rodgers involuntarily left the backpack in the SUV
when the bail bond agents forcibly extracted him, such that he did not abandon it
volitionally. The trial court’s finding on this point was supported by the record.
Rodgers was not required to prove ownership of the backpack, as the Attorney
General asserts. Nor is it clear how one would prove legal ownership of a backpack apart
from the fact that it was under his control and contained his personal items. Courts have
long extended an expectation of privacy to such bags, purses, luggage, and other
repositories for personal effects under one’s control. (Safford Unified School Dist. No. 1
v. Redding (2009) 557 U.S. 364, 374, fn. 3 [student had a reasonable expectation of
privacy in her backpack]; Bond v. U.S. (2000) 529 U.S. 334, 336 [personal luggage is an
“effect” protected by the Fourth Amendment]; Robey v. Superior Court (2013) 56 Cal.4th
1218, 1229 [expectations of privacy in personal luggage]; People v. Fick (1980) 107
Cal.App.3d 892, 895 [luggage and briefcases are common repositories for one’s personal
effects and are inevitably associated with the expectation of privacy].)
This case is distinguishable from Rawlings, in which the defendant “dumped
thousands of dollars of illegal drugs” into a woman’s purse. (Rawlings, supra, 448 U.S.
at p. 105.) In that case, the woman testified that the purse belonged to her and the
defendant never requested access to it. Here, Rodgers’s personal effects were in the
14
backpack, demonstrating that he had access and had exercised dominion over it. He was
prevented from continuing to exercise that control only because he was involuntarily
detained by the bail agents.
The Attorney General argues Rodgers could not have had a legitimate expectation
of privacy because the backpack was open and there was a methamphetamine pipe
protruding from it. But Officer Croucher testified that before he saw a methamphetamine
pipe, he moved it from the back portion of the SUV, set it down on the driver’s seat, and
looked down inside the backpack. As the Attorney General conceded at oral argument,
the officer’s movement and manipulation of the backpack constituted a search. (Arizona
v. Hicks (1987) 480 U.S. 321, 324-325 [officer’s movement of stereo equipment
constituted a search].) Nothing in the record supports a finding that the pipe was in plain
view prior to the search, including the fact that the officer had to reach into the rear of the
SUV and extract the backpack from behind the center console before looking inside it.
(See, e.g., People v. Conley (1971) 21 Cal.App.3d 894, 901 [officer violated defendant’s
reasonable expectation of privacy when officer reached into hidden area of bumper to
extract bag of LSD tablets].)
For the reasons above, we conclude Rodgers had a reasonable expectation of
privacy.
2. The Police Did Not Search the SUV and Backpack Under Any Valid
Exception to the Fourth Amendment’s Warrant Requirement
The Attorney General does not argue that the search of the SUV was justified by
probable cause. The Attorney General argues probable cause supported the stop of the
vehicle and the detention of the driver, but the prosecution made no attempt in the trial
court to establish probable cause for the search itself. Nor does the record objectively
establish any such probable cause. The Attorney General contends instead that the
officers had a good faith basis to search the SUV under Arturo D., supra, 27 Cal.4th 60.
In 2019, the California Supreme Court overruled Arturo D. in Lopez, supra, 8 Cal.5th
15353. The search in this case took place in 2017, however, such that the exclusionary rule
would not apply if police reasonably acted in compliance with then-existing precedent.
(Davis v. U.S. (2011) 564 U.S. 229, 232.)
In Arturo D., the California Supreme Court set forth a limited exception for
warrantless vehicle searches where the police officer is searching for documents required
to show registration and identification in response to a driver’s refusal to provide them.
“Limited 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.
Under this standard, an officer may not search for such documents on pretext [citation],
or without first demanding that they be produced [citation], and an officer may not search
in containers or locations in which such documents are not reasonably expected to be
found. [Citations.]” (Arturo D., supra, 27 Cal.4th at p. 86.)
That exception did not justify the stop here. The exception defined in Arturo D.
only applied when a driver failed to provide documentation “upon demand.” (Arturo D.,
supra, 27 Cal.4th at p. 86.) There was no evidence Officer Croucher asked the driver for
the vehicle’s registration, and he admitted he never asked the driver for her driver’s
license. Nor could Officer Croucher claim the search was intended to locate the
registration because he testified that he got the SUV’s registration information from a
DMV search of the vehicle identification number before he began the vehicle search.
The Attorney General argues that somebody must have asked the driver for her
identification because Officer Croucher testified that he heard the information transmitted
over the police dispatch radio. But the trial court sustained an objection to that
testimony, and in any event, the record does not establish that the driver refused to
comply with an officer request to provide identification or that this occurred prior to the
search. Furthermore, Officer Torres testified that the driver did in fact have a valid
16
driver’s license. It is equally likely that police were simply checking her license against
the information relayed by a dispatcher.
Because the exception in Arturo D. was recognized to accommodate the
government’s “regulatory needs,” Arturo D., supra, 27 Cal.4th at page 68, the officer’s
purpose for the search was held to be relevant to establishing the exception, and
pretextual searches were disallowed. (Contrast with Whren v. United States (1996) 517
U.S. 806 [officer’s subjective intentions are irrelevant to the lawfulness of the search].)
As the Attorney General admits, the police here stopped the SUV because they were
searching for Rodgers, who had been “associated with” that vehicle. It was far afield
from the stops addressed in Arturo D., which consisted solely of stops for routine Vehicle
Code infractions. (Arturo D., supra, 27 Cal.4th at pp. 64-66.) Nor could the police
justify the search as incident to the arrest of the driver. While the search was arguably
limited to that within the reach of the driver at the point when the backpack was
discovered, the driver had already been handcuffed and placed in a patrol car, and Officer
Croucher had already determined nobody else was inside the SUV. At that point, the
exception for a search incident to arrest no longer justified the seizure and search of the
backpack. (Gant, supra, 556 U.S. at pp. 343-344.)
For the reasons above, the prosecution failed to establish a valid exception to the
Fourth Amendment’s warrant requirement. The Attorney General does not put forth any
other exceptions, and he does not argue the error was harmless. In any event, we would
find the error, as a violation of federal constitutional rights, was not harmless beyond a
reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) Accordingly,
we will reverse the denial of the motion to suppress, vacate the judgment of conviction,
and remand with instructions to grant the motion.
III. DISPOSITION
The portion of the trial court’s order denying Rodgers’s motion to suppress
evidence seized during the search of the vehicle and backpack is reversed, and the
17
judgment is vacated. On remand, the trial court shall enter a new order granting the
motion to suppress evidence seized during the search of the vehicle and backpack.
18
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Grover, J.
______________________________________
Lie, J.
H047232
People v. Rodgers