In re P.H. CA2/4

Filed 8/15/23 In re P.H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re P.H., a Person Coming Under the B324894
Juvenile Court Law.
(Los Angeles County
THE PEOPLE, Super. Ct. No. NJ29899)
Plaintiff and Respondent,
v.
P.H.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
John C. Lawson II, Judge. Affirmed.
Mary Bernstein, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General,
for Plaintiff and Respondent.
P.H., a minor, appeals the sustaining of a Welfare and Institutions Code
section 602 petition alleging he committed the offense of possession of a firearm
by a minor in violation of Penal Code section 29610. He contends the juvenile
court erred in denying his motion to suppress evidence of the firearm, which
police discovered inside his backpack during an inventory search of the vehicle
N.H. was driving. We affirm, finding the officers properly impounded
appellant’s vehicle and the search of his backpack was done in accordance with
standard police department procedures.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. The Stop and Inventory Search1
Gerrit de Jongh, a sergeant in the Long Beach Police Department’s
(LBPD) motor detail, was on solo patrol on his motorcycle on March 24, 2022
at 7:00 p.m. De Jongh observed a vehicle with illegally tinted windows and
no rear license plate driving on Lakewood Boulevard near the traffic circle.
De Jongh stopped the vehicle on Lakewood, and it parked in an area that was
an open traffic lane with no parking allowed.
Appellant was driving the car and two other minors were occupants.
Appellant did not have a driver’s license, nor did the other minors. According
to police procedure, if a car had no licensed drivers, de Jongh was required to
tow the vehicle for the safety of both the occupants of the vehicle and the
public at large.
At this point, de Jongh called for additional units. While waiting for
backup to arrive, de Jongh began to write appellant a citation for three
1 The facts recited herein are taken from Sergeant de Jongh’s testimony
at the suppression hearing.
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infractions: driving without a license, no rear license plate, and tinted
windows. All three minors remained in the vehicle and were cooperative.
Four other officers arrived after about 15 to 20 minutes, and they
removed the minors from the car. De Jongh conducted a pat search of
appellant and found nothing. Appellant signed the citation and asked for his
backpack, money and cellphone.
While the minors sat on the curb, the other officers conducted a search
of the car for purposes of inventory. Section 27 of the LBPD Training
Bulletin (section 27) requires officers to conduct an inventory of an
impounded vehicle, including “any items found in the glove [compartment],
trunk[], and other items such as bags and purses.”2
However, at the suppression hearing, de Jongh did not testify
regarding any specific policy governing the opening of closed containers
during an inventory search.
During the inventory search, Officer Purcell found a handgun in
appellant’s backpack. De Jongh did not participate in the inventory and did
not fill out the inventory form, nor did he know whether an inventory form
was filled out in conformance with LBPD standards.
Appellant was arrested for possession of a firearm by a minor, and the
other two minors were released to their parents. De Jongh did not contact
any of the minors’ parents to see if anyone could drive the car.
2 No written copy of section 27 was introduced at the suppression
hearing, although Sergeant de Jongh was shown a written copy during his
testimony to refresh his recollection.
3
The vehicle was towed pursuant to Vehicle Code section 226513 and
LBPD section 27.
2. Appellant’s Motion to Suppress; Trial Court Ruling
On June 16, 2022, the Los Angeles County District Attorney filed a one-
count section 602 petition alleging that appellant violated Penal Code section
29610 (minor in possession of a firearm).
Appellant moved pursuant to Welfare and Institutions Code section
700.1 to suppress the handgun. He argued the vehicle was not lawfully
searched under three exceptions to the warrant requirement. First, he
contended the automobile exception did not apply because there were no facts
supporting a reasonable belief a crime had been committed; second, the
search incident to lawful arrest exception did not apply because his arrest
was illegal; and third, the inventory exception did not apply.
After hearing argument, the juvenile court took the matter under
submission and later denied the motion, relying on Colorado v. Bertine (1987)
479 U.S. 367 (Bertine), People v. Steeley (1989) 210 Cal.App.3d 887 (Steeley),
and People v. Benites (1992) 9 Cal.App.4th 309. The court concluded the
vehicle was towed pursuant to normal police protocols and the caretaking
function, and the search of containers in the vehicle was part of towing policy.
After the juvenile court denied the motion to suppress, appellant
admitted the charge and the court sustained the petition. The court placed
appellant on probation for six months.
3 Vehicle Code section 22651 authorizes an impound “[w]hen an officer
arrests a person driving or in control of a vehicle for an alleged offense and
the officer is, by this code or other law, required or permitted to take, and
does take, the person into custody.” (Veh. Code, § 22651, subd. (h)(1).)
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DISCUSSION
Appellant asserts the vehicle was not properly impounded according to
the community caretaking function; rather, de Jongh’s search was improperly
motivated by pretext because Vehicle Code section 22651 makes clear towing
is discretionary. Further, appellant asserts the search of his backpack
violated the Fourth Amendment because it was not conducted in accordance
with any specific standardized procedure relating to the opening of
containers, such as the backpack. We disagree.
A. Standard of Review
On review of a motion to suppress evidence based upon a violation of
the Fourth Amendment, we view the facts in the light most favorable to the
prosecution and will uphold the trial court’s factual findings if supported by
substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673.) We
independently determine whether the search or seizure was reasonable.
(People v. Weaver (2001) 26 Cal.4th 876, 924.)
B. The Prosecution Established the Impound and Search of
Appellant’s Car Did Not Violate the Fourth Amendment
1. Legal Principles Governing Inventory Searches
The Fourth Amendment guarantees the right against unreasonable
searches and seizures by the government. (People v. Camacho (2000) 23
Cal.4th 824, 829.) We presume that a search conducted without a warrant is
illegal. (People v. Williams (2006) 145 Cal.App.4th 756, 761.) As a result,
“[w]hen a defendant raises a challenge to the legality of a warrantless search
or seizure, the People are obligated to produce proof sufficient to show, by a
preponderance of the evidence, that the search fell within one of the
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recognized exceptions to the warrant requirement.” (People v. Romeo (2015)
240 Cal.App.4th 931, 939.)
A defendant meets his or her initial burden of challenging the
constitutionality of a warrantless search or seizure by “simply assert[ing] the
absence of a warrant and mak[ing] a prima facie showing to support that
assertion.” (People v. Williams (1999) 20 Cal.4th 119, 130 (Williams).) The
People then bear the burden of proving that both the impoundment and
search were constitutionally reasonable under all the circumstances. (Ibid.;
People v. Williams, supra, 145 Cal.App.4th at p. 762.) Reasonableness is “the
touchstone of the Fourth Amendment.” (Florida v. Jimeno (1991) 500 U.S.
248, 250.)
An inventory search conducted during the impounding of an automobile
is an exception to the warrant requirement of the Fourth Amendment.
(Bertine, supra, 479 U.S. at p. 371; People v. Torres (2010) 188 Cal.App.4th
775, 787 (Torres).) Police may search an impounded vehicle to secure and
protect the vehicle and its contents. (South Dakota v. Opperman (1976) 428
U.S. 364, 373.) This “community caretaking” function permits the impound
of a vehicle where it poses a threat to safety or the free flow of traffic, or
where someone other than the defendant cannot move the car to a safe
location. (Torres, supra, at p. 791; Halajian v. D&B Towing (2012) 209
Cal.App.4th 1, 15.)
When impounding a vehicle, police officers generally follow a routine
system of securing and inventorying its contents. “‘These procedures [were]
developed in response to three distinct needs: the protection of the owner’s
property while it remains in police custody [citation]; the protection of the
police against claims or disputes over lost or stolen property [citation]; and
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the protection of the police from potential danger [citation].’” (People v. Burch
(1986) 188 Cal.App.3d 172, 177–178.)
To prevent pretext searches, police discretion in performing an
inventory search must be “exercised according to standard criteria and on the
basis of something other than suspicion of evidence of criminal activity.”
(Bertine, supra, 479 U.S. at p. 375.) Further, “[t]he policy or practice
governing inventory searches should be designed to produce an inventory.”
(Florida v. Wells (1990) 495 U.S. 1, 4 (Wells); Williams, supra, 20 Cal.4th at
p. 126.)
As explained in Wells, there is no Fourth Amendment obstruction to an
inventory search of the inside of a closed container if it is done pursuant to
police department policy. “[P]olicies of opening all containers or of opening no
containers are unquestionably permissible,” as is a policy “to allow the
opening of closed containers whose contents officers determine they are
unable to ascertain from examining the containers’ exteriors.” (Wells, supra,495 U.S. at p. 4.) Finally, as stated in Bertine, supra, 479 U.S. 367, “‘Even if
less intrusive means existed of protecting some particular types of property,
it would be unreasonable to expect police officers in the everyday course of
business to make fine and subtle distinctions in deciding which containers or
items may be searched and which must be sealed as a unit.’ [Citation.]” (Id.
at p. 375.)
These principles were illustrated in People v. Needham (2000) 79
Cal.App.4th 260, where the Tulare County Sheriff’s Department had an oral
policy for inventory searches based on the Vehicle Code. Consistent with the
policy, the deputy testified at the suppression hearing that he customarily
searched bags and other containers before turning them over to the person
claiming them because of the possibility of concealed weapons. (Id. at p. 267.)
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Needham found that the sheriff’s department policy was sufficiently
standardized to satisfy the Fourth Amendment, and the deputy exercised his
discretion within the standard procedure. (Id. at p. 267.) Further, Needham
found there was no evidence that the deputy had used the inventory as a ruse
to search for incriminating evidence. (Id. at p. 266.)
2. The Inventory Search Here Comported with the Fourth
Amendment
Here, as a threshold issue, appellant complains that the decision to
impound the car was a pretext for an unlawful search. On the contrary, the
facts demonstrate the officers’ decision to impound the vehicle was a proper
community caretaking function and not the product of pretext. The car was
parked in a traffic lane and in danger of impeding traffic; neither appellant
nor his passengers had a driver’s license; and the car lacked a license plate.
Further, the officers were not required to contact the minors’ parents to
see if one of them could drive the car. (See People v. Williams, supra, 145
Cal.App.4th at pp. 761–762 [police not required to adopt least intrusive
means in deciding whether to impound vehicle].) Indeed, the existence of
other means of protecting the car does not render the impound unreasonable.
(People v. Steeley, supra, 210 Cal.App.3d at p. 892.) In Steeley, the driver had
a revoked license. The court concluded, “[i]t was not unreasonable for [the
officer] to conclude that the appropriate way to protect the vehicle was
impoundment.” (Id. at p. 892.)
Secondly, appellant argues that section 27 only provides that police
make an inventory of all containers, including bags, cases, and purses; the
record was silent whether LBPD policy would permit an inventory that
included the contents of such containers. We disagree.
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Similar to People v. Needham, supra, 79 Cal.App.4th 260, Officer de
Jongh testified that LBPD had a policy of inventorying containers as well as
other items found in cars. Pursuant to that policy, it was not unreasonable
for the officers here to open items that might contain a concealed weapon.
Thus, although we recognize the jurisprudence distinguishes between closed
containers and open containers, appellant’s argument relying on this
distinction contravenes the purposes of an inventory search. An inventory
search does more than catalog the contents of vehicles; the inventory search
is designed to protect officers from danger, including weapons concealed in
the vehicle or in closed containers. (People v. Needham, supra, 79
Cal.App.4th at pp. 266–267.) Furthermore, this distinction is designed to
address the dangers of indiscriminate rummaging. There was no evidence
here the officers used the inventory as a ruse to search for incriminating
evidence. Thus, “[t]he relevant question is whether the impounding was
subjectively motivated by an improper investigatory purpose.” (Torres,
supra, 188 Cal.App.4th at p. 791.) Where, as here, there is no such evidence,
we will uphold the inventory search.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
COLLINS, J.
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