Opinion
NO. 2:09-cr-0033 FCD.
November 24, 2009
MEMORANDUM AND ORDER
This matter is before the court on defendant Pete Agapito Chavez's ("Chavez" or "defendant") motion to suppress evidence seized by law enforcement officers during the search of his car on December 11, 2008. Defendant is charged in the indictment with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Indictment [Docket #6], filed Jan. 22, 2009). The court held an evidentiary hearing on October 2, 2009. Thereafter, the court requested supplemental briefing. Having reviewed the file herein and heard the testimony of witnesses and arguments of counsel, the court GRANTS defendant's motion to suppress.
BACKGROUND
The facts are taken from the testimony and evidence received at the evidentiary hearing held on October 2, 2009. (Rep.'s Tr. of Evidentiary Hr'g on Def.'s Mot. to Suppress ("Tr.")).
That same night, at approximately 8:30 p.m., there was a home invasion robbery. Witnesses claimed that eight black males armed with guns committed the robbery. (Tr. at 6.) Desimone had the suspects from the carjacking stand in a lineup; the victims from the home invasion robbery identified the carjacking suspects as involved in the home invasion robbery. (Tr. at 65.) At the hearing, defendant Chavez was identified by Desimone as appearing to be of mixed Mexican and African-American descent. (Tr. at 66.) In the police report filed in December 2008, Officer Lopez described Chavez as a male of Hispanic origin. (Tr. at 128.)
One of the victims of the home invasion robbery notified Desimone that she heard from someone in her apartment complex that the suspects lived in one of three different apartments in the area. (Tr. at 6.) Desimone asked three other detectives, Nance, Jose Lopez ("Lopez"), and Jose Martinez ("Martinez"), to accompany him to check the three apartments and verify if the information provided was true, identify any persons living in the apartments, and locate stolen property from the home invasion robbery. (Tr. at 7.) Nobody was at the first apartment, which appeared vacant. (Tr. at 8.) At the second apartment, the detectives identified the occupants, who gave them permission to search for stolen property. (Tr. at 8.)
At approximately 2:50 p.m., detectives arrived at the third location, 623 West Flora, number 19. (Tr. at 8, 70.) The detectives knocked on the door several times, but no one answered. (Tr. at 9.) Desimone and Nance started walking down the stairs toward the parking lot; Lopez and Martinez were at the top of the stairs. (Tr. at 9.)
As Desimone was walking down the stairs, he saw defendant pull into the parking lot in a purple Lexus, get out of the car with a backpack, and walk up the stairs past him and Nance. (Tr. at 9.) When defendant first came into contact with the detectives, his eyes got big, and he appeared concerned. (Tr. at 10.) He continued walking up the stairs, but before reaching the top, turned around and walked back to the car. (Tr. at 10.) Desimone noticed that defendant's car matched one of the vehicle descriptions from the carjacking and that defendant was walking in the direction of number 19. (Tr. at 10.) Desimone asked Chavez to stop so they could talk. (Tr. at 10.) Chavez ignored him and got into the Lexus. (Tr. at 11.)
Because the testimony reflects that defendant did not reach the top of the stairs and there were multiple apartments on the landing, it is unclear exactly which apartment Chavez was heading toward. (See Tr. at 105.)
At that point, Desimone walked behind the back of the Lexus, which was nosed into a parking stall, to write down the license plate number. (Tr. at 11.) Lopez and Martinez had come down the stairs and were at the driver's window of the car. (Tr. at 11.) They did not intend to arrest him, nor did Lopez feel that he had sufficient information to make an arrest. (Tr. at 75.) Rather, Lopez merely sought to identify defendant. (Tr. at 74.)
Chavez started the car, and the back-up lights came on. (Tr. at 11.) The car began edging back. (Tr. at 75.) Desimone was about three feet behind the rear license plate, in the middle of the car. Lopez knocked on the door and told Chavez to stop. Chavez replied, "Fuck you. I ain't stopping." Lopez again told Chavez to stop, pulled the badge from his belt, and tapped the driver's window with the badge. Chavez continued to back toward Desimone. Lopez immediately pulled his duty gun, unholstered it, and tapped the driver's window with the badge and the gun, telling Chavez to stop. (Tr. at 75.) Chavez stopped the car, put his hands in front of his body, and said, "Okay. Okay. I didn't know who you were. I did not know who you were." (Tr. at 76.) Lopez told Chavez to put the car in park, and Chavez eventually complied. (Tr. at 76.)
Lopez reholstered his weapon, told Chavez he needed to speak with him, and asked for his driver's license. (Tr. at 76.) Chavez began to reach in the backseat. Lopez told Chavez, "Don't reach for anything. Put your hands in front of you. Keep your hands where I can see them." (Tr. at 76.) However, Chavez continued to reach for a backpack in the backseat of the car and brought it to the frontseat. (Tr. at 77.) Lopez was concerned that Chavez was reaching for a weapon. Both Lopez and Martinez drew their weapons and pointed them at defendant. (Tr. at 77.) Lopez told Chavez to keep his hands away from the backpack and where he could see them. (Tr. at 78.) Chavez responded, "Okay. Okay. Okay. Okay. Okay." (Tr. at 78.)
Lopez then told Chavez to step out of the vehicle. (Tr. at 78.) Chavez again reached to the back of the car and grabbed a black jacket from the backseat. (Tr. at 78-79.) Lopez again drew his weapon. (Tr. at 79.) He told Chavez not to put the jacket on, but Chavez did not comply. (Tr. at 79, 114.) At this point, Lopez asserts that he sought only to get information and to conduct a patdown search, based upon Chavez's failure to comply and continuous reaching for items in the backseat of the vehicle. (Tr. at 79.)
Chavez exited the vehicle. Lopez asked him to turn around and put his hands behind his head. (Tr. at 80.) Chavez turned around, but did not put his hands behind his head. Lopez grabbed defendant's jacket. Chavez turned around and started running northbound out of the apartment complex. Lopez held onto the jacket, but Chavez leaned forward and shed the jacket. After doing so, he turned and threw a roundhouse punch with his right hand to Lopez's cheek. (Tr. at 80-81.) Lopez and Martinez testified that prior to Chavez striking Lopez, there was no basis for arrest. (Tr. at 75, 82, 120.)
After striking Lopez, Chavez continued to run north, and Lopez chased after him, grabbing defendant's t-shirt. (Tr. at 81-82.) Chavez shed his t-shirt. (Tr. at 82.) Lopez continued to chase defendant, but fell. (Tr. at 83.) Both Desimone and Martinez also gave chase. (Tr. at 83.) Chavez eventually ran west and jumped over a fence. Desimone followed defendant over the fence, Lopez ran south, and Martinez returned to the vehicle. (Tr. at 83-84, 115.) Nance was on the radio in the street for assistance. (Tr. at 97, 116.)
Martinez testified that he was concerned that Chavez would attempt to return to the vehicle. (Tr. at 115.) When Martinez made it back to the vehicle, no one else was there, and the defendant never returned. (See Tr. at 115.) Martinez removed the backpack from the car and searched it. He found a semiautomatic Berretta handgun and $4000 in cash. (Tr. at 116.) Martinez relayed the information to Nance, who put it over the radio. (Tr. at 118.) Martinez testified that he did not believe he would find any evidence relating to Chavez's striking of Lopez in the car; rather, Martinez believed that Chavez might be connected to one of the robberies. (Tr. at 121-22.)
Defendant Chavez was taken into custody approximately 20-25 minutes after Martinez found the gun. (Tr. at 118.) He was charged with, inter alia, battery on a peace office in violation of California Penal Code § 243(b), resisting, delaying or obstructing a peace officer in the performance of his duty in violation of California Penal Code § 148(a), and possession of a concealed weapon within a car in violation of California Penal Code § 12025(a)(1). Approximately 30 minutes after finding the gun, a tow was called for the car. (Tr. at 118) ("We discovered the gun at first and then requested the tow. Within a half hour after [discovering the gun].").
At the hearing, the parties stipulated to the following timeline with respect to the relevant events that transpired on December 11, 2008. (Tr. at 39.) At approximately 2:56 p.m., detectives reported that defendant Chavez was on the run. (Tr. at 37, 39.) The car was searched at some point prior to 3:16 p.m. (Tr. at 39.) At approximately 3:16 p.m., there was a radio call to tow defendant's vehicle. (Tr. at 37, 39.) At 3:18 p.m., it was reported that defendant was in custody. (Tr. at 37, 39.)
ANALYSIS
The Fourth Amendment guarantees the right of citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searched and seizures." U.S. Const. Amend. IV; see United States v. Ruckes, ___ F.3d ___, 2009 WL 3719209, at *3 (9th Cir. Nov. 9, 2009). "Subject only to a few specifically established and well-delineated exceptions, a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant." Ruckes, 2009 WL 3719209, at *3 (internal quotations and citations omitted). "When the [g]overnment does not meet the warrant requirement, it has the burden of proving that the departure from this requirement was justified." United States v. Gardner, 627 F.2d 906, 909 (9th Cir. 1980). If the government cannot meet this burden, the "exclusionary rule" prohibits evidence seized from an unlawful search from constituting proof against the victim of the search. Wong Sun v. United States, 371 U.S. 471, 484 (1963).
Chavez moves to suppress all evidence seized from the car on December 11, 2008 on the grounds that the car was searched and the gun and money were seized without a warrant and that no exception to the warrant requirement applies.
A. Search Incident to Arrest
The government first contends that the search of the car without a warrant was lawful as incident to Chavez's arrest for striking detective Lopez.
Defendant argues that the initial detention of Chavez, which he asserts occurred when detectives prevented him from pulling out of the parking space and questioned him at gunpoint, was made without either reasonable suspicion or probable cause and was therefore, unconstitutional. However, defendant conceded that the subsequent crime committed, namely battery on a peace officer, served as an independent basis for arrest. (Tr. at 142.) Assuming arguendo that the initial detention was unlawful, it does not insulate defendant's subsequent conduct or, standing alone, invalidate a search pursuant to that arrest. See Caseres, 533 F.3d at 1069 (holding that although the initial detention, if successful, would likely have been unconstitutional, the defendant's subsequent action in threatening the police officer was an independent basis for the subsequent arrest); United States v. Bailey, 691 F.2d 1009, (11th Cir. (1983) ("[N]otwithstanding a strong causal connection between lawless police conduct and a defendant's response, if the defendant's response is itself a new, distinct crime, then the police may constitutionally arrest the defendant for that crime."). Because the search was neither initiated nor effectuated until after defendant struck Lopez, the lawfulness of the initial detention is irrelevant to the motion to suppress.
Searches incident to arrest are exempted from both the warrant and probable cause requirements of the Fourth Amendment. United States v. Caseres, 533 F.3d 1064, 1070 (9th Cir. 2008) (noting that due to their inherent mobility, automobiles can frequently be searched without a warrant if the search is supported by probable cause) (citing United States v. Robinson, 414 U.S. 218, 235 (1973)). Such searches are justified by the need to (1) find weapons an arrestee might use; and/or (2) secure evidence that he might conceal or destroy. Id. (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)). The permissible scope of a search incident to a lawful arrest is "limited to the area within the arrestee's immediate control." Id. When the arrestee is a vehicle occupant, the vehicle's entire passenger compartment is considered to be within the arrestee's immediate control. Id. (citing New York v. Belton, 453 U.S. 454, 460 (1981)).
The Supreme Court recently delineated a bright-line rule regarding when an officer may search the passenger compartment of a car pursuant to a lawful arrest. Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009). "Officers are only permitted to search the passenger compartment of an arrestee's automobile if the search is required for officer safety or is necessary to prevent destruction of evidence of the crime for which the recent occupant was arrested." Ruckes, 2009 WL 3719209, at *4 (citingGant, 129 S. Ct. at 1719); see United States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir. 2009) (noting that Gant applies retroactively to all convictions not yet final at the time decision was rendered and rejecting the government's argument that the court should apply the good faith exception to the exclusionary rule). In Gant, the defendant was arrested for driving on a suspended license. 129 S. Ct. at 1714. Officers placed him in handcuffs and secured him in the back of a patrol car before conducting a search of the vehicle. Id. at 1715. The search led to the discovery of cocaine in the pocket of a jacket in the automobile's backseat. Id. The Supreme Court held that the search was unconstitutional because (1) the defendant was not in reaching distance of the car at the time of the search and thus, there was no concern for officer safety; and (2) there was no basis for officers to believe there was evidence relating to the crime of driving on a suspended license that needed to be preserved. Id. at 1719; see Ruckes, 2009 WL 3719209, at *4 (holding that the search of a vehicle pursuant to the defendant's arrest could not be upheld as a valid search incident to arrest because the defendant was secured in the backseat of the patrol car at the time of the search and there was no likelihood that the officer might have discovered evidence of the defendant's driving offense within the vehicle).
In this case, neither the officer safety nor the evidentiary preservation justifications for a search incident to arrest supports the search of Chavez's car. At the time of the search, defendant Chavez had fled from the car, eluded police offices, and jumped over a fence. He was nowhere near the car after he fled the scene and jumped the fence. As such, he was "clearly beyond lunging distance" of the handgun in the backpack in the front seat of the car at the time of the search. See Ruckes, 2009 WL 3719209, at *4. While Martinez asserted that he was concerned that Chavez would return to the car to flee or recover items from within, he also testified that once he returned to the car, he ensured "by standing there" that Chavez would not be able to gain access to the car. (Tr. at 123.) Therefore, even if Chavez had returned to the vicinity of the car, he would not have had access to the backpack or the gun as it was under Martinez's "dominion and control." (Tr. at 123.)
Moreover, akin to traffic-related offenses, it is generally unlikely that an officer could reasonably expect to find evidence of the crimes of battery upon an officer or resisting arrest within a car. See Gant, 129 S. Ct. at 1719 ("In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence."). Further, Martinez admitted that he did not believe he would find any evidence relating to Chavez's striking of Lopez in the car, the offense for which detectives had probable cause to arrest Chavez. (Tr. at 121-22.) Accordingly, under the circumstances presented in this case and particularly in light of the testimony of the officer who searched the vehicle, there was "no likelihood" that Martinez might have discovered such evidence. See Ruckes, 2009 WL 3719209, at *4.
Therefore, because neither justification for a search incident to arrest existed in this case, the search of defendant Chavez's car cannot be upheld on that theory in light of Gant.
B. Inventory Search
Alternatively, the government contends that the evidence seized from the car should not be suppressed because it inevitably would have been discovered during an inventory search of defendant's car after it was towed.
The government first raised this argument in its supplemental brief filed after the evidentiary hearing. The court allowed defendant to file a supplemental opposition and the government to file a supplemental reply on this issue.
"The inevitable discovery doctrine is an exception to the exclusionary rule." Ruckes, 2009 WL 3719209, at *5 (quotingUnited States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986)). The doctrine permits the admission of unlawfully obtained evidence against a defendant if that evidence "would have been discovered absent a constitutional violation." Id. (citing Nix v. Williams, 467 U.S. 431, 443 (1984)). "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . ., then the deterrence rationale [for the exclusionary rule] has so little basis that the evidence should be received." Nix, 467 U.S. at 444.
It is well-established that, as part of their "community caretaking functions," law enforcement officers may take automobiles into custody to permit the uninterrupted flow of traffic, to enforce parking ordinances that promote public safety and efficient movement of traffic, and, in some circumstances, to preserve evidence. South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976); see Colorado v. Bertine, 479 U.S. 367, 371 (1987) ("The policies behind the warrant requirement are not implicated in an inventory search, nor is the related concept of probable caus.") (internal citation omitted). "Whether an impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft." Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (citing United States v. Jensen, 425 F.3d 698, 706 (9th Cir. 2005) ("Once the arrest was made, the doctrine allowed law enforcement officers to seize and remove any vehicle which may impede traffic, threaten public safety, or be subject to vandalism."); Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n. 4 (9th Cir. 1993)). If officers are justified in impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a standardized procedure is constitutionally reasonable. Opperman, 428 U.S. at 372-74; see also Cooper v. California, 386 U.S. 58, 61-62 (1967) ("It would have been unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.").
Under California law, a car may be removed by a peace officer "[w]hen an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is . . . required or permitted to take, and does take, the person into custody." Cal. Veh. Code § 22651 (West 2009). However, statutory authorization to remove a vehicle, by itself, does not determine the constitutional reasonableness of the seizure. Sibron v. New York, 392 U.S. 40, 61 (1968); People v. Williams, 145 Cal. App. 4th 756, 762 (2d Dist. 2006). The government must demonstrate that the removal of the vehicle furthered a "caretaking function." Miranda, 429 F.3d at 865; Williams, 145 Cal. App. 4th at 762. The decision to impound a vehicle must take into consideration whether the vehicle "was actually impeding traffic or threatening public safety and convenience on the streets, such that impoundment was warranted." Id. "An officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers." Id. (holding that the community caretaking function was not implicated where the car was parked in the driveway of an owner who had a valid license); see United States v. Squires, 456 F.2d 967, 970 (2d Cir. 1972) ("However, since the Cadillac was parked in the parking lot behind the apartment house in which appellant lived, which was an appropriate place for it to be, and appellant did not consent to its removal, the officers did not have a reasonable basis for concluding it was necessary to take the Cadillac to the police station in order to protect it.");Williams, 145 Cal. App. 4th at 762 (holding that impoundment was constitutionally unreasonable pursuant to § 22651 where the car was legally parked in front of the defendant's residence).
The Ninth Circuit recently analyzed the applicability of the inevitable discovery doctrine based upon the inventory search of an impounded vehicle to evidence that would otherwise be suppressed under the rationale in Gant. Ruckes, 2009 WL 3719209, at *5-6. In Ruckes, the defendant was stopped for speeding along an interstate highway and arrested for driving on a suspended license. Id. at *5. Pursuant to Washington statutory law, the Washington State Patrol is expressly authorized to impound a vehicle when the driver is arrested for driving with a suspended license and may take custody of a car when it is left unattended on a highway where it poses an obstruction to traffic or jeopardizes public safety. Id. Further, the searching officer presented evidence that it was standard procedure to impound a car if no one was available to remove it from the side of a highway. Id. Under these facts, the Ninth Circuit held that the evidence seized during an unlawful search incident to arrest would have inevitably been discovered during a good faith inventory search following the lawful impoundment. Id. However, the Ninth Circuit emphasized that "the inevitable discovery doctrine will not always save a search that has been invalidated under Gant"; rather, the government must demonstrate in each case that there was "a lawful alternative justification for discovering the evidence." Id.
Under the facts before the court in this case, the government has failed to demonstrate that impoundment of the car pursuant to § 22651 was constitutionally reasonable. At all relevant times, Chavez's vehicle was parked in a parking space adjacent to an apartment complex. There is no evidence that Chavez's vehicle was parked illegally or created a safety hazard or impediment to traffic or other cars. Further, there is no evidence that defendant did not have a valid license, that the car was not properly registered, or that the car had been reported stolen; accordingly, the officers had no reason to believe that Chavez was not in lawful possession of the car. See Williams, 145 Cal. App. 4th at 762. Moreover, there is no evidence that law enforcement would have impounded the car as a matter of standard procedure pursuant to defendant's arrest for striking Lopez. Rather, the undisputed evidence demonstrates that a tow was not requested until after Martinez searched the car and found the gun and money. Therefore, because the government failed to present any evidence that a public safety reason justified the search and because it similarly failed to present any evidence that the impoundment was necessary to prevent immediate and continued unlawful operation of the vehicle, there is no showing that a community caretaking function was served by impounding appellant's car. As such, based upon the record before the court, the impoundment of the car pursuant to California Vehicle Code § 22651 was constitutionally unreasonable.
The facts of this case are distinguishable from the facts inRuckes. In Ruckes, subsequent to the defendant's arrest, if the vehicle had not been impounded, it would have been left on the side of an interstate highway; there was evidence that it was standard state patrol procedure to tow a car under these circumstances. 2009 WL 3719209, at *5-6. Conversely, in this case, if not impounded, the vehicle would have been left in a parking space in an apartment parking lot. Further, there is no evidence that it was standard procedure for Stockton police to tow a car under these circumstances. Accordingly, because the location of the car in this case did not present the same potential hazard to the vehicle or other drivers as the location of the car in Ruckes, the inventory exception to the warrant requirement does not apply and cannot support a finding of inevitable discovery of the gun and money in Chavez's car.
The court notes that even if the government offered such testimony, it would not necessarily render the impoundment reasonable.
Therefore, because the government failed to meet its burden of establishing that the contents of the car would have been eventually discovered by lawful means, the court cannot find that the doctrine of inevitable discovery would allow admission of the contents of defendant's car.
CONCLUSION
For the foregoing reasons, defendant's motion to suppress is GRANTED. The matter is set for a further status conference on November 30, 2009 at 10:00 a.m.
IT IS SO ORDERED.