• Searches of Vehicles Under the Automobile Exception
• Searches of Vehicles as Incident to Arrest

With probable cause to believe a person is drunk in public, sitting in his car, the warrantless search of the entire passenger compartment his vehicle looking for open containers of alcohol is lawful under both the “automobile exception” to the search warrant requirement, and as a “search incident to arrest.”  The search of the person’s vehicle incident to arrest is lawful when the person has yet to be secured, and/or when it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Searching the passenger compartment of an arrestee’s car is not limited by the fact that this particular person has a physical disability that might have precluded him from reaching into parts of the area being searched.

Defendant Tony Ramon Sims was found by two police officers passed out drunk in the front passenger seat of his car at 3:00 a.m., in the parking lot of a downtown San Diego bar that had closed an hour earlier.  The keys were in the ignition.  The officers woke defendant and engaged him in conversation.  When they did so, they noted the odor of alcohol emanating from his person, that he had bloodshot eyes, and that his speech was slurred.  As defendant fumbled for his wallet, he appeared as though he was about to vomit. Based on these observations, the officers believed defendant was intoxicated and in violation of section 85.10 of the San Diego Municipal Code (i.e., being under the influence while “in or about any motor vehicle” in a public place.)  A records check (done via one of the officer’s cellphone) showed that a person named Tony Sims was on probation and subject to search and seizure conditions.  In talking with defendant, it appeared that he was in fact the same Tony Sims referred to (although it was later determined that he was not, and that he was not subject to a Fourth waiver).  Deciding to search defendant’s car pursuant to his apparent Fourth waiver, defendant was asked to step out of the car.  However, defendant told the officers that because he was paralyzed from the waist down, he couldn’t do so without assistance.  So the officers searched the car with defendant still siting in the front seat.  The search resulted in the recovery of a loaded semiautomatic handgun from the rear passenger floorboard.  After removing defendant from the car and handcuffing him, a further search of the car resulted in the discovery of a second loaded semiautomatic handgun under front passenger seat (where defendant had been sitting) and handgun ammunition on the rear driver’s side floorboard.  Defendant was arrested and charged in state court with two counts of the illegal possession of a firearm by a felon (P.C. § 29800(a)(1)) and one count of the unlawful possession of ammunition (P.C. § 30305(a)(1)).  Defendant filed a motion to suppress the evidence recovered from his vehicle.  Upon denial of his motion, he plead guilty to the charged offenses and was sentenced to three years’ probation.  Defendant appealed.

The Fourth District Court of Appeal (Div. 1) affirmed (although the case was remanded back to the trial court for a reduction of his probationary term from three to two years, pursuant to the provisions of Assembly Bill No. 1950, amending P.C. § 1203.1(a).).  Even though the officers believed that they had the right to conduct a warrantless search of defendant’s car under what they believed was a Fourth waiver, the Court determined that in light of its ruling as described below, they did not have to decide whether the officer’s good faith belief in the existence of such a waiver excused the lack of a warrant. (See pg. 955, fn. 6, and Note, below.)  Instead, the Court found two other legal justifications for the search: 

(1) The Automobile Exception to the Warrant Requirement:  The trial court judge found the search of defendant’s vehicle was constitutionally permissible under the so-called “automobile exception” to the warrant requirement.  The Court agreed.  Under the automobile exception, “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.”  (United States v. Ross (1982) 456 U.S. 798, 800; People v. Lee (2019) 40 Cal.App.5th 853, 860–861.)  In this case, defendant exhibited clear signs of being under the influence of alcohol—bloodshot eyes, slurred speech, fumbling with his wallet, and on the verge of vomiting—all while emitting an odor of alcohol.  With defendant’s clear indications of being intoxicated, the Court held that it was reasonable for the officers to believe that a search of the vehicle would produce evidence of his alcohol consumption, such as unsealed alcohol containers.  (See People v. Molina (1994) 25 Cal.App.4th 1038, 1042.)  The Court rejected defendant’s argument to the effect that being in the parking lot of a bar, it was more likely that he had done his drinking in that bar.  This possibility was rebutted by the fact that the bar had been closed for an hour, plus one of the officer’s testimony to the effect that the parking lot where defendant was parked was “a known place to hang out after [bars closed], drink, [and] loiter around.”  The Court also rejected defendant’s argument to the effect that the officers already had enough evidence to bust him without searching his car.  There is no authority for the argument that once probable cause is established, police officers are precluded from looking for more evidence to support the charges.  The Court concluded that the offices had sufficient probable cause to justify a search for evidence of his public intoxication, and that under the automobile exception, no search warrant was required to do so. 

(2)  Search Incident to Arrest:  As an alternative basis for denying defendant’s suppression motion, the trial court judge determined that the warrantless search of his vehicle was permissible as a search incident to defendant’s arrest for public intoxication. The Appellate Court again agreed.  The legal authority for such a search is the landmark U.S. Supreme Court decision of Arizona v. Gant (2009) 556 U.S. 332.  “Gant provides the generalized authority to search the entire passenger compartment of a vehicle and any containers therein incident to arrest.” (People v. Nottoli (2011) 199 Cal.App.4th 531, 555.)  Under Gant, a warrantless search of a vehicle is constitutional under two possible scenarios; (a) upon the arrest of a recent occupant of a vehicle so long as “the arrestee is (unsecured and) within reaching distance of the passenger compartment at the time of the search,” or (b) whether or not the defendant has been secured, whenever “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The Court here found both theories to apply.  (a)  Upon determining that defendant was drunk, the officers did not remove him from his vehicle at first because, being paralyzed from the waist down, doing so would have been difficult or, at the very least, inconvenient.  With probable cause to believe that there might be evidence within the vehicle of his intoxication, the officers therefore searched it while defendant remained, unsecured, in the front passenger search.  Defendant argued, however, that because he is paralyzed, it is not likely he could have reached any possible evidence within his car, particularly evidence that might have been in the back seat.  The Court rejected this argument noting authority from other jurisdictions to the effect that “[T]he only question the trial court asks is whether the area searched is generally ‘reachable without exiting the vehicle, without regard to the likelihood in the particular case that such a reaching was possible.’” (Citing United States v. Allen (1st Cir. 2006) 469 F.3rd 11, 15; and United States v. Stegall (8th Cir. 2017) 850 F.3rd 981, 985; “‘(A)ctual reachability under the circumstances’ is irrelevant when considering the scope of a passenger compartment search.”) The backseat of a passenger compartment is generally reachable by an unrestrained person seated in the front, irrespective of whether the area was reachable by the defendant in this particular instance.  (b)  It was already determined that there was probable cause to believe that defendant’s vehicle might contain open containers of alcohol (as discussed above under “The Automobile Exception to the Warrant Requirement”).   Under Gant’s alternative theory, therefore, this fact is sufficient to justify a warrantless search of an arrestee’s vehicle whether or not he had already been secured. 

There’s a couple of interesting legal theories not discussed here. For instance, the Court chose not to discuss the issue as to whether a search based upon the erroneous, but good faith belief that defendant was subject to a Fourth waiver would have been lawful (ignoring, for the moment, the fact that two other legal theories applied).  There is authority for the argument that an officer’s good faith reliance on erroneous information will not invalidate an arrest, even when that information comes from a law enforcement source, so long as the error was based upon non-reoccurring negligence only.  (See Herring v. United States (2009) 555 U.S. 135.)  So it is arguable that the officers’ good faith belief that defendant was subject to a Fourth waiver in this case would have justified the search of his car.  There’s no case authority, however, to support this argument.  So it’s too bad this Court declined to decide the issue.  Also without discussing the issue, the Court here appears to have employed the legal theory that generally (with limited exceptions), an officer’s “subjective” belief is irrelevant, at least where “objectively, his actions are otherwise legal.  (See Whren v. United States (1996) 517 U.S. 806.)  In other words, the officer’s erroneous belief that defendant was subject to a Fourth wavier is irrelevant so long as there is some other legal theory that justifies the search.  In this case, two other legal theories saved the day; i.e., the “automobile exception” and a “search incident to arrest.”  On another topic, we do know that it is irrelevant what offense the officers decided to charge defendant with, so long as some offense applies.  The United States Supreme Court has ruled that so long as a police officer has probable cause to arrest for some offense, it matters not that the officer, subjectively but erroneously believed that he only had probable cause for a different offense.  (Devenpeck v. Alford (2004) 543 U.S. 146.)  Here, the officers chose to charge defendant with a Municipal Code violation where, as pointed out by the Court in the footnotes (fns. 3 and 4), even though the Muni Code violation probably worked, “drunk in public,” per Pen. Code § 647(f), would have worked just as well.