People v. Salcero

Opinion

DAVIS, J.

The People appeal from denial of a motion to reinstate the complaint (Pen. Code, § 871.5, subd. (a)) brought after the magistrate

[722]

granted defendant’s motion to suppress evidence (Pen. Code, § 1538.5) and discharged him at the preliminary hearing. The People contend the trial court erred in denying its motion to reinstate, as the search of defendant’s tote bag was valid either as an inventory or in order to ensure officer safety. We reverse.

Facts

Deputy Herbst stopped defendant for a traffic violation in the Butte Valley area of Siskiyou County. Defendant told Herbst he was driving his brother’s car back from Glendale, where he had spent the Christmas holidays, and that the soft tote bag in the backseat was his. Herbst knew something was wrong because he recognized defendant, having seen him and the car three days earlier in MacDoel. As defendant had no driver’s license, Herbst cited him and said he was free to leave but the car and its contents were impounded and would be inventoried.

Defendant asked for his tote bag and, when told it was to be opened, appeared nervous. Herbst wanted to inventory the bag before he decided whether to release it and testified that before opening the bag, he felt clothes and a hardness inside it. On opening the tote bag, Herbst saw a cellophane package of powder and three T-shirts. The cellophane package contained 12 ounces of cocaine.

Herbst testified the sheriff’s department had an oral policy that all impounded vehicles and their contents must be inventoried; however, he exercised his own discretion pursuant to Vehicle Code section 22651, subdivision (p) on whether to impound any particular vehicle. According to the oral policy, Herbst was required to open and inventory all closed containers found in an impounded vehicle before storage or release of any items.

The magistrate rejected the inventory as a justification for the search stating, “If the bag was to be released to the defendant, then there obviously would be no reason for an inventory search because there would be no reason to protect the law enforcement agency from any allegations of wrongdoing if the property had been released to the defendant.” The magistrate found there was no evidence to justify a search of the tote bag for officer safety as a patdown of the bag would have sufficed. Further, the magistrate was not persuaded that Herbst’s patdown of the bag revealed a possible weapon. Defendant’s motion to suppress was granted and he was discharged for insufficient evidence of criminal activity.