Opinion
H042800
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ANA RON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1371616)
In a negotiated disposition following the denial of her suppression motion, defendant Ana Ron pleaded no contest to simple possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377). She was sentenced to two years of court probation, with a jail term equivalent to time served as a condition of probation.
On appeal, Ron contends that sheriff's deputies' warrantless entry into a makeshift campsite within a larger homeless encampment located on municipal property, and subsequent search and seizure of items from inside a tent erected in the campsite, violated her rights under the Fourth Amendment. She challenges the trial court's conclusion that she had no reasonable expectation of privacy in the tent or the campsite. She also disputes the People's contention that the search of the tent was justified incident to her arrest on an outstanding arrest warrant.
We find that Ron had a reasonable expectation of privacy in the tent, but no warrant was required because the search of the tent was lawful as a search incident to arrest. Accordingly, we will affirm the trial court's ruling.
I. BACKGROUND
We take the facts from the transcript of the evidentiary hearing on Ron's motion to suppress.
Santa Clara County Sheriff's deputies were patrolling unincorporated areas of East San Jose in Santa Clara County on December 2, 2013, when Deputy Mark Harper and two other deputies stopped to conduct a foot patrol near the intersection of Remillard Avenue and Story Road. It was about 3:00 a.m. They entered a wooded area along Coyote Creek that at the time housed a "very large homeless encampment." Several black and white "No Trespassing" signs, citing San Jose Municipal Code 10.20.140, were posted along a chain link fence that divided the property from the roadway and sidewalk. The fence was broken and open in several areas, with foot trails leading in. The deputies entered through an opening; they did not circumnavigate the property to determine if the fencing and signage were present around the entire perimeter.
The deputies walked for about 15 or 20 minutes and passed by several homeless campsites. They came to a campsite with a perimeter of makeshift fencing, possibly plastic or chicken wire, and could see three people—two men and one woman, later identified as Ron—sitting on couches or chairs that were arranged in a seating area outside of a large tent composed of several smaller tents. It was dark and the deputies were using flashlights to see. Harper and his partners entered the gated area, introduced themselves, and asked the three individuals what they were doing.
Ron and the two men said that they were staying at the campsite, which belonged to a fourth person who was not there that night. Harper conducted a "high-risk" pat down search of the three individuals for officer safety, while another deputy searched the area within the enclosed campsite. Ron said that she believed she had an outstanding arrest warrant and had used methamphetamine earlier in the day. After confirming Ron's identity and verifying the arrest warrant with county dispatch, Harper arrested and handcuffed Ron. She at that point was standing within the enclosed campsite area about 10 to 15 feet from the tent structure. The other two men sat back down on one of the couches.
One of the deputies and Harper entered the tent through the door flap. Two bags inside the tent by the door were open; the items within were in plain view. A green bag, which Ron said was hers, contained rocks. A blue bag contained makeup, feminine products, and a plastic bag containing a white crystalline substance that Harper determined was methamphetamine. Ron said the blue bag was not hers and that she did not know anything about the methamphetamine.
A preliminary hearing was held on May 11, 2015. Ron was charged by information on May 21, 2015, with one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378). Ron moved to suppress evidence obtained as the result of an unlawful search pursuant to Penal Code section 1538.5. She asserted that the deputies' warrantless entry into the tent, which was "for all intents and purposes" Ron's home, violated her reasonable expectation of privacy and rights under the Fourth Amendment. The People argued in written opposition to the motion that because Ron denied ownership of the blue bag, she could not claim an expectation of privacy in it and had no standing to contest its search. The People further argued that Ron had no reasonable expectation of privacy in the tent or campsite, which were on municipal property illegally, in violation of Municipal Code section 10.20.140, and that the search of the tent was lawful incident to Ron's arrest for the outstanding warrant.
Unspecified statutory references are to the Penal Code.
City of San Jose Municipal Code section 10.20.140 states in part: "A. No person shall remain upon any private property . . . after being notified by the owner or lessee, or other person in charge thereof to remove himself or herself therefrom. [¶] B. No person, without the express permission of the owner or lessee, or other person in charge . . . , shall enter upon such private property . . . after having been notified by the owner or lessee, or other person in charge thereof, to keep off or keep away therefrom."
Following an evidentiary hearing on June 18, 2015 and the submission of supplemental briefing and oral argument, the trial court found that Ron had "no reasonable expectation of privacy . . . in the area" and denied the motion to suppress. The court explained that under the totality of the circumstances, given that the campsite and tent were on municipal property, Ron had "no right to exclude other people" and the circumstances did not "give rise to an expectation that a person would remain free from government intrusion while there."
On August 12, 2015, Ron entered a no contest plea to the lesser-included misdemeanor count of possession without intent (Health & Saf. Code, § 11377). She was sentenced to two years of court probation, with a jail term equivalent to time served as a condition of probation. She timely appealed the judgment based on the denial of the motion to suppress.
II. DISCUSSION
Ron's primary contention on appeal is that the trial court erred in denying the motion to suppress because the homeless are entitled to a reasonable expectation of privacy in their dwelling areas and personal belongings. She argues that if she and her friends were staying at a house, rather than in a homeless encampment, the deputies' conduct clearly would have violated her rights under the Fourth Amendment and article I, section 13 of the California Constitution. She challenges the lawfulness of the deputies' entry into the enclosed campsite and subsequent entry into the tent. The People dispute that Ron had a reasonable expectation of privacy in the illegal campsite or the tent and contend that the search of the tent was proper as a search incident to arrest.
A. LEGAL FRAMEWORK AND STANDARD OF REVIEW
Whether a warrantless search, like the one here, infringed Ron's right under the Fourth Amendment to be free from unreasonable searches and seizures requires us to answer "two threshold questions. First, did the defendant exhibit a subjective expectation of privacy? Second, is such an expectation objectively reasonable, that is, . . . one society is willing to recognize as reasonable?" (People v. Camacho (2000) 23 Cal.4th 824, 830-831 (Camacho).) We independently review the trial court's ruling on the legal question of whether the search was unreasonable, but will defer to any express or implied factual findings of the trial court that are supported by substantial evidence. (Id. at p. 830; People v. Brown (2015) 61 Cal.4th 968, 975.)
B. REASONABLE EXPECTATION OF PRIVACY IN THE CAMPSITE AND TENT
The trial court in this case did not expressly rule on the subjective component, but found any expectation of privacy was not objectively reasonable, citing the fact that Ron—even if not technically in violation of the posted trespassing ordinance—did not have the city's permission to be there and could not reasonably expect to remain free from government intrusion in that place.
Case authority presents a mixed picture on the extent to which a person residing in an ostensibly illegal or unpermitted location still might invoke the protections of the Fourth Amendment based upon a reasonable expectation of privacy. In the absence of conclusive or binding authority, we begin with the principle that "the Fourth Amendment protects people, not places. What a person . . . seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (Katz v. United States (1967) 389 U.S. 347, 351-352 (Katz).) But the claim to Fourth Amendment protection must be premised upon " 'a legitimate expectation of privacy in the invaded place.' " (Minnesota v. Olson (1990) 495 U.S. 91, 95 (Olson), quoting Rakas v. Illinois (1978) 439 U.S. 128, 143.)
The expectation of privacy "is legitimate if it is ' "one that society is prepared to recognize as 'reasonable.' " ' " (Olson, supra, 495 U.S. at pp. 95-96; see also People v. Nishi (2012) 207 Cal.App.4th 954, 960 (Nishi) [reasonable expectation of privacy " ' "is an objective entitlement founded on broadly based and widely accepted community norms. . . ." ' "].) Thus, a place need not be " 'home' " in order for the occupant to have a legitimate expectation of privacy there. (Olson, supra, at p. 96.) A person's "status as an overnight guest is alone enough to show that he [or she] had an expectation of privacy in the home that society is prepared to recognize as reasonable." (Id. at pp. 96-97.)
The homeless encampment in this case was located a significant distance from the roadway, on undeveloped, wooded land that was marked, at least in the area accessed by Deputy Harper, by broken chain link fencing and "No Trespassing" signs. The campsite where Ron was staying was demarcated by makeshift fencing that separated the living space—composed of several tents rigged into a larger tent, an outdoor seating or lounge-like area, and a variety of stored personal property—from the surrounding area. When the deputies arrived sometime after 3:00 a.m., Ron and her two companions were seated on couches immediately outside the door of the tent, and the two bags were inside the tent, which closed with a flap.
There is no dispute on appeal regarding Ron's subjective expectation of privacy in this space, which we find supported by the secluded location of the camp, the makeshift fence to separate it from other areas of the undeveloped property, and the fact that the two bags were open in plain view inside the tent.
Instead, the contested issue is reasonableness. Ron disputes the People's contention that she was trespassing or in violation of the law at the time she was occupying the campsite. She points out that the evidence did not establish that the chain link fence encircled the entire property or that the no trespassing signs were present at all boundaries and entrances (cf. § 602.8, subd. (a) [it is a public offense to "willfully" enter land that belongs to another and is "enclosed by fence" or displays signs forbidding trespass "at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands . . . ."]). Also, there was no evidence that the City of San Jose had ever told her or her companions to leave the property (cf. San Jose Mun. Code, § 10.20.140 [private property trespassing ordinance requiring notification by the owner for the person remove herself or keep away from the property]). She contends, citing multiple news reports and an unpublished district court decision that reference the history of the homeless at Coyote Creek, that the city in fact had acquiesced to the longstanding homeless encampment in that area. The People respond that the referenced facts are not in the record, and Ron failed to discharge her burden to show the city's alleged acquiescence to the homeless campsites. They contend that even if Ron was not violating a law, she had no consent from the property owner to be there and, accordingly, no reasonable expectation of privacy.
We find it unnecessary to resolve the strict legality of Ron's presence at the campsite for purposes of deciding the reasonableness of her privacy expectations. Whether Ron had a legal claim to occupy the makeshift campsite does not alone dictate societal expectations or community norms for what a homeless person can expect to keep private while residing in a less-than-legal or unpermitted location. (See Camacho, supra, 23 Cal.4th at p. 831 [objectively reasonable expectation of privacy is "one society is willing to recognize as reasonable"].) It is understood that a formal property interest in the location to be searched is not required. (Katz, supra, 389 U.S. at p. 353 [" '[t]he premise that property interests control the right of the Government to search and seize has been discredited' "]; see also People v. Hughston (2008) 168 Cal.App.4th 1062, 1070 (Hughston) [Fourth Amendment inquiry defined not by whether the defendant "had 'a property right' in the location searched by the police, but whether he had 'a legitimate expectation of privacy' in that location"].)
Here, the record does not establish that Ron's presence in fact violated the law. Deputy Harper testified only that the Coyote Creek area "was at that point a very large homeless encampment" and he did not know from what point of entry Ron had arrived at the campsite, implying that she could have entered from a point that lacked fencing or signage. In addition, we note that Ron's two companions were not cited for any violation and remained at the campsite, apparently free to stay there, after the deputies arrested Ron and escorted her out. Still, there is substantial evidence in the record to support the trial court's implied finding that Ron was on municipal property without invitation or permission of the owner. Comparable circumstances, along with certain distinguishing factors in cases like Hughston, Nishi, and U.S. v. Sandoval (9th Cir. 2000) 200 F.3d 659 (Sandoval), lead us to conclude that Ron had a reasonable expectation of privacy in the closed tent structure and items placed within it, but not in the campsite or living space outside of the tent.
Sandoval involved a warrantless search of the defendant's makeshift tent, which was erected on federal land at the site of an illegal marijuana grow. (Sandoval, supra, 200 F.3d at p. 660.) The Ninth Circuit extended an earlier holding that a person can have an objectively reasonable expectation of privacy in a tent on a public campground (U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673, 677) to conclude that Sandoval's reasonable expectation of privacy did not turn on whether he was legally permitted to be on the land: "Such a distinction would mean that a camper who overstayed his permit in a public campground would lose his Fourth Amendment rights, while his neighbor, whose permit had not expired, would retain those rights." (Sandoval, supra, at p. 661.) Rather, the court noted several facts evidencing Sandoval's subjective expectation of privacy, including that the tent was closed on all four sides, in an area "heavily covered by vegetation and virtually impenetrable," and the contraband item was "lying around" inside the tent. (Sandoval, supra, at p. 660.) In finding Sandoval's expectation to be objectively reasonable, the court contrasted the "often unmarked" and "open" appearance of public land, and the fact that Sandoval "was never instructed to vacate," from an earlier Ninth Circuit case involving squatters in a residential home, who had been asked multiple times to vacate the "easily identifiable and clearly off-limits" premises. (Sandoval, supra, at p. 661.)
The Ninth Circuit acknowledged that its holding parted ways with the Tenth Circuit case of United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471 (Ruckman). (Sandoval, supra, 200 F.3d at p. 661, fn. 4.) Ruckman rejected a Fourth Amendment reasonableness challenge to the government's search and seizure of items in a cave where the defendant resided, which was on federal land. The majority's analysis centered on the defendant's status as "a trespasser on federal lands and subject to immediate ejectment" (Ruckman, supra, at p. 1472), similar to cases in which squatters have "in bad faith" built structures illegally on government land. (Id. at p. 1474.) The dissent urged that Ruckman's authority to be on the federal land or trespasser status should not be dispositive, since under Katz and the evolution of Fourth Amendment theory, "failing to have a legal property right in the invaded place does not, ipso facto, mean that no legitimate expectation of privacy can attach to that place." (Id. at p. 1477 (dis. opn. of McKay, J.).) The court in Sandoval found Judge McKay's dissent to be "more persuasive" (Sandoval, supra, at p. 661, fn. 4) and further rejected the argument that a person who "is engaged in illegal activity" or might "expect[] the police to intrude on his privacy" cannot have a subjective expectation of privacy, because then " 'no lawbreaker would have a subjective expectation of privacy in any place because the expectation of arrest is always imminent.' " (Id. at p. 660, quoting U.S. v. Gooch, supra, 6 F.3d at p. 677.)
In Hughston, the California Court of Appeal found a reasonable expectation of privacy in the defendant's aluminum-framed "tarp structure" that he had constructed over a vehicle, tents, chairs, and other equipment, while parked on county fairgrounds for a multi-day music festival. (Hughston, supra, 168 Cal.App.4th at p. 1066.) The court deemed the tarp "functionally identical to a camping tent, in that it was a temporary structure designed to provide its occupants a degree of protection from the elements and privacy while staying outdoors" (id. at p. 1069) and reiterated that " 'a property right' " in the location to be searched was not required to establish a legitimate expectation of privacy. (Id. at p. 1070.) Echoing the reasoning of the Colorado Supreme Court in People v. Schafer (Colo. 1997) 946 P.2d 938, 944, the court explained that absent facts to suggest the defendant "could not reasonably believe" (Hughston, supra, at p. 1070) he had permission to be there, the strictures of the Fourth Amendment applied to the tent structure, which was " 'entitled to equivalent protection from unreasonable government intrusion as that afforded to homes or hotel rooms.' " (Id. at p. 1071.)
In contrast, in Nishi, supra, 207 Cal.App.4th at page 957, the Court of Appeal found the defendant had no reasonable expectation of privacy associated with shotgun shells placed under a loose tarp next to his tent, which was located illegally on an open space preserve. The defendant had been cited for " 'illegal camping' " on at least four or five prior occasions and had been evicted from other campsites in the preserve. (Id. at p. 961.) Given the defendant's undisputed awareness that he was occupying the premises illicitly, the court concluded that he "was not in a position to legitimately consider the campsite—or the belongings kept there—as a place society recognized as private to him." (Ibid.) The court in Nishi also distinguished the placement of the shotgun shells outside the tent from the items placed in the tents in Sandoval and Hughston: "While a tent located in a public campground may be considered a private area where people sleep and keep valuables, functionally somewhat comparable to a house, apartment, or hotel room, the remainder of [the] defendant's unauthorized, undeveloped campsite was a dispersed, ill-defined site, exposed and open to public view. The area around the tent was not within a defined residential curtilage in which defendant had a reasonable expectation of privacy." (Id. at p. 962.)
Consistent with the reasoning in these cases, we believe that Ron's lack of permission to stay in the makeshift tent on unimproved city property, standing alone, does not preclude Fourth Amendment protection of her temporary residence. Like in Sandoval and Hughston, and unlike in Nishi, there is no evidence to suggest that Ron had been warned that the large homeless encampment was not a legitimate space for temporary shelter, or that she was trespassing and had to leave. This fact also distinguishes the case before us from People v. Thomas (1995) 38 Cal.App.4th 1331, in which the court declined to find that Thomas had a reasonable expectation of privacy in a temporary cardboard box shelter from which he had been ejected by city crews in the past and which violated local law regarding use of public sidewalks. (Id. at pp. 1333-1335.)
Courts in other jurisdictions have similarly considered a person's level of awareness regarding the questionable legality of his or her presence in a location as a factor in assessing reasonableness. Examples include: People v. Schafer, supra, 946 P.2d at page 941 (tent pitched on private but "unimproved and apparently unused land that [wa]s not fenced or posted against trespassing, and in the absence of personal notice against trespass," gave rise to reasonable expectation of privacy); State v. Pruss (2008) 145 Idaho 623, 626-627 (citing longstanding custom of citizens recreating on public lands in temporary shelters, and concluding the defendant had a reasonable expectation of privacy in his camouflaged "hooch" that was erected without permission); State v. Dias (1980) 62 Haw. 52, 55 (state's "long acquiescence" to the existence of " 'Squatters' Row' " of shacks built on government property gave rise to "a reasonable expectation of privacy . . . , at least with respect to the interior of the" shack); and Amezquita v. Hernandez-Colon (1st Cir. 1975) 518 F.2d 8, 11 (squatters' claim to reasonable expectation of privacy "ludicrous" considering they "had been asked twice by Commonwealth officials to depart voluntarily"). As previously noted, the Tenth Circuit in Ruckman, supra, 806 F.2d at pages 1472 through 1474, drew the opposite conclusion regarding the defendant's unpermitted occupation of a cave on federal land.
The reasonableness of Ron's privacy expectation, however, cannot be said to encompass the whole campsite, which despite the makeshift fence remained visible to any passerby, as well as to inspection by the municipal owner or law enforcement patrolling the undeveloped area and homeless encampment. While the plastic or wire fencing around the living, storage space, and tent structure, suggests an effort to establish a curtilage in the traditional residential sense, the curtilage analysis "does not necessarily carry over to most camping contexts." (U.S. v. Basher (9th Cir. 2011) 629 F.3d 1161, 1169.) As the Ninth Circuit explained in that case, "[c]lassifying the area outside of a tent in a [public] lands campsite as curtilage would be very problematic. A tent is comparable to a house, apartment, or hotel room because it is a private area where people sleep and change clothing . . . , [but] campsites, such as the dispersed, ill-defined site here, are open to the public and exposed." (Ibid.; accord Nishi, supra, 207 Cal.App.4th at p. 962 [distinguishing privacy of a tent "where people sleep and keep valuables" from the remainder of the "unauthorized, undeveloped campsite"]; see also Camacho, supra, 23 Cal.4th at p. 831 [" 'Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be . . . .' "].)
Only the tent in which Ron left her bag or bags lying open in plain view was a closed structure with a flap door clearly intended to screen the interior from public view or access, which Ron could expect would remain free from unreasonable intrusion. (Accord Hughston, supra, 168 Cal.App.4th at p. 1068 [aluminum frame covered with tarps "completely enclosed a 10-by 30-foot area" containing tents, an eating area, and the defendant's vehicle]; Sandoval, supra, 200 F.3d at p. 660 [makeshift tent was closed on all four sides, and the contraband "could not be seen from outside"].)
We conclude that Ron had a reasonable expectation of privacy in her items placed inside the door of the tent, though not in the outdoor living and open storage space surrounding the tent structure. As such, Deputy Harper's entry into the tent violated the Fourth Amendment unless an exception to the warrant requirement applied. (Katz, supra, 389 U.S. at p. 357, fn. omitted [warrantless searches "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions"]; People v. Macabeo (2016) 1 Cal.5th 1206, 1213 (Macabeo) [" ' "reasonableness generally requires the obtaining of a judicial warrant" ' "].) It is the People's burden to establish that an exception applies. (Macabeo, supra, at p. 1213.)
Because we find a reasonable expectation of privacy in the tent as a dwelling area, we need not address Ron's argument regarding the tent as a closed container.
C. ENTRY INTO THE TENT AS A SEARCH INCIDENT TO ARREST
The People contend that the search incident to arrest exception to the warrant requirement applies here. Ron disputes the exception's applicability, given that she was arrested and handcuffed away from the tent when the deputies conducted the search.
The search incident to arrest exception "derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations." (Arizona v. Gant (2009) 556 U.S. 332, 338 (Gant).) The boundaries of an authorized search incident to a lawful arrest extend to " 'the arrestee's person and the area "within his immediate control"—constru[ed] . . . to mean the area from within which he might gain possession of a weapon or destructible evidence.' " (Id. at p. 339, quoting Chimel v. California (1969) 395 U.S. 752, 763 (Chimel).) The Supreme Court has defined the exception's limited scope as "commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy." (Gant, supra, at p. 339; accord Macabeo, supra, 1 Cal.5th at p. 1218 ["the search-incident exception may be limited when attendant circumstances show the arrestee had no potential to put an officer in jeopardy, to escape, or to destroy evidence"].)
Thus, in Chimel, the Supreme Court determined that the search of an entire house incident to the defendant's arrest inside the house on suspicion of burglary "went far beyond the [arrestee]'s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him." (Chimel, supra, 395 U.S. at p. 768.) In Gant, the Supreme Court determined that a search of Gant's car after his arrest for driving with a suspended license exceeded the scope of the exception, because Gant already was handcuffed and secured in the back of a patrol car at the time of the search. (Gant, supra, 556 U.S. at p. 339.) The Supreme Court reiterated that the rationale for the exception authorizes police to search an arrestee's vehicle "only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Id. at p. 343.) The Supreme Court added an independent exception "unique to the vehicle context . . . when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " (Ibid., quoting Thornton v. United States (2004) 541 U.S. 615, 632 (conc. opn. of Scalia, J.).)
The People seek to distinguish the circumstances of Ron's arrest from those in Gant. They argue that unlike the defendant in Gant, who was secured in a patrol car when officers searched his vehicle, Ron was still standing near the tent and "could have lunged 10 to 15 feet towards" the flap entrance of the tent "to reach for a weapon or to destroy evidence." They argue that the deputies also needed to be alert to the presence of Ron's two companions, who were not arrested and remained near the tent, and to the possibility of other unaccounted-for persons in the tent. They point to the deputies' reduced degree of control (People v. Leal (2009) 178 Cal.App.4th 1051, 1060 (Leal) ["[a] different rule of reasonableness applies when the police have a degree of control over a suspect but do not have control of the entire situation"]) and compare the circumstances to those in People v. Summers (1999) 73 Cal.App.4th 288 (Summers).
In Summers, police officers approached the defendant's trailer with an arrest warrant and encountered a woman, who said she was a roommate and lived there with the defendant and another man who was nearby in the trailer park. (Summers, supra, 73 Cal.App.4th at pp. 289-290.) One officer roused the defendant, who was asleep in the trailer, handcuffed him, and escorted him toward the door, while the other officer "patted down" the bed where the defendant had been sleeping and discovered a sawed-off shotgun. The defendant was about 10 feet from the bed and inside or just outside the trailer door at the time of the search. (Id. at p. 290.) The court concluded that the search was justified for officer safety reasons under Chimel based on the "fluid situation in close quarters," which included one roommate present and free of police control and another roommate "unaccounted for when the weapon was chanced upon." (Id. at p. 291.)
Ron responds that Summers was decided prior to and is limited by Gant, which reinforced the boundaries of the search-incident exception and restricts the search to the arrestee's person or area " 'from within which [the arrestee] might gain possession of a weapon or destructible evidence.' " (Gant, supra, 556 U.S. at p. 339.) She also argues that the factors underlying the "fluid" situation in Summers, including the cramped premises of the defendant's trailer and the unaccounted-for person known to be close by, are not present here.
Although it is a close question, we conclude that the facts of this case are not so distinguishable from Summers and fall within the scope of the exception articulated in Chimel and clarified in Gant. Deputy Harper testified that after arresting Ron, he and the other two deputies "checked the surrounding area within the encampment itself, within the fenced area, for any additional property or if there were any additional people inside the tent. [¶] . . . [¶] . . . We checked the area for officer safety. We also checked it for the property and things that were hers within the encampment." He stated that the search occurred "immediately" after Ron's arrest and began in the area where Ron and the two men were first sitting, just outside the door to the tent structure, then continued inside the tent structure, where the bag containing the drugs was "open" and the items inside, including the suspected methamphetamine, "in plain view." Ron at that point was handcuffed and standing about 10 to 15 feet from the tent.
These facts, which appear undisputed in the record, suggest that even though Ron was handcuffed and standing away from the tent, the deputies acted reasonably in checking the immediate area for other people or property that could pose a danger. Like in Summers, the arrestee was not the only individual present; Ron's two companions were seated immediately adjacent to the tent, and although the three told the deputies that the fourth person (whose campsite they were sharing) was not there, the deputies could not ascertain this fact without checking for additional persons. We agree with the statement in Leal, supra, 178 Cal.App.4th 1051, that the search incident to arrest exception may apply even after a suspect is arrested and handcuffed if police "do not have control of the entire situation" and risks to officer safety or evidence remain active. (Id. at p. 1060; see Gant, supra, 556 U.S. at p. 364, fn. 2 (dis. opn. of Alito, J.) [noting the majority's decision in Gant does not address situations in which vehicle occupants who are not arrested could access the car and retrieve a weapon or destroy evidence].)
Of course, an abstract or general concern for officer safety is insufficient to justify the governmental intrusion of a "full field-type search" upon an individual's privacy under the search incident to arrest exception. (Knowles v. Iowa (1998) 525 U.S. 113, 117; id. at p. 119 [declining to apply search-incident exception to traffic citations, "where the concern for officer safety is not present to the same extent" as a custodial arrest].) As the court stated in Summers, the justification for a search incident to arrest under Chimel "is officer safety, not officer opportunism." (Summers, supra, 73 Cal.App.4th at p. 290.) But it does not appear that opportunism or a mere, general concern for officer safety drove this search, which occurred concurrent with Ron's arrest in a dark campsite sometime after 3:00 a.m., away from the road and patrol vehicles, with two other individuals present and not under restraint, a fourth individual associated with the campsite presumably not present, and no secure closure to the large tent structure that stood in the center.
To the extent the search-incident exception "derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations" (Gant, supra, 556 U.S. at p. 338), we conclude that the deputies' search of the campsite, including entry into the tent, did not exceed the reasonable bounds of that rationale. Stated differently, we find that applying the search incident to arrest doctrine to the circumstances present here does not threaten to " 'untether the rule from the justifications underlying the Chimel exception.' " (Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct. 2473, 2485].)
In sum, we conclude that Ron could not reasonably expect to be free from government intrusion at the campsite but had a reasonable expectation of privacy in the tent. However, because the search of the tent falls—narrowly—within the search incident to arrest exception to the warrant clause, we find that that trial court did not err in denying the motion to suppress.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Mihara, J.