Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Patricia J. Titus and Carol H. Rehm, Judges, Los Angeles County Super. Ct. No. BA291069
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Following the denial of his motion to suppress illegally seized evidence, Clever Sim pleaded no contest to one count of possession of a firearm by a felon and was sentenced to two years in state prison. On appeal, Sim contends the evidence seized during a warrantless search of his backpack was the fruit of an illegal detention and should have been suppressed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sim was charged by felony complaint with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1) – count 1) and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b) – count 2). It was also specially alleged as to count 1 that Sim had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At his preliminary hearing, Sim made a motion to suppress illegally seized evidence (Pen. Code, § 1538.5).
The hearing evidence established that early on the morning of September 29, 2005, undercover officers of the Department of Alcoholic Beverage and Control (the department) engaged in a “sting” operation in which they sold two cases of supposedly stolen liquor to one or more employees at Jack’s Market in Los Angeles. At 11:30 a.m. the same morning, Eric Christopherson and 15 to 20 other department officers converged on the market to conduct a search. Inside the market were the manager and two or three clerks including Sim. The officers decided to detain the clerks in order to ensure officer safety and to determine which one of them had purchased the “stolen” liquor. Sim was escorted outside and handcuffed.
While the clerks were being detained, Officer Christopherson went behind the market’s main service counter to conduct a search. About 10 feet from the entrance to the area behind the counter was a backpack sitting upright on a milk crate, about three feet from the floor. When Officer Christopherson was within two feet of the backpack, he smelled the odor of “unburned” marijuana. Apart from some liquor bottles, Officer Christopherson could recall no other items in the vicinity of the backpack. He picked up the backpack, held it within an inch of his nose, and smelled the “pungent” odor of unburned marijuana. Officer Christopherson turned over the backpack to his supervisor, Jerry Garcia, who was also inside the market.
Officer Christopherson followed Officer Garcia outside and together they approached Sim who was still handcuffed. Officer Garcia asked Sim whether the backpack belonged to him. Sim admitted the backpack was his, and upon further questioning, told the officers he had no identification on his person, and refused to allow them to search the backpack. Officer Christopherson took the backpack inside the market, searched it, and found Sim’s wallet, identification, several bags of unburned marijuana, and a loaded nine millimeter pistol.
Approximately 20 minutes had elapsed from when Sim was detained to when his backpack was searched. Department officers had recovered the two cases of “stolen” liquor from a back office and had arrested the market manager 10 to 15 minutes before Officer Christopherson smelled the odor of unburned marijuana emanating from the backpack behind the service counter.
Officer Christopherson testified that Sim had been detained for 10 to 15 minutes when the backpack was found; that about two or three minutes later Garcia questioned Sim about the backpack; and that one or two minutes later Officer Christopherson searched the backpack.
Albert Kim, a clerk at Jack’s Market, was the only defense witness. Kim testified on September 29, 2005, he drove Sim to work, arriving about an hour before Sim’s shift began. Kim was working the register that day. He did not recall Sim either having a backpack with him or leaving it on the milk crate behind the main service counter. Nor did Kim remember smelling the odor of marijuana at any time. According to Kim, with the exception of the area behind the main service counter, the market was “really dirty” and “smelly.”
At the close of the hearing, defense counsel argued the marijuana and handgun should be suppressed because there was no legal justification for the warrantless search of the backpack. The court, acting in the limited role of magistrate, denied the suppression motion and held Sim to answer on both charges as well as the special allegation.
Sim renewed his suppression motion in superior court under Penal Code section 1538.5, subdivision (i). This time defense counsel argued the warrantless search resulted from a detention that was unlawful at its inception and unduly prolonged. The motion was denied.
On the day of trial, Sim withdrew his pre-motion plea of not guilty and, in accordance with a negotiated agreement, waived his constitutional rights, and pleaded no contest to possession of a firearm by a felon (count 1). Pursuant to the plea bargain, the charge of misdemeanor marijuana possession (count 2) and the prior strike allegation were dismissed on the People’s motion. Sim was sentenced to the middle term of two years in the state prison.
CONTENTIONS
There was no search warrant for the inspection. Sim contends the marijuana and handgun should have been suppressed because they were the fruit of a warrantless search after an unlawful detention. Sim does not challenge the propriety of the administrative inspection to the extent department officers were lawfully on the premises to contact the manager and to locate the two cases of “stolen” liquor. Sim also acknowledges it would have been reasonable for department officers to detain him briefly upon their arrival to confirm his lack of involvement in the receipt of “stolen” liquor. However, according to Sim, once the “stolen” liquor had been recovered and the manager arrested, Sim should have been immediately released rather than detained for an additional 20 minutes without reasonable suspicion. Sim asserts that but for this unduly prolonged detention, his backpack would not have been seized and searched; he would have taken it with him when he left.
The People respond the admissibility of the disputed evidence turns on the propriety of the administrative inspection of Jack’s Market, not on the lawfulness of Sim’s unrelated detention. The People posit the search of the backpack was within the scope of an administrative inspection authorized by the Alcohol Beverage and Control Act (Bus. & Prof. Code, §§ 25750 et. seq.) and the marijuana and handgun were admissible evidence.
DISCUSSION
1. Standard of Review
In reviewing the denial of a motion to suppress, the appellate court defers to the trial court’s express or implied factual findings when supported by substantial evidence (People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28, subd. (d); In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
2. The propriety of the administrative inspection does not depend on the validity of the detention.
At the outset, we agree the People have properly framed the issue. What determines the admissibility of the marijuana and handgun is the lawfulness of the administrative inspection (search) in this case. We need not decide whether Sim’s detention was unduly prolonged because the detention did not contribute in any way to the discovery of the backpack.
In resolving a contention that the exclusionary rule bars the admission of certain evidence as the “fruit of the poisonous tree,” the issue is whether, granting establishment of the initial illegality by police, the challenged evidence “has been come at by exploitation of that illegality.” (Wong Sun v. United States (1963) 371 U.S. 471, 488 [83 S.Ct. 407, 9 L.Ed.2d 441]; see People v. Boyer (2006) 38 Cal.4th 412, 448; Hudson v. Michigan (2006) 547 U.S. ___ [126 S.Ct. 2159, 2164, 165 L.Ed.2d 56].)
This is not a situation in which law enforcement took advantage of the detention to conduct a search, as would be the case for example, when officers stop a motorist for a broken taillight, and find narcotics in his pocket after ordering him out of the car for a pat search (People v. Medina (2003) 110 Cal.App.4th 171); or officers stop an individual as a suspected juvenile runaway and find narcotics during a consensual search of his backpack after obtaining satisfactory proof he was over 18 years of age. (Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237.) In those instances the officers exploited the initial stop or detention to search the detainee’s person or possessions. Here, whether or not the detention was unlawful, the marijuana and handgun were discovered as a direct consequence of the administrative search, not through exploitation of the initial detention.
3. The search of the backpack was within the scope of the reasonable administrative inspection.
“‘When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure. [Citations.] The [United States Supreme] Court has stressed that the “prime purpose” of the exclusionary rule “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.”’ [Citation.]” (People v. Hull (1995) 34 Cal.App.4th 1448, 1453-1454, quoting Illinois v. Krull (1987) 480 U.S. 340, 347 [107 S.Ct. 1160, 94 L.Ed.2d 364].)
The trial court ruled and the People contend the seizure and search of the backpack were authorized under the Alcoholic Beverage and Control Act (Bus. & Prof. Code, §§ 25750 et seq.), specifically sections 25753 and 25755. Using our independent judgment, we conclude the trial court’s legal determination was correct.
The trial court determined that People v. Paulson (1990) 216 Cal.App.3d 1480 provided controlling authority in denying the renewed motion to suppress.
All statutory references are to the Business and Professions Code unless otherwise indicated.
Section 25753 provides: “The department may make any examination of the books and records of any licensee or other person and may visit and inspect the premises of any licensee it may deem necessary to perform its duties under this division.” Section 25755 provides: “(a) The director and the persons employed by the department for the administration and enforcement of this division are peace officers in the enforcement of the penal provisions of this division, the rules of the department adopted under the provisions of this division, and any other penal provisions of law of this state prohibiting or regulating the sale, exposing for sale, use, possession, giving away, adulteration, dilution, misbranding, or mislabeling of alcoholic beverages or intoxicating liquors, and these persons are authorized, while acting as peace officers, to enforce any penal provisions of law while in the course of their employment. [¶] (b) The director, the persons employed by the department for the administration and enforcement of this division, peace officers listed in Section 830.1 of the Penal Code, and those officers listed in Section 830.6 of the Penal Code while acting in the course and scope of their employment as peace officers may, in enforcing the provisions of this division, visit and inspect the premises of any licensee at any time during which the licensee is exercising the privileges authorized by his or her license on the premises.”
The Fourth Amendment prohibits unreasonable searches and seizures of commercial premises as well as private homes. (De La Cruz v. Quackenbush (2000) 80 Cal.App.4th 775, 781; New York v. Burger (1987) 482 U.S. 691, 699 [107 S.Ct. 2636, 96 L.Ed.2d 601] (Burger); Marshall v. Barlow’s, Inc. (1978) 436 U.S. 307, 311-313 [98 S.Ct. 1816, 56 L.Ed.2d 305].) Although a warrant is required for searches, there is an exception to the requirement for closely regulated businesses. (Burger, supra, 482 U.S. at p. 700.) The reason for the exception is that the owner or operator of this kind of business is deemed to have a lower expectation of privacy than a homeowner. (De La Cruz v. Quackenbush, supra, 80 Cal.App.4th at p. 781; Burger, supra, 482 U.S. at p. 700.) Therefore, a “warrantless inspection of commercial premises may well be
reasonable within the meaning of the Fourth Amendment.” (Burger, supra, 482 U.S. at p. 702.) Indeed, administrative searches of closely regulated businesses have been upheld without a warrant, without probable cause, and without a reasonable suspicion of illegality where they serve as part of some governmental regulatory scheme. (United States v. Biswell (1972) 406 U.S. 311 [92 S.Ct. 1593, 32 L.Ed.2d 87] [upheld a search of a licensed firearm dealer’s storeroom as part of inspection procedures authorized by the Gun Control Act of 1968]; Wyman v. James (1971) 400 U.S. 309 [91 S.Ct. 381, 27 L.Ed.2d 408] [upheld entry into leased premises as part of a routine annual inspection by city housing inspectors to determine compliance with city codes].)
Generally, the legality of administrative searches does not depend on consent or warrant, but on the authority of the statutes under which the search is conducted. (United States v. Biswell, supra, 406 U.S. 311, 314-315.) For this case, it is important to recognize that a warrantless search may be upheld even though the regulatory scheme proscribes conduct that is also criminal. (People v. Paulson (1990) 216 Cal.App.3d 1480, (Paulson).) As an example the governmental regulatory scheme upheld in Burger specifically contemplated searches undertaken to reveal criminal activity. (Burger, supra, 482 U.S. at p. 698.)
The liquor industry is the “quintessential closely regulated business.” (Paulson, supra, 216 Cal.3d at pp. 1484-1485; see Colonnade Catering Corp. v. United States (1970) 397 U.S. 72 [90 S.Ct. 774, 25 L.Ed.2d 60].) In California, the owner or operator of a business dispensing liquor (the licensee) is considered to be aware of periodic warrantless administrative searches of his or her business (licensed premises) pursuant to sections 25753 and 25755 of the Alcohol Beverage and Control Act. (Paulson, supra, 216 Cal.App.3d at p. 1484.) This regulatory scheme allowing the warrantless inspection of the licensed premises is constitutional so long as the warrantless search is reasonable under the circumstances. (See Paulson, supra, at pp. 1487-1490; New York v. Burger, supra, 482 U.S. at pp. 700-702.)
Burger established three criteria for a commercial search to be considered reasonable under the Fourth Amendment. First, there must be a substantial governmental interest that is furthered by the inspection. Second, the inspection must be necessary for the regulatory scheme. Third, the inspection must have a definite scope so that the licensee is aware of periodic inspections and the inspecting officers’ discretion must be limited. (Burger, supra, 482 U.S. at p. 703.) Two California appellate court cases dealing with warrantless administrative inspections of licensed premises are consistent with Burger. In People v. Lisner (1967) 249 Cal.App.2d 637 (Lisner) the court determined that department agents and local police are entitled to inspect for suspected Penal Code violations as part of their enforcement power under the Alcoholic Beverage Control Act. The Paulson court rejected the defendant owner’s contention that a department officer’s warrantless inspection of his bar solely to find evidence of a narcotics violation was constitutionally unreasonable in that it exceeded the scope of sections 25753 and 25755. In validating the inspection, the Paulson court reasoned that section 24200.5, mandating the revocation of a liquor license when narcotics are knowingly sold on licensed premises, in conjunction with sections 25753 and 25755, provide licensees with a “‘“constitutionally adequate substitute for a warrant’” [citations.]” by informing them their licensed premises are subject to periodic inspection during business hours for narcotics sales. (Paulson, supra, 216 Cal.App.3d at p. 1489.)
Sim does not suggest that apart from the seizure and search of the backpack department officers failed to conduct a proper administrative inspection of Jack’s Market within the meaning of Lisner and Paulson. Jack’s Market, a licensed premises, was subject to unannounced section 25753 and 25755 inspections of which its licensee had constructive notice and a corresponding lower expectation of privacy. As we have explained, an inspection under this regulatory scheme may reasonably encompass both an administrative and a criminal law enforcement purpose. Based upon the sting operation preceding their arrival, department officers had a reasonable suspicion the manager and an employee were trafficking in stolen liquor in violation of the Alcoholic Beverage and Control Act and had received stolen property in violation of Penal Code section 496. On this occasion, department officers, including Officer Christopherson, were therefore statutorily entitled to search any place in Jack’s Market where any evidence of these violations could reasonably be found.
Penal Code section 496 provides: (a) “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing, the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed four hundred dollars ($400), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year. [¶] A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.”
Sim would have us believe the sole purpose of the administrative inspection was to locate the two cases of “stolen liquor.” We are not persuaded the record supports his view. Sim correctly points to Officer Christopherson’s testimony on cross-examination that his “purpose” during the administrative inspection was to find the two cases of liquor, which prompted him to search behind the main service counter. However, it was also Officer Christopherson’s testimony that he arrived with 15 to 20 fellow department officers, each of whom had been assigned a different task in conjunction with the investigation and search. It is reasonable to infer from the large number of department officers and their different individual tasks that they were searching Jack’s Market for evidence (records, receipts, liquor) of repeated instances of trafficking in stolen liquor as well as the two cases of liquor involved in the sting operation.
There is substantial evidence that a search of the backpack did not exceed what is permissible under sections 25753 and 25755. First, the backpack was large enough to contain something relevant to the administrative inspection. Measuring 20 inches in height, 16 inches in width, and 10 inches in depth, the backpack could reasonably have been a repository for documents and/or contraband liquor bottles. Additionally, nothing in the backpack’s location or appearance would have led Officer Christopherson reasonably to believe that it could not have been searched as part of the licensed premises. The backpack was sitting on a milk crate in full view near the entrance of the back counter area rather than hidden in a closed or locked drawer or cabinet. Nor was there anything near or on the backpack to indicate it belonged to Sim or to anyone besides the licensee.
This would have been a different case, with a potentially different outcome, had the backpack been found with other obviously personal possessions belonging to Sim or in Sim’s actual possession. On this record, we conclude that sections 25753 and 25755 would have allowed Officer Christopherson to undertake a search of the backpack as soon as he saw it. That prior to searching the backpack Officer Christopherson smelled unburned marijuana inside the backpack; identified Sim as the owner of the backpack; and was refused permission by Sim to search the backpack are of no legal consequence. The suppression motion was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.