Filed 3/3/16 P. v. Mills CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                            B257145

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. KA101563)
         v.

JAMES EDWARD MILLS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Juan Carlos Dominguez, Judge. Reversed and remanded with directions.

         Elana Goldstein, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Noah Hill, Jessica C. Owen and
Nathan Guttmar, Deputy Attorneys General, for Plaintiff and Respondent.



                                            _____________________
       Appellant James Edward Mills appeals from the judgment entered following his
convictions by jury on count 1 – possession of a controlled substance
(methamphetamine), and count 2 – possession of a smoking device, following the denial
of his suppression motion. (Health & Saf. Code, §§ 11377, subd. (a), 11364.1, subd.
(a)(1); Pen. Code, § 1538.5.)1 The court suspended imposition of sentence and placed
him on probation for 18 months. We reverse and remand with directions.
                                          ISSUES
       Appellant claims the trial court (1) erroneously denied his Penal Code section
1538.5 suppression motion and (2) erroneously denied his Pitchess2 motion.
                                       DISCUSSION
The Trial Court Partially Erred by Denying Appellant’s Suppression Motion.
       1. Suppression Proceedings at the Preliminary Hearing.
              a. People’s Evidence.
                     (1) Events Leading to the Stop of the SUV.
       At appellant’s preliminary hearing, appellant made a Penal Code section 1538.5
suppression motion and the magistrate indicated it would be heard concurrently with the
preliminary hearing. Covina Police Officer Terrence Hanou testified as follows. About
4:20 p.m. on April 14, 2013, Hanou was in his marked police car on the west side of the
Fairfield Motel in West Covina when appellant, nearby, saw him. Appellant had been
walking from the lobby of the motel. Appellant quickly drove a Ford Escape SUV
around the motel, onto the street, and stopped at a nearby Best Western Motel. Hanou
conducted a traffic stop of the SUV. Hanou stopped the SUV because its registration tags
had expired and Hanou believed 2014 tags on the SUV’s license plate were fraudulent.




1
       A detailed recitation of the facts of the offenses is unnecessary to resolve this
appeal. It is sufficient to note that on April 14, 2013, in West Covina, appellant was
driving a Ford Escape containing methamphetamine and a methamphetamine pipe.
2
       Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).


                                              2
Moreover, when Hanou stopped the SUV, he thought it was suspicious that appellant had
driven from one hotel to the next.
                     (2) The Prolonging of the Detention Prior to the Search of the SUV.
       Hanou testified about the circumstances in which appellant revealed to Hanou that
appellant had a firearm. Hanou testified he contacted appellant, the sole occupant of the
SUV, and asked for his license, registration, and insurance. Hanou testified, “He
provided the paperwork to me and I asked him if he was on probation or parole or if he
had any weapons in the vehicle.” (Italics added.) The following also occurred: “Q. [The
Prosecutor]: . . . So you are asking him for documentation and he hands the documents
to you; right? [¶] A. Correct. [¶] Q. At which time do you ask him whether he’s on
probation or parole and if he has weapons in the car? [¶] A. At the same time.” (Italics
added.) Appellant told Hanou that appellant had a “firearm inside the vehicle.” When
appellant said that, Hanou believed that maybe a crime was afoot. Appellant’s counsel
asked Hanou what crime, and he testified, “[p]ossession of a handgun, possession of a
rifle, maybe it’s possessed illegally, maybe he’s a prior felon in possession of a handgun
or a weapon. I don’t know at that point, but I’m going to investigate it.” Hanou called
for backup.
       Hanou testified in more detail concerning these events as discussed below.
Appellant handed Hanou the appropriate papers, Hanou saw the SUV was validly
licensed and the registration had been updated, and Hanou concluded the Department of
Motor Vehicles (DMV) had not updated its computer. Hanou determined DMV had
made a mistake. However, appellant was not free to leave because Hanou was still
conducting his traffic stop. The following then occurred during cross-examination:
“Q. And what was the basis of a traffic stop for registration violation after you
determined the registration was valid? [¶] A. This area has numerous motels, and I had
made numerous narcotics-related investigation arrests from this area. The fact that Mr.
Mills was parked, saw me, had went around the north side of the [Fairfield Motel]
building, had fled out the east side, onto Garvey, quickly darted into another motel raised
suspicion of what he was doing.”


                                             3
       Hanou also testified about these events as follows. It appeared appellant had valid
registration. At that point Hanou was investigating why appellant went from one motel
to another. The following then occurred: “Q. What criminal activity was Mr. Mills
involved in? [¶] A. At the time of the stop, it was for fraud. [¶] Q. Okay. [¶] A. And
we resolved that issue. But I had asked him he was on probation or parole and if any
weapons. He told me he had a firearm in the vehicle.” (Sic; italics added.)
       Hanou provided additional detail. He testified he asked appellant “about probation
and parole.” The following occurred: “Q. And did you make note of whether, in your
report, he told you he was on probation or parole? [¶] A. . . . [¶] He told me that he had
a firearm in the vehicle when I asked those questions.” (Italics added.) Hanou also
testified that when he talked to appellant, Hanou immediately asked him six questions,
i.e., “license, insurance, registration, parole, probation and weapons.” The prosecutor
asked why it was important to Hanou to know whether there was a firearm or any weapon
in the vehicle that Hanou had stopped, and Hanou replied, “[f]or my safety and also for
the safety for the occupant of the vehicle.” Hanou did not remember if appellant told him
where the weapon was.
       After Hanou called for backup, another officer arrived and Hanou then had
appellant exit the SUV. Hanou conducted a patdown search of appellant and found
possible contraband, i.e., $10,000, in appellant’s right back pocket. Hanou asked
appellant for consent to search appellant’s SUV but appellant refused to consent. Prior to
the search of the SUV, appellant was “[o]n the front hood” of Hanou’s police car and
Hanou did not believe appellant was in handcuffs.
                     (3) Hanou’s Search of the SUV.
       Hanou also testified as follows. Hanou searched the vehicle for a weapon. He
searched the vehicle against appellant’s consent because a weapon was in the vehicle.




                                            4
During the search of the SUV, Hanou found, inter alia, the subject methamphetamine and
methamphetamine pipe, as well as a shotgun and ammunition.3
       Hanou also testified as follows. The cargo area was immediately accessible to
appellant. The weapon was immediately accessible to appellant because he was driving
an SUV that had no trunk but only a cargo area behind a second row of seats. Appellant
could not have reached the firearm from the driver’s seat but could have reached it if he
had crawled out the driver’s seat and into the back. Following the search of the SUV,
appellant was arrested. Hanou carried a cell phone when patrolling but did not remember
whether he used it during the stop.
              b. Defense Evidence.
       Appellant testified, in pertinent part, as follows. Appellant was driving the SUV
and Hanou stopped him. Hanou first asked appellant if he was on parole or probation,
and appellant replied no. Hanou then asked if appellant had ever been arrested, and
appellant replied no. Hanou then asked if appellant had his driver’s license, registration,
and insurance. Appellant replied yes and presented them to Hanou. Hanou told appellant
the registration was valid. Hanou asked appellant for consent to search his vehicle and
appellant refused to give it. Hanou walked away, spoke with someone on a cell phone,
and returned. Hanou asked appellant if he had any “weapons” in the car. Appellant
replied yes. Appellant said “it” was in the back where it belonged and told Hanou the
weapon was not loaded. The weapon was in the cargo area of the SUV. Hanou went and
made another call, returned, and asked appellant to exit the SUV. Appellant complied.
Hanou immediately handcuffed appellant and conducted a patdown search.



3
        In particular, Hanou testified he found an “unloaded 12-gauge Remington shotgun
in the rear cargo area next to approximately 125 rounds of ammunition.” Hanou also
testified “[i]n the center console I found a baggie of methamphetamine and also in the
rear cargo area in the luggage container I found another large baggie of
methamphetamine and a methamphetamine pipe.” Hanou further testified concerning the
large baggie of methamphetamine that it was found “inside the cargo area, inside the
luggage.”


                                             5
              c. The Magistrate’s Ruling.
       Following argument, the magistrate ruled as follows. Hanou’s detention of
appellant was lawful. Moreover, the prolonging of the detention was lawful. As to the
prolonging, Hanou approached the SUV and was entitled to ask the six questions during
the time it took to investigate the incident that caused Hanou to be there in the first place.
When appellant was handing the documents to Hanou, Hanou knew a weapon was in the
SUV and the registration was valid. Hanou was entitled to prolong the detention because,
during the “primary detention,” appellant said there was a weapon in the SUV. The
search of the SUV was lawful under Michigan v. Long (1983) 463 U.S. 1032 [77 L.Ed.2d
1201] (Long). Moreover, because appellant said there was a firearm in the SUV, the
search of the SUV for the firearm was lawful under Arizona v. Gant (2009) 556 U.S. 332
[173 L.Ed.2d 485] (Gant) and United States v. Ross (1982) 456 U.S. 798, 825
[72 L.Ed.2d 572] (Ross). The magistrate denied the suppression motion.
       2. Appellant’s Renewed Suppression Motion.
       On May 29, 2014, appellant filed in the trial court a Penal Code section 1538.5
suppression motion. Appellant sought renewal of the motion based on evidence in a
police dashboard camera video.4 On June 3, 2014, pursuant to the parties’ agreement, the
trial court viewed the video, discussed below.




4
        Where, as here, appellant’s suppression motion was denied at the preliminary
hearing and appellant renewed it before the trial court, the evidence at the special hearing
in the trial court on the renewed motion was, pursuant to Penal Code section 1538.5,
subdivision (i), limited, in this case, to the video (i.e., evidence presented that was
“agreed to by all parties” (Pen. Code, § 1538.5, subd. (i)) plus the preliminary hearing
transcript. The video was defense exhibit A. That exhibit, so designated, is not before
this court. Appellant asserts People’s exhibit No. 3, admitted into evidence at trial, is a
dashboard camera video of the events. This court has viewed People’s exhibit No. 3.
There is no dispute there was only one video recording of the events, whether reflected in
defense exhibit A or People’s exhibit No. 3, nor is there any dispute People’s exhibit No.
3 accurately reflects those events. People’s exhibit No. 3 does not contain audio of any
statements clearly identifiable as made by appellant or the police.


                                              6
              a. The Video (People’s Exhibit No. 3).
       People’s exhibit No. 3 consists of the video and an accompanying video player.
The exhibit reflects that the video recorded events beginning about 4:20 p.m. on April 14,
2013, and the video was about 33 minutes long. The exhibit, considered with Hanou’s
testimony, provides substantial evidence as follows.
                      (1) Events from Appellant’s Exit from His SUV to Franco Escorting
Him Away from the Police Car.
       At 4:26 p.m., appellant exited his car and, during the next two minutes, the
following occurred. Hanou and another officer (hereafter, Franco) handcuffed appellant,
then Hanou, followed by Franco, escorted appellant to the front of the police car (which
was behind the SUV). Hanou left appellant there with Franco, then Franco escorted
appellant to the passenger side of the police car, permitting a citizen’s car to back out and
exit between the SUV and police car.5
                      (2) Events from the Opening of the Cargo Door to Hanou’s Initial
Entry into the Driver’s Area.
       Below are events from the time Hanou opened the SUV’s rear door (cargo door) to
the cargo area to the time he initially entered the driver’s area (that entry being his first
opportunity to search the center console and find methamphetamine). At “16:28:55”
p.m.,6 Hanou, behind the SUV, opened the cargo door. At 4:28:56, the reflections of
appellant and Franco on the side of the citizen’s car showed the two standing outside the
passenger side of the police car. At 4:29:01, Hanou removed from the cargo area red
luggage and, without opening it, put it on the ground behind the SUV. At 4:29:10, Hanou
removed from the cargo area an open square box and looked in it in passing while putting

5
      The citizen’s car made a number of attempts to maneuver out of its parking place,
obscuring some events before eventually leaving.
6
       Hereafter, where the exhibit used military time, e.g., 16:28:55, we will use civilian
time (4:28:55) with the understanding the events occurred in the afternoon. Subsequent
references to areas (e.g., the driver’s area, or the front passenger area) are to areas of the
SUV.


                                               7
it on the ground behind the SUV. At 4:29:12, appellant and Franco were visible on the
passenger side of the police car through reflections from the citizen’s car, which was still
trying to leave. At 4:29:14, Hanou removed from the cargo area a gray rectangular box
and, without opening it, put it on the ground.
       From 4:29:22 to 4:30:21, Hanou, behind the SUV, removed from the cargo area a
firearm case, removed a shotgun from the case, examined the shotgun, appeared to talk
on a hand-held device, then put the shotgun back in the case and put the case on the
ground. During this period, appellant and Franco, at 4:29:28, were visible on the
passenger side of the police car through their reflections from the citizen’s car, and, at
4:29:50, Franco moved appellant back to the front of the police car. From 4:30:26 to
4:30:34, Hanou appeared to continue to search the cargo area, then left the cargo area
(although the view of portions of Hanou’s actions during this period are blocked by
appellant’s body). From 4:31:13 to 4:31:19, Hanou entered the driver’s area, looked
under the driver’s seat, then left the driver’s area. (This is the first opportunity Hanou
had to find the baggie of methamphetamine that, according to his preliminary hearing
testimony, he found in the center console.)
                     (3) Events from the Initial Entry into the Left Rear Passenger Area
to the Entry into the Red Luggage.
       Below are events from the time Hanou initially entered the left rear passenger area
to the time he removed and entered the red luggage. (There is no dispute this was the
luggage in which, according to Hanou’s preliminary hearing testimony, he found a baggie
of methamphetamine.) At 4:31:23, Hanou entered the left rear passenger area and
appeared to search that area, and appellant’s body blocked the view of Hanou’s
subsequent actions until 4:31:43.




                                              8
       At 4:31:43, Hanou was standing outside the left rear passenger side. He remained
there until, at 4:31:53, he left that area. (Hereafter, we will refer to this period as period
one. This was one of several periods, discussed below, that prolonged appellant’s
detention.) Hanou then walked around the front of the SUV and, from 4:32:19 to
4:33:08, appeared to search the right rear passenger area, then left that area. At 4:33:08,
Hanou left the right rear passenger area, then walked to an area to the right of the police
car and out of view until, at 4:36:03, he returned to the SUV from an area to the right of
the police car. (Hereafter, period two.) From 4:36:09 to 4:36:33, Hanou, behind the
SUV, again reached into the firearm case (which he earlier had put on the ground),
retrieved documents from the case, and later returned them to the case. (Hereafter, period
three). At 4:36:38, Hanou left the cargo area again.
       After Hanou left the cargo area, Hanou, from 4:36:55 to 4:37:22, was using a
hand-held device to talk with someone while he was standing outside the left rear
passenger area and later walking to the front left corner of the SUV. From 4:37:22 to
4:37:23, he stopped using his hand-held device, then walked back towards the rear of the
SUV. (Hereafter, period four.) From 4:37:27 to 4:38:18, Hanou was in the driver’s area.
From 4:39:52 to 4:41:14, the following occurred. Hanou left the SUV, then returned to
appellant and talked to him. Hanou checked appellant’s handcuffs and eventually
escorted him towards the back of the passenger side of the police car and out of view. A
sound of a car door is audible. Appellant is never again seen in the video.
       From 4:41:26 to 4:41:49, Hanou quickly entered and exited the driver’s area.
From 4:41:51 to 4:41:59, Hanou, holding papers, walked towards the passenger side of
the police car and out of view. (Hereafter, period five.) From 4:42:41 to 4:44:22, the
following occurred. Hanou entered the driver’s area. He later entered the left rear
passenger area. Franco walked (without appellant) from the police car to the SUV and
entered the driver’s area. Both officers later concurrently exited the SUV. From 4:44:22
to 4:44:44, the officers conversed. (Hereafter, period six.) From 4:44:44 to 4:45:16,




                                               9
Hanou, behind the SUV, entered the cargo area again, and Hanou removed from the
cargo area a brown bag and put it on the ground.7
       From 4:46:44 to 4:48:59, the following occurred. Hanou picked up the red
luggage (which he earlier had put on the ground), put it in the cargo area, and made
motions as if he was searching it (his back to the video camera). (This appears to be the
first opportunity Hanou had to find the baggie of methamphetamine that, according to his
preliminary hearing testimony, he found in luggage.) Hanou appeared to take an item
from in front of him (from the area in which he had placed the red luggage) and put the
item on the ground. Hanou then put the red luggage and items on the ground.
                     (4) Subsequent Events to the Closing of the Cargo Door.
       From 4:49:03 to 4:50:52, the following occurred. Hanou took a gray item that was
on or inside the open square box and made motions as if he was searching the gray item
(his back to the video camera). He later left the cargo area. Hanou subsequently entered
the right rear passenger area, then the right front passenger area. Hanou later entered the
lower portion of the right front passenger area.
       Hanou returned to the area behind the SUV and, at 4:53:18, searched the gray
rectangular box, then, at 4:53:24, searched the open square box (each of which he earlier
had put on the ground). At 4:54:10, Hanou closed the cargo door. On a number of
occasions from the time appellant was last seen in the video to the time Hanou closed the
cargo door, a person (presumably appellant) was clearing the person’s throat in the police
car.
              b. The Trial Court’s Ruling.
       After argument at the special hearing, the court stated, inter alia, “based on the
totality of the circumstances, and for the reasons very well articulated by [the magistrate]
at the preliminary hearing, the court denies the 1538.5.”



7
      Based on Hanou’s testimony and the video, the brown bag was not a baggie in
which he found methamphetamine.


                                             10
       3. Analysis.
       Appellant claims the trial court erroneously denied his Penal Code section 1538.5
suppression motion. He concedes the initial stop of the SUV for a Vehicle Code
violation was lawful, but argues the prolonging of the stop of the SUV, and the search of
the SUV, violated the Fourth Amendment.
              a. Hanou’s Weapons Question Did Not Unlawfully Prolong the Stop.
       Appellant cites People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran) and
Williams v. Superior Court (1985) 168 Cal.App.3d 349 (Williams), for the proposition his
detention was unlawfully prolonged where “Hanou, after obtaining all the information he
needed in order to decide that appellant’s license tags were in good standing, and a
citation was therefore unnecessary, chose to ask a series of investigative questions which
were unrelated to the suspected Vehicle Code violation.” (AOB/15) (Italics added.)
       Concerning prolonged detentions following traffic stops, People v. Bell (1996)
43 Cal.App.4th 754 (Bell), is instructive. In Bell, an officer stopped a car for speeding.
Stewart was the driver and the defendant was a passenger. The officer conversed with
Stewart while writing a ticket, then gave Stewart the speeding ticket. (Id. at pp. 757,
759.) Stewart made statements leading the officer to suspect Stewart and the defendant
were transporting drugs. (Id. at pp. 757-758.) The defendant claimed Stewart was
unlawfully detained for questioning unrelated to the purposes of the traffic stop and
Stewart’s detention was unlawfully prolonged. (Id. at pp. 758, 760.)8
       Bell indicated the leading California case concerning the permissible scope of a
traffic stop was McGaughran. (Bell, supra, 43 Cal.App.4th at p. 765.) Bell also
discussed Williams, a similar case. (Bell, at pp. 766-767.)




8
       Bell earlier had concluded the defendant therein had “standing” to challenge the
scope of Stewart’s detention. (Bell, supra, 43 Cal.App.4th at p. 765.)


                                             11
       Bell stated, “McGaughran and Williams indicate that investigative activities
beyond the original purpose of a traffic stop are permissible as long as they do not
prolong the stop beyond the time it would otherwise take. Federal cases are generally in
accord.” (Bell, supra, 43 Cal.App.4th at p. 767, italics added.) United States v. Shabazz
(5th Cir. 1993) 993 F.2d 431 (Shabazz) was one of the federal cases cited by Bell. Bell
later observed, “[t]he appellate court [in Shabazz], . . . stated, ‘[W]e reject any notion that
a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is
itself a Fourth Amendment violation. . . . Mere questioning . . . is neither a search nor a
seizure.’ (Citation.) [Shabazz] explained that the nature of the questioning during a
detention might be relevant, but only as evidence of prolongation—‘that the justification
for the original detention no longer supports its continuation.’ (Citation.)” (Bell, at
p. 768, italics added; People v. Brown (1998) 62 Cal.App.4th 493, 496-500 [accord].)
Bell later stated, “[h]ere, [the officer] testified that his ‘conversation’ with Stewart took
place while he was writing the speeding ticket and did not add to the delay otherwise
resulting from the traffic stop.” (Bell, at p. 767, italics added.) Bell concluded the
officer’s questioning did not unlawfully prolong Stewart’s detention. (Id. at p. 758.)
       On the other hand, Rodriguez v. United States (2015) ___ U.S. ___ [191 L.Ed.2d
492] (Rodriguez), exemplifies an unlawfully prolonged detention. Rodriguez stated,
“[t]his case presents the question whether the Fourth Amendment tolerates a dog sniff
conducted after completion of a traffic stop. We hold that a police stop exceeding the
time needed to handle the matter for which the stop was made violates the Constitution’s
shield against unreasonable seizures. A seizure justified only by a police-observed traffic
violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably
required to complete th[e] mission’ of issuing a ticket for the violation. [Citation.]”
(Id. at p. ___ [191 L.Ed.2d at p. 496], italics added.) In Rodriguez, seven or eight




                                              12
minutes elapsed from the time the canine officer issued the written warning to the time
the dog alerted to the presence of drugs. (Id. at p. ___ [191 L.Ed.2d at p. 497].)9
       In the present case, Hanou testified he asked for appellant’s license, registration,
and insurance, and “[appellant] provided the paperwork to me and I asked . . . if he had
any weapons in the vehicle.” (Italics added.) Hanou also testified he was asking
appellant for documentation and “he hands the documents to [Hanou]” (italics added)
and “[a]t the same time” (italics added), Hanou “ask[ed] [appellant] . . . if he has
weapons in the car.” (Italics added.) Thus, there was substantial evidence Hanou’s
activity of asking whether appellant had any weapons in the SUV occurred while Hanou
was receiving documentation related to the traffic stop and did not add to the delay
otherwise resulting from the traffic stop. Hanou’s weapons question did not violate the
Fourth Amendment by unlawfully prolonging appellant’s detention.
       Appellant argues the contrary as to Hanou’s weapons question, citing the colloquy
in which appellant’s counsel asked Hanou, “And what was the basis of a traffic stop for
registration violation after you determined the registration was valid?” (Italics added.)
However, Hanou, in his reply, did not expressly state that, after he determined the
registration was valid, the narcotics investigation was “the,” i.e., the sole, basis for
prolonging the stop. Our factual review is limited to determining whether substantial


9
        A recent case, United States v. Evans (2015) 786 F.3d 779 (Evans), applied
Rodriguez. In Evans, an officer stopped the defendant for traffic violations. After all
tasks tied to those traffic violations had been, or reasonably should have been, completed,
the officer detained the defendant while conducting an eight-minute ex-felon registration
check, later indicated to the defendant that the defendant could go, but subsequently
further detained him during a “dog sniff” of his car. (Evans, at pp. 782-784.) Evans
stated, “[a]pplying Rodriguez, we hold that, by conducting an ex-felon registration check
and a dog sniff, both of which were unrelated to the traffic violation for which he stopped
Evans, [the officer] ‘prolonged [the traffic stop] beyond the time reasonably required to
complete’ his traffic ‘mission,’ and so violated the Fourth Amendment, unless there was
independent reasonable suspicion justifying each prolongation. [Citation.]” (Evans, at
p. 786, italics added.) Evans remanded to the district court to permit it to consider in the
first instance whether reasonable suspicion justified each such prolongation. (Id. at
pp. 788-789.)


                                              13
evidence supported the express or implied factual findings of the magistrate. (Cf. People
v. Soun (1995) 34 Cal.App.4th 1499, 1507.) There was, as previously discussed,
substantial evidence Hanou properly asked the weapons question while he was
investigating the Vehicle Code violation supporting the initial stop.
              b. The Search of the SUV Was Unlawful.
                      (1) Pertinent Law.
       Appellant also argues Hanou did not have “sufficient cause” to search the SUV.
He argues, inter alia, “[t]he mere fact that appellant had a gun in his vehicle was not
unlawful, and was not automatically an officer safety concern.”
       Concerning protective weapons searches, Terry v. Ohio (1968) 392 U.S. 1
[20 L.Ed.2d 889] (Terry) discussed the Fourth Amendment contours of a lawful
“protective seizure [of a person] and search for weapons” (id. at p. 29), and Long, relying
on Terry, discussed when protective searches of vehicles for weapons are permissible
under the Fourth Amendment.
       In Terry, in pertinent part, an officer believed based on personal observations that
the defendant Terry and two other men were involved in casing activity preparatory to a
robbery likely to involve weapons. The officer approached the three, identified himself
as a police officer, and asked for their names. When the men later mumbled something,
the officer grabbed the defendant, spun him around, patted down the outside of his
clothing, and felt a gun in his overcoat pocket. The officer reached in the pocket but was
unable to remove the gun, so he later removed the defendant’s overcoat and took the gun
from the pocket. (Terry, supra, 392 U.S. at pp. 5-7, 28.)
       Terry stated, “We . . . decide nothing today concerning the constitutional
propriety of an investigative ‘seizure’ upon less than probable cause for purposes of
‘detention’ . . . .” (Terry, supra, 392 U.S. at p. 19, fn. 16, italics added.) Instead, Terry
focused upon whether a seizure of a person for the purpose of searching for weapons, and
the later said search for weapons, i.e., a “protective seizure and search for weapons”
(id. at p. 29), violated the Fourth Amendment.



                                              14
       The high court observed that “[t]he question is whether in all the circumstances of
this on-the-street encounter, [Terry’s] right to personal security was violated by an
unreasonable search and seizure.” (Terry, supra, 392 U.S. at p. 9.) Terry acknowledged
arguments that police needed an escalating set of flexible responses, graduated in relation
to the amount of information they possess. (Id. at p. 10.) However, Terry also
acknowledged arguments that judicial acquiescence to the compulsive field interrogation
techniques at issue would constitute “abdication of judicial control over, and indeed an
encouragement of, substantial interference with liberty and personal security by police
officers whose judgment is necessarily colored by their primary involvement in ‘the often
competitive enterprise of ferreting out crime.’ ” (Id. at p. 12.)
       Terry later stated, “[the officer] ‘seized’ petitioner and subjected him to a ‘search’
when he took hold of him and patted down the outer surfaces of his clothing. We must
decide whether at that point it was reasonable for [the officer] to have interfered with
petitioner’s personal security as he did. [Fn. omitted.] And in determining whether the
seizure and search were ‘unreasonable’ our inquiry is a dual one -- whether the officer’s
action was justified at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” (Terry, supra, 392 U.S.
at pp. 19-20.)
       Terry, considering “the nature and extent of the governmental interests involved”
(Terry, supra, 392 U.S. at p. 22), indicated there was a governmental interest in crime
detention and prevention, and the officer properly approached the defendant to
investigate a possible robbery. (Ibid.) However, Terry stated, “The crux of this case, . . .
is not the propriety of [the officer’s] taking steps to investigate petitioner’s suspicious
behavior, but rather, whether there was justification for [the officer’s] invasion of Terry’s
personal security by searching him for weapons in the course of that investigation. We
are now concerned with more than the governmental interest in investigating crime; in
addition, there is the more immediate interest of the police officer in taking steps to
assure himself that the person with whom he is dealing is not armed with a weapon that
could unexpectedly and fatally be used against him.” (Id. at p. 23, italics added.)


                                              15
       Terry later concluded, “[w]hen an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others, it would appear to be clearly unreasonable
to deny the officer the power to take necessary measures to determine whether the person
is in fact carrying a weapon and to neutralize the threat of physical harm.” (Terry, supra,
392 U.S. at p. 24, italics added.)
       Terry, turning to “the nature and quality of the intrusion on individual rights”
(Terry, supra, 392 U.S. at p. 24) noted “[a] search for weapons in the absence of probable
cause to arrest, however, must, like any other search, be strictly circumscribed by the
exigencies which justify its initiation. [Citation.] Thus it must be limited to that which is
necessary for the discovery of weapons which might be used to harm the officer or others
nearby.” (Id. at pp. 25-26; italics added.) Terry later concluded “there must be a
narrowly drawn authority to permit a reasonable search for weapons for the protection of
the police officer, where he has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest the individual
for a crime. The officer need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger. [Citations.]” (Id. at p. 27, italics
added.)
       Terry later discussed whether the defendant’s “search and seizure . . . were
reasonable, both at their inception and as conducted.” (Terry, supra, 392 U.S. at
pp. 27-28.) As to inception, Terry noted the officer believed the defendant was engaged
in casing activity preparatory to an armed robbery, and that “on the facts and
circumstances [the officer] detailed before the trial judge a reasonably prudent man
would have been warranted in believing petitioner was armed and thus presented a threat
to the officer’s safety while he was investigating his suspicious behavior.” (Id. at p. 28.)
Accordingly, Terry indicated the officer’s “decision at that point to seize Terry and pat
his clothing for weapons” was not improper. Instead, Terry stated, “the record evidences
the tempered act of a policeman who in the course of an investigation had to make a


                                              16
quick decision as to how to protect himself and others from possible danger, and took
limited steps to do so.” (Ibid., italics added.)
       As to the manner in which the seizure and search were conducted, Terry stated,
inter alia, “evidence may not be introduced if it was discovered by means of a seizure and
search which were not reasonably related in scope to the justification for their initiation.
[Citation.]” (Terry, supra, 392 U.S. at p. 29, italics added.) Terry observed, “[t]he sole
justification of the search in the present situation is the protection of the police officer
and others nearby, and it must therefore be confined in scope to an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for the assault of
the police officer.” (Ibid., italics added.)
       Terry concluded the “scope of the search” (Terry, supra, 392 U.S. at p. 29) in that
case presented no serious problem because the officer patted down the outer clothing of
petitioner, felt a gun in the overcoat pocket, and then merely reached for and removed the
gun. (Id. at pp. 29-30.) The officer “confined his search strictly to what was minimally
necessary to learn whether the men were armed and to disarm them once he discovered
the weapons. He did not conduct a general exploratory search for whatever evidence of
criminal activity he might find.” (Id. at p. 30, italics added.) Terry later observed the
officer “carefully restricted his search to what was appropriate to the discovery of the
particular items which he sought.” (Ibid., italics added.)
       As mentioned, Long pertained to protective searches of vehicles. Long
acknowledged at the outset that Terry did not “expressly address whether such a
protective search for weapons could extend to an area beyond the person in the absence
of probable cause to arrest.” (Long, supra, 463 U.S. at p. 1034.) However, Long later
stated, “[w]e hold that the protective search of the passenger compartment [at issue in
Long] was reasonable under the principles articulated in Terry and other decisions of this
Court.” (Id. at p. 1035.)




                                               17
       In Long, a defendant speeding and driving erratically in a rural area after midnight
drove his car into a ditch. The defendant, who had been the sole occupant of the car, met
officers at the rear of the car and they asked for, inter alia, registration information. The
door on the driver’s side of the car had been left open. An officer thought the defendant
appeared to be under the influence. The defendant began walking towards the open door
of his car and the officers followed him and observed a long hunting knife on the driver’s
side floorboard. The officers conducted a patdown search which revealed no weapons.
An officer, using his flashlight, illuminated the interior of the car to search for other
weapons. After the officer saw something protruding from under the front seat armrest,
he knelt in the car and lifted the armrest. The officer saw on the front seat an open pouch
containing what appeared to be marijuana and subsequently arrested the defendant.
Police decided to impound the car and found in the trunk 75 pounds of marijuana. (Long,
supra, 463 U.S. at pp. 1035-1036.)
       Long observed that principles in past high court decisions compelled the
conclusion that “the search of the passenger compartment of an automobile, limited to
those areas in which a weapon may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on ‘specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant’ the officer in
believing that the suspect is dangerous and the suspect may gain immediate control of
weapons.” (Long, supra, 463 U.S. at p. 1049, italics added.)
       Long indicated that, under the circumstances in that case, the officers reasonably
believed the defendant posed a danger if he were permitted to reenter his vehicle. (Long,
supra, 463 U.S. at p. 1050.) Long then observed, “[t]he subsequent search of the car was
restricted to those areas to which [the defendant] would generally have immediate
control, and that could contain a weapon. The trial court determined that the leather
pouch containing marihuana could have contained a weapon. . . . It is clear that the
intrusion was ‘strictly circumscribed by the exigencies which [justified] its initiation.’
[Citation.]” (Id. at pp. 1050-1051, fn. omitted.)



                                              18
       Long later stated, “[i]n evaluating the validity of an officer’s investigative or
protective conduct under Terry, the ‘[touchstone] of our analysis . . . is always “the
reasonableness in all the circumstances of the particular governmental invasion of a
citizen’s personal security.” ’ [Citation.] In this case, the officers did not act
unreasonably in taking preventive measures to ensure that there were no other weapons
within [the defendant’s] immediate grasp before permitting him to reenter his automobile.
Therefore, the balancing required by Terry clearly weighs in favor of allowing the police
to conduct an area search of the passenger compartment to uncover weapons, as long as
they possess an articulable and objectively reasonable belief that the suspect is potentially
dangerous.” (Long, supra, 463 U.S. at p. 1051, italics added.)
       In Long, the high court concluded the officers could reasonably fear the defendant
could injure them even if the defendant “was effectively under their control during the
investigative stop and could not get access to any weapons that might have been located
in the automobile.” (Long, supra, 463 U.S. at p. 1051, italics added.) This was so
because (1) a suspect in the defendant’s position “might . . . break away from police
control and retrieve a weapon from his automobile” (ibid.), (2) “if the suspect is not
placed under arrest, he will be permitted to reenter his automobile, and he will then have
access to any weapons inside” (id. at p. 1052), or (3) “the suspect may be permitted to
reenter the vehicle before the Terry investigation is over, and again, may have access to
weapons.” (Ibid.)10




10
        See United States v. Holmes (2004) 376 F.3d 270, 280, stating, “we hold that
where a suspect is an occupant or recent occupant of a vehicle at the initiation of a Terry
stop, and where the police reasonably believe the suspect may be dangerous and that
there may be readily-accessible weapons in his vehicle, Long authorizes a protective
search of the vehicle for weapons, provided the police harbor a reasonable belief that the
suspect may gain access to the vehicle at a time when that access would endanger the
safety of the officers conducting the stop or of others nearby -- including the reasonable
belief that the suspect will return to the vehicle following the conclusion of the Terry
stop.” (Italics added.) (Accord, United States v. Brown (1998) 133 F.3d 993, 998-999.)


                                              19
       The Michigan Supreme Court had held that the search of the interior of the car at
issue in Long was not justified as a protective search, and the marijuana taken from the
trunk had to be suppressed as fruit of the illegal search of the car’s interior. (Long, supra,
463 U.S. at p. 1037.) The high court, having held the protective search of the passenger
compartment was proper, reversed the judgment of the Michigan Supreme Court and,
since the latter court had not passed upon the issue of whether the search of the trunk was
lawful under the Fourth Amendment, the high court remanded to permit a determination
of that issue. (Id. at p. 1053.)
                      (2) Application of the Law to the Facts.
       Appellant seeks suppression of (1) the methamphetamine Hanou found in the
center console and (2) the methamphetamine and methamphetamine pipe Hanou found in
the luggage in the cargo area. We note the sole reason Hanou gave as supporting his
search of the passenger compartment and cargo area of the SUV was he was searching
for a weapon for safety reasons, i.e., he was conducting a protective weapons search.11
                              (a) The Methamphetamine Recovered from the Center
Console Must Be Suppressed.
       The threshold issue is whether the initial search of the cargo area effected by the
opening of the cargo door was justified as a protective weapons search. We have found
no published California case upholding the search of such an area as a lawful protective
weapons search. Long, of course, upheld a protective weapons search of the passenger
compartment of a car that had a trunk. Long had no occasion to decide whether a cargo
area such as the one in this case could be subjected to a lawful protective weapons search,
and Long’s holding does not control this case.



11
       Of course, we realize “ ‘ “[T]he fact that the officer does not have the state of
mind which is hypothecated by the reasons which provide the legal justification for the
officer’s action does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.” ’ [Citation.]” (People v. Woods (1999) 21 Cal.4th 668,
680.)


                                             20
          Arguably, the risk to officer safety attending accessibility of a weapon located in a
cargo area such as the one in this case is greater than the safety risk attending
accessibility of a weapon located in a common trunk accessible only by a rear trunk door.
Such a trunk is completely inaccessible from the passenger compartment, a fortiori, no
one in the passenger compartment can reach inside such a trunk. On the other hand, the
cargo area of the SUV was not completely inaccessible from the passenger compartment.
Instead, Hanou testified to the effect the cargo area was immediately accessible to
appellant in the sense the cargo area was immediately accessible from the passenger
compartment (so that, e.g., if a person had been seated in the back seat, the person could
have reached into the cargo area).
          However, appellant was the driver and sole occupant of the SUV. Whether or not
the cargo area was, in a general sense, immediately accessible from the passenger
compartment, Hanou testified appellant could not reach the cargo area from the driver’s
seat and could not have reached the cargo area unless he climbed in the back. Moreover,
the cargo area and a common trunk are alike to the extent they hold cargo and are not
designed for driver or passenger seating. Absent any other consideration, if police have a
driver exit the driver’s side of a car, the driver, if released, will in all likelihood simply
return to the driver’s seat, not to a cargo area or trunk. There was no evidence that if
appellant had been released, he would have headed towards the cargo area containing the
shotgun, as opposed to the driver’s side of the passenger compartment from which he had
exited.
          In Long, after the defendant exited his car, police ultimately followed him while,
at night in a rural area, he was heading to the open door of his car that contained a long
hunting knife on the driver’s side floorboard. That is, the knife was in the passenger
compartment. An officer, looking for additional weapons, saw an object protruding from
under the front seat armrest, again, in the passenger compartment. After observing that
object, the officer searched the passenger compartment. We note Long, stated, inter alia,
“a Terry suspect in Long’s position [might] break away from police control and retrieve a
weapon from his automobile.” (Long, supra, 463 U.S. at p. 1051, italics added.)


                                               21
       On the other hand, Hanou stopped appellant during the afternoon in a commercial
area, and Hanou’s testimony provided no evidence that it was more likely the firearm was
in the cargo area than in the passenger compartment. Appellant’s testimony that he told
Hanou that “it” was in the “back” where it belonged did not make clear whether appellant
was referring to the cargo area or the back seat. Nonetheless, Hanou first searched the
cargo area. Unlike the defendant in Long, Hanou was in handcuffs virtually from the
moment he exited the SUV.
       Moreover, prior to any search of the SUV, Franco at one point (4:28:44) moved
appellant from the front of the police car to its side to permit the citizen’s car to exit.
From 4:29:22 to 4:29:36, Hanou, behind the SUV, seized the firearm case from the cargo
area, removed the shotgun from the case, and examined the shotgun. At 4:29:50, with
Hanou behind the SUV and in possession of the shotgun, Franco returned appellant to
the front of the police car, about a car length from Hanou. Appellant was even closer to
the shotgun than he had been before it was removed from the cargo area, and there was
ammunition in the cargo area, i.e., ammunition that, for all the record reflects, may have
been shotgun ammunition. At 4:30:21, Hanou put the shotgun back in the case and put it
on the ground behind the SUV, i.e., even closer to appellant, and with ammunition in the
cargo area. Any weapons searches of the passenger’s compartment for “safety”
(including the search of the center console from which Hanou seized methamphetamine)
occurred later.
       We hold, first, that the initial search of the cargo area effected by the opening of
the cargo door violated the Fourth Amendment and was not justified as a protective
weapons search.12 That initial search was not justified even at its inception.


12
       We note that in United States v. Arnold (2004) 388 F.3d 237 (Arnold), the Seventh
Circuit upheld, as a lawful Long protective weapons search, a search effected by an
officer pulling down an armrest in the backseat of a car’s passenger compartment where
the armrest opened into the trunk. (Id. at pp. 238-241.) Arnold concluded “the
boundaries of the passenger compartment under [New York v. Belton (1981) 453 U.S. 454
[69 L.Ed.2d 768] (Belton)] apply equally to the scope of a search under Long” (Arnold, at
p. 240) (assuming an officer limited the protective weapons search to those areas that

                                               22
       Moreover, Hanou’s subsequent entry into the cargo area was not reasonably
related in scope to the circumstances which would have justified a protective search in
the first place. (Cf. Terry, supra, 392 U.S. at pp. 19-20.) That entry was not a
“necessary” measure (id. at p. 24) to determine if appellant was carrying a weapon and to
neutralize the threat of physical harm (ibid.), was not an entry “limited to that which is
necessary for the discovery of weapons which might be used to harm the officer or others
nearby” (id. at pp. 25-26; italics added), and was not “minimally necessary” (id. at p. 30)
to learn whether appellant was armed and to disarm him once appellant told Hanou that
appellant had a firearm (cf. ibid.). The entry was not “restricted to those areas to which
[appellant] would generally have immediate control” (Long, supra, 463 U.S. at p. 1050,
italics added) and was not a preventive measure taken to ensure there were no weapons in
appellant’s “immediate grasp” (id. at p. 1051) if he had been permitted to reenter the
SUV.
       Although Hanou testified to the effect he recovered methamphetamine during a
protective search of the center console, the video reflects that any entries by Hanou into
the passenger compartment, and thus any entry into the center console containing
methamphetamine, occurred only after the unlawful initial search of the cargo area
effected by the opening of the cargo door. Accordingly, the methamphetamine Hanou
recovered from the center console must be suppressed as tainted by the above-mentioned

might contain a weapon and to which the motorist might have access). Arnold cited
federal appellate court cases that relied on Belton to hold “a search under Belton
encompasses cargo spaces of sports utility vehicles, hatchbacks, and station wagons.”
(Arnold, at p. 240.) Arnold relied on those cases to conclude the search in Arnold was a
lawful protective weapons search. (Id. at pp. 238-241.) However, Arnold is
distinguishable from the present case. In Arnold, the officer stopped the car the
defendant was driving, and Arnold noted that “[a]fter [the officer] observed Arnold turn
around to look back at him, Arnold then wormed his way between the passenger and the
driver’s seats into the back seat. [The officer] testified that Arnold appeared to have been
either retrieving or placing something in the back seat, although [the officer] could not
see below Arnold’s shoulders. Arnold then returned to the driver’s seat.” (Id. at p. 238.)
The search effected by pulling down the armrest occurred later. (Id. at pp. 238-239.)
Appellant did not do what the defendant did in Arnold.


                                             23
unlawful initial search of the cargo area effected by the opening of the cargo door, and by
the subsequent unlawful entry into the cargo area.
       Second, the justification for the seizure of appellant to permit a protective
weapons search of the passenger compartment did not support the initial search of the
cargo area. Instead, Hanou’s detention of appellant from the time the unlawful initial
search of the cargo area began to the time Hanou found methamphetamine in the center
console exceeded the time needed to handle the matter for which appellant properly could
have been detained—a protective weapons search of the passenger compartment—and
prolonged appellant’s seizure beyond the time reasonably required to complete the
mission of a protective weapons search of the passenger compartment. Accordingly, we
hold the methamphetamine Hanou recovered from the center console must be suppressed
because the seizure of that methamphetamine occurred during an unduly prolonged
detention. (Cf. Rodriguez, supra, __ U.S. at pp. __ - __ [191 L.Ed.2d at pp. 496-497].)
       Third, after Hanou opened the cargo door, but prior to any search of the passenger
compartment (and therefore prior to any search of the center console for weapons),
Hanou seized from the cargo area three items, i.e., the red luggage (at 4:29:01), an open
square box (at 4:29:10), and a gray rectangular box (at 4:29:14). However, after
engaging in numerous other searches and seizures and other activity, and near the end of
the encounter, Hanou finally searched the red luggage at 4:46:44, i.e., about 15 minutes
after he initially seized it. He later searched the gray rectangular box at 4:53:18, about
14 minutes after he initially seized it. He subsequently searched the open square box at
4:53:24, removing items from it, about 14 minutes after he initially seized it.
       In other words, Hanou initially seized the above three items to search them, but
only searched them about 15 minutes later. If Hanou had believed any of these three
items contained a firearm that he needed to seize for safety reasons, he would not have
waited so long to search them and would not have conducted the numerous other searches
and seizures in the passenger compartment and other activities that the record clearly
reflects he conducted in the interim. We hold the seizures of these three items violated
the Fourth Amendment and were not justified as protective weapons seizures for officer


                                             24
safety. The methamphetamine subsequently seized from the center console must be
suppressed as tainted by the illegal initial seizures of the above three items and because
the seizure of that methamphetamine occurred during the unduly prolonged detention of
appellant resulting from the unlawful initial seizures of those three items.
       Fourth and finally, as mentioned, Hanou testified to the effect he recovered
methamphetamine during a protective search of the center console, but the video reflects
he searched the driver’s area and right front passenger area multiple times, including,
e.g., the driver’s area at 4:42:41, i.e., 14 minutes after Hanou opened the cargo door.
Thus, for all Hanou’s testimony and the video reflect, it was during this search of the
driver’s area 14 minutes after Hanou opened the cargo door (and not during the first
search of the driver’s area that occurred at 4:31:13) that Hanou found the
methamphetamine in the center console. If so, this was not a protective search conducted
for officer safety. The burden was on the People to prove which search of the driver’s
area produced the methamphetamine in the center console (see People v. Williams (1999)
20 Cal.4th 119, 136) and the People failed to meet that burden. For each of the above
four independent reasons, the methamphetamine Hanou recovered from the center
console must be suppressed.
                            (b) The Methamphetamine and Methamphetamine Pipe
Recovered from the Luggage Must Be Suppressed.
       Reasoning similar to the above four points requires suppression of the
methamphetamine and methamphetamine pipe (collectively, contraband) found in the
luggage. That is, first, the contraband Hanou recovered from the luggage must be
suppressed as tainted by the above mentioned unlawful initial search of the cargo area
effected by the opening of the cargo door, and by the subsequent entry into the cargo area
to seize the luggage, an entry not reasonably related in scope to the circumstances which
justified a protective weapons search. Second, the contraband must be suppressed
because its seizure occurred during an unduly prolonged detention resulting from the
unlawful search of the cargo area.



                                             25
       Third, the contraband must be suppressed as tainted by the illegal seizures of the
red luggage, open square box, and gray rectangular box and because the seizure of the
contraband occurred during the unduly prolonged detention of appellant resulting from
the unlawful seizures of those three items.
       Fourth, at points during the period from the time Hanou opened the cargo door (at
4:28:55) to the time he seized the red luggage (at 4:46:44), Hanou (1) searched the
driver’s side five times and the left rear passenger area twice, (2) engaged in about five
minutes of unexplained conduct (the previously identified periods one, two, and four
through six; we note Hanou denied remembering using a cell phone), and (3) reached into
the gun case and retrieved documents (period three) even though he had already searched
the gun case for safety earlier. The contraband recovered from the luggage must be
suppressed because the seizure of the luggage occurred during a detention unduly
prolonged by the three above enumerated factors.
       For each of the above four independent reasons, the contraband Hanou seized
from the luggage must be suppressed. We will reverse the judgment with directions to
the trial court to dismiss this case.13
                              (c) None of Respondent’s Arguments Compel a Contrary
Conclusion.
               Respondent argues the search of the SUV was justified by the vehicle
search and search-incident-to-arrest exceptions to the warrant requirement. We disagree.
“In [Ross, supra, 456 U.S. at p. 825], the court held that police who have probable cause
to believe a lawfully stopped car contains contraband may conduct a warrantless search
13
       The methamphetamine Hanou recovered from the center console and the
methamphetamine and methamphetamine pipe he recovered from the luggage formed the
evidentiary basis for appellant’s convictions in this case. Respondent does not claim the
People would be able to proceed absent this evidence. Remanding the matter for further
proceedings other than dismissal would be an idle gesture. We will reverse the judgment
with directions to the trial court to dismiss this case. (Cf. People v. Dickey (1994)
21 Cal.App.4th 952, 955, 957; see McGaughran, supra, 25 Cal.3d at p. 591 [reversing
judgment after stating suppressed evidence “was essential to the case against defendant,
and the ensuing conviction therefore cannot stand.”].)


                                              26
of any compartment or container in the car that may conceal the object of the search.”
(People v. Diaz (2011) 51 Cal.4th 84, 95, italics added.) In Gant, the high court stated,
“we hold that Belton does not authorize a vehicle search incident to a recent occupant’s
arrest after the arrestee has been secured and cannot access the interior of the vehicle.”
(Gant, supra, 556 U.S. 332, at p. 335, italics added.) The fact a defendant is not formally
arrested until after a search does not invalidate the search as incident to arrest if probable
cause to arrest existed prior to the search and the search is substantially contemporaneous
with the arrest. (People v. Adams (1985) 175 Cal.App.3d 855, 861.)
       Even if we assume that, just prior to the search of the SUV, Hanou had probable
cause to arrest appellant, there was evidence that, before Hanou searched the SUV,
(1) appellant had been handcuffed and escorted away from the SUV, and (2) appellant
had been situated “on the front hood” of Hanou’s police car (behind the SUV). The
search of the SUV was not authorized by Gant because the search occurred after
appellant had been secured and could not access the interior of the SUV.
       Moreover, Ross requires probable cause to believe a lawfully stopped vehicle
contains contraband, and Gant, as indicated above, requires probable cause to arrest.
We have set forth pertinent events preceding any search of the SUV. Simply put, and
notwithstanding respondent’s argument to the contrary, prior to any search of the SUV,
Hanou lacked probable cause to believe the SUV contained contraband and lacked
probable cause to arrest. Significantly, we note the mere fact an officer observes a
firearm does not provide probable cause to believe it is loaded (cf. People v. Muniz
(1970) 4 Cal.App.3d 562, 565-567) or, therefore, probable cause to believe the possessor
of the firearm is committing the crime of carrying a loaded firearm (Pen. Code, § 25850,
subd. (a)) or possessing the contraband of a loaded firearm. There is no reason this
should not be equally true where, as here, according to Hanou, appellant simply told him
there was a firearm in the vehicle.




                                              27
       None of the additional facts, including the way appellant drove or his driving from
one motel to another, the registration matter, the fact there were numerous motels in the
area, Hanou’s numerous past narcotics-related arrests in the area, the $10,000 found on
appellant, or his refusal to consent to the search of the SUV, gave Hanou probable cause
to believe the SUV contained contraband or probable cause to arrest appellant for
purposes of Ross and Gant, respectively, therefore, the search of the SUV cannot be
justified under Ross’s vehicle search exception or Gant’s search-incident-to-arrest
exception.14




14
        During oral argument, respondent urged for the first time that a permissible
protective search of the passenger compartment would have given Hanou probable cause
to arrest appellant, therefore, an automobile search thereafter would have been
permissible. However, nothing in this case compels a departure from the general
prohibition against respondent advancing new theories on appeal (cf. Lorenzana v.
Superior Court (1973) 9 Cal.3d 626, 640-641; but see Green v. Superior Court (1985)
40 Cal.3d 126, 137-138), therefore, we decline to consider respondent’s new argument.
We decline to consider it for the additional reason respondent made it for the first time
during oral argument. (Cf. People v. Mateljan (2005) 129 Cal.App.4th 367, 376, fn. 4.)
Finally, in light of our analysis, there is no need to address appellant’s Pitchess claim.


                                            28
                                     DISPOSITION
       The judgment is reversed and the matter is remanded with directions to the trial
court (1) to vacate its order denying appellant’s Penal Code section 1538.5 motion to
suppress the methamphetamine and methamphetamine pipe that Covina Police Officer
Terrence Hanou testified he recovered from appellant’s SUV, (2) to enter a new order
granting that motion, and (3) to dismiss the case.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 JONES, J.

We concur:




                     EDMON, P. J.




                     LAVIN, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                            29
