Filed 4/17/13 P. v. Zimmerman CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
ERIC MATTHEW ZIMMERMAN,
Defendant and Appellant. B237016
(Los Angeles County Super. Ct. No. PA067836)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Reversed. Siri Shetty, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorn eys General, for Plaintiff and Respondent.

_____________ ______________2 Following the denial of a motion to su ppress evidence, Eric Matthew Zimmerman was convicted by a jury of transportation of a controlled substance and possession for
sale of a controlled substance. Zimmerman contends the methamph etamine found in his car should have been suppressed as the fru it of an unlawful search. We reverse.
FACTUAL AND PROCED URAL BACKGROUND On October 25, 2010 Los Angeles County Sheriff’s deputies Mark Vencer and John McKay stopped Zimmerman for driving over the speed limit. As Deputy McKay approached the car, Zimmerman “was highly irate” and “screaming profanities.” McKay told Zimmerman to place his hands on the st eering wheel, but Zimmerman said with his voice raised, “You can’t tell me what to do. You have no right to be stopping me.” The deputies placed Zimmerman in the back of the pa trol car to ensure officer safety. After it
was determined Zimmerman’s driver license wa s suspended, he was arrested. During an inventory search of the car, Deputy Vencer found three small, individually wrapped packages of methamphetamine inside an empty cigarette bo x in the trunk. No drug paraphernalia, drug packaging materials, s cales, excess cash or records regarding drug
sales were recovered. McKa y testified Zimmerman did not appear to be under the influence of methamphetamine. At the preliminary hearing Zimmerman moved to suppress the evidence recovered during the inventory search and statements he made after the arrest on the ground the
search was conducted to fi nd incriminating evidence. 1 Deputy McKay testified the inventory search was conducted for Zimmerm an’s benefit because the deputies intended to tow the car and documenting valuable articles prevents the towing company from stealing anything. McKay ex plained, however, the officers did not complete the inventory because they decide d not to tow the car, which was in an area where McKay
believed it would be safe from theft or vandalis m: “[B]ased on the fact . . . [Zimmerman] had not been notified by the co urts yet that his license had been suspended, he had no

1 Zimmerman told Deputy McKay he acted as a middleman between drug dealers and distributors. On the night of his arrest he was on his wa y to pick up more “product.”3 prior knowledge that his license was suspended, that he was not the registered owner of the vehicle, and the fact that he begged me not to tow his vehicle because it belonged to his girlfriend, I decided at the last second to not tow his vehicle.” McKay further explained Zimmerman had asked to speak with a detective so he could make a deal “to work off a case.” According to McKay, th e detective asked him not to tow the car
because Zimmerman “would be released soon and then woul d immediately start working
for the detective.” The court denied the motion to suppress, finding it was reasonable for the deputies to begin inventorying the c ontents of the car because Zimmerman’s license was suspended: “[I]t looks as to count 3, he’s alleged[] to have been driving on a suspended license, although there’s testimony that he appa rently was not aware at the time. But be that as it may, he was on a suspended license. I know officers typically at that time when the vehicle is being driven on a suspended lic ense, it’s subject to impound. And it seems
reasonable to me that the o fficer would have begun that process of dealing with the inventory. So I think that the inventory search justifies the search of the vehicle . . . .” The jury found Zimmerman guilty of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and po ssession for sale of a controlled substance (Health & Saf. Code, § 11378). 2 The trial court sentenced Zimmerman to county jail for a term of nine years.
DISCUSSION
1. Standard of Review In reviewing the ruling on a motion to supp ress, the appellate court defers to the trial court’s factual findings, express or implie d, when supported by substantial evidence. ( People v. Redd (2010) 41 Cal.4th 691, 719; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh
evidence and draw factual inferences is vested in the trial court. ( James, at p. 107.)

2 Zimmerman had also been charged with driving with a susp ended license (Veh. Code, § 14601.1, subd. (a)), but the charge was dismissed in furtherance of justice (Pen. Code, § 1385, subd. (a)).4 However, in determining whether, on the fa cts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. ( Redd
, at p. 719; People v. Glaser (1995) 11 Cal.4th 354, 362.)

2. Governing Law 3 The Fourth Amendment’s prohibition of “unreasonable searches and seizures” generally precludes warrantless searches of an individual and his possessions, including an automobile. (See In re Arturo D. (2002) 27 Cal.4th 60, 68.) 4 However, the Supreme Court has recognized that police officers have a legitimate interest in taking an inventory of the contents of vehicles they legally to w and impound “to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guar d the police from danger.” (See Colorado v. Bertine (1987) 479 U.S. 367, 372 [107 S.Ct. 738, 93 L.Ed.2d 739].) Such “inventory searches” are now considered “a well-defined exception to the warrant requirement of the Fourth Amendment.” ( Id. at p. 371.) To ensure it is not me rely used as a pretext or ruse to
search vehicles for contraba nd or other incriminating evid ence, a warrantless inventory search must be conducted “pursuan t to standard police procedures” ( South Dakota v. Opperman (1976) 428 U.S. 364, 372 [96 S.Ct . 3092, 49 L.Ed.2 d 1000] and be

3 Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deci ding whether its suppre ssion is mandated by the federal Constitution. (Cal. Const., art. I, § 28, subd. (f)(2) [formerly subd. (d)]; People v. Lenart (2004) 32 Cal.4th 1107, 1118.)

4 A search of an automobile incident to the arrest of the driver or a passenger is valid “only if the arrestee is within reachi ng distance of the passenger compartment [or other area searched] at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” ( Arizona v. Gant (2009) 556 U.S. 332, 351 [129 S.Ct. 1710, 173 L.Ed.2d 485].) Here, Zimmerman was se cured inside the patrol car at the time of his arrest for driving on a suspended license. Although a warrantless search of an automobile is also lawful if there is probable cause to believe it contains evidence of criminal activity (see United States v. Ross (1982) 456 U.S. 7 98, 820-821 [102 S.Ct. 2157, 72 L.Ed.2d 572]; Gant , at p. 347), there is no clai m in this case the deputies suspected Zimmerman was engage d in criminal activity othe r than speeding and driving on a suspended license prior to searching the car.5 “sufficiently regulated” to avoid wh olly unfettered police discretion. ( Florida v. Wells (1990) 495 U.S. 1, 4 [110 S.Ct. 1632, 109 L.Ed.2d 1]; see also Opperman , at p. 384.) 5

A defendant meets his or he r initial burden of challenging the constitutionality of a warrantless search or seizure by “simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion.” ( People v. Williams (1999) 20 Cal.4th 119, 130.) The People then be ar the burden of proving that both the impoundment and search were constitutionall y reasonable under all the circumstances. ( Ibid .; People v. Williams (2006) 145 Cal.App.4th 756, 762.) Reasonableness is “the touchstone of the Fourth Amendment.” ( Florida v. Jimeno (1991) 500 U.S. 248, 250 [111 S.Ct. 1801, 1 14 L.Ed.2d 297].)
3. The People Failed To Satis fy Their Burden of Est ablishing the Search of Zimmerman’s Car Was Conducted Pursu ant to a Standardized Inventory Procedure
In Florida v. Wells, supra , 495 U.S. 1 the Supreme Court held the trial court should have suppressed marijuana found wh en officers opened a locked suitcase while inventorying a vehicle. ( Id . at p. 2.) Reiterating the limitation on inventory searches it
had announced in Colorado v. Bertine, supra, 479 U.S. 367, the Court explained “standardized criteria [citation] or established routine [citati on] must regulate the opening

5 Evidence discovered in an inventory se arch conducted pursu ant to clear police department guidelines must nonetheless be ex cluded if the decision to impound the vehicle violated the Fourth Amendment. (See People v. Aguilar (1991) 228 Cal.App.3d 1049, 1053.) Whether an impo und here would have been pr oper is far from clear. The Court of Appeal in People v. Williams (2006) 145 Cal.App.4th 756 held a decision to impound a vehicle must be based on a valid community caretaker or public safety function, not simply statutory authoriz ation. In contrast, this court in People v. Green (1996) 46 Cal.App.4th 367 sugge sted the authority to impound under the Vehicle Code is all that is required for a valid impoundmen t, explaining, because the “officers acted pursuant to standard impound procedures provided by Ve hicle Code section 22651, subdivision (p), [they] acted well within their authority to impound defendant’s car.” ( Green , at p. 373.) Because we hold the inve ntory search itself was unreasonable under governing Fourth Amendment principles , we need not attempt to reconcile Williams and Green or determine whether any community caret aker function, if re quired, would have justified an impoundme nt in this case.6 of containers found during in ventory searches” to safeguard the “principle that an inventory search must not be a ruse fo r a general rummaging in order to discover incriminating evidence.” ( Wells , at p. 4.) “The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must
not be allowed so much latitude that inventory searches are tu rned into ‘a purposeful and general means of discovering evidence of crime.’” ( Ibid .) Because the record in Wells
contained no evidence of any policy of the law enforcement agency whose officers had conducted the search regarding the opening of closed containers during inventory searches, the Supreme Court concluded the ma rijuana found in the suitcase should have been suppressed: “[A]bsent such a policy, the . . . search wa s not sufficiently regulated to satisfy the Fourth Amendment . . . .” ( Id. at p. 5.)
In People v. Williams, supra , 20 Cal.4th 119 the Ca lifornia Supreme Court
reinforced the Bertine and Wells standard, emphasizing the “prosecution must always prove the existence of a policy supporting an inventory search . . . .” ( Williams, at p. 138.) “Because of the risk that an inve ntory search will be ‘a ruse for a general rummaging,’ a risk that this case particularly exemplifies, a valid inventory search must adhere to a preexisting policy or practice. [Citation.] This rule may require the prosecution to prove more than the existence of some general policy authorizing inventory searches; when relevant, the prosec ution must also prove a policy or practice governing the opening of clos ed containers encountered dur ing an inventory search.” ( Ibid .; see Florida v. Wells
, supra, 495 U.S. at pp. 4-5 .) The officers in Williams found methamphetamine in closed leather bags inside the defendant’s truck during the inventory search. Because th e prosecution did not prove the leather bags had been opened “pursuant to a policy or practice,” the Court held the warrantless search was unlawful. ( Williams , at p. 138.)
As in Florida v. Wells, supra , 495 U.S. and People v. Williams, supra , 20 Cal.4th 119, the People failed to prove the existen ce of any general policy of the Los Angeles County Sheriff’s Department authorizing inventory searches, let alone a policy or practice governing searches of packages or container where drugs may be concealed.7 The only testimony that even hinted at the existence of a policy was Deputy McKay’s testimony they conducted an inventory search to protect Zimmerman from theft because they intended to have the vehicle towed. This testimony suggests, at most, that inventorying a vehicle is standard departme nt procedure whenever someone is arrested for driving with a suspended licen se. However, as emphasized in Williams an inference such a policy exists is not enough. The People must prove the actual existence of a policy, including “the specific s” that govern those areas actually searched, albeit the policy need not be in writing. ( Williams, at p. 138; see id. at p. 127 [“ Wells does not require a written policy governing closed containers or a policy that leaves no room for police discretion, but the record must at least indicate th at police were following some
‘standardized criteria’ or ‘established r outine’ when they elected to open the containers”].) The prosecution did not pres ent evidence of any policy whatsoever and
therefore failed to meet its burden of justifying the warrantless search.
DISPOSITION The judgment of conviction is reversed. On remand the trial court is directed to vacate its order denying Zimmerman’s motion to suppress evidence and to enter a new order granting the motion.

PERLUSS, P. J.

We concur:

WOODS, J.

JACKSON, J.