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Filed 9/30/16 P. v. Clahr CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER CLAHR,

Defendant and Appellant.

 A145419

 (San Francisco County

 Super. Ct. No. 14015015)

Following the denial of his motion to suppress, defendant Christopher Clahr 

entered a plea of nolo contendere to carrying a concealed dirk or dagger. (Pen. Code, 

§ 21310.)1 Clahr contends the knife and additional evidence were obtained from an 

unlawful search that cannot be justified as a search incident to arrest, and the trial court 

erred in denying his motion to suppress. We agree and reverse. 

BACKGROUND

Around 2:00 a.m. on June 5, 2014, San Francisco Police Officer Christina Hayes 

and her partner were on duty in their patrol car when they noticed Clahr driving a green 

van. Clahr parked in front of a smoke shop on Polk Street with the van in “the red and 

partially the yellow” parking zones. There was a disabled placard on the rearview mirror

of the van. Hayes observed Clahr and a passenger get out of the van and walk into the 

smoke shop. Neither of them appeared to be disabled. 

 

1

Further undesignated statutory references are to the Penal Code.
2

Hayes parked and went into the smoke shop. She asked Clahr whether he or his 

passenger was disabled, and he said no. She asked if he had a valid driver’s license, and 

he said no. Clahr was cooperative but appeared very nervous, and he was sweating and 

shaking. Hayes and Clahr walked out of the shop to the sidewalk. At this point, she 

“knew he was not a valid driver, he [was] in violation of a misdemeanor.” 

On the sidewalk, Hayes patted Clahr down. She felt an object under his shirt at 

the neck area, and Clahr told her it was a knife. She removed a double-edged knife from 

around his neck. 

The officers learned from dispatch that Clahr’s driver’s license was either 

suspended or revoked. Hayes told Clahr his license was suspended and took his keys 

from him. A metallic container was attached to the keys. Hayes was familiar with metal 

containers of this type, and they usually held narcotics. She opened the container and 

found a baggie containing a crystalline substance, which she suspected was 

methamphetamine. She said, “I see you like ice.” Clahr responded, “Yes, I do meth, but 

I am doing good.” Hayes placed Clahr in handcuffs and told him he was under arrest. In 

response to the prosecutor’s question whether anyone “conduct[ed] a search incident to 

arrest,” Hayes said that she did, and she found a Visine bottle with brown liquid in it and

a foam container in Clahr’s pants pocket that held baggies containing a white powder.2

Hayes testified at a joint preliminary and suppression hearing that it was her 

“practice to pat down everybody because I like to make sure nobody has a weapon.” She 

testified, “When someone commits a violation in my presence, yes, I pat down 

everybody,” and this was her practice at any time of day or night and for any violation of 

law committed in her presence. Hayes further stated, “It can be someone crossing the 

street on a red light or someone who is on a suspended license, yes. I pat everybody 

down.” 

 

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Per police policy, they gave Clahr 20 minutes to call someone to pick up the van, 

so it would not have to be towed. A friend of Clahr’s with a valid license showed up and 

took the van.
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The District Attorney filed a three-count complaint against Clahr alleging felony 

possession of a controlled substance, cocaine (count 1; Health & Saf. Code, § 11350, 

subd. (a)), misdemeanor possession of a controlled substance, methamphetamine (count 

2; Health & Saf. Code, § 11377, subd. (a)), and misdemeanor carrying a dirk or dagger 

(count 3; § 21310). 

Clahr moved to suppress the items found on his person and his statements to the 

officers. He argued the patdown search was unlawful because Hayes had no reasonable, 

articulable suspicion that he had a weapon, and the search of the closed container 

attached to his key ring was unlawful because it was not a search incident to arrest. The 

magistrate denied the motion, finding “[p]robable cause [to arrest] existed prior to both 

searches and the searches were substantially contemporaneous with the arrest.” The 

magistrate observed, “As [Clahr] concedes, at the time officers conducted the pat down 

search they had probable cause to arrest him for driving on a suspended or revoked

license based on his own statement during his initial encounter with the police that he 

was not a valid driver.” 

The District Attorney then filed a four-count information charging the three counts 

alleged in the complaint, plus misdemeanor unlawful display of a disabled person placard 

(count 4; Veh. Code, § 4461, subd. (c)). Clahr moved to set aside the information 

pursuant to section 995, arguing again that the evidence was obtained from unlawful 

searches. The trial court denied Clahr’s motion. The same day, the court granted the 

District Attorney’s oral motion to amend the information to change count 1 from a felony 

to misdemeanor possession of cocaine, pursuant to Proposition 47. 

After count 1 was reduced to a misdemeanor, Clahr again moved to suppress the 

evidence, this time pursuant to section 1538.5, subdivision (g).

3

The parties stipulated to 

 

3

Section 1538.5, subdivision (g) provides in part, “If the property or evidence 

relates to a misdemeanor complaint, the motion shall be made before trial and heard prior 

to trial at a special hearing relating to the validity of the search or seizure.” (See Chivers 

v. Municipal Court (1976) 59 Cal.App.3d 929, 933 [after felony charges were reduced to 

misdemeanors, two defendants were entitled to a special hearing on their motion to 

suppress under section 1538.5, subdivision (g), even though the issue had been litigated 
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hearing the motion based on the preliminary hearing transcript. Although it expressed 

concern about Hayes’ practice of patting down everyone she observes committing a 

violation of law, the trial court denied the motion. The court reasoned that a search is 

allowed incident to arrest, and an arrest “can be based on any infraction or misdemeanor 

crimes that are committed in the presence of the officer, which we had here” because 

Clahr was seen driving with a disabled placard. The officer thought Clahr was guilty of a 

misdemeanor, and it is “permissible for an officer to search first and [then] arrest.” The 

court found the search lawful as a search incident to arrest, not as a patdown search for 

officer safety, although the court observed, “I think some of the facts can bear that out in 

this case. It’s two in the morning; you’re in the Tenderloin. But she [Officer Hayes] 

didn’t really get into that. She really focused on what the crime was, the fact she was 

arresting him for this misdemeanor.”

On June 10, 2015, pursuant to a plea agreement, Clahr entered a plea of nolo 

contendere to count 3, carrying a dirk or dagger, and the remaining three counts were 

dismissed. Imposition of sentence was suspended, and Clahr was granted probation for a 

period of three years. 

DISCUSSION

The only issue in this appeal is the legality of the warrantless patdown search of 

Clahr.4 Clahr claims it was an unconstitutional warrantless search. The Attorney 

General’s sole justification for the search is that it was a lawful search incident to arrest.

Standard of Review

“ ‘An appellate court’s review of a trial court’s ruling on a motion to suppress is 

governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial 

court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies 

 

in a prior motion to suppress at a preliminary hearing when the defendants were charged 

with felony offenses].) 

4 We have appellate jurisdiction even though the only felony charge was reduced 

to a misdemeanor under Proposition 47. (People v. Lynall (2015) 233 Cal.App.4th 1102, 

1105.) 
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the latter to the former to determine whether the rule of law as applied to the established 

facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these 

inquiries is, of course, subject to appellate review.” [Citations.] [¶] The court’s 

resolution of the first inquiry, which involves questions of fact, is reviewed under the 

deferential substantial-evidence standard. [Citations.] Its decision on the second, which 

is a pure question of law, is scrutinized under the standard of independent review. 

[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is 

however predominantly one of law, . . . is also subject to independent review.’ ” (People 

v. Alvarez (1996) 14 Cal.4th 155, 182.)

“In reviewing the denial of a motion to suppress, we examine ‘the record in the 

light most favorable to the trial court’s ruling.’ [Citation.] All presumptions favor the 

trial court’s exercise of its power to judge the credibility of the witnesses, resolve any 

conflicts in the testimony, weigh the evidence, and draw factual inferences, ‘ “and the 

trial court’s findings on such matters, whether express or implied, must be upheld if they 

are supported by substantial evidence.” ’ ” (People v. Turner (2013) 219 Cal.App.4th 

151, 159.) 

Legal Principles 

“Warrantless searches are presumed to be unreasonable, ‘ “subject only to a few 

specifically established and well-delineated exceptions.” ’ [Citations.] The prosecution 

bears the burden of demonstrating a legal justification for such a search. [Citations.] If 

there is a legitimate reason for a search or seizure, an officer’s subjective motivation is 

generally irrelevant.” (People v. Evans (2011) 200 Cal.App.4th 735, 742.) 

One such legal justification is a search conducted incident to arrest. (People v. 

Evans, supra, 200 Cal.App.4th. at p. 744 [“a police officer who makes a lawful arrest 

may conduct a warrantless search of an arrestee’s person and the area within his or her 

immediate control”].) The United States Supreme Court has “held that the authority to 

conduct a full field search as incident to an arrest [is] a ‘bright-line rule,’ which [is] based 

on the concern for officer safety and destruction or loss of evidence, but which [does] not 

depend in every case upon the existence of either concern.” (Knowles v. Iowa (1998) 525 
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U.S. 113, 118 (Knowles); see People v. Diaz (2011) 51 Cal.4th 84, 90 [“As the high court 

has explained: ‘When a custodial arrest is made, there is always some danger that the 

person arrested may seek to use a weapon, or that evidence may be concealed or 

destroyed. . . . The potential dangers lurking in all custodial arrests make warrantless 

searches of items within the “immediate control” area reasonable without requiring the 

arresting officer to calculate the probability that weapons or destructible evidence may be 

involved’ ”], overruled on another ground by Riley v. California ___ U.S. ___ [134 S.Ct. 

2473, 2485].) 

Analysis

Clahr concedes that Officer Hayes had probable cause to arrest him for 

misdemeanor violations of unlawful use of a disabled person placard and driving on a 

suspended or revoked driver’s license before she patted him down and discovered the 

knife. But he argues the patdown search cannot be justified as a search incident to arrest 

because he was not arrested for either of these traffic violations. We agree. Clahr was 

not under arrest at the time Hayes patted him down, and there is no evidence that he was 

ever arrested for these offenses and taken into custody or transported to the police station 

on account of them. 

To be sure, there was nothing to stop Hayes from arresting Clahr for displaying

the disabled placard or for driving with a suspended or revoked license. (Veh. Code, 

§§ 4461, subd. (c); 14601.1, subd. (b)(1); 40303, subd. (b)(10).) Moreover, under 

Atwater v. City of Lago Vista (2001) 532 U.S. 318, “If an officer has probable cause to 

believe that an individual has committed even a very minor criminal offense in his 

presence, he may, without violating the Fourth Amendment, arrest the offender.” (Id. at 

p. 354; see People v. McKay (2002) 27 Cal.4th 601, 613, 619; People v. Espino (2016) 

247 Cal.App.4th 746, 763, review granted Aug. 24, 2016, S235540.

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) But that is not 

 

5 Our Supreme Court granted review in People v. Espino, and ordered briefing 

deferred pending decision in People v. Macabeo, S221852 (previously at 229 

Cal.App.4th 486), which presents the following issue: “May law enforcement officers 

conduct a search incident to the authority to arrest for a minor traffic offense, so long as a 
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what happened. The officer simply walked out to the sidewalk with Clahr and searched 

him. 

The United States Supreme Court made clear in Knowles, supra, 525 U.S. 113,

that there can be no search incident to arrest if the officer does not arrest the defendant. 

In that case, a police officer issued the defendant, Knowles, a citation for a speeding 

violation, although the officer could have arrested him. The officer then searched 

Knowles’ car, found marijuana and a pipe, and then arrested him for violation of the 

state’s controlled substances law. (Id. at p. 114.) Even though Knowles could have been 

arrested for speeding, he was not, as the officer opted to issue a citation instead. Knowles 

moved to suppress the evidence on the ground that it was not a constitutional search 

incident to arrest, and the Supreme Court unanimously agreed. The high court rejected 

the Iowa Supreme Court’s rationale that so long as the arresting officer had probable 

cause to make a custodial arrest, there need not in fact have been one to justify the search, 

and declined to adopt a “ ‘search incident to citation’ ” exception to the warrant 

requirement. (Id. at pp. 116, 118–119; see People v. McKay, supra, 27 Cal.4th at p. 613, 

fn. 6 [noting that the Supreme Court in Knowles “held that the exception for a search 

incident to a custodial arrest could not be applied where no custodial arrest had 

occurred”].)6

 

custodial arrest (even for an unrelated crime) follows?” (See California Supreme Court’s 

“Pending Issues: Criminal,” at https://www.courts.ca.gov/13648.htm> [as of Sept. 30, 

2016].) 

6 Courts in other jurisdictions support this point. (See, e.g., Bennett v. City of 

Eastpointe (6th Cir. 2005) 410 F.3d 810, 824 [“The mere fact that an officer has the 

authority to arrest an individual does not, and never has, automatically, permitted the 

officer to conduct a patdown search should he choose not to effectuate the arrest. 

[(Knowles, supra, 525 U.S. at pp. 117–119.)] For an officer to conduct a search incident 

to arrest, there must be an actual arrest. Otherwise, unless the officer points to specific 

facts that demonstrate reasonable suspicion that the individual is armed and dangerous, 

the Fourth Amendment tolerates no frisk.”]; United States v. Jackson (7th Cir. 2004) 377 

F.3d 715, 717 [Knowles “instantiates the principle that the reasonableness of a search 

depends on what the officers actually do, not what they might have done” and “explained 

it is custody, and not a stop itself, that makes a full search reasonable”].) 
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In the matter before us, Clahr was arrested for carrying a dirk and dagger, but only 

after Hayes had pat searched him and found it (and eventually the cocaine and 

methamphetamine). The search that resulted in the seizure of the dirk and dagger was not 

permissible under the search-incident-to-arrest exception to the warrant requirement of 

the Fourth Amendment.

The Attorney General’s counterarguments are not persuasive. She contends that 

the patdown search was a lawful search incident to arrest because it was “substantially 

contemporaneous” with Clahr’s arrest. She cites In re Lennies H. (2005) 126 

Cal.App.4th 1232, 1239–1240, Rawlings v. Kentucky (1980) 448 U.S. 98, 111

(Rawlings), and People v. Gonzalez (1989) 216 Cal.App.3d 1185 (Gonzalez). It is true 

that these cases generally stand for the proposition, “The fact that a defendant is not 

formally arrested until after the search does not invalidate the search if probable cause to 

arrest existed prior to the search and the search was substantially contemporaneous with 

the arrest.” (In re Lennies H., supra, 126 Cal.App.4th at pp. 1239–1240; see Rawlings, 

supra, 448 U.S. at p. 111 [“Where the formal arrest followed quickly on the heels of the 

challenged search of petitioner’s person, we do not believe it particularly important that 

the search preceded the arrest rather than vice versa.”]; Gonzales, supra, 216 Cal.App.3d 

at p. 1189 [“If [the officer] had probable cause to believe [the defendant] possessed 

illegal drugs, the search and seizure are justifiable as incident to a lawful arrest. It 

matters not that they occurred before a formal arrest”].) But in each of these cases, the 

arresting officer had, at the time of the search, probable cause to arrest the defendant for 

an offense for which the defendant was subsequently arrested.7 We do not read these 

 

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In In re Lennies H., supra, 126 Cal.App.4th at pages 1239–1240, a police officer 

was investigating a carjacking and already had probable cause to arrest the defendant for 

the carjacking at the time he was searched and the keys to the stolen car were found in 

defendant’s pocket; he was arrested immediately thereafter for the carjacking. In 

Rawlings, a defendant claimed ownership of a sizeable quantity of illegal drugs in plain 

view, in front of police officers, who were in a house executing a search warrant. (448 

U.S. at pp. 100–101.) An officer searched the defendant and then placed him under 

formal arrest. (Id. at p. 101.) He was then indicted on drug charges. (Ibid.) Similarly, in 

Gonzalez, the Court of Appeal concluded that probable cause to arrest a defendant for 
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cases to mean that whenever an officer has probable cause to arrest a suspect for a traffic 

violation or other offense, the officer may conduct a search without ever arresting the 

suspect for the original offense, and then the officer may arrest the suspect for offenses 

related to the fruits of the search. If that were the rule, Knowles would have come out 

differently. Again, a search cannot be justified as incident to arrest when there is no 

custodial arrest for the offense for which probable cause existed at the time of the search. 

(Knowles, supra, 525 U.S. at p. 118.) This is because it is the “ ‘potential danger[]

lurking in all custodial arrests,’ ” not the existence of probable cause to arrest, that 

justifies a search incident to arrest. (People v. Diaz, supra, 51 Cal.4th at p. 90, italics 

added; Knowles, at p. 118.)

Clahr points out that Hayes “did not effect a full custodial arrest for these [traffic] 

offenses, nor did she say she would have made such an arrest.” The Attorney General 

argues that it does not matter whether Hayes subjectively intended to arrest Clahr for the 

traffic violations when she patted him down. The Attorney General misses the point. 

The patdown search here was only legal if it occurred incident to arrest. In this context, 

Clahr’s observation that Hayes did not testify that she intended to arrest Clahr for the 

traffic violations is relevant in illustrating that the prosecution failed to meets its 

evidentiary burden to show the patdown search was conducted incident to an arrest. 

(Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [when defendant shows absence of 

warrant, “the burden then rests on the prosecution to show proper justification” for the 

legality of the search and seizure]; Caskey, Cal. Search & Seizure (2016) § 3.5, p. 308 

[“once this fact [that the search was without a warrant] is established . . . , the burden of 

presenting evidence shifts to the prosecution”].) 

Finally, the Attorney General contends that Clahr failed to establish that the 

“offenses for which there existed probable cause at the time of the search were not among 

 

possession of illegal drugs existed before an officer searched the defendant, found drugs 

in his pants pocket, and arrested him. (216 Cal.App.3d at pp. 1188–1189.) 
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the offenses for which he was arrested.”8 But, as we have mentioned, it was the 

prosecution’s duty, not Clahr’s, to prove the asserted justification for the warrantless 

search. (Badillo v. Superior Court, supra, 46 Cal.2d at p. 272.) Even though it was 

undisputed that Hayes had probable cause to arrest Clahr for Vehicle Code violations, she 

never did, and it was not until after the preliminary hearing and initial motion to suppress 

that the district attorney added a Vehicle Code charge to the information. This was more 

than three months after Clahr was arrested. 

We conclude that although there was probable cause to arrest Clahr for driving 

with a suspended license and unlawfully displaying a disability placard, he was not 

placed under custodial arrest for these offenses, and the search that ensued cannot be 

justified as a search incident to arrest. Because the Attorney General does not offer any 

other justification for the search, we need not address Clahr’s other arguments. The 

motion to suppress was erroneously granted. 

DISPOSITION

The order denying Clahr’s motion to suppress evidence is vacated, and the matter 

is remanded to the trial court with instructions that Clahr be permitted to withdraw his 

guilty plea. 

 

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The Attorney General mistakenly refers to the potential charges that might have 

been filed against Clahr relating to driving with a suspended or revoked license as 

codified in Penal Code sections; they are actually found in the Vehicle Code, and were 

never charged.
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_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.