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Filed 1/6/15 P. v. McCullough CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTOINE JON MCCULLOUGH,

Defendant and Appellant.

C074675

(Super. Ct. No. 13F02802)

ORDER MODIFYING OPINION

AND DENYING PETITION 

FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion filed December 9, 2014, in the above cause is modified in the 

following respect:

On page 6, footnote 3 is changed to read as follows:

The officer also may have been justified in searching portions of the passenger 

compartment based on a rear passenger’s outstanding arrest warrant (see People v. 

Schmitz (2012) 55 Cal.4th 909, 927, fn. 19 (Schmitz) [vehicle search incident to arrest 

may only be justified where concerns of officer safety or evidence destruction are 

implicated]), but as the officer testified the center console was within reach of one of the 

passengers on searchable probation, we consider only that status as a justification for the 

search.
2

This modification does not change the judgment.

The petition for rehearing is denied.

 HULL , Acting P. J.

 MURRAY , J.

 HOCH , J.
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Filed 12/9/14 P. v. McCullough CA3 (unmodified version)

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTOINE JON MCCULLOUGH,

Defendant and Appellant.

C074675

(Super. Ct. No. 13F02802)

Defendant Antoine Jon McCullough appeals the judgment of the trial court 

contending its denial of his motion to suppress evidence pursuant to Penal Code 

section 1538.5 was erroneous. The Attorney General agrees the court erred in denying 

defendant’s motion. Notwithstanding both parties’ agreement, we conclude the trial 

court did not err and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with possession of a controlled substance, namely 

methamphetamine (Health & Saf. Code, § 11378--count one); unlawful transportation of 
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a controlled substance (Health & Saf. Code, § 11379, subd. (a)--count two)1; unlawful 

possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)--count three); 

unlawfully carrying of a concealed firearm (Pen. Code, § 25400, subd. (a)(1)--count 

four); and unlawful possession of methamphetamine while armed with a loaded firearm 

(Health & Saf. Code, § 11370.1, subd. (a)--count five). The firearm and 

methamphetamine that are the basis of these charges were both recovered during a search 

of a car driven by defendant following a traffic stop.

Defendant moved to suppress all evidence obtained during the warrantless search 

of the car (including the contraband and defendant’s subsequent statements), contending 

the traffic stop and ensuing search were not reasonable because the officer made a 

mistake of law when he believed the car’s windows were illegally tinted. The People 

opposed defendant’s motion arguing, (1) the officer had reasonable suspicion of a 

Vehicle Code violation to justify the traffic stop and (2) the probation status of 

defendant’s passengers authorized the search of the center console, which was within the 

passengers’ reach, where the contraband was found. 

Testimony at Suppression Hearing

At approximately 11:24 p.m. on May 2, 2013, Deputy Sheriff Carlos Cabrera 

noticed a white Buick Century with tinted rear side and rear windows that defendant was 

driving. Deputy Cabrera was unable to see through the tinted windows -- even to see the 

silhouettes of the rear passengers -- despite shining a spotlight on the car. Based on his 

understanding the tinted windows were out of compliance with the Vehicle Code, Deputy 

Cabrera performed a traffic stop. Defendant testified he could see through the rear 

 

1 Although Health and Safety Code section 11379 was amended effective January 1, 

2014, to provide that “transports” means to transport for sale, the amendment has no 

effect on this appeal. (Stats. 2013, ch. 504, § 2.) As discussed later, this count was 

dismissed in the plea agreement. 
3

windows while driving, the front windows of the car are not tinted, and he could see both

the driver and passenger side mirrors. 

There were three passengers in the car: a male passenger sat in the front passenger 

seat and two female passengers sat in the rear seat. Deputy Cabrera testified that two of 

the passengers were on searchable probation. Specifically, Deputy Cabrera testified,

“[the records check] revealed that two of the occupants were on probation and one of 

them had a warrant for her arrest” and that it was “searchable probation.” Deputy 

Cabrera also testified that “[o]ne of the rear passengers [was] on searchable probation.” 

After determining the passengers’ probation status, Deputy Cabrera requested the 

assistance of additional officers to conduct a probation search of the car.

Deputies Cabrera and Gray searched the car and found a loaded handgun, three 

bags containing pills that tested positive for methamphetamine/Ecstasy, and a scale in a 

secret compartment “hidden underneath the center console by the [emergency] brake.” 

To access the secret compartment, Deputy Gray reached from the front passenger seat 

into the center console and pulled away the false floor within the console. Deputy 

Cabrera testified the center console was within reasonable reach of the front seat 

passenger and within reach of at least one of the rear passengers on searchable probation. 

Trial Court’s Findings

The trial court found the traffic stop was not justified by a reasonable suspicion, 

and the good faith exception to the exclusionary rule did not apply because the officer 

made a mistake of law in believing the windows of the car were illegally tinted. 

However, the court relied on People v. Brendlin (2008) 45 Cal.4th 262 (Brendlin), 

weighed the factors set forth in Brown v. Illinois (1975) 422 U.S. 590 [45 L.Ed.2d 416]

(Brown), and found the information obtained subsequent to the traffic stop, i.e., the arrest 

warrant and the probation status of the passengers, supported a search of the vehicle. The 

court further found it was not a pretextual stop and there was no flagrant conduct by the 

officer who erroneously, but in good faith, believed there had been a violation of the 
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Vehicle Code. Thus, the court denied defendant’s motion to suppress the evidence 

obtained in the search of the car. 

Proceedings after Motion to Suppress was Denied

After his motion to suppress evidence was denied, defendant withdrew his plea of 

not guilty and pled no contest to count five (unlawful possession of methamphetamine 

while armed with a loaded firearm) in exchange for a stipulated sentence to serve four 

years in state prison and dismissal of all other charges. The court dismissed all remaining 

charges, sentenced defendant to serve the upper term of four years in prison for a 

violation of Health and Safety Code section 11370.1, subdivision (a), awarded 

presentence credits, and imposed various fines and fees. 

DISCUSSION

Defendant contends the trial court erred in denying his motion to suppress 

evidence because the taint of the illegal traffic stop was not attenuated by the fact two 

passengers in the car were on probation because the ensuing search exceeded the scope of 

a lawful probation search. The Attorney General agrees the court erred in denying 

defendant’s motion because there was insufficient evidence to establish the secret 

compartment, where the contraband was found, was reachable by a passenger who was

on probation. We disagree with both contentions. Based on the record, we conclude the 

taint of the illegal traffic stop was attenuated by the probation search of the car and it was 

reasonable for the deputies to search the secret compartment within the center console as 

part of the probation search. 

Standard of Review

In reviewing the trial court’s denial of a motion to suppress evidence pursuant to 

Penal Code section 1538.5, we consider the record in the light most favorable to the trial 

court’s disposition and defer to the trial court’s factual findings, whether explicit or 

implicit, if supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 

979; People v. Weaver (2001) 26 Cal.4th 876, 924.) Any conflicts in the evidence are 
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resolved in favor of the trial court’s order. (People v. Limon (1993) 17 Cal.App.4th 524, 

529.) Additionally, “ ‘ “[when] two or more inferences can reasonably be deduced from 

the facts,” either deduction will be supported by substantial evidence, and “a reviewing 

court is without power to substitute its deductions for those of the trial court.” 

[Citation.]’ [Citation.]” (In re J. (1979) 25 Cal.3d 522, 527.) We exercise our 

independent judgment to determine whether, on the facts found, the search or seizure was 

reasonable under the Fourth Amendment of the federal Constitution. (Tully, at p. 979.) 

We affirm the trial court’s ruling if it is correct on any theory of applicable law, even if 

for reasons different than those given by the trial court. (People v. Evans (2011) 

200 Cal.App.4th 735, 742; People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)

Illegality of Traffic Stop

We agree with both parties that the trial court correctly concluded Deputy Cabrera

lacked reasonable suspicion to justify the traffic stop, and the good faith exception to the 

exclusionary rule does not apply because the officer’s mistake was one of law and was 

not objectively reasonable. (People v. Lopez (1987) 197 Cal.App.3d 93, 101; accord 

People v. Ramirez (2006) 140 Cal.App.4th 849, 854; see also People v. Teresinksi (1982) 

30 Cal.3d 822, 831.) The tinted rear window and rear side windows on the car were not 

violations of the Vehicle Code because the car bore operational side mirrors. (Veh. 

Code, §§ 26708, subds. (b)(4), (b)(8), 26708.5, subd. (a).) Therefore, it was appropriate 

for the court to conclude the traffic stop was illegal.2

 

2 Although neither trial counsel asked the officer about the functionality of the side 

mirrors, the traffic stop could have been justified by the rear window tinting and the need 

to further investigate the side mirrors. If the officer could not determine whether the side 

mirrors were situated “to reflect to the driver a view of the highway through each mirror 

for a distance of at least 200 feet to the rear of the vehicle” (§ 26708, subd. (b)(8)), then 

the tinted rear window could have provided a reasonable suspicion of a Vehicle Code 

violation such that a stop is justified to investigate the functionality of the side mirrors 

and the visibility provided by those mirrors to the rear of the car. Unfortunately, this 

information is not in the record.
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Intervening Circumstances Warranted Probation Search

In determining whether the taint of an illegal traffic stop has been sufficiently 

attenuated by an intervening circumstance to render the evidence seized in the stop 

admissible, the court should consider the factors set forth in Brown, supra, 422 U.S. 590 

[45 L.Ed.2d 416]. (Brendlin, supra, 45 Cal.4th at pp. 268-269.) These factors include 

(1) the “temporal proximity of the Fourth Amendment violation to the procurement of the 

challenged evidence,” (2) “the presence of intervening circumstances,” and (3) “the 

purpose and flagrancy of the official misconduct.” (Brown, at pp. 603-604; Brendlin, at 

p. 269.) 

With respect to the first factor, the closeness of time between the stop and the 

search generally operates in favor of exclusion, but is not a dispositive factor. (Brendlin, 

supra, 45 Cal.4th at p. 270.) Indeed, where the intervening circumstance is not a 

volitional act by the defendant, the first factor is outweighed by the other two. (Ibid.) 

Here, the intervening circumstance is the discovery of the passengers’ searchable 

probation status.3 These are the prototypical non-volitional acts contemplated in 

Brendlin, and the temporal proximity of the search is outweighed by the intervening 

circumstances and relative blamelessness of the officer’s error in conducting the stop as 

described below. 

With respect to the second factor, as noted above, the intervening circumstance in 

this case is the discovery by the officer of two passengers on searchable probation. That 

a person is on probation and subject to a search condition provides ample authority to 

search the person and any area under his or her “common authority.” (See People v.

 

3 The officer also may have been justified in searching portions of the passenger 

compartment based on the rear passenger’s outstanding arrest warrant (see People v. 

Schmitz (2012) 55 Cal.4th 909, 927, fn. 19 (Schmitz) [vehicle search incident to arrest 

may only be justified where concerns of officer safety or evidence destruction are 

implicated]), but as this case turns on whether the front passenger had access to the 

contraband, we exclusively consider his probation status as a justification for the search. 
7

Durant (2012) 205 Cal.App.4th 57, 66 (Durant); People v. Smith (2002) 95 Cal.App.4th 

912, 916.) “Probationers in California typically consent in advance to warrantless 

searches as a condition of probation, in exchange for the opportunity to avoid a prison 

sentence. [Citation.] Such consent operates as a ‘ “complete waiver of that probationer’s 

Fourth Amendment rights, save only his [or her] right to object to harassment or searches 

conducted in an unreasonable manner.” ’ [Citation.]” (Durant, supra, 205 Cal.App.4th 

at p. 64.) Thus, the officer clearly acted within his authority in searching the passenger 

compartment of the car, at least to the extent the searched area was under the passengers’ 

“common authority.” 

Finally, with respect to the third factor, “a mere ‘mistake’ with respect to the 

enforcement of our traffic laws does not establish that the traffic stop was pretextual or in 

bad faith.” (Brendlin, supra, 45 Cal.4th at p. 271.) Here, while the officer believed the 

vehicle’s windows were illegally tinted, his error was a result of not knowing the rear 

windows could all be darkly tinted so long as the vehicle had functional rear and side 

view mirrors. We conclude the officer’s mistake does not mean the traffic stop was 

clearly pretextual or made in bad faith. 

Thus, on the facts before us, we conclude the probation status of the passengers in 

the car adequately attenuated the taint of the illegal traffic stop so that the evidence 

obtained in the search was not inadmissible as “fruit of the poisonous tree.” (Durant, 

supra, 205 Cal.App.4th at pp. 64-65, citing Wong Sun v. United States (1963) 371 U.S. 

471, 488 [9 L.Ed.2d 441].) 

The Search Did Not Exceed the Permissible Scope of a Probation Search

An officer who discovers a passenger in a car is on probation with a search 

condition may search the interior of the car. (Schmitz, supra, 55 Cal.4th at pp. 926-927; 

see also People v. Baker (2008) 164 Cal.App.4th 1152, 1159 (Baker) [treating search of 

passenger compartment based on passenger’s probation or parole search status equally]; 

People v. Woods (1999) 21 Cal.4th 668, 682 [officers can search areas they “reasonably 
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believe the probationer has complete or joint control over”].) However, the officer is 

restricted to “those areas of the passenger compartment where the officer reasonably 

expects that the [passenger] could have stowed personal belongings or discarded items 

when aware of police activity.” (Id. at p. 926.)

1. Whether Front Passenger was on Searchable Probation

The Attorney General focuses on the trial court’s implicit deduction that the front 

passenger was on probation, and contends there is insufficient evidence to support that 

conclusion. We disagree. 

Although there was no express testimony that the front passenger was on 

probation, it was reasonable for the trial court to deduce he was based on Deputy 

Cabrera’s testimony. Deputy Cabrera testified one of the rear passengers was on 

probation, one of the rear passengers had an outstanding arrest warrant, and two 

passengers in the car were on searchable probation. The court indicated its understanding 

that the front seat passenger was on probation when it sought to clarify that the front 

passenger could reach into the console and the secret compartment. The prosecutor 

informed the court that “Deputy Gray was on the passenger side searching. . . . It was 

Deputy Gray that reached in from the passenger side and took out those pills, that gun 

and that scale, which leads us to believe logically that a passenger sitting in a passenger 

seat based on where Deputy Gray was when he searched the console easily had 

accessibility to those items.”

Based on this record, it is reasonable to conclude, as the trial court implicitly did,

that one rear passenger was a probationer, the other rear passenger had an outstanding 

arrest warrant, and the front passenger was the second probationer.

2. Whether it was Reasonable to Search the Secret Compartment

We must determine whether it was reasonable for the deputy to search the secret 

compartment. Schmitz expressly left undecided whether a search based on a passenger’s 

status as a searchable probationer or parolee extends to “closed compartments of the car 
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like the glove box, center console, or trunk . . . .” (Schmitz, supra, 55 Cal.4th at p. 926, 

fn. 16.) However, Schmitz instructs that “[t]he reasonableness of such a search must 

necessarily take into account all the attendant circumstances, including the driver’s 

legitimate expectation of privacy in those closed compartments, the passenger’s 

proximity to them, and whether they were locked or otherwise secured.” (Ibid.) Based 

on these factors, we conclude the instant search was reasonable. 

The evidence adduced at the hearing on the motion to suppress was that the center 

console was within reasonable reaching distance of the front passenger and the rear 

passenger on searchable probation. Deputy Cabrera testified it did not take much to 

remove the floor of the center console to reveal the secret compartment with the 

contraband. He explained that “[i]t just came right off.” Based on this testimony, the 

trial court could implicitly find that both the front passenger and rear passenger on 

searchable probation could have reached into that secret compartment. (See Schmitz, 

supra, 55 Cal.4th at pp. 931-932 [finding it reasonable to search shoes and a chip bag on 

the rear seat of the car where a parolee, whose search condition authorized the search,

was seated in front passenger seat because the parolee could reach the rear seat].) 

As to the driver’s expectation of privacy, there is no evidence the driver of the car 

controlled access to the center console or its secret compartment such that it could not 

reasonably be expected a passenger would place items within the compartment. 

Additionally, the center console of a car is not “an inherently private repository for 

personal items” rendering the search unreasonable. (Compare Cardwell v. Lewis (1974) 

417 U.S. 583, 590 [41 L.Ed.2d 325, 335] [“One has a lesser expectation of privacy in a 

motor vehicle because its function is transportation and it seldom serves as one’s 

residence or as the repository of personal effects”] with Baker, supra, 164 Cal.App.4th at 

p. 1159 [“a purse has been recognized as an inherently private repository for personal 

items”].) Indeed, “like the automobile itself, property transported inside the automobile 

is subject to a reduced expectation of privacy.” (Schmitz, supra, 55 Cal.4th at p. 930.)
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Accordingly, we conclude the deputy’s search of the center console and secret

compartment as being within reaching distance of a probationer who was on searchable 

probation was reasonable. 

DISPOSITION

The judgment is affirmed.

 HOCH , J.

We concur:

 HULL , Acting P. J.

 MURRAY , J.