Back in 2013, the Vanguard covered the case of Yuriy Penkov who filed a motion to suppress evidence obtained from a warrantless search of his pickup truck and from a warrantless blood draw. Judge Paul Richardson denied the motion. Given that denial, he agreed to plead no contest to possessing methamphetamine and receiving stolen property in return for a stipulated prison term of two years eight months, where he was sentenced to the agreed term in local custody.
Mr. Penkov appealed, “claiming the trial court erred when it denied his motion to suppress.” The appellate court decided that, while the trial court “did not err when it denied the motion as to the evidence seized from defendant’s truck, as defendant voluntarily consented to that search,” it did err when the court “denied the motion as to evidence derived from the blood draw, as no exigent circumstances justified taking the test without a warrant.”
The case is now remanded to give the defendant the opportunity to withdraw his plea.
Yolo County Deputy Sheriff Jose Pineda found himself on patrol at 7:05 am on April 1, 2013, when he saw a pickup truck parked in the wrong direction on the shoulder of Old River Road with no rear license plate.
Deputy Pineda, while talking to Mr. Penkov, “noticed defendant was constantly moving his right hand, and there were about four fixed-blade knives within his reach. The knives were about six to eight inches in total length. One hung from the rear view mirror, and one was on the transmission shifter. Another knife was on the center console among other large items, backpacks, and bags.”
While the knives were not illegal to possess, Deputy Pineda “became concerned because he could not see defendant’s right hand and the knives were within reach. He asked defendant to step out of the truck.”
The defendant was wearing two pairs of pants, both were unbuttoned at the waist and “Deputy Pineda noticed defendant had large bulges in his pant’s front pockets, and he asked if he could search him. Defendant consented. Deputy Pineda removed from defendant’s pockets a couple of screwdrivers, a ratchet, and a large drill bit.”
At this point, Deputy Pineda “placed defendant in the backseat of his patrol car, but he did not place him in handcuffs.”
Deputy Pineda asked Mr. Penkov if he had drugs in the truck, and he responded no. “Deputy Pineda again asked if he could search the truck for the license plate and any illegal drugs. After a brief hesitation, defendant nodded his head up and down and said yes.”
Inside the truck, Deputy Pineda found the license plate but also “a pouch that contained a broken meth pipe, two Ramos fuel cards bearing the name Pegasus Pest Control, and a 16-inch double-edge knife. Deputy Pineda said it did not take long to locate the plate and these items. They ‘were just right there.’”
The deputy quickly determined that the truck had a valid registration, it was not stolen, and it was registered to an Anna and Pablo Penkov.
Deputy Eric Groh and another deputy arrived to assist with the search. “They located two bindles of methamphetamine and a nine-piece lock pick set inside the truck. The deputies searched the truck for approximately three hours.”
At this point, Deputy Pineda arrested the defendant, transporting him to the Yolo County Jail. Deputy Pineda did not recall if he asked defendant for his consent to draw blood. He did not attempt to obtain a warrant to draw defendant’s blood.
The defendant challenged the search on two grounds: “Defendant contends the trial court erred in denying his motion to suppress evidence from the search of this pickup truck because his detention was overly prolonged and he did not voluntarily consent to the search. We conclude defendant forfeited the first argument, and we find he voluntarily gave his consent.”
The court notes, “Defendant, however, did not argue to the trial court that his detention was unreasonable because it was overly prolonged.” Instead, the court argues, “By not specifically arguing to the trial court the detention was overly prolonged, defendant has forfeited that contention on appeal.”
The defendant maintains “he preserved the contention by challenging the detention’s reasonableness in general and by quoting in his trial brief People v. Torres (2010) 188 Cal.App.4th 775, to the effect that when ‘a detention becomes overly intrusive—by becoming unreasonably prolonged or involving unreasonable protective measures, for example—it evolves into a de facto arrest.’”
But the appellate court finds, “These generic references to reasonableness and the standard of reasonableness were insufficient to preserve the argument, as they did not specify defendant’s contention. Nowhere in his moving papers or his oral argument did defendant specify he was challenging the detention’s reasonableness based on its length.”
The second question is how voluntary the consent is. “He argues his consent was not voluntary under the circumstances because Deputy Pineda did not advise him of his right to withhold consent, he was in custody when he gave consent, Deputy Pineda still had his driver’s license, and Deputy Pineda used psychologically coercive techniques to pressure him to consent.” The court here agrees with the trial court.
It notes, “The court found Deputy Pineda was respectful and soft-spoken when he spoke with defendant. It found Deputy Pineda was justified moving defendant out of his truck and into the car, and in not allowing defendant to retrieve the plate from his truck for personal safety reasons. The court found nothing inherently coercive about the way in which consent was achieved.”
The defendant here maintains that “Deputy Pineda’s questions and methods were psychologically coercive and designed to overcome defendant’s free will. He specifically argues that Deputy Pineda’s requesting to search the truck three times was coercive, and that defendant would have believed resisting the request was futile.”
However, “Deputy Pineda testified he asked defendant three times because defendant did not directly respond to the first two requests. On the first two occasions, defendant responded by asking if he could search his own truck. Deputy Pineda had reasonable grounds not to allow him to do that, but at no time did Deputy Pineda say or do anything to suggest he would not honor a refusal of consent.”
The appellate court finds here, “Viewing the totality of the circumstances, we conclude substantial evidence supports the trial court’s determination that defendant voluntarily consented to Deputy Pineda searching his truck. As a result, the trial court correctly denied defendant’s motion to suppress evidence seized from his pickup truck.”
However, the court agrees that “law enforcement officers had no authority to perform a blood draw without a warrant solely because they arrested defendant for a felony.”
Here “the prosecutor argued the rule of Davis justified not suppressing the evidence from defendant’s blood test. She contended the blood draw was done pursuant to the policy of the Yolo County Sheriff’s Department and there was no law that required a warrant for a draw in these circumstances. The trial court agreed with the prosecutor, ruling the evidence was admissible under Davis.”
“The trial court erred,” the appellate court writes. “Neither defense counsel at trial nor the Attorney General here points us to any judicial precedent that would exempt a warrantless blood draw from the exclusionary rule where there is no evidence of exigent circumstances.”
The AG states she “is unaware of any California case authorizing the warrantless blood draw of a person arrested for possession of a controlled substance absent exigent circumstances.”
The appellate court, unanimous in its three-judge ruling, reverses the judgment and remands the case back to Yolo County to allow the defendant to withdraw his plea and order the court to suppress evidence obtained from the warrantless blood test.
—David M. Greenwald reporting