Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F8758
DAVIS, J.
A jury found defendant Eric William Franklin guilty of various drug offenses, and the court sustained a recidivist allegation. The court sentenced him to state prison.
On appeal, defendant contends inter alia that the trial court erred in denying his motion to suppress. We agree, which obviates the need to detail or reach his remaining arguments. We shall reverse with direction to grant the motion.
Facts
Defendant waived a preliminary hearing in this matter. He moved to suppress all observations, statements, and evidence seized without a warrant after the detention of his vehicle. He contended the two bases articulated for the traffic stop, the absence of front or rear license plates and the presence of an air freshener hanging from the rearview mirror, were invalid because he had a valid temporary permit on display that the officer observed and because the air freshener did not violate the Vehicle Code.
At the hearing, the officer testified only in passing about the latter justification, noting that it was an ordinary tree-shaped air freshener, about two inches by four inches, hanging on a string from the mirror. The prosecution did not rely on this rationale in its opposition, it did not play any part in the trial court’s ruling, and the People do not advance it on appeal. We therefore deem it abandoned, presumably on the basis that there was not any evidence that the officer reasonably could have considered it to have obstructed defendant’s view. (People v. White (2003) 107 Cal.App.4th 636, 642.)
At the hearing on the motion, the police officer testified that in the evening of November 19, 2005, he observed that defendant’s white Mazda did not have front or rear license plates as it made a left turn in front of him. He followed the Mazda, and noticed a temporary registration permit in the back window bearing the number 11. He characterized the permit as looking “very” faded, and stated that he could not read the handwritten information that he expected to appear on it unless he stopped the car. In his experience, many of these temporary stickers have a handwritten number appearing at the top that designates an earlier expiration date. His experience also has included an unspecified number of temporary permits that were not issued for the vehicle to which they had been affixed. He admitted that he did not have any independent basis for believing defendant’s particular permit either had expired or was for a car other than the Mazda. He was aware that one could lawfully operate a car without plates when purchasing it new from a dealer, or during the process of changing its license plate number, as long as the proper temporary permit was present. However, “we’ve always stopped them to check the validity of the registration because there’s no way to check them.” The police officer was not familiar with defendant from any previous encounters.
The permit from defendant’s car bore only the preprinted statement that a permit expires on the last day of the designated month.
After stopping the Mazda, the police officer approached the driver’s window. He smelled the odor of marijuana, and decided to investigate further. He returned defendant’s license and registration because he “wanted [defendant] to feel like he wasn’t detained anymore because I didn’t tell him that he was . . . .” After he obtained defendant’s admission that there were a couple of joints in the car pursuant to a medical marijuana authorization, the officer obtained permission to search the car. With the assistance of a detection dog, the officer found large amounts of marijuana in the interior and trunk of the Mazda, methamphetamine paraphernalia, and methamphetamine.
Defendant testified that he had paid his registration fees and obtained the temporary sticker in order to register the Mazda for the first time in California. It had previously been licensed in the state of Washington.
The court took the matter under submission. In its written ruling, the court rejected the officer’s attempt to justify the traffic stop based on a generalized belief about the potential for fraudulent use of temporary permits. However, the court found that the officer’s belief in the potential for an expiration date earlier than the last day of the month was either accurate, or had to be accepted in the absence of any evidence to the contrary that might have shown it to be unreasonable. Therefore, this reasonable belief that the temporary permit might be expired warranted a traffic stop because the officer could not determine this otherwise. As a result, the trial court denied the motion.
Discussion
Travelers on the highways are not subject to the unbridled discretion of police officers to stop them; rather, a traffic stop requires an articulable and reasonable suspicion that the vehicle is not registered or otherwise in violation of the law. (People v. Saunders (2006) 38 Cal.4th 1129, 1135 (Saunders).) A generalized belief in the potential for fraudulent use of a temporary permit does not present any limit on the discretion of an officer to detain a vehicle, because it could apply to every vehicle bearing a temporary permit, and is therefore not a reasonable articulated suspicion. (People v. Nabong (2004) 115 Cal.App.4th Supp. 1, 2-5 (Nabong).) In Nabong, the suspect car had both license plates, expired registration tags, and a temporary permit in its window; the detaining police officer did not have any basis for his decision to stop the car other than his refusal to accept the facial validity of temporary permits without further investigation, which the appellate division found unreasonable. (Ibid.) In contrast, the suspect truck in Saunders was missing a front plate, had a rear plate with an expired registration tag, and a temporary permit. (Saunders, supra, 38 Cal.4th at p. 1132.) Under those circumstances, Saunders concluded that a reasonable articulated basis for the traffic stop would be to investigate the potential missing plate violation, because in order to get a temporary permit for a replacement plate a person ordinarily must surrender the remaining one, therefore indicating that the temporary permit on the vehicle was limited to only the expired registration tags. (Id. at pp. 1136-1137.) Saunders expressly refrained from deciding whether it was reasonable to stop a vehicle with a temporary permit and expired registration tags in the absence of a missing plate. (Id. at p. 1135.)
The Supreme Court has been collecting a variety of fact patterns on the subject of temporary permits. (People v. Hernandez (2006) 146 Cal.App.4th 773, review granted Mar. 17, 2007, S150038 [visible temporary permit; no plates; traffic stop invalid]; In re Raymond C. (2007) 145 Cal.App.4th 1320, review granted Mar. 21, 2007, S149728 [no rear plate, temporary permit not in rear window; traffic stop valid to check for permit]; People v. Dean (2008) 158 Cal.App.4th 377, review granted Apr. 9, 2008, S160418 [expired registration tags, visible permit that officer would have disregarded even if he had noticed it; traffic stop invalid].) Although there are suggestions in Saunders that the court might be focusing on whether there were means available other than a traffic stop to determine whether the temporary permit was valid, we do not believe that is where the court will draw the line after plenary consideration of the issue. The fundamental distinction is between impermissibly unbridled discretion allowing for random stops for the assumed invalidity of a visible facially valid temporary permit (whether framed in terms of fraud or expiration), and a valid indication that the visible permit is not facially valid, such as when one plate is missing but not the other. If an officer had the means of making this determination (such as where the license plates are both present) but did not do so, this would certainly be an additional reason for ruling that a stop without resorting to these means is unreasonable. But that does not suggest that we should uphold a stop where alternative means are unavailable without stopping the vehicle (as when both plates are missing), because it leaves unfettered the discretion to stop every car at random.
Saunders pointed out testimony that the temporary permit’s existence was not available in any database at the time, and distinguished Nabong because the officer admitted that he could have run a registration check before stopping the car but did not explain his failure to do so. (38 Cal.4th at p. 1137, fn. 1; see Nabong, supra, 115 Cal.App.4th at p. Supp. 4.)
The officer in the present case did not have any particular reason to suspect the invalidity of defendant’s temporary permit. Although the trial court noted that the permit was “faded,” as the officer had testified, it did not accord in its ruling any significance to its condition or otherwise describe the extent of the fading. On this record, the extent of the fading is unknown. What we do know is that defendant had validly acquired the permit. Moreover, the officer admitted to a practice of the Redding Police Department to stop any car with a temporary permit that catches the attention of an officer. As for his supposed experience with permits bearing a handwritten expiration date earlier than the end of the month (which is questionable, but unrefuted in the present action), that once again would allow officers to stop every car on the ground that it possibly might be one of the unspecified number of cars issued permits under this alleged idiosyncratic practice, except on the first couple of days of the month. As a result, we cannot accept this as a reasonable articulated basis for the traffic stop. The trial court therefore erred in denying defendant’s motion to suppress all evidence that resulted from the detention of his car, and we must reverse the judgment based on this illegally acquired evidence.
See, e.g., Saunders, supra, 38 Cal.4th at p. 1133 (testimony in that case of DMV employee that a temporary permit expires at the end of the month, no indication of earlier expiration date). We note this purported practice is also contrary to the terms of the permit itself.
Disposition
The judgment is reversed and the matter remanded with the direction to issue a new order granting defendant’s motion to suppress.
We concur: SIMS, Acting P. J., BUTZ, J.