Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05SCR02430
RAYE , J.
After his motion to suppress was denied, defendant Genaro Montanez pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378) and possession of marijuana for the purpose of sale (§ 11359). Sentenced to three years eight months in prison, he appeals, contending the trial court erred in denying the suppression motion. We affirm.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2005, at 9:18 a.m., California Highway Patrol Officer Joy Dicharry received a call from the dispatcher alerting her to a “possible DUI driver . . . heading towards the City of Willows on I-5.” The dispatcher had received a tip from a citizen relating that “the vehicle was unable to maintain their [sic] lane . . . .” The driver was described as a “[m]ale Hispanic, heavyset, sweating profusely.”
The dispatcher further conveyed the citizen’s description of the vehicle as a black and silver Mazda with a yellow sticker on the rear window, as well as the license plate number. Responding to the call, Officer Dicharry proceeded northbound on Interstate 5 to look for the vehicle, and turned around approximately 12 minutes later to check the southbound rest area.
At the southbound rest area, Officer Dicharry observed a parked car matching the description provided by the tipster. Concerned for the driver’s well-being, Dicharry approached the vehicle. As she reached the open driver’s side window, she saw the driver, later identified as defendant, “passed out, laid back in his seat.” She attempted to wake defendant verbally, but he was “unresponsive.”
While attempting to wake defendant, Officer Dicharry noticed a wine cooler bottle on the “right front floorboard” of the car that might or might not have been empty. After several seconds of trying unsuccessfully to awaken defendant verbally, Dicharry had to “actually tap on the roof of his vehicle to wake him up.” When defendant finally awoke, Dicharry testified that “[h]e seemed very dazed and kind of out of it.”
At that point, Officer Dicharry asked defendant to step out of the car and show his driver’s license. She also asked defendant if he was “okay,” and he told her he was “very tired.” Dicharry advised defendant that she had stopped to find out if he was ill or if he was driving under the influence of drugs or alcohol. She then asked defendant if he was sick. Defendant’s response was that he “had a couple of drinks yesterday but had not taken any drugs.” Dicharry then asked when he slept last, and defendant indicated he slept a few hours the previous night.
During their conversation, Officer Dicharry noticed that defendant’s responses to her questions were “very delayed.” She also noticed that defendant’s pupils were dilated and he “seemed unsteady on his feet; kind of disoriented.” About that time, Officer Joseph Stokes arrived on the scene. Dicharry relayed her observations to Stokes and transferred the investigation to him.
Officer Stokes testified that when he began talking to defendant, defendant was “nervous and not quite all there.” Defendant told Stokes he had not been drinking, but Stokes conducted field sobriety tests anyway. Defendant “did poorly” on those tests, although a preliminary alcohol screen showed that his blood alcohol level was zero percent. Stokes was thus concerned that defendant might have been “under the influence of a controlled substance.”
Having received information from Officer Dicharry that there was an open wine cooler bottle in the car, Officer Stokes went to retrieve the bottle. As he was reaching into the car, Stokes detected a smell that, based on his education, training, and experience, he knew to be marijuana.
Officer Stokes proceeded to open the armrest between the two front seats, where he found three “prescription-type bottles” containing marijuana. Defendant immediately said he had a Proposition 215 (Compassionate Use Act of 1996, adding § 11362.5) prescription for the marijuana but did not produce documentation to support his claim. Then he said “it was for his uncle” and ultimately admitted he did not have a prescription for the marijuana.
After finding the marijuana in the armrest, Officer Stokes searched defendant. That search revealed methamphetamine and $2,370 in cash in defendant’s pocket. Stokes resumed his search of the car, where he found a digital scale with methamphetamine residue on it. In the trunk of the car he also found a red duffel bag containing $910 in cash and several “small Ziploc type bags.” Defendant was subsequently arrested. The car was impounded and searched by a police dog trained to detect narcotics. The dog alerted to a hidden compartment in front of the gearshift, which contained an additional $8,900 in cash.
Before trial, defendant moved to suppress the evidence found in his car and on his person. Defendant argued the initial contact was unlawful and the officers had no cause to search the passenger compartment of the car, defendant, or the trunk. The trial court denied defendant’s motion.
DISCUSSION
On appeal, defendant contends he was unlawfully seized from the moment Office Dicharry approached his parked car, and that the officers’ subsequent, warrantless search of his car and his person were done without reasonable suspicion or probable cause in violation of the Fourth Amendment. We disagree.
A. Seizure
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
Contacts between police and citizens can range from consensual encounters through detentions to arrests. Consensual encounters are “those police-individual interactions which result in no restraint of an individual’s liberty whatsoever -- i.e., no ‘seizure,’ however minimal -- and which may properly be initiated by police officers even if they lack any ‘objective justification.’” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, discussing Florida v. Royer (1983) 460 U.S. 491 [75 L.Ed.2d 229].)
1. Initial Contact
It is settled that an officer may approach a parked car and speak to the occupant in order to ascertain whether the occupant needs medical assistance without converting the encounter to a detention, provided the officer has not blocked the occupant’s exit. (See People v. Perez (1989) 211 Cal.App.3d 1492, 1495-1496; see also People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [holding that a detention occurs when the officer uses his patrol car to prevent the defendant’s vehicle from leaving the scene].)
It is undisputed that defendant was in a parked car when he was approached by Officer Dicharry. When Dicharry approached defendant, she did so in order to determine whether he was ill or intoxicated. There is no evidence in the record that Dicharry positioned herself or her patrol car to prevent defendant from leaving the scene.
We conclude the initial contact was not a detention.
2. The Request to Get Out of the Car
Defendant further argues he was unlawfully detained when Officer Dicharry asked him to step out of the car. The Attorney General insists that Dicharry, concerned with defendant’s welfare and hoping to confirm his well-being, could request defendant to get out of the car without transforming the consensual encounter into a detention. However, the cases cited by the Attorney General are not completely on point. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 [54 L.Ed.2d 331]; People v. Harris (1986) 184 Cal.App.3d 1319, 1321.) Nonetheless, even assuming Dicharry’s request effected defendant’s detention, the detention was justified by the officer’s reasonable suspicion.
“[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 (Wells).)
An anonymous tip “of drunken or erratic driving may indeed provide reasonable suspicion justifying a traffic stop if the following factors are present: First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller. [Citation.] Second, the tip should indicate the caller had actually witnessed a contemporaneous traffic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity. [Citation.] And third, at least the ‘innocent details’ of the tip must be corroborated by the officers. [Citation.]” (Wells, supra, 38 Cal.4th at p. 1086, citing U.S. v. Wheat (8th Cir. 2001) 278 F.3d 722, 731, 732, 735.)
Here, the description of the car was precise, identifying the vehicle by make, color, the sticker in the window, and the license plate number. The tipster did not speculate that there might be criminal activity but reported witnessing erratic driving, which required an immediate stop of the driver. (See Wells, supra, 38 Cal.4th at p. 1088 [report of a motorist driving erratically demands an immediate stop of the motorist].)
Furthermore, the innocent details provided by the tipster “were fully corroborated within minutes of the report.” (Wells, supra, 38 Cal.4th at p. 1088.) Approximately 12 minutes after receiving the report, Officer Dicharry located defendant, who was passed out in a car matching the tipster’s description, at a rest stop in the vicinity of the reported erratic driving. Contrary to defendant’s assertion, the law does not require Dicharry to actually have witnessed defendant driving erratically in order to justify detaining him for suspicion of drunk driving. (Ibid.)
Viewing the totality of the circumstances in this case, we conclude Officer Dicharry’s request that defendant step out of the car, if it was a detention, “was justified by reasonable suspicion of criminal activity.” (Wells, supra, 38 Cal.4th at p. 1088.)
B. Search
Defendant next argues that Officer Stokes’s reach into the car to take the open wine cooler bottle was an unlawful search. His argument is, in essence, that the bottle was empty and therefore was not an open container in violation of Vehicle Code section 23222.
Items in plain view “may be seized when their incriminating character is immediately apparent. [Citation.] The incriminating character of evidence in plain view is not immediately apparent if ‘some further search of the object’ is required. [Citation.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1118-1119 (Lenart).) In Lenart, the Supreme Court concluded the officers properly seized a crinkled-up coin wrapper and fragments of a burnt check found in a grocery bag located in plain view in the defendant’s apartment. (Ibid.) Those fragments were later identified as a check that had been in the cash box stolen from a bar, which was the subject of the officers’ investigation. (Id. at pp. 1115-1116.) The court concluded the incriminating character of these items was readily apparent to the officers given their knowledge that the bar was missing currency, coin wrappers, accounts, and items related to the transaction of business at the bar that would be located in a cash box. (Id. at p. 1119.)
“In the context of the plain view doctrine, probable cause is a flexible, commonsense standard, which requires only that the facts available to the officer would warrant a person of reasonable caution in believing that the item may be contraband or stolen property or evidence of a crime. No showing is required that such a belief is correct or more likely true than false. ‘A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. [Citation.]’” (People v. Stokes (1990) 224 Cal.App.3d 715, 719.)
It is a violation of Vehicle Code section 23222 to have “any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed” while driving a motor vehicle on a public highway. The open wine cooler bottle on the floor of defendant’s car, along with the report of defendant’s erratic driving and the condition in which he was found, would lead any reasonable person to believe the bottle was evidence that defendant was violating section 23222. Whether the bottle was empty is irrelevant. Officer Stokes had the right to reach into the car and take that bottle as potentially incriminating evidence that defendant violated section 23222.
It was then, as he reached into the car to take the bottle, that Officer Stokes detected a smell that, based on his education, training, and experience, he knew to be the smell of marijuana. At that moment, he had probable cause to believe defendant possessed marijuana in violation of any number of provisions of the Health and Safety Code, allowing him to search defendant and every part of the car and its contents that might conceal marijuana without obtaining a warrant. (See U.S. v. Ross (1982) 456 U.S. 798, 824-825 [72 L.Ed.2d 572]; see also People v. Strasburg (2007)148 Cal.App.4th 1052, 1059 (Strasburg).)
C. Proposition 215
Finally, defendant argues for the first time on appeal that when he told Officer Stokes he had a Proposition 215 prescription for the marijuana found in the armrest, Stokes should have stopped the search. When a criminal defendant moves to suppress evidence resulting from a warrantless search, and the prosecution offers some justification for that search, the defendant must specify the inadequacy of the prosecution’s justification in the trial court or forfeit that issue on appeal. (People v. Williams (1999) 20 Cal.4th 119, 130-131, 136.)
Here, the prosecution argued that after finding the marijuana in the armrest, Officer Stokes had probable cause to search the rest of the car and defendant. On appeal, defendant seeks to challenge the subsequent search of his person and the car by arguing that Stokes should have released defendant when defendant claimed to have a Proposition 215 prescription for the marijuana in the armrest. Defendant did not raise this argument in his motion to suppress, in his moving papers or at the hearing. Defendant has forfeited this argument.
In any event, the argument fails. “Law enforcement officers may arrest a qualified patient for marijuana offenses where they have probable cause, based on all of the surrounding facts including qualified patient status, when they have reason to believe, for instance, that the arrestee does not possess marijuana for his personal medical purposes.” (Strasburg, supra, 148 Cal.App.4th at p. 1058, citing People v. Mower (2002) 28 Cal.4th 457, 468-469.) Indeed, even the presentation of a physician’s prescription or identification card under Health and Safety Code, division 10, chapter 6, article 2.5 “does not provide an automatic protective aegis against reasonable searches.” (Strasburg, supra, 28 Cal.App.4th at p. 1058.)
Here, defendant did not produce a prescription for the marijuana or an identification card, and he waffled on whether he even had a prescription. Those facts, along with the corroborated tip of erratic driving; defendant’s being passed out in the driver’s seat; and defendant’s dilated pupils, delayed reactions, and general disorientation support a finding that the subsequent, continued search of defendant and the car were reasonable.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., MORRISON , J.