Opinion
D070713
06-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN SANCHEZ, Defendant and Appellant.
Henry C. Coker and Randy Mize, Public Defenders, Abram Genser and Robert L. Ford, Deputy Public Defenders, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Warren J. Williams and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE353148) APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Daniel B. Goldstein and Lantz Lewis, Judges. Affirmed. Henry C. Coker and Randy Mize, Public Defenders, Abram Genser and Robert L. Ford, Deputy Public Defenders, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Warren J. Williams and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
After a traffic stop, police found 2.8 pounds of methamphetamine hidden in a fake fire extinguisher in a car driven by Juan Sanchez. After the court denied his motion to suppress evidence, Sanchez pleaded guilty to (1) possession of more than one kilogram of methamphetamine for sale (Health & Saf. Code, §§ 11378 & 11370.4, subd. (b)(1); count 1); (2) transportation of more than one kilogram of methamphetamine (§§ 11379, subd. (a) & 11370.4, subd. (b)(1); count 2); and (3) failure to appear while on bail (Pen. Code, § 1320.5; count 3).
All undesignated statutory references are to the Health and Safety Code.
Sanchez appeals, primarily contending that under Rodriguez v. United States (2015) ___ U.S. ___ (Rodriguez) his detention was unduly prolonged to allow time for the arrival of a drug sniffing dog and, therefore, the search violated his Fourth Amendment rights. Sanchez also contends the court "misapplied" the privilege for confidential official information under Evidence Code section 1040, and thereby "subverted" the warrant requirements of the Fourth Amendment. We disagree with Sanchez's contentions and affirm.
FACTUAL BACKGROUND
In August 2015 San Diego County Sheriff's Deputy Jacob Booher was assigned to the border crime suppression team. That unit targets drugs and other crimes occurring with a nexus to the border between the United States and Mexico. While on patrol in a marked sheriff's car, Deputy Booher saw a car driven by Sanchez fail to stop at the limit line of a busy intersection.
Deputy Booher pulled Sanchez's car over for the traffic violation, and as he exited his patrol car to talk to Sanchez he activated a recording device attached to his uniform. Deputy Booher asked Sanchez for his driver's license, registration, and proof of insurance. Sanchez complied; however, the car was not registered in Sanchez's name. Sanchez told Deputy Booher he was unable to register the car because it did not pass a smog test. Sanchez was nervous; his voice was "shaky." Sanchez avoided eye contact with Deputy Booher and was "continually looking forward." At one point in the audio recording, Deputy Booher says, "Can you look at me when I'm talking to you, thank you."
Deputy Booher told Sanchez he pulled him over because Sanchez stopped past "that big white line," which was there so cars do not go "too far out in traffic," which is unsafe. Deputy Booher asked Sanchez where he lived and worked, as well as where he was coming from and going to. The deputy asked Sanchez whether he had any unpaid tickets. Deputy Booher asked Sanchez more about the car's failure to pass a smog test. Sanchez said he needed a part to fix the car. Deputy Booher told Sanchez he was going back to his patrol car to check Sanchez's license. He asked Sanchez whether there was anything illegal in the car, and specifically whether there were any guns, dangerous knives, marijuana, heroin, cocaine, or methamphetamine. Sanchez denied having each.
By this time, Deputy Christopher Manookian arrived at the traffic stop to assist Deputy Booher. Deputy Manookian remained at Sanchez's car while Deputy Booher returned to his patrol car to check Sanchez's license and registration. This first contact with Sanchez lasted five minutes and 24 seconds.
Deputy Booher checked Sanchez's license and registration through law enforcement computer systems to determine if the license was valid and to see if there were any warrants or other reason why the registration was invalid. Because he used the computer in his patrol car rather than going through the sheriff's dispatcher, Deputy Booher was able to complete the records check in about three minutes.
After determining Sanchez's license and registration were valid, Deputy Booher planned to write a traffic citation. However, before Deputy Booher got his citation book, Deputy Manookian alerted him to something in Sanchez's car. Deputy Booher joined Deputy Manookian at Sanchez's car, where he saw five air fresheners hanging from the steering column, a photograph of which is below.
Image materials not available for display.
Deputy Booher has eight years of law enforcement experience. He is trained in narcotics and drug offenses and has been involved in more than 400 "contacts of subjects" who were either under the influence, in possession of a controlled substance, or possessing a controlled substance for sale. Deputy Booher testified "[i]t's very common that people that smuggle drugs use multiple air fresheners to conceal the odor of narcotics—whether it be to conceal order [sic] to a human or to a police trained K-9."
After seeing the air fresheners, Deputy Booher squatted down on the passenger side to speak to Sanchez, who was still seated in his car. Deputy Booher noticed pictures of El Chapo Guzman and three other members of the Sinaloa drug cartel attached to the car's headliner, as shown in the photograph below.
Image materials not available for display.
Deputy Booher testified the Sinaloa drug cartel's "primary activity is manufacture and smuggling and distribution of narcotics a lot to the United States [and] a secondary kind of fact of their business, if you would call it that, is torture and killings in relation to the drug market."
Deputy Booher also saw a sticker on the center console in Sanchez's car stating, "Seeking fortune, build your fences, we dig in tunnels." Based on his training and experience, Deputy Booher testified this was "[j]ust more of a potential that [] Sanchez was involved in drug smuggling . . . because I know tunnels are dug from Mexico to the U.S. to facilitate transfer of narcotics and alien smuggling."
Deputy Booher spent approximately one minute speaking with Deputy Manookian and observing the air fresheners, drug cartel photographs, and sticker about digging tunnels. At approximately nine minutes and 24 seconds into the car stop, Deputy Booher again activated his voice recorder. He asked Sanchez whether he had anything to be nervous about, because he "seem[ed] pretty nervous." He asked Sanchez about the cartel pictures and asked him to exit the car. Deputy Booher asked Sanchez for permission to search his pockets. Sanchez complied. In response to Deputy Booher's questions, Sanchez stated he owned the car and everything inside it was his.
The initial contact was five minutes and 24 seconds, plus three minutes to run the license and registration, plus one minute to look inside Sanchez's car to see the air fresheners and drug mobster photographs.
Deputy Booher then asked Sanchez for permission to search the car. Sanchez initially replied, "Yeah, why not." However, before Deputy Booher started the search, Sanchez asked him whether police can legally search anyone's car and said he had "rights." Deputy Booher interpreted these comments as withdrawing consent to search, so he did not search Sanchez's car at that time.
At this point—approximately four minutes into this second contact—Alex Villagran, a United States Border Patrol agent, together with his drug sniffing dog, K-9 Axel, arrived. Agent Villagran testified he learned of the traffic stop by overhearing it on law enforcement radio. Agent Villagran is known by local law enforcement "as a K-9 handler that helps out multiple units within our County, specifically, for drug detection." K-9 Axel is trained to detect the odors of marijuana, methamphetamine, heroin, and cocaine.
Agent Villagran asked Deputy Booher if he could assist. Deputy Booher replied there were "indicators" of drugs and asked Agent Villagran to "run the dog around" the car. Deputy Booher testified these "indicators" were Sanchez's "nervousness, air fresheners hanging from the steering column, the pictures of Chaco Guzman and other lieutenants from the Sinaloa Cartel. There was a sign that said he's seeking—or the sign that read 'seeking fortune, build your fences, we dig in tunnels.'"
While K-9 Axel was sniffing the car's exterior, Deputy Booher told Sanchez that he was going to start writing the traffic ticket for the limit line violation. The duration of the traffic stop, from inception to this point, was approximately 15 minutes and 36 seconds.
5:24 (from inception to running the license and registration), plus 3:00 (checking license and registration, plus 1:00 (looking inside the car), plus 6:00 (second contact) = 15:36.
Deputy Booher returned to his patrol car to begin writing the traffic ticket. As he was writing the citation, Agent Villagran told him K-9 Axel had a positive alert to Sanchez's car. Deputy Booher handed the ticket book to a fellow deputy to complete, and then, based on the positive alert, searched Sanchez's car. Deputy Booher found a fake fire extinguisher in Sanchez's car containing 2.8 pounds of methamphetamine.
PROCEDURAL HISTORY
The People filed an information charging Sanchez with possession of methamphetamine for sale, transportation of methamphetamine, and failure to appear while on bail. The information also alleged that the methamphetamine exceeded one kilogram within the meaning of section 11370.4, subdivision (b)(1).
Sanchez filed a motion to suppress evidence under Penal Code section 1538.5. The People filed opposition, and a hearing was conducted on the motion simultaneously with the preliminary hearing. The magistrate denied the motion to suppress and bound Sanchez over for trial.
Subsequently, in the superior court, Sanchez renewed his motion to suppress and filed a motion to dismiss the information. After a hearing with no additional evidence, the court denied both motions.
Sanchez pleaded guilty to all the charges. The court sentenced him to four years in county jail, with execution of the final two years suspended and deemed a period of mandatory supervision.
DISCUSSION
I. THE COURT PROPERLY DENIED THE MOTION TO SUPPRESS EVIDENCE
A. Sanchez's Contentions
Sanchez does not challenge the legality of the initial traffic stop. He also concedes that the first "10 to 12 minutes of the stop" were lawful because Deputy Booher was checking his license and registration and making other inquiries connected to the traffic mission of the stop.
Thus, this case—which involves a total time of about 16 minutes from inception of the car stop to the dog sniff—boils down to a dispute over less than four minutes.
Sanchez contends police unreasonably prolonged his detention to allow time for the drug sniffing dog to arrive. He asserts that if Deputy Booher "had completed the [traffic] citation with alacrity, the contact would have been over before the drug sniffing dog arrived." Citing Rodriguez, supra, 135 S.Ct. 1609, Sanchez further contends police lacked reasonable suspicion of criminal activity to justify prolonging the traffic stop until the drug sniffing dog's arrival. An overarching theme in Sanchez's motion to suppress and appellate briefs is the traffic stop was a well-coordinated ruse between the sheriff's department and the border patrol to find a pretext to stop Sanchez for a traffic violation and then prolong the detention long enough for the drug sniffing dog to arrive.
B. The Standard of Review
"Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, 'the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.' [Citation.] 'We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.'" (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)
C. Applicable Law
In Rodriguez, supra, 135 S.Ct. 1609, the United States Supreme Court held that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation." (Id. at p. 1612.) "Authority for the seizure thus ends when [the] tasks tied to the traffic infraction are—or reasonably should have been completed" (id. at p. 1614)—unless "reasonable suspicion of criminal activity justified detaining [the defendant] beyond completion of the traffic infraction investigation." (Id. at pp. 1616-1617.)
Thus, police may not extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. (Rodriguez, supra, 135 S.Ct. at p. 1615.) However, where an officer does have reasonable suspicion that criminal activity is afoot, nothing in Rodriguez limits his or her ability to reasonably prolong the stop to investigate that activity. (Ibid.)
Reasonable suspicion requires that "the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) The reasonable suspicion standard "is not a particularly demanding one, but is, instead, 'considerably less than proof of wrongdoing by a preponderance of the evidence.'" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146 (Letner).)
D. The Detention Was Not Unduly Prolonged
Sanchez contends his stop was "unlawfully extended" because Deputy Booher "failed to begin filling in the citation while performing his records check, and then returned to the car to observe the air fresheners, ask Mr. Sanchez to leave the car, perform a pat down, and request a search." Sanchez asserts there was no evidence justifying "the pat down" search and the deputy's "renewed questioning covered the same grounds of the initial questioning and unreasonably extended the stop" as a ruse to keep Sanchez there until K-9 Axel arrived.
The record does not support Sanchez's assertions. The audio recording shows Deputy Booher's initial contact with Sanchez lasted five minutes and 24 seconds. During that time, the deputy asked for and obtained Sanchez's driver's license, registration, and insurance information. Deputy Booher also asked about Sanchez's travel plans and inquired why the car was registered in someone else's name. All this was properly within the mission of the traffic stop. (People v. Valencia (1993) 20 Cal.App.4th 906, 918 [having properly stopped a vehicle, an officer may ask for and examine the driver's license and car's registration, and may remove the driver from the car].) Asking Sanchez about his point of departure and destination took 34 seconds, which did not unreasonably prolong the detention. (United States v. Moore (10th Cir. 2015) 795 F.3d 1224, 1228 (Moore) [as part of routine traffic stop, officer may ask about the driver's travel plans so long as they do not prolong the stop].)
Deputy Booher testified that because there was a good Internet connection, he used the computer in his patrol car to check Sanchez's driver's license and registration. This took less than three minutes. This too was proper and within the scope of the traffic stop. (People v. Brown (1998) 62 Cal.App.4th 493, 498 [three to four minutes to run warrant check proper].)
Sanchez contends the car stop was unduly prolonged because the deputy should have been writing the citation while he was simultaneously checking the license and registration. However, Sanchez cites nothing in the record supporting such a finding. Rather, to complete a traffic citation, Deputy Booher was required to write the date, Sanchez's name, address, date of birth, driver's license number, height, weight, eye color, hair color, whether he had insurance, whether the driver's license was a commercial license, the vehicle code section violated, an indication of whether it was a misdemeanor or an infraction, the safe speed, weather conditions, street conditions, the officer's name, badge number, and the court where the citation was to be processed. Nothing in the record indicates Deputy Booher could type Sanchez's driver's license and registration information into his computer, read the results, and write a citation in the same three minutes. Deputy Booher testified it takes about eight minutes to write a traffic citation.
At this point, Deputy Manookian alerted Deputy Booher to the five air fresheners in Sanchez's car. Sanchez contends Deputy Booher's renewed questioning after he saw these things "covered the same grounds of the initial questioning and unreasonably extended the stop." Sanchez argues this delay was deliberate, to buy time until the drug sniffing dog arrived.
However, the audio recording refutes Sanchez's assertions. When this contact starts, Deputy Booher had already seen the five air fresheners in Sanchez's car, the photographs of drug mobsters pasted to the car's headliner, and noticed Sanchez was increasingly nervous. He asked Sanchez, "Do you have anything that, like, you'd be nervous about right now, because you seem pretty nervous." Deputy Booher asked Sanchez about the drug cartel photographs in his car. He asked Sanchez to get out of the car and to keep his hands out of his pockets to ensure he had no weapons. Deputy Booher told Sanchez that because he had seen "a couple of knives in the car" he wanted to check him for weapons. Sanchez consented to a search of his pockets. Deputy Booher asked Sanchez if he had any large amounts of money in his pockets or in his car. Sanchez said no. Then, he asked Sanchez if he owned the car and all its contents. After Sanchez said yes, Deputy Booher asked Sanchez for permission to search the car. Although Sanchez initially responded, "Yeah, why not," he immediately asked whether he could refuse consent to search. This led to a 64-second discussion between Sanchez and Deputy Booher about Sanchez's right to refuse consent to search. At this point, about four minutes into this second contact, Agent Villagran and his dog arrived. Thus, contrary to Sanchez's assertions, during this second contact, Deputy Booher did not redundantly cover the same grounds as in the first contact, nor does the record support Sanchez's assertion he was stalling for time to allow the dog to arrive.
The presence of knives in the car refutes Sanchez's assertion that no evidence justified a pat down search for weapons.
In his reply brief, Sanchez relies on United States v. Evans (9th Cir. 2015) 786 F.3d 779 to support his assertion the detention was unduly prolonged. However, Evans is materially distinguishable. There, the officer prolonged the traffic stop by conducting an ex-felon registration check that was unrelated to the traffic violation. (Id. at p. 786.) Unlike the driver's license and registration computer check Deputy Booher conducted here, the ex-felon registration check in Evans was wholly unrelated to the traffic stop mission. (Ibid.) Moreover, in Evans, almost half of the duration of the pre-dog sniff detention was attributed to this ex-felon check. (Ibid.) In contrast here, Deputy Booher's computer check was related to the traffic stop, and it only took three minutes.
E. To the Extent the Detention Exceeded the Time to Write a Traffic Citation, It Was Justified by Reasonable Suspicion that Sanchez Committed a Crime
Deputy Booher admits that when he saw the five air fresheners and drug mobster photographs in Sanchez's car, he was not investigating a traffic violation. Sanchez contends Deputy Booher did not have a reasonable suspicion of criminal activity and therefore prolonging the detention to conduct this and the subsequent investigation for drugs was unlawful.
A law enforcement officer may continue to hold an individual stopped for a traffic violation for investigative purposes when the officer has a reasonable suspicion of criminal activity. (Navarette v. California (2014) ___ U.S. ___, ___ [134 S.Ct. 1683, 1687].) Although a "mere 'hunch'" does not create reasonable suspicion, the level of suspicion the standard requires is "'obviously less'" than is necessary for probable cause. (Ibid.) Reasonable suspicion requires that "the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (Souza, supra, 9 Cal.4th at p. 231.) The officer may "'draw on [his or her] own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person."'" (People v. Hernandez (2008) 45 Cal.4th 295, 299.)
Here, Deputy Booher was aware of specific, articulable facts sufficient to support a reasonable suspicion that Sanchez was engaged in further criminal activity beyond the limit line violation for which he was initially stopped. First, Sanchez was increasingly nervous throughout the encounter. (See In re H.M. (2008) 167 Cal.App.4th 136, 144 ["Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."].) Although nervousness is a common and natural response to police confrontation, Sanchez's nervousness was both excessive and atypical because it seemed to increase during the stop. In the initial contact, Sanchez avoided eye contact with the deputy; however, in the second contact, after the deputy saw the air fresheners and drug cartel photographs, Sanchez was noticeably more nervous, causing Deputy Booher to ask him, "Do you have anything that, like, you'd be nervous about right now, because you seem pretty nervous." (See Moore, supra, 795 F.3d at p. 1230.)
Second, based on his training and experience, Deputy Booher knew "[i]t's very common that people that smuggle drugs use multiple air fresheners to conceal the odor of narcotics." (United States v. Pena-Gonzalez (5th Cir. 2015) 618 Fed.Appx. 195, 199 [reasonable suspicion based in part on "the array of air fresheners"]; United States v. Foreman (4th Cir. 2004) 369 F.3d 776, 785 [several air fresheners added to the reasonable suspicion "because air fresheners are often used to mask the smell of narcotics"].)
Third, Sanchez promoted his connection with drug traffickers by gluing photographs to the interior roof of his car of El Chapo Guzman and three others associated with the Sinaloa Cartel. Additionally, Sanchez had a sign in his car stating, "Seeking fortune, build your fences, we dig in tunnels." Based on his training and experience, Deputy Booher testified these things indicated "a potential that Mr. Sanchez was involved in drug smuggling."
Under these circumstances, Deputy Booher was justified in extending the traffic stop by approximately five minutes to ask Sanchez questions about these observations until the drug sniffing dog arrived. (See United States v. Bloomfield (8th Cir. 1994) 40 F.3d 910, 917 [a one-hour detention waiting for canine was lawful when officer had reasonable suspicion of drug-related activity]; Moore, supra, 795 F.3d at p. 1231 [reasonable suspicion based on nervousness and other factors justified detention until drug sniffing dog arrived].)
Sanchez contends there is insufficient evidence justifying his detention because there are innocent explanations for each of the indications of drug trafficking in his car. For example, he states there was no testimony of any "excessive odor" from the five air fresheners. Without citing to the record, Sanchez asserts that Deputy Booher "did not notice any overwhelming odor coming from the interior of the car", and in his reply brief, Sanchez goes a step further and asserts (again, without any citation to the record), that the air fresheners were "odorless."
These assertions are unsupported by the record. Sanchez does not cite, and our own review of the record has not found, any testimony by Deputy Booher or anyone else about whether the air fresheners were odorless. In the absence of evidence to the contrary, the more reasonable inference is five air fresheners were there for a reason: to attempt to mask odors from illegal drugs.
This is not Sanchez's only liberty taken with the record. For example, he asserts the superior court "agreed the magistrate's rulings were draconian . . . ." However, the superior court actually stated the magistrate's rulings "might appear" draconian only if viewed "in isolation and not in terms of the context of the case."
Sanchez also asserts that Deputy Booher conceded the drug mobster photographs, sticker, and air fresheners did not give him probable cause to search the car. This argument, however, is somewhat misleading. Although Deputy Booher conceded these observations did not amount to probable cause—the relevant issue here is not probable cause, but reasonable suspicion—a legal standard significantly less demanding than that of probable cause. (Souza, supra, 9 Cal.4th at pp. 230-231.) Deputy Booher testified these observations created a reasonable suspicion that Sanchez was involved in criminal activity.
In any event, even if there were an innocent explanation for Sanchez's nervousness, the five air fresheners, the drug cartel photographs, and the sign promoting digging tunnels under the border, the totality-of-the-circumstances standard precludes this type of individual "'divide-and-conquer analysis'" in which factors susceptible to an innocent explanation are given no weight. (Letner, supra, 50 Cal.4th at p. 148.)
Indeed, where a reasonable suspicion of criminal activity exists, the public rightfully expects law enforcement to investigate such circumstances. (People v. Brown (2015) 61 Cal.4th 968, 981.) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. (Souza, supra, 9 Cal.4th at p. 233.) "The purpose of the detention is to resolve the ambiguity by allowing the officer to briefly investigate further." (People v. Brown, supra, 61 Cal.4th at p. 986.)
"What is required is not the absence of [an] innocent explanation, but the existence of 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" (People v. Glaser (1995) 11 Cal.4th 354, 373, italics omitted.) Here, circumstances that developed during the stop—namely, Sanchez's excessively nervous demeanor, the five air fresheners, drug mobster photographs, and sign about digging tunnels under the border—created reasonable suspicion to support prolonging the detention for the limited time it took for the drug sniffing dog to arrive.
II. ISSUES INVOLVING THE PRIVILEGE FOR OFFICIAL INFORMATION
A. Additional Factual Background
At the preliminary hearing, Sanchez's lawyer attempted to show that the traffic stop and subsequent detention until the drug sniffing dog arrived was a pretext to conduct a warrantless search of Sanchez for suspected illegal drugs. Sanchez's lawyer sought to establish police had an "ulterior motive," which would impeach Deputy Booher's testimony that Sanchez's limit-line violation was the basis for the stop.
Toward that goal, Sanchez's lawyer asked Deputy Booher how long he had been following Sanchez's car before the car stop. Deputy Booher refused to answer, invoking the privilege under Evidence Code section 1040 for official information. The People requested an in-camera hearing, which the court conducted.
Evidence Code section 1040 provides in part: "(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply: [¶] (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state. [¶] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice."
Where the defense establishes a reasonable probability that the disclosure of the information might result in his or her exoneration, at the prosecutor's request an in camera hearing outside the presence of the defense is held in which the information sought may be disclosed to assist the court in deciding if the privilege should be upheld. (See generally Simons, Cal. Evidence Manual (2017) § 5:76, p. 471.)
After the hearing, the court sustained the privilege objection and told Sanchez's lawyer no exculpatory information was disclosed in camera. At Sanchez's lawyer's request, the court conducted another in camera hearing on the privilege claim, this time allowing Sanchez's lawyer to submit written questions for the court to ask Deputy Booher. These questions were: (1) How long had you been following Sanchez, (2) when you began following Sanchez did you already suspect his involvement in drug activity, (3) was the traffic violation stop, in part, a pretext for investigating suspected drug related activity, (4) was Agent Villagran already prepared to conduct a dog sniff, (5) have you been trained in regard to the rulings in Rodriguez, supra, 135 S.Ct. 1609 and Illinois v. Caballes (2005) 534 U.S. 405 , (6) are there additional reports surrounding the investigation of Sanchez and his activities, and (7) have those reports been disclosed to the prosecution?
Sanchez's lawyer had also requested the court ask: "Was the delay in writing the ticket intended to give Agent Villagran the opportunity to arrive on scene and conduct a dog sniff?" However, the court sustained objections to this question.
The court ordered the transcripts of both in camera hearings sealed. Neither of the sealed transcripts has been provided to us, nor has Sanchez requested we review them. --------
After sustaining the claim of privilege, the court told Sanchez's lawyer no exculpatory information had been revealed in camera.
Agent Villagran also successfully asserted the Evidence Code section 1040 privilege when Sanchez's lawyer asked if he was listening for a traffic stop that he could respond to and whether the traffic stop was unexpected.
In addition to sustaining these privilege claims, the court also sustained relevancy objections that stymied Sanchez's effort to show the traffic stop was pretextual. For example, the court sustained relevancy objections to whether Deputy Booher (1) suspected Sanchez of drug activity before he pulled him over, and (2) preplanned the dog sniff with Agent Villagran.
B. Sanchez's Contentions
Sanchez contends these evidentiary rulings improperly restricted his ability to show Deputy Booher had a motive for prolonging the detention, violating his "rights to confrontation and due process." He asserts the court's rulings erroneously deprived him of the ability to establish "the officers deliberately prolonged the detention." He asserts that as a result of the court's evidentiary rulings, "an officer may prolong the detention, conduct the unlawful search for evidence, and if his information is correct and he finds the evidence, he will then claim privilege and reveal his probable cause to the court in the in camera hearing."
C. Analysis
Sanchez's argument fails because the constitutional reasonableness of a traffic stop does not depend on the subjective motivation of law enforcement. For example, in Whren v. United States (1996) 517 U.S. 806 (Whren), undercover police officers temporarily detained a motorist for a traffic violation. There was evidence, however, that the officers actually stopped the motorist to investigate whether he was engaged in illegal drug dealing. During the detention, the police observed crack cocaine in plain view inside the vehicle. At a pretrial suppression hearing, the motorist and his passenger challenged the drug evidence, asserting the traffic stop was a pretext to search for drugs. The United States Supreme Court rejected the pretext argument, and held that the officers' subjective motivation did not invalidate the search otherwise justified by objective facts. (Id. at p. 811.)
Thus, the standard for determining whether reasonable suspicion exists is an objective one. "[I]t does not turn either on the subjective thought processes of the officer or on whether the officer is truthful about the reason for the stop." (United States v. Magallon-Lopez (9th Cir. 2016) 817 F.3d 671, 675.) "If, for example, the facts provide . . . reasonable suspicion to justify a traffic stop, the stop is lawful even if the officer made the stop only because he wished to investigate a more serious offense." (Ibid.) "[T]he objective facts are what matter in situations like these . . . ." (Ibid.) "The motivations of the officer are irrelevant to the reasonableness of a traffic stop under the Fourth Amendment." (People v. Suff (2014) 58 Cal.4th 1013, 1054.)
In light of these principles, Sanchez's evidentiary arguments are untenable because, even assuming without deciding that Deputy Booher was subjectively motivated to and did stop Sanchez's car for a suspected drug offense, the stop itself was objectively lawful, as Sanchez himself concedes, and the subsequent detention until the dog arrived was justified by objective facts creating reasonable suspicion. (See People v. Gomez (2004) 117 Cal.App.4th 531, 537 [stopping defendant's vehicle for a seatbelt violation, even if done as a pretext for the narcotics investigation, was entirely legal].)
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.