Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F08200230. Denise Lee Whitehead, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Pursuant to a no contest plea, defendant was convicted of possession of methamphetamine while armed with a loaded firearm. On appeal, he contends the trial court erred by denying his motion to suppress. We will affirm.
PROCEDURAL SUMMARY
On July 17, 2008, the Fresno County District Attorney charged defendant with possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364; count 2).
Defendant unsuccessfully moved to suppress evidence obtained during a search of his vehicle. He withdrew his not guilty plea and entered a plea of no contest. Count 2 was dismissed in the interests of justice.
The court granted defendant two years’ probation subject to his serving 90 days in the county jail.
The following facts are taken from the suppression hearing.
On March 29, 2008, Deputy Swiney was in uniform on patrol in a marked sheriff’s car. At about 2:20 a.m., he was patrolling on Highway 180 near Napa Avenue in Fresno County when he observed a Chevrolet sports utility vehicle (the SUV) pulling a flatbed trailer full of aluminum siding. The SUV was travelling in the opposite direction, so Swiney made a U-turn and followed it. He noticed the trailer had no identifying marks or license plate, a Vehicle Code violation, so he activated his overhead lights. The SUV pulled over and Swiney stopped his patrol car behind the trailer. Swiney got out of his patrol car and walked to a position from which he could see the SUV’s license plate. He ran the plate number and confirmed with dispatch that the plate number had no warrants and was not wanted as a stolen vehicle.
Swiney then approached the passenger side of the SUV, and saw defendant (who was driving) and one passenger. Swiney identified himself and asked defendant for his identification. Defendant provided his driver’s license, but the passenger had no identification. Defendant seemed upset; he told Swiney he had already been pulled over near Firebaugh. Swiney asked defendant to step out of the SUV, which he did, and Swiney had him step back between the trailer and the patrol car. Swiney told defendant why he had pulled him over. In Swiney’s opinion, when he asked defendant to step out of the SUV, he was free to refuse.
Swiney asked defendant if he had ever been arrested, and defendant answered that he had been arrested in the past. Swiney asked if he was on probation or parole, and defendant answered, “No.” Swiney asked if there were any weapons or drugs inside the SUV, and defendant answered, “No.” Swiney asked if he could search the SUV, and defendant answered, “Yes.” In Swiney’s opinion, when he asked defendant if he could search the inside of the SUV for weapons or drugs, defendant was free to refuse, but he was not free to leave.
Swiney told defendant he was not under arrest and, for officer safety, Swiney placed him unhandcuffed in the backseat of the patrol car because Swiney was patrolling alone. In Swiney’s opinion, defendant consented to being placed in the patrol car, but once he was inside the patrol car, he was not free to leave because the patrol car was locked from the outside. Swiney returned to the SUV and had the passenger step out. Swiney told him he was going to search the SUV. He asked the passenger if he could search him for weapons or drugs, and he answered, “[Y]es.” The search of his person yielded nothing. Swiney told the passenger he was not under arrest, then put him in the backseat of the patrol car with defendant.
Swiney searched the inside of the SUV and found a clear glass pipe and a small baggie of a clear crystalline substance, which he believed was crystal methamphetamine, located under the floorboard in the center console. He also found a backpack that contained four pipes, three baggies of the crystalline substance, and the passenger’s identification. In a compartment next to the driver’s door, Swiney found a loaded.22 caliber automatic handgun with five rounds of ammunition in the magazine. None of the items was in plain view. Defendant was arrested, but was never cited for the Vehicle Code violation.
Defense Evidence
Defendant testified he was travelling from Dos Palos with a trailer he had purchased there and a load of aluminum siding. When he was pumping gas in Dos Palos, an officer approached him and asked him where he had gotten the aluminum siding. Defendant gave him a card from the business. The officer checked defendant’s driver’s license and insurance, and let him go.
After defendant got on Highway 180, he saw a patrol car coming in the opposite direction. As soon as they passed each other, the patrol car turned around and activated its lights. Defendant pulled over. Swiney approached the passenger side and told the passenger to get out of the SUV. He told the passenger he was not under arrest and he took him back to the patrol car. When Swiney returned to the SUV, he asked defendant for his driver’s license. Defendant complied and also showed Swiney his insurance. At some point, Swiney told defendant he had stopped him because the trailer did not have a license plate. Swiney asked if he had ever been arrested, and defendant answered, “[Y]es.” Swiney asked defendant to get out of the SUV. Swiney told him he was not under arrest but Swiney was going to place him in the patrol car for officer safety, and Swiney was going to search the SUV. Swiney never asked for permission to search the SUV. Defendant got out and walked in front of Swiney to the patrol car.
Defendant testified the trailer did not have a license plate.
The Court’s Ruling
The trial court found that defendant was properly stopped for a Vehicle Code violation and temporarily detained. He then consented to the search of the SUV and consented to sitting in the patrol car during the search. The court found no evidence that defendant’s consent to search was coerced or otherwise equivocal.
DISCUSSION
On appeal from a motion to suppress evidence, all presumptions are in favor of the trial court’s factual findings, whether express or implied, where supported by substantial evidence, and we review de novo the facts most favorable to the People to determine whether the officer’s conduct in performing the search was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Leyba (1981) 29 Cal.3d 591, 596-597.) To determine whether evidence must be excluded because of a Fourth Amendment violation, “we look exclusively to whether its suppression is required by the United States Constitution.” (People v. Glaser, supra, at p. 363.)
Consent is an exception to the constitutional requirement of a warrant. (People v. Woods (1999) 21 Cal.4th 668, 674.) “Where, as here, the prosecution relies on consent to justify a warrant less search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341.) When consent to search is given during an illegal detention, evidence obtained as a result of the consent search is subject to suppression. (Florida v. Royer (1983) 460 U.S. 491, 501 [where initial detention violated the Fourth Amendment, defendant’s “consent was … tainted by the illegality, ” and evidence obtained as a result of the consent search should have been excluded]; People v. Zamudio, supra, at p. 341 [“Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure”].)
Defendant contends his consent to search the SUV was invalid because it was obtained as a result of an unlawful detention, which arose when Swiney engaged in various other activities before asking for permission to search. Once a vehicle has been lawfully stopped for a traffic violation (which defendant concedes here), a routine traffic detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (Florida v. Royer, supra, 460 U.S. at p. 500.) “A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop, do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. [Citation.]” (Arizona v. Johnson (2009) ___ U.S. ___, ___ [129 S.Ct. 781, 783].) The officer is entitled to detain the driver and passengers for the period of time necessary to discharge his duties related to the traffic stop. (People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) The officer may ask questions that are not directly related to the purpose of the traffic stop as long as relevant time parameters are not exceeded (People v. Gallardo (2005) 130 Cal.App.4th 234, 239), and the officer may order the driver and passengers to exit the vehicle without any articulable justification (Knowles v. Iowa (1998) 525 U.S. 113, 117-118; People v. Hoyos (2007) 41 Cal.4th 872, 892-893). But the officer may not impose “a general crime investigation upon the detained traffic offender that is not ‘reasonably necessary’ to completion of the officer’s traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses.” (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358 (Williams).)
“Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. [Citations.] While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.] [¶] Obviously, this rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. [Citations.]” (People v. Brown, supra, 62 Cal.App.4th at p. 499.)
In People v. McGaughran (1979) 25 Cal.3d 577, relied upon by defendant, an officer stopped a driver for travelling in the wrong direction on a one-way street. The officer explained the reason for the stop and examined the licenses of the driver and passenger, who told him they were lost. (Id. at p. 581.) The officer testified he typically would let the motorist go with a warning about the unusual traffic pattern. (Id. at p. 585.) Instead, he returned to his patrol vehicle after his three- or four-minute discussion with the driver and the passenger and initiated a radio check for outstanding warrants in both names. (Id. at p. 581.) About 10 minutes later, the dispatcher notified the officer of outstanding warrants. (Ibid.) The California Supreme Court held this “additional period of detention for the purpose of seeking out unrelated arrest warrants … was not ‘reasonably necessary’” to deal with the initial offense of violating the one-way traffic pattern, and it therefore “‘exceeded constitutional limitations.’” (Id. at p. 587.)
In Williams, supra, 168 Cal.App.3d 349, also relied upon by defendant, a vehicle was pulled over for a traffic violation. The police officer was suspicious of the men in the car, believing they might have been involved in recent robberies, and he engaged them in conversation unrelated to the traffic violation for five to ten minutes and had them sit on the curb before seeking consent to search the car. (Id. at pp. 355-356.) Consent was given, and drugs and weapons were found in the car. The officer never commenced writing a traffic citation and never removed his citation book from his vehicle. The record was silent as to whether he returned the driver’s license to the driver. (Id. at pp. 356-357.)
The Williams court explained that “McGaughran enumerated the specific duties ‘reasonably necessary’ to complete a traffic infraction detention. The period of lawful detention is limited to the time reasonably necessary for the officer to prepare the notice to appear (i.e., a citation or ‘ticket’). This entails investigating the driver’s license and vehicle registration, explaining the reason for the citation, and detailing the particulars of the violation on the citation. The offender must be released when he signs the written promise to appear. Additional duties may exist in listening to any explanation the driver might offer, examining the vehicle for unsafe conditions or moving the vehicle if it is stopped in an unsafe location. The time it takes the officer to return to the patrol vehicle to request a timely warrant or registration check may also be included as part of the necessary period of detention. [Citation.]” (Williams, supra, 168 Cal.App.3d 349 at p. 358.) Williams then clarified the holding of McGaughran, as follows: “The import of McGaughran is not the setting of a general outside time limit for minor traffic offense detentions. Implicit in the McGaughran analysis is a recognition that the circumstances of each traffic detention are unique and that the reasonableness of each detention period must be judged on its particular circumstances. The clear intent of McGaughran is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not ‘reasonably necessary’ to completion of the officer’s traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses.” (Ibid.)
The court concluded that “[t]he prolonged interrogation of defendants was thus directed solely toward determining their complicity in [unrelated crimes]. For these reasons, the prolongation of the detention here may not be justified as ‘reasonably necessary’ to the officer’s performance of his duties relative to the traffic violation.” (Williams, supra, 168 Cal.App.3d 349 at p. 359.) The court held that the consent was invalid because it was the result of an unconstitutionally prolonged detention. (Id. at pp. 359, 362.)
In the present case, the facts most favorable to the People established that after stopping defendant, Swiney ran the license plate number and confirmed the plate had no warrants and the SUV was not wanted as a stolen vehicle. Then he asked defendant for identification, asked him to step out of the SUV, and had him move to the area between the trailer and the patrol car. Swiney told defendant why he had stopped him, asked him if he had ever been arrested and whether he was on probation or parole. After asking defendant if there were any weapons or drugs in the SUV, Swiney asked if he could search the SUV, and defendant consented. Although defendant was detained at this point (as Swiney acknowledged, defendant was not free to leave), we do not believe defendant was illegally detained. Swiney was permitted to ask defendant and his passenger to exit the SUV, and he was permitted to ask them questions, both directly related and not directly related to the purpose of the traffic stop, provided those inquiries did not measurably extend the duration of the stop. (Arizona v. Johnson, supra, ___ U.S. at p. ___ [129 S.Ct. at p. 783]; People v. Gallardo, supra, 130 Cal.App.4th at p. 239.) The record supports the conclusion that Swiney’s few questions were not inordinately time-consuming, and that he did not engage in any extensive activities that measurably extended the duration of the stop.
This case is factually distinguishable from both McGaughran and Williams in that the detention here was brief and in no way constituted an unwarranted extension of a traffic stop for the purpose of conducting a general criminal investigation. Furthermore, we do not read McGaughran or Williams as holding that an officer may never ask a detainee questions unrelated to the traffic stop, which the United States Supreme Court has stated is not the law (Arizona v. Johnson, supra, ___ U.S. at p. ___ [129 S.Ct. at p. 783]). As noted in People v. Bell (1996) 43 Cal.App.4th 754, “McGaughran and Williams indicate that investigative activities beyond the original purpose of a traffic stop are permissible as long as they do not prolong the stop beyond the time it would otherwise take.” (Id. at p. 767.)
In this case, we conclude defendant’s consent to search occurred during a legal detention and therefore constituted valid consent. Accordingly, the trial court did not err in denying defendant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Hill, J.