Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD060919, Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Scott D. Peebles, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Sarah J. Hopper, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
On July 20, 2007, following the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1), appellant V.S., a minor, admitted an allegation that he was in possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). That same day, prior to the denial of his suppression motion, appellant admitted allegations of driving while having a blood alcohol content of .08 percent or higher (Veh. Code, § 23152, subd. (b)) and driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)). On August 3, 2007, following the disposition hearing, the juvenile court re-adjudicated appellant a ward of the court, placed him on probation and declared his maximum period of physical confinement to be five years four months, based on the instant offense and offenses adjudicated in prior wardship proceedings.
Appellant was initially adjudged a ward of the juvenile court in September 2006.
On appeal, appellant’s sole contention is that the court erred in denying his suppression motion. We will affirm.
FACTS
On April 13, 2007, City of Tulare Police Officer Troy Barker was on patrol, in a police vehicle, when he saw a “vehicle parked on the roadway with two subjects inside who appeared to be acting suspicious,” i.e., “the driver made it a point to turn his head and cover his face as [the officer] approached,” and “[t]he passenger in the vehicle did the same, turning his head away from [the officer] so [the officer] could not make eye contact with them or get a visual look on their faces.” “Due to the suspicious activity,” Officer Barker “turned around,” and as he did so the vehicle pulled out into the roadway. The officer, as he passed the vehicle, “noticed … that it didn’t have a front license plate ….”
Our factual summary is taken from Officer Barker’s testimony at the suppression motion hearing.
Not having a license plate affixed to the front of a motor vehicle is a violation of Vehicle Code section 5200, and for that reason Officer Barker stopped the vehicle.
The officer first made contact with the driver, who stated he did not have a driver’s license or any other form of identification in his possession. Officer Barker then asked the driver for permission “to search the vehicle for any form of identification,” and the driver consented to a search. The officer, “[f]or officer safety reasons,” then “asked the passenger,” appellant, to step out of the car while the officer “conducted the search.” Officer Barker testified he could “not have anybody in the car while [he] conduct[ed] [his] search” because he would have his back to anybody who remained in the car, thus “expos[ing] [his] gun and weapons ….”
Appellant stepped out of the car, at which point Officer Barker, because he would have his back turned to appellant while he searched the car and would thus “be exposed,” “asked [appellant] if he had any weapons, any drugs, anything of that nature.” Appellant said he did not. The officer then asked appellant for permission to “conduct[] a pat-down search.” Appellant responded, “go ahead.” Officer Barker then asked appellant to interlace his fingers on top of his head and spread his feet apart; appellant complied; the officer began conducting a pat-down search; “and that’s when [the officer] felt what appeared to be a little round ball in his pocket.” This was significant to Officer Barker, who had worked for approximately two years in a “narcotics crimes specific unit” and who had made approximately 40 arrests for possession of controlled substances, because, he explained, “A lot of times that’s how controlled substances are carried. They’re packaged in either aluminum or plastic baggies and wound very, very tight.”
As soon as the officer felt this object, he asked appellant what it was. Appellant responded that he did not know. Officer Barker then “asked [appellant] to be honest … and tell … the truth.” The officer stated, “If it’s drugs, tell me. Just be honest[] ….” Appellant responded, “It’s drugs.” At that point, Officer Barker handcuffed appellant, reached into appellant’s pocket and “remove[ed] the item ….”
DISCUSSION
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures (U.S. Const., 4th Amend.; People v. Camacho (2000) 23 Cal.4th 824, 829-830); warrantless searches are per se unreasonable, absent any recognized exception. (Arkansas v. Sanders (1979) 442 U.S. 753, 758); and consent is one such exception (Illinois v. Rodriguez (1990) 497 U.S. 177, 181; People v. Oldham (2000) 81 Cal.App.4th 1, 9).
Here, the People seek to justify the warrantless search of appellant on consent grounds. On appeal, appellant first counters that Officer Barker, by asking appellant for permission to search him, impermissibly “extended his investigation beyond matters of the traffic stop,” thereby rendering invalid appellant’s consent to search. And because his consent was invalid, appellant argues further, the court erred in denying appellant’s motion to suppress the fruits of the search that followed that purported consent. We disagree.
We have no quarrel with the factual premise of this argument, i.e., that the officer’s request for permission to search appellant’s person for weapons or drugs was not related to the Vehicle Code violation for which the officer stopped the car in which appellant was riding. However, the legal premise of this argument--appellant’s assertion that “[d]uring a traffic stop, an officer … may not detain the detainee for investigation of matters unrelated to the traffic stop”--is false. As this court stated in People v. Brown (1998) 62 Cal.App.4th 493: “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. [Citation.] While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking.” (Id. at p. 499.) Therefore, the fact that Officer Barker asked appellant for consent to search for drugs and weapons did not render the stop, and the subsequent consent, invalid.
We recognize that the rule discussed above--extending the investigation at a traffic stop to matters beyond the scope of the stop does not, by itself, constitute a Fourth Amendment violation-- “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.” (People v. Brown, supra, 62 Cal.App.4th at p. 499.) Thus where, as here, an officer who has effected a traffic stop and, although lacking any “articulable suspicion of wrongdoing” by the detainee, pursues an investigation of matters unrelated to the stop by asking for consent to search, that request is constitutionally permissible only if it does not “unreasonably prolong[]” the detention. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.) Appellant suggests Officer Barker’s request for consent to search ran afoul of this rule. We disagree.
In Gallardo a deputy sheriff stopped the defendant for driving with a non-functioning taillight. The officer explained his reasons for stopping the defendant, inspected the defendant’s license and registration and then, embarking on an investigation unrelated to the purpose of the stop, asked if there was anything illegal in the car. The defendant replied in the negative. The deputy asked if he could search the defendant’s car. The defendant consented. According to the deputy, approximately two minutes had elapsed from the time of his initial contact with the defendant. The deputy searched the vehicle, finding contraband. (People v. Gallardo, supra, 130 Cal.App.4th at pp. 236-237.) The court upheld the validity of the search, stating, “There is no indication in this case that the stop was prolonged in any manner; the only evidence offered was that the time that elapsed from the initial contact to requesting consent to search was as little as two minutes. We cannot characterize this as ‘unduly prolonged’ under any reasonable definition of the term ….” (Id. at p. 239.)
Similarly, in the instant case, after taking investigatory action related to the purpose of the stop, i.e. obtaining the driver’s consent to search the car and ordering appellant to exit the car, the officer interrupted that line of investigation by asking appellant two questions unrelated to the purpose of the stop; first he asked (1) if appellant had any drugs or weapons and then (2) for permission to search. Insofar as the record reveals, those questions and appellant’s responses would have taken mere seconds. As in Gallardo, the officer’s investigatory acts that were not related to the purpose of the traffic stop did not unduly prolong the detention.
Appellant also argues that if his consent to search is valid, he consented to a search for weapons only; it was apparent that the lump in his pocket was not a weapon; and therefore the officer’s “intrusion into [appellant’s] pockets” exceeded the scope of appellant’s consent and rendered invalid any subsequent seizure. There is no merit to this contention.
“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251.) “Generally, the scope of a warrantless search is defined by its expressed object. [Citation.] A consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s determination.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) However, the ultimate question of what a reasonable person would have understood to be the scope of appellant’s consent based on his exchange with Officer Barker is a legal question upon which we exercise independent judgment. (Cf. People v. Leyba (1981) 29 Cal.3d 591, 598 [whether it was objectively reasonable for officer to suspect criminal activity was afoot, justifying a detention, “is a question of law: it implicates the constitutional standard of reasonableness--a standard … that the appellate courts have the ‘ultimate responsibility’ to administer”].)
As indicated above, the major premise of appellant’s claim that the officer’s search exceeded the scope of appellant’s consent is the claim that appellant consented to a search for weapons only. This premise is false. The court reasonably could have concluded as follows: Officer Barker, as he testified, asked appellant “if he had any weapons, any drugs, anything of that nature”; appellant answered in the negative; the officer immediately then asked for permission to “conduct[] a pat-down search”; and appellant gave his consent. Given (1) that the officer specifically questioned appellant about weapons and drugs immediately before asking for permission to search, and (2) the absence of any expression by appellant that he was limiting the scope of his consent, we conclude, in the exercise of our independent judgment, that no “typical reasonable person” in Officer Barker’s circumstances would not have interpreted appellant’s consent as limiting the officer to searching only for weapons. Thus, the officer’s search did not exceed the scope of appellant’s consent.
Finally, appellant argues that his admission that he had drugs in his pocket was “coerced and involuntary,” and therefore both this admission and the contraband subsequently recovered from his pocket were obtained in violation of his due process rights under the Fourteenth Amendment to the United States Constitution, and should have been suppressed.
“It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.” (People v. Neal (2003) 31 Cal.4th 63, 79.) Physical evidence seized as a result of an involuntary or coerced statement is also inadmissible, and such seizure may be challenged in a motion to suppress. (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735.)
Such statements may also be inadmissible under the Fifth Amendment to the United States Constitution. (People v. Montano (1991) 226 Cal.App.3d 914, 934, fn. 5 [“It … appears that statements elicited by state law enforcement officers through coercion violate both the Fifth Amendment and the Fourteenth Amendment”].)
Welfare and Institutions Code section 700.1 and Penal Code section 1538.5 each provide a mechanism, in juvenile wardship and adult criminal proceedings respectively, for the suppression of evidence “obtained as a result of a search of seizure ….” In People v. Mattson (1990) 50 Cal.3d 826, 851, our Supreme Court stated that this language in Penal Code section 1538.5 “would not support” the suppression of admissions and confessions on Fifth Amendment grounds. The proper means for challenging the admission of involuntary statements themselves is an evidentiary motion under Evidence Code section 402. (People v. Whitfield (1996) 46 Cal.App.4th 947, 958-959.) We assume without deciding that the portion of appellant’s motion directed at his admission that he possessed drugs can be viewed as being brought under Evidence Code section 402.
“A defendant’s statements challenged as involuntary are inadmissible at trial unless the prosecution proves by a preponderance of the evidence that they were voluntary. [Citations.] ‘The due process [voluntariness] test takes into consideration “the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.”’ [Citation.] This test ‘examines “whether a defendant’s will was overborne” by the circumstances surrounding the giving of a confession.’ [Citation.] … ‘[C]oercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment.’” (People v. Guerra (2006) 37 Cal.4th 1067, 1093.)
“We review independently a trial court’s determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review the trial court’s findings as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citation.]” (People v. Guerra, supra, 37 Cal.4th at p. 1093.)
Appellant argues that his statement “It’s drugs,” made in response to questioning by Officer Barker, “came under conditions that were intimidating, harassing, and coercive-rendering the statement involuntary.” Those conditions, appellant asserts, were as follows: the pat-down search was “unrelated” to the reason for the vehicle stop “or any threat he reasonably posed to Office Barker”; the officer asked appellant to stand with his feet apart and his hands interlaced on top of his head, thus “physically immobilize[ing]” appellant; and the officer persisted in questioning appellant after appellant initially stated he did not know whether the object the officer detected was contraband.
Appellant’s contention is without merit. On this point we find instructive this court’s decision in People v. Brewer (2000) 81 Cal.App.4th 442. In that case, in which the defendant challenged as involuntary statements he made to two deputy sheriffs, the court made the following factual findings: “The record discloses that defendant was driving in an erratic manner and his vehicle emitted an odor of marijuana. He exhibited signs of being under the influence and admitted he had recently smoked marijuana. He was handcuffed and placed in the backseat of a police car while his car was searched. He was in the presence of two officers after Deputy Knudson showed up. He was never advised of his Miranda rights by either officer prior to questioning. He was taken out of the police car and questioned first by Deputy Knudson, who asked him about the money in the envelope and what he was doing with the money. He was then questioned by Deputy Duvall about where he was going and what he intended to do with the money. No weapons were drawn, and he was not threatened in any way. No inducements were offered to obtain the statements. No lengthy or abusive or intimidating interrogation took place. In fact, all questioning took place in public view next to Pacific Coast Highway at 8:30 in the morning.” (Id. at p. 456.) The court held there was “nothing in this record that indicates that psychological or physical coercion took place that overcame defendant’s will and rendered his statements to Deputies Knudson and Duvall involuntary.” (Ibid.)
In the instant case there was even less indication of coercive police activity than in Brewer. Appellant was not handcuffed or placed in a patrol vehicle, Officer Barker made no threats or promises, there is no indication the officer drew his weapon and it appears the interrogation was even briefer than in Brewer. Moreover, “mere advice and exhortation by the police … to tell the truth … does not render a subsequent confession involuntary.” (People v. Jimenez (1978) 21 Cal.3d 595, 611.) Based on our independent review, we conclude appellant’s admission was voluntary and was not coerced.
DISPOSITION
The judgment is affirmed.