Opinion
B224369
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. DESMOND DEXTER ANDERSON, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA363133)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dennis J. Landin, Judge. Affirmed.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Desmond Dexter Anderson appeals from a judgment of conviction following his plea of nolo contendere to one count of possession of marijuana for sale. He contends the trial court erred in denying his motion to suppress pursuant to Penal Code section 1538.5, arguing that a police officer did not have reasonable suspicion to stop his vehicle. We affirm. On the basis of the totality of the circumstances, the officer was justified in stopping appellant's vehicle because he had a reasonable articulable suspicion that appellant had violated the Vehicle Code.
FACTUAL AND PROCEDURAL BACKGROUND
During the morning on October 7, 2009, Los Angeles Police Department Officer Lasalle Culpepper and his partner were patrolling the area of Sixth Avenue and Slauson Avenue in an unmarked police car. Officer Culpepper saw that appellant was driving a vehicle that had no year of registration on the license plate. Though appellant represented that the vehicle had a temporary operating permit in the back window, Officer Culpepper did not recall seeing it. Officer Culpepper verified either by computer or radio call that the vehicle's registration had expired at least six months earlier. At that point, he initiated a traffic stop. When he contacted appellant, he immediately noticed a strong odor of marijuana emanating from appellant's person. He conducted a patdown search of appellant and recovered two small Ziploc bags containing a green leafy substance from appellant's right front coin pocket area; a large plastic bag and seven small Ziploc bags containing the same substance from appellant's left sock; nine small Ziploc bags containing the same substance and 19 empty Ziploc bags from appellant's right sock; and $33 in cash. On the basis of the amount of marijuana recovered, the lack of drug paraphernalia and the marijuana's packaging, Officer Culpepper opined that appellant possessed the marijuana for the purpose of sale.
An information filed by Los Angeles County District Attorney charged appellant in count 1 with transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and in count 2 with possession of marijuana for sale (Health & Saf. Code, § 11359). Appellant pleaded not guilty. He thereafter filed a motion to suppress, arguing that Officer Culpepper lacked reasonable suspicion to stop his vehicle. Following a hearing, the trial court denied the motion. Finding Officer Culpepper's testimony credible, the trial court ruled that "[e]ven if he forgot he saw something in the window, I think, under the circumstances, he would still have the right to investigate and conduct the traffic stop."
Pursuant to a negotiated plea agreement, appellant withdrew his plea of not guilty on count 2 and entered a plea of nolo contendere. Accepting the plea, the trial court found appellant guilty on count 2 and dismissed count 1. The trial court suspended the imposition of appellant's sentence and placed him on formal probation for three years. Appellant was also ordered to serve three days in jail, but was given three days of custody credit. The trial court ordered appellant to complete 20 days of Caltrans service. It further ordered appellant to pay a number of statutorily-mandated fees and fines.
Appellant appealed from the judgment, specifically challenging the denial of his motion to suppress.
DISCUSSION
"'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 384.)
"[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.) An ordinary traffic stop is treated as a detention and is reasonable under the Fourth Amendment "only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law." (People v. Miranda (1993) 17 Cal.App.4th 917, 926; accord, People v. Greenwood (2010) 189 Cal.App.4th 742, 746.)
Appellant contends that the trial court erroneously denied his Penal Code section 1538.5 motion to suppress, arguing that Officer Culpepper had no basis to stop his vehicle for expired registration given the temporary operating permit in the vehicle's window. Appellant concedes that the court in People v. Greenwood, supra, 189 Cal.App.4th 742 recently reached a contrary conclusion on remarkably similar facts. We agree with the reasoning of Greenwood and the authority on which it relied.
Below, appellant independently challenged the search as violating the Fourth Amendment. He has abandoned that argument on appeal.
There, officers ran a check through the Department of Motor Vehicles (DMV) on the defendant's vehicle and learned that the vehicle's registration had expired approximately two years earlier. They observed a temporary operating permit in the rear window which displayed the number "5" signifying the month of May. One officer believed that this type of permit only allowed the vehicle to be driven for the limited purpose of obtaining a smog check, and opined that was not the defendant's purpose given the late hour. They initiated a traffic stop and discovered that the defendant possessed a cigarette laced with PCP. Officers later learned that the temporary operating permit allowed the defendant to drive the vehicle for any purpose. (People v. Greenwood, supra, 189 Cal.App.4th at pp. 744-745.) The trial court rejected the defendant's argument that the cigarette should be suppressed because the officers lacked reasonable suspicion to stop his vehicle and it "ruled the officers acted reasonably, despite the presence of the temporary permit, because the information from the DMV indicated the registration on the vehicle lapsed in 2007. The court found the officers had the right to stop the vehicle to investigate whether it was lawfully driven." (Id. at p. 745.)
On appeal, the defendant renewed his argument that the traffic stop was not objectively reasonable because the officers saw the temporary operating permit and were therefore alerted to the fact that he had complied with the registration requirement. (People v. Greenwood, supra, 189 Cal.App.4th at p. 745.) In evaluating this contention, the court acknowledged that several previous cases seemingly addressing the same issue had reached different conclusions on the basis of nuanced factual distinctions. (Id. at pp. 746-748; see In re Raymond C. (2008) 45 Cal.4th 303, 307-308 [officer had reasonable suspicion to stop a vehicle without license plates even though a temporary operating permit was displayed in the vehicle's front window]; People v. Hernandez (2008) 45 Cal.4th 295, 299-301 [officer lacked reasonable suspicion to stop a vehicle without license plates and properly displaying a temporary operating permit where the stop was premised on the officer's subjective belief that temporary permits are often forged or invalid]; People v. Saunders (2006) 38 Cal.4th 1129, 1136-1137 [because lack of a front license plate provided reasonable suspicion to stop a vehicle, court did not decide whether an expired registration tag coupled with a temporary operating permit would have justified the stop]; People v. Brendlin (2006) 38 Cal.4th 1107, 1114 [officer lacked reasonable suspicion to stop a vehicle displaying expired registration tags and a temporary operating permit where he received radio confirmation that the vehicle's registration was in process], vacated on other grounds in Brendlin v. California (2007) 551 U.S. 249; People v. Dotson (2009) 179 Cal.App.4th 1045, 1051-1052 [officer had reasonable suspicion to stop vehicle that did not have license plates, even though it displayed a temporary operating permit that he did not recall seeing].)
On the basis of these authorities, the Greenwood court distilled several rules: "In the absence of other incriminating or ambiguous evidence, a vehicle displaying a valid temporary permit and no license plates may not be stopped for the purpose of investigating the permit's validity. [Citations.] If the officer does not see the temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop. [Citation.] A vehicle with expired license tabs, but displaying a temporary permit, may not be stopped if the officer has additional information that there is an ongoing process to cure the lapse in registration. [Citation.] A vehicle displaying a valid temporary permit may be stopped where there is some objective indicia that something may be amiss with the registration or permit, such as a missing front license plate. [Citation.] Finally, a vehicle displaying no license plates and no temporary permit visible from the rear may be stopped for investigation. [Citation.]" (People v. Greenwood, supra, 189 Cal.App.4th at p. 748.) The court determined that the officers' learning that the registration had lapsed two years earlier constituted objective indicia that something was amiss, notwithstanding the presence of the temporary operating permit. (Ibid.)
Here, although Officer Culpepper's conduct does not fall precisely within one of the Greenspan rules, the totality of the circumstances established reasonable suspicion. Appellant's vehicle did not lack license plates, but Officer Culpepper saw that the plates lacked any registration tag. Two determinative facts supported Officer Culpepper's decision to stop appellant's vehicle after his initial observation. First, he confirmed that appellant's registration had been expired for over six months. Driving with an expired registration is a Vehicle Code violation. (Veh. Code, § 4000, subd. (a)(1).) Thus, as in People v. Greenwood, supra, 189 Cal.App.4th at page 750, "[t]he DMV record showing expired registration provided the required articulable suspicion there was something amiss with the registration and justified the vehicle stop for Fourth Amendment purposes."
Second, coupled with his objective verification that appellant had violated the Vehicle Code, Officer Culpepper credibly testified that he did not see a temporary operating permit displayed at any time. Under these circumstances, we are guided by the court's analysis in People v. Dotson, supra, 179 Cal.App.4th at page 1052: "Absence of license plates provides reasonable suspicion that the driver is violating the law. Unless there are other circumstances that dispel that suspicion, that resolve any ambiguities in the legal status of the vehicle's conformance with applicable laws, the officer may stop the vehicle and investigate without violating the driver's Fourth Amendment rights. [Citation.] The uninvestigated chance that a temporary operating permit might be displayed somewhere on the vehicle is not such a dispelling circumstance."
Evidence that Officer Culpepper obtained independent verification of appellant's expired registration and that he did not recall seeing the temporary operating permit supported the trial court's conclusion that the officer's vehicle stop was supported by reasonable articulable suspicion. These circumstances are unlike those in People v. Reyes (2011) 196 Cal.App.4th 856, a case recently holding that an officer lacked any objectively reasonable suspicion that the defendant had violated any traffic law where the vehicle stop was premised on a mistake of law. There, an officer saw that the defendant's van had no front license plate, but then observed Florida license plate affixed to the rear of the vehicle before making the stop. (Id. at p. 859.) The officer cited the absence of a front license plate as the only basis for the stop. While the Vehicle Code requires that two license plate be affixed to vehicles (other than motorcycles) registered in California (Veh. Code, § 5200, subd. (a)), it allows for vehicles registered in other jurisdictions to display the license plates issued by that jurisdiction (Veh. Code, § 5202). (People v. Reyes, supra, at p. 860.) Florida issues only one license plate, and the Vehicle Code provides that where only a single plate is issued it should be affixed to the rear of the vehicle. (Ibid.)Accordingly, "[t]hat which the officer accurately observed, and which caused him to suspect a violation, was not a violation of any law," and the court determined that "a pure mistake of law like that the officer apparently made here cannot provide objectively reasonable suspicion for a traffic stop." (Id. at pp. 860, 863.)
Here, in contrast, there was no mistake of law. Officer Culpepper's observing the absence of registration tags—together with his confirmation of the expired registration and failure to recall observing a temporary operating permit—established reasonable suspicion that appellant had violated the Vehicle Code and supported the stop of appellant's vehicle.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, J. We concur:
BOREN, P. J.
CHAVEZ, J.