Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA060101 Clifford Klein, Judge.
Sheila Tuller Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Defendant Oscar Berrios appeals a judgment convicting him of violating Penal Code section 12021, subdivision (c)(1) [unlawful possession of a firearm]. Berrios initially pleaded not guilty, but after the trial court denied his motion to suppress, Berrios withdrew his not guilty plea and pleaded nolo contendere, and was found guilty. The trial court denied probation and sentenced Berrios to serve 16 months in state prison. Berrios filed a timely notice of appeal. We hold that by answering the police officer’s question, before the search occurred, admitting that he had a gun, the defendant provided the specific, articulable facts to support a suspicion that he was armed and dangerous which justified a search. We reject defendant’s claims that defendant’s admission that he possessed a gun was coerced or involuntary, and that the discovery that the driver of the car was driving with a suspended or revoked license caused defendant to be illegally seized. We affirm the judgment of conviction.
Unless otherwise specified, statutes in this opinion will refer to the Penal Code.
Ordinarily a defendant cannot appeal from a judgment of conviction upon a plea of nolo contendere. When a defendant enters such a plea after an adverse decision on a motion to suppress evidence, however, section 1538.5, subdivision (m) provides that “[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty.” This rule applies to pleas of nolo contendere as well as pleas of guilty. (People v. Mazurette (2001) 24 Cal.4th 789, 792.)
STANDARD OF REVIEW
“In reviewing the trial court’s denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court’s application of the law to the facts.” (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
FACTS
At 11:30 p.m. on September 20, 2008, Los Angeles Police Officer William Wales and his partner were in a marked patrol car in the area of Ventura Boulevard and Topanga Canyon Boulevard. They saw a silver Audi traveling at 55 miles per hour eastbound on Ventura, where the speed limit was 45 miles per hour, and the license plate was expired. The officers activated their lights and sirens and pulled over the silver Audi, which stopped in a supermarket parking lot at Don Pio and Ventura Boulevard. There were lights in the parking lot, but it was night. There were no other police officers present except Wales and his partner.
Defendant Oscar Berrios was one of three people in the car, whom Wales described as wearing “ganglike attire.” Defendant Berrios, seated in the front passenger seat, was wearing a baggy black Los Angeles shirt, baggy blue jeans, and a Chicago Cubs hat. Members of the Canoga Park Alabama gang wear Cubs hats. The other two people in the car, the driver Daniel Berrios and the rear seat passenger Jose Ortiz, also wore baggy clothing. Wales obtained the license, insurance information, and registration of Daniel Berrios, and then requested identification of the passengers. Wales went to his patrol vehicle and ran all three identifications, which revealed that Daniel Berrios was driving with a suspended or revoked license, which was a misdemeanor. Wales asked Daniel Berrios to exit the vehicle and his partner detained Daniel Berrios, placed him in handcuffs, and put him in the patrol car. When someone is found to be driving with a suspended license, the police cite the driver and are required to impound and tow the automobile. The officers had the other two men exit the silver Audi.
Wales noticed that after exiting the car, Oscar Berrios appeared nervous, having noticed that the police officers had taken his brother Daniel Berrios into custody. Oscar Berrios looked around and kept looking back at Officer Wales. Because it was late at night, the three men wore ganglike attire, and the officers were conducting a misdemeanor investigation, Wales did not ask about conducting a pat-down search, and did not ask for consent to search Oscar Berrios. He asked Oscar Berrios, “do you have any guns? Do you have any weapons, needles, anything that’s going to poke me, knives, sharp objects in your pockets?” Oscar Berrios stated, “I have a gun in my left front pocket.” Wales then did a pat-down frisk.
This testimony contradicted Wales’s statement in the police report of the incident, which stated: “I asked consent to conduct a pat-down search on the defendant and the defendant agreed to the pat-down search.” Daniel Berrios, Jose Ortiz, and Oscar Berrios, however, testified that Wales did not ask permission to search Oscar Berrios.
Wales stated that he patted down defendant Berrios and Ortiz for officer safety because only himself and his partner were present; because the three men in the Audi were dressed in ganglike attire; and because he did not want the defendant and Ortiz in the area while the officers impounded defendant’s brother’s car. Wales stated that impounding a car can be very upsetting for some people. He had been involved in incidents when family members became combative, especially when the police were impounding a vehicle or were arresting only one person from the family. Wales wanted to pat down defendant Berrios and Ortiz to make sure they had nothing in their possession that would endanger the police officers, or the public, as the officers impounded Daniel Berrios’s automobile and cited him for a misdemeanor.
Oscar Berrios was arrested after Wales recovered the gun from him.
ISSUES
Defendant claims on appeal that:
1. The trial court erroneously denied the motion to suppress because Officer Wales did not have sufficient justification to reasonably suspect that Berrios was armed and dangerous;
2. Berrios’s statement that he had a gun was not voluntary; and
3. The trial court erroneously denied Berrios’s motion to suppress because Berrios was illegally seized after his brother’s detention.
DISCUSSION
1. Legal Requirements for a Police Officer to Conduct an Investigatory Stop and a Patdown for Weapons
Police officers may conduct an investigatory stop (temporary detention) and frisk (patdown for weapons) without violating the Fourth Amendment ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop must be lawful, a requirement that is satisfied when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to frisk someone temporarily detained, the police officer must reasonably suspect that the person stopped is armed and dangerous. (Arizona v. Johnson (2009) ___ U.S. ___ [129 S.Ct. 781, 784].)
2. When He Answered Officer Wales’s Question By Stating That He Had a Gun, Berrios Provided the Specific, Articulable Facts to Support a Suspicion That He Was Armed and Dangerous Which Were Necessary to Justify a Search
Berrios concedes that the police officers were justified in making the traffic stop, satisfying the first requirement. Berrios also concedes that as a passenger, he was seized for Fourth Amendment purposes once the car came to a stop. He argues, however, that Officer Wales could pat down a passenger of the car only upon reasonable suspicion that the person may be armed, and that Officer Wales could not point to specific, articulable facts that would reasonably support a suspicion that Berrios was armed and dangerous that would justify a search of Berrios.
Once a motor vehicle has been lawfully detained for a traffic violation-as the silver Audi driven by Daniel Berrios was-police officers can order the driver, and passengers, out of the vehicle without violating the Fourth Amendment prohibition of unreasonable searches and seizures. (Arizona v. Johnson, supra, 129 S.Ct. at p. 786.) This is true even though, unlike the driver (whom they believe has committed a minor vehicular offense), the police lack probable cause to believe that the passenger has committed such an offense. (Ibid.) Once outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver might be armed and presently dangerous. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 112.) The same is true of a passenger. (Knowles v. Iowa (1998) 525 U.S. 113, 117-118.)
Wales testified that he asked Oscar Berrios, “do you have any guns? Do you have any weapons, needles, anything that’s going to poke me, knives, sharp objects in your pockets?” Oscar Berrios stated, “I have a gun in my left front pocket.” Wales then did a pat-down frisk and recovered Berrios’s gun. Berrios’s answer to Wales’s question provided the specific, articulable facts that would support a suspicion that he was armed and dangerous necessary to justify the search.
Berrios argues that the present case resembles People v. Medina (2003) 110 Cal.App.4th 171, where the police officer testified that as was his standard procedure, he did a pat-down search of defendant Medina after he was stopped in a car with a broken taillight, after midnight, in a location known for high gang activity. In Medina, however, the police officer testified that he did a patdown pursuant to his standard procedure, which included securing Medina’s hands behind his head and grabbing Medina’s hands before asking if he had any weapons, sharp objects, or anything else the officer should know about. Medina’s answer to this question was that he had a “rock” in his pants, meaning rock cocaine. The officer admitted there were no facts demonstrating a reasonable suspicion that Medina was armed and dangerous. Thus the officer had begun to search Medina well before asking if Medina had weapons, sharp objects, or anything else the officer should know about. Moreover, Medina’s answer to that question was that he had a “rock, ” not a weapon. Thus Medina’s answer could not provide a basis for the officer to reasonably suspect that Medina was armed and dangerous.
Here by contrast, Officer Wales had defendant Berrios (and Ortiz) exit the silver Audi, but Wales did not begin to search Berrios before asking him whether he had any guns, weapons, needles, knives, or sharp objects. Unlike Medina’s answer to the police officer’s question, defendant Berrios answered that he had a gun. This provided the specific, articulable fact which gave rise to a reasonable suspicion that defendant Berrios was armed and dangerous which is required to justify a police officer’s frisk for weapons. (Terry v. Ohio (1968) 392 U.S. 1, 21.)
3. Berrios’s Admission That He Had a Weapon Was Not Made When He Was Illegally Detained and Was Not Coerced or Involuntary
Berrios claims that his statement to Officer Wales that he had a gun was not voluntary. He cites contradictions in Officer Wales’s testimony.
Wales testified that once the investigation went from a traffic citation to a misdemeanor, the police were required to impound and tow the vehicle, and the officers had all occupants exit the silver Audi vehicle. Officer Wales testified:
“A I stated ‘come on out of the car.’
“Q Okay. And what happened then?
“A Well, I noticed that [defendant Berrios] was nervous and so I requested to do a pat-down frisk search. And I said, ‘do you have any guns, sharp objects on you, ’ due to the fact that we’re still conducting an investigation in and around the vehicle. [¶] And the defendant stated ‘I have a gun in my left front pocket.’
“[¶]... [¶]
“Q What was the first thing that you said to the defendant after you told him to get out of the car?
“A After I told him to exit the vehicle?
“Q Yes.
“A I asked consent to do a pat-down frisk search.
“Q When you say ‘asked consent, ’ what I want to know is exactly what you said?
“A What I said?
“Q Yes.
“A ‘Sir, do you have any guns? Do you have any weapons, needles, anything that’s going to poke me, knives, sharp objects in your pockets?’
“Q Okay. Okay. Prior to asking him that question, did you ask any questions about conducting a pat-down?
“A No, sir, due to the fact that it was late at night and they were dressed in ganglike attire, sir, and we’re still conducting a misdemeanor investigation.
“[¶]... [¶]
“Q Did the defendant respond when you asked [him if he had guns, knives, and sharp objects]?
“A Yes, sir.
“Q What did he say?
“A He said ‘I have a gun in my left front pocket.’
“Q Okay. Now, prior to asking – did you ask for consent to search prior to making the statement – asking him about having any sharp objects?
“A Are you referring did I ask ‘may I search you at this point?’
“Q Yes.
“A No, sir.”
Officer Wales admitted that in his police report, he wrote “I asked consent to conduct a pat-down search on the defendant and the defendant agreed to the pat-down search.” At the time of his testimony, however, Wales could not remember asking for defendant Berrios’s consent to search. Wales later testified that after he asked defendant Berrios to step out of the vehicle, he immediately asked him if he had any guns, sharp objects, or anything in his pockets.
When recalled to testify on the second day of the hearing, Officer Wales was asked:
“Q You indicated to the defendant that you were going to conduct a pat-down search?
“A Yes, sir.”
Subsequently on cross-examination Officer Wales testified:
“Q... When you approached [defendant Berrios] with the intent to pat him down, did you say, ‘Mr. Berrios, listen, I’d like to pat you down. Is it okay with you?’ You didn’t give him that option; right?
“A I had stated what I stated, all right? I got him out of the vehicle, I stated, ‘Do you have any guns, grenades, sharp objects, something that’s going to poke me, ’ as I do every time, because I don’t want to be poked by a needle.”
Daniel Berrios, defendant Oscar Berrios, and Jose Ortiz each testified that Wales did not ask Oscar Berrios for his consent to conduct a search.
The trial court resolved contradictions in Officer Wales’s testimony by concluding that Wales credibly testified that he asked Berrios whether he had a gun, and Berrios answered that he had a gun, before the pat-down occurred. The trial court had the power to judge witnesses’ credibility, resolve conflicts in testimony, weigh evidence and to draw factual inferences. The trial court’s findings on these matters are upheld if supported by substantial evidence. (In re Arturo D. (2002) 27 Cal.4th 60, 77.) We conclude that substantial evidence supports the trial court’s finding that Officer Wales asked his question, and Berrios answered it, before the pat-down occurred.
Berrios argues that the trial court concluded that he voluntarily made his statement about having a gun, but that his statement was not spontaneous but was made in response to Wales’s inquiry into weapons. Questioning during a traffic stop on a subject unrelated to the purposes of the stop does not violate the Fourth Amendment. Questioning is not a search or seizure, and the Constitution does not prohibit law enforcement officers from asking questions. (People v. Brown (1998) 62 Cal.App.4th 493, 499.) Berrios argues that Officer Wales’s question implied that he intended to search Berrios and thus Berrios’s answer was not voluntary, and again argues that this case is analogous to People v. Medina, supra, 110 Cal.App.4th at pp. 174-175. In Medina, however, the police officer set out to conduct a patdown pursuant to his “standard procedure, ” secured Medina’s hands behind his head as part of that search, and grabbed Medina’s hands before asking if he had any weapons, sharp objects, or anything he should know of before the search. These actions by the police officer rendered the detention unlawful. (Id. at pp. 175-176.) Medina did not reach this conclusion because the defendant’s answer to the police officer’s question was not voluntary or was coerced. Instead Medina found that the police officer’s conduct extended beyond what was reasonably necessary under the circumstances that caused the traffic stop. “[A] driver stopped for a minor traffic infraction cannot be physically restrained absent ‘ “specific and articulable facts” that could support a rational suspicion that [the driver was] involved in “some activity relating to crime.” [Citation.]’ ” (Id. at p. 176.)
Unlike what occurred in Medina, defendant Berrios was not physically restrained and illegally detained before Officer Wales asked him if he had weapons, knives, or sharp objects. Thus Berrios’s answer to Wales’s question was not coerced or involuntary.
4. Berrios Was Not Illegally Seized After Detention of His Brother Daniel Berrios
Berrios claims that he was illegally seized after the detention of his brother Daniel. After stopping the vehicle driven by Daniel Berrios, the police ran a check on Daniel’s license, which was found to be suspended or revoked. This, Berrios argues, “attenuated” the subsequent seizure of the two passengers pursuant to People v. Brendlin (2008) 45 Cal.4th 262, 269 (Brendlin).) Brendlin, however, has no application to this case.
In Brendlin, a deputy sheriff stopped a vehicle with expired registration to investigate the validity of a temporary operating permit taped to the rear window. Recognizing the passenger, defendant Brendlin, as someone who might have absconded from parole supervision, the deputy asked him to identify himself. The deputy also saw receptacles inside the car containing substances used to produce methamphetamine. When Brendlin identified himself, the deputy verified that he was a parolee at large and had an outstanding no-bail warrant for his arrest, ordered Brendlin from the car at gunpoint, and arrested him for parole violation. A search of Brendlin incident to his arrest recovered an orange syringe cap. A search of the driver recovered hypodermic needles and baggies containing marijuana and methamphetamine. Materials to manufacture methamphetamine were found in the backseat. The trial court denied Brendlin’s motion to suppress this evidence. Brendlin then pleaded guilty to manufacturing methamphetamine and admitted a prior prison term enhancement. The issue before the California Supreme Court was whether the existence of Brendlin’s outstanding arrest warrant-discovered after an unlawful traffic stop but before the search of defendant’s person or the vehicle-dissipated the taint of the illegal seizure and rendered suppression of the evidence seized unnecessary. (Brendlin, supra, 45 Cal.4th at pp. 265-268.)
In Brendlin it was undisputed that the defendant was unlawfully seized at the time of the traffic stop. Moreover, but for the unlawful traffic stop, the police would not have discovered the outstanding warrant for Brendlin’s arrest and would not have conducted the search incident to that arrest which revealed the contraband. The issue was whether the evidence sought to be suppressed was obtained by exploitation of the illegal seizure of Brendlin, or was instead obtained by means sufficiently distinguishable to be purged of the taint of illegality. In other words, did discovery of the arrest warrant for Brendlin attenuate the taint imposed on the recovered evidence by the unlawful traffic stop? (Brendlin, supra, 45 Cal.4th at pp. 268-269.) Brendlin concluded that “the outstanding warrant, which was discovered prior to any search of defendant’s person or of the vehicle, sufficiently attenuated the taint of the unlawful traffic stop.” (Id. at pp. 269-270.)
Here as we have stated and as Berrios concedes, there was no illegal traffic stop. Thus no illegality “tainted” the evidence recovered in a subsequent search of Berrios, a passenger in the legally stopped vehicle. This obviates any necessity to inquire whether discovery of Berrios’s weapon attenuated a “taint” of illegality, since no such taint contaminated that evidence.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.