Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge, Super. Ct. No. BF114884A.
Richard J. Moller, 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, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
OPINION
Following the denial of her motion to suppress evidence (Pen. Code, § 1538.5), appellant Sabrina Bustamante pled no contest to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378; count II) and possession of brass knuckles (Pen. Code, § 12020, subd. (a)(1); count III). The court suspended imposition of sentence and placed appellant on three years’ probation, one of the terms of which was that she serve one year in county jail.
On appeal, appellant contends the court erred in denying her suppression motion. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In accordance with the usual rules governing appellate review of the denial of a suppression motion, we set forth the facts in the light most favorable to the denial of the motion. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
City of Bakersfield Police Officer Rob Robles testified he was on patrol on May 31, 2006, alone, when, at approximately 4:00 a.m., he saw a Honda Civic traveling approximately 50 miles per hour along Ming Avenue, where the posted speed limit was 40 miles per hour. The officer activated his overhead lights and siren for the purpose of conducting an “enforcement stop,” and the Honda pulled into a convenience store parking lot. As the Honda was coming to a stop, Officer Robles observed the driver, whom he identified in court as appellant, make a movement which the officer described as a “movement towards the floorboard of the vehicle” and a “forward movement . . . with the shoulder.” This movement indicated to the officer that “possibly, the driver . . . was trying to hide some contraband.”
Except as otherwise indicated, our factual summary is taken from Officer Robles’s testimony.
Officer Robles approached the Honda on foot, on the driver’s side. Appellant “seemed very nervous,” more so than is “typical[]” for a driver who has just been stopped. She “repeatedly looked down towards . . . the floorboard of the vehicle” and she “[was not] making eye contact with [the officer].” There was a male passenger in the front seat, and he “also appeared visibly nervous.”
After making contact with appellant, Officer Robles went back to his patrol car and “conducted a records check.” At some point thereafter, the officer went “back to [appellant] and recontacted her . . . .” The officer asked appellant for permission to search her person, appellant consented and the officer conducted “a basic search for weapons.” He “did not locate anything on her.”
After searching appellant, Officer Robles asked the passenger for permission to search, the passenger consented and the officer conducted a search of the passenger. The officer found “[n]othing.” He conducted both searches for “[o]fficer safety purposes.”
After searching the passenger, Officer Robles, believing that “due to [appellant’s] behavior, . . . there was possibly either a weapon, contraband [or] narcotic[s] inside of the vehicle,” placed the passenger in the back seat of the officer’s patrol car. At some point thereafter, the officer asked appellant for permission to search the Honda, and appellant consented. By this time, another officer had arrived on the scene; this officer’s “job was to watch out for [Officer Robles’s] safety” as Officer Robles searched the car. In his search of the car, Officer Robles found, “just in front of the driver’s side seat,” a plastic bag containing a “glass narcotics smoking device” and “about ten grams of suspected methamphetamine.” Thereafter, Officer Robles placed appellant under arrest.
Less than 10 minutes elapsed from the time Officer Robles effected the stop of the Honda to the point at which he asked appellant for permission to search the car.
Appellant testified that the officer also found brass knuckles under the front seat of the car.
The Motion to Suppress
Appellant moved to suppress “all . . . evidence, statements, observations, detections, and fruits thereof, resulting from an illegal search of her person and effects which occurred on or about May 31, 2006.”
DISCUSSION
Appellant does not challenge the validity of the initial enforcement stop, and she acknowledges that a warrantless search is valid where proper consent is given. (See People v. Oldham (2000) 81 Cal.App.4th 1, 9.) She argues that Officer Robles unduly prolonged the detention when he asked for permission to search appellant, the passenger and the car rather than simply issuing a traffic citation, thereby rendering invalid appellant’s consent to search. And because her 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.
“The prosecution [bears] the burden of proving some justification for [a] warrantless search or seizure . . . .” (People v. Williams (1999) 20 Cal.4th 119, 136.) In reviewing the denial of a suppression motion, “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.” (People v. Glaser, supra, 11 Cal.4th at p. 362.)
“The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend. . . . .)” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A “brief investigative stop” of a person, commonly referred to in the case law as a detention, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229.)
While a police officer may stop a motorist for a traffic violation, the detention cannot be prolonged beyond the time period necessary to address the violation. (People v. McGaughran (1979) 25 Cal.3d 577, 584.) Investigative activities beyond the original purpose of the stop, including a request for consent to search, are permissible when they do not prolong the stop beyond the time it would otherwise take. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238-239; People v. Brown (1998) 62 Cal.App.4th 493, 498.)
In addition, “Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention.” (People v. Russell (2000) 81 Cal.App.4th 96, 102. “There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (Ibid.)
We assume without deciding that, as appellant contends, by requesting permission to conduct the search that led to the seizure appellant seeks to suppress, Officer Robles prolonged the detention beyond the time necessary to issue a citation for speeding. However, as we explain below, almost immediately after the officer effected the stop, circumstances arose which provided independent justification for the detention.
“ ‘Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess “reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.” [Citations.] Such reasonable suspicion requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” [Citation.]’ ” ( People v. White (2003) 107 Cal.App.4th 636, 641.) “The corollary to this rule is that an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith.” (People v. Conway (1994) 25 Cal.App.4th 385, 389.)
“Reasonable suspicion cannot be reduced to a neat set of legal rules, but must be determined by looking to ‘the totality of the circumstances—the whole picture.’ ” (U.S. v. Jordan (5th Cir. 2000) 232 F.3d 447, 449, quoting United States v. Sokolow (1989) 490 U.S. 1, 7-8 [109 S.Ct. 1581].) Under this standard, a detention requires only a “minimal level of justification” (I.N.S. v. Delgado (466 U.S. 210, 217 [104 S.Ct. 1758] (Delgado)), and an officer may initiate one “based not on certainty but on the need to ‘check out’ a reasonable suspicion.” (United States v. Clark (D.C. Cir. 1994) 24 F.3d 299, 303). Moreover, “we ‘judge the officer’s conduct in light of common sense and ordinary human experience,’ [citation], and we accord deference to an officer’s ability to distinguish between innocent and suspicious actions.” (U.S. v. Williams (10th Cir. 2001) 271 F.3d 1262, 1268.) “[W]hen circumstances are ‘ “consistent with criminal activity,” they permit—even demand—an investigation . . . .’ [Citation.] A different result is not warranted merely because circumstances known to an officer may also be ‘ “consistent with lawful activity.” ’ [Citation.]” ( People v. Souza, supra, 9 Cal.4th at p. 233.) “Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.” (In re Tony C. (1978) 21 Cal.3d 888, 894.)
With these principles in mind, we turn to an examination of the facts in the instant case. First, Officer Robles testified that upon approaching the Honda as it was coming to a stop, he saw appellant make a movement toward the floorboard of the car, indicating to the officer that appellant may have been trying to hide some contraband. While furtive movements or gestures alone are not enough to justify a detention, they may take on significance when coupled with other factors. (Cf. People v. Flores (1972) 23 Cal.App.3d 23, 27 [detention justified in part by defendant’s act, while driving, of leaning to the right of the vehicle so that the officer lost sight of her, after the officer had given signal to stop].) Here, the officer also testified to the following: appellant was very nervous, more so than is typical of a driver who has been stopped by police; she looked toward the floorboard of the car, i.e., toward the area where she had directed her earlier movement; and the passenger was also visibly nervous.
These factors gave rise to a reasonable suspicion that criminal activity was afoot, and thereby met the “minimal level of justification” (Delgado, supra, 466 U.S. at p. 217) required for a detention and justified the officer in taking steps to “resolve the ambiguity” (In re Tony C., supra, 21 Cal.3d at p. 894) in the situation to determine whether a crime was being or had been committed. And upon observing appellant’s conduct and demeanor and the nervousness of her passenger, the officer acted expeditiously to make that determination. Therefore, appellant was not unlawfully detained and the validity of her consent was not vitiated. The court did not err in denying appellant’s suppression motion.
DISPOSITION
The judgment is affirmed.