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People v. Fonseca

Court of Appeals of California, Sixth District.
Nov 6, 2003
H025215 (Cal. Ct. App. Nov. 6, 2003)

Opinion

H025215.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO CLEOFAS FONSECA, Defendant and Appellant.


Defendant Antonio Cleofas Fonseca appeals from a judgment of conviction entered after he pleaded no contest to possession of cocaine for sale and admitted that the amount of cocaine exceeded one kilogram (Health & Saf. Code, §§ 11351, 11370.4). The sole issue on appeal is whether the trial court erred in denying defendants motion to suppress evidence. For the reasons stated below, we reverse.

I. Statement of Facts

At approximately 8 p.m. on January 28, 2002, Officer Alejandro Cortes was driving his patrol car on Alma Avenue near Minnesota Avenue. He saw defendants vehicle illegally enter the street from a gas station parking lot by failing to yield to oncoming traffic in violation of Vehicle Code section 21804, subdivision (a). Cortes followed the vehicle to Lelong Street and initiated a traffic stop.

Cortes approached the drivers-side door and advised defendant of the reason for the stop. Defendant responded that he did not realize that the oncoming vehicles were so close. Defendant appeared nervous and confused. His voice was cracking, he did not make eye contact, and his hands were shaking. Though Cortes did not smell alcohol, he thought that defendant was under the influence of alcohol or a controlled substance.

Cortes asked defendant to step out of his vehicle. Officer Morris then arrived at the scene. Cortes asked defendant for his drivers license, which defendant gave to him. One of the officers then ran a license and warrant check. Cortes asked defendant if he had been drinking or if he had taken any controlled substances. Defendant replied that he had not. Due to defendants dangerous driving and nervous behavior, Cortes decided to conduct a sobriety test.

The sobriety test indicated that defendant was not under the influence of alcohol or a controlled substance. Cortes did not issue a citation for the traffic infraction. Cortes then asked defendant whether he had anything illegal in the car. Defendant replied that he did not. After Cortes asked defendant if he could search the vehicle for any illegal drugs or weapons, defendant motioned toward the car and said, "Go ahead." At this point, defendant was smiling and calm.

Cortes entered defendants vehicle and found a brick-shaped package, which was wrapped in duct tape, near the center console. Based on his training and experience on the packaging of controlled substances, Cortes suspected that the package contained drugs. Cortes made a small slit in the package and discovered a white, powdery substance inside. Cortes asked defendant what the substance was and defendant lowered his head and stated that it was drugs. Cortes placed defendant under arrest, and defendant then stated that the drugs belonged to someone else and that he was delivering them for $200. Cortes searched defendant and found three small baggies containing controlled substances, a cell phone and $865 in cash.

Defendant testified that Cortes was following him when he pulled into the gas station. Cortes drove past the gas station, made a U-turn, and parked nearby. As defendant left the gas station, he saw Cortes leave the place where he had been parked. When defendant made the left turn onto Alma, there was no oncoming traffic nearby. Cortes pulled defendant over, and told him that his back signal light was not working properly. Cortes asked for defendants license, which he gave him.

Cortes told defendant that his license did not show up in the computer, and asked him to exit his vehicle. Cortes then began to administer a sobriety test. Cortes did not ask him whether he was under the influence of drugs or alcohol. Cortes told him that he had passed the test. Another officer then arrived, and searched the passenger and the car. The other officer had Cortes look at something in the car. Cortes asked defendant what was in the car, and defendant said that it was drugs. Defendant did not give either officer permission to search his vehicle.

The trial court denied defendants motion to suppress evidence, finding the officers testimony credible as to the reasons for the traffic stop. The trial court also found valid consent for the search, stating: ". . . the stop to issue the citation to the defendant is justified based on the facts presented. I think [the officers] observations at the time he made contact with the defendant are consistent with what he believed might possibly be someone under the influence, and based on his training and experience he tried to follow up on what he observed to determine whether there is any additional information that would confirm the suspicion. During the course of that he received consent pursuant to a request. There was no command or order given on his part to search the vehicle, so for those reasons Ill deny the motion."

II. Discussion

Defendant contends that the trial court erred in denying his motion to suppress evidence. Defendant concedes that the initial detention for the traffic infraction was justified. He contends, however, that the detention was unreasonably prolonged when the officer conducted the field sobriety test.

In reviewing a motion to suppress evidence, an appellate court must defer to the trial courts express or implied factual findings where they are supported by substantial evidence. However, an appellate court exercises independent judgment on questions of law, including whether the challenged police action was constitutional. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

"The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." (Florida v. Jimeno (1991) 500 U.S. 248, 250-251.)

"To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. This reasonable suspicion requirement is measured by an objective standard, not by the particular officers subjective state of mind at the time of the stop or detention. . . . Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity." (People v. Conway (1994) 25 Cal.App.4th 385, 388-389, citations omitted.) "Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention." (People v. Russell (2000) 81 Cal.App.4th 96, 102.) "In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." (United States v. Sharpe (1985) 470 U.S. 675, 686.)

Defendant contends that since the officer did not observe any objective symptoms of intoxication, such as red, watery eyes, the smell of alcohol, an unsteady gate, slurred speech, or dilated pupils, he did not have reasonable suspicion to prolong the detention. However, defendant has overlooked the circumstances that would cause a police officer to reasonably suspect that defendant was involved in criminal activity. Here defendant drove in front of opposing traffic without yielding and told the officer that he did not realize that traffic was so close. Defendant also appeared confused, his voice was cracking, he did not make eye contact, and his hands were shaking. While defendant might have been nervous about receiving a traffic citation, his behavior also indicated that he might be under the influence of a controlled substance. Thus, the officers suspicion that defendant was under the influence was reasonable and based on articulable facts. Accordingly, the officers questions about drug and alcohol use and the subsequent sobriety test did not unreasonably prolong the detention.

Defendant next contends that even if the driving under the influence investigation was justified, any further detention of defendant was not. He contends that the officer unduly prolonged the detention by asking whether he had contraband in his car and then asking whether he could search the car.

The instant case is similar to People v. Grace (1973) 32 Cal.App.3d 447. In Grace, the police stopped the defendant for having an inoperative brake light. (Id. at p. 450.) Though the police discovered that the brake light was functional, they continued to inspect the car and found that the car had no high-beam headlights, and no high-beam indicator. (Ibid.) While one officer wrote out a warning, the other ran a records check and "asked defendant point blank if he had ever been arrested." (Ibid.) After discovering that the defendant had been arrested and that he could not possess firearms as a condition of probation, one of the officers pat searched the defendant for weapons. (Id. at p. 451.) The officer found nothing, but asked the defendant for consent to search his person. (Ibid.) The defendant gave his consent and the officer found LSD. (Ibid.) The Grace court concluded that "when [the officer] learned his initial reason for stopping [the defendant] had no basis in fact, his business with him was concluded," and the subsequent interrogation, pat-down, and search occurred while [the defendant] was illegally detained. (Id. at p. 452.) Accordingly, the trial court erred in denying the motion to suppress evidence. (Ibid.) The Grace court explained that "[a]n investigation relating to the detention required to issue a warning or citation for a minor traffic or vehicle equipment violation is limited in scope. The officer may require the driver to identify himself, produce his drivers license and the registration certificate for the vehicle, and he may interrogate with respect to the violation or violations which he has observed. Absent some suspicious circumstance, he may not search the driver or the vehicle, and he may not conduct an exploratory interrogation designed to elicit incriminating information wholly unrelated to the matter at hand." (Id. at pp. 452-453, citations omitted.)

Here, as in Grace, defendant was detained for a routine traffic stop. Though the officer was justified in investigating defendants recent drug or alcohol use by conducting a sobriety test, the detention should have ceased when the officer determined that defendant was not under the influence. Accordingly, the trial court erred in denying the motion to suppress.

The Peoples reliance on Gallik v. Superior Court (1971) 5 Cal.3d 855, is misplaced. In Gallik, the officer stopped the defendant to tell him that his car was illegally parked. (Id. at p. 858.) While the officer was approaching the vehicle, he saw defendant briefly bend down to the right. (Ibid.) The officer asked for the defendants license, pat searched him, and questioned him about "what he placed underneath the front seat." (Ibid.) After the defendant denied placing anything under the seat, the officer searched the car and seized marijuana. (Ibid.) The California Supreme Court held that the search was unlawful, because the suspicious circumstances of the defendants furtive movement were not "sufficient to invest defendants movement with guilty significance." (Id. at p. 860.) However, the court concluded that the officer reasonably questioned the defendant regarding his movement. (Id. at p. 861.) In contrast to Gallik, here the officer had no basis to continue his questioning as to whether defendant had drugs in the vehicle and then requesting consent to search the vehicle.

Relying on Terry v. Ohio (1968) 392 U.S. 1, 22, the People contend that the officers questioning furthered the "general interest . . . of effective crime prevention and detection." However, the Terry court also required that "the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief that the action taken was appropriate? [Citations.]" (Id. at pp. 21-22.) Here there were no additional facts that would have warranted continued questioning.

III. Disposition

The judgment is reversed.

We concur: Bamattre-Manoukian, Acting P.J. and Wunderlich, J.


Summaries of

People v. Fonseca

Court of Appeals of California, Sixth District.
Nov 6, 2003
H025215 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Fonseca

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO CLEOFAS FONSECA…

Court:Court of Appeals of California, Sixth District.

Date published: Nov 6, 2003

Citations

H025215 (Cal. Ct. App. Nov. 6, 2003)