Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. LF007177A, Charles P. McNutt, Judge.
Mark J. Shusted, 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, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J. and Kane, J.
Defendant Randall Scott Kelly pled no contest to a violation of Health and Safety Code section 11377, subdivision (a) (possession of methamphetamine), after the trial court denied his motion to suppress evidence pursuant to Penal Code section 1538.5. He now challenges that denial. We will affirm.
The facts are gleaned from the transcript of the hearing on defendant’s suppression motion.
Defendant was the passenger in a pickup truck stopped by California Highway Patrol Officer Matt Iturriria based on Officer Iturriria’s observations that the pickup was traveling at an unusually slow rate of speed and weaving onto the double yellow line. When the officer contacted the driver, the driver displayed signs of drug intoxication. After administering a series of sobriety tests, Officer Iturriria arrested the driver and placed him in the back of the patrol car. The officer’s encounter with the driver lasted approximately 20 minutes. During this time, defendant remained in the front seat of the pickup.
Officer Iturriria testified his first interaction with defendant occurred after he arrested the driver. At that point, Officer Iturriria returned to the pickup and contacted defendant “to obtain required information from him.” The officer first asked defendant for an identification card or driver’s license. Officer Iturriria testified that “my intention was to let [defendant] drive the vehicle, because obviously it takes a lot longer for a tow truck to get up in that area.”
In response, defendant “related he did not have any of those documents” with him and “verbally provided his name and date of birth.” Defendant told Officer Iturriria his name was “Michael Peeley.” Officer Iturriria relayed the information to dispatch “to see if there was a match on his driver’s license” and “was advised there was no match.” On cross-examination, Officer Iturriria confirmed that, while waiting for dispatch to check the information, he asked defendant if he had used any drugs that day. When asked if this was something he would normally ask of passengers, the officer responded: “It is, if I’m considering allowing them to drive a vehicle.”
After being advised by dispatch there was no driver’s license match, Officer Iturriria informed defendant he could not allow him to drive the pickup. The officer testified, “[s]o I offered him to, he could wait there for the tow truck and to get a ride from the tow truck to a safe location; or, he could walk[] to a nearby market, which is probably a quarter mile from where the stop occurred.”
Defendant “decided that he was going to leave at that time and wanted to gather some of his belongings that were in the [back of the] pickup.” Officer Iturriria agreed and opened the passenger door for defendant so that he could get out of the pickup. As defendant got up from his seat, the officer “observed a clear baggie of suspected methamphetamine fall from … his left rear pocket, onto the seat, in plain view.”
DISCUSSION
On appeal, the parties agree that defendant was detained along with the driver as a result of the traffic stop (see Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400]), and defendant does not challenge the validity of the stop on appeal. Defendant contends, as he did below, that “once [he] informed Officer Iturriria that he had no driver’s license on his person, and thus could not drive the vehicle, the continued questioning of defendant concerning his identity and drug use was unreasonable.” In essence, defendant appears to be arguing that Officer Iturriria’s questioning unduly prolonged his detention. Assuming arguendo defendant was detained for the duration of his encounter with Officer Iturriria, we disagree with defendant’s argument and find the detention was not unduly or unreasonably prolonged by Officer Iturriria’s questions. Accordingly, the trial court did not err in denying defendant’s motion to suppress the evidence as the product of an unlawful detention.
In denying the motion to suppress, the trial court explained: “I don’t think a detention took place until after the officer actually saw the suspected narcotics. Seems like everything else was a contact with the passenger to see if he could drive or not. I think the officer acted appropriately, and was in a proper place to view the narcotics, which was seen in plain sight.”
“In reviewing a motion to suppress, we defer to the lower court’s findings of fact supported by substantial evidence, but exercise independent judgment in determining whether the detention was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)” (People v. Gallardo (2005) 130 Cal.App.4th 234, 237.) “Under Terry v. Ohio (1968) 392 U.S. 1, 19 [(Terry)], the judicial inquiry into the reasonableness of a detention is a dual one – whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Detention, not questioning, is the evil at which Terry’s second prong is aimed. [Citation.]” (People v. Brown (1998) 62 Cal.App.4th 493, 496.) 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.) There is no hard-and-fast limit as to the amount of time that is reasonable; rather, it depends on the circumstances of each case. (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.)
Preliminarily, we address the underlying factual premise of defendant’s argument, which is that Officer Iturriria decided defendant could not drive the vehicle once defendant stated he did not have a driver’s license with him. Thus, defendant argues, “it was no longer tenable to elicit personal information from defendant on the ground that it would inform a decision that the officer had already resolved against defendant.” We agree with the People that defendant has misinterpreted the officer’s testimony. It appears that on cross-examination, defense counsel attempted to draw out an admission from the officer that he continued to ask defendant questions about his identity and drug use, ostensibly to determine whether defendant could drive the pickup, after the officer had already determined that defendant could not drive because he did not have his driver’s license with him. The officer repeatedly tried to clarify that this was not the case, and that his decision not to let defendant drive was formed both by defendant’s lack of a physical license and the officer’s inability to confirm, though dispatch, that defendant had a license based on the identifying information defendant provided. Thus, the evidence does not show the officer had already decided defendant could not drive before he continued to question him about his identity and drug use as defendant asserts on appeal. However, the officer’s questions did not unduly prolong the detention in any event.
Thus, on cross-examination, the following exchange took place: “Q. [DEFENSE COUNSEL]: So the first thing you asked him was, you asked him if he had some kind of identification card or driver’s license? [¶] A. [OFFICER ITURRIRIA]: Yes. [¶] Q. Then you found out he didn’t have one; is that correct? [¶] A. He related to me that he did not have it. [¶] Q. You weren’t going to let him drive the vehicle because he didn’t have a license, correct? [¶] A. Correct. And I could not confirm it by the name and date of birth he provided me. [¶] … [¶] Q. So in this case you knew that he didn’t have a license, so he wasn’t going to drive, but you still asked him about drugs; is that correct? [¶] A. No, he provided his name, date of birth, and I asked him if he had used any drugs, to see if he would be able to drive the vehicle. And at that point was not able to get a match via my dispatch on his driver’s license. [¶] Q. I want to make sure I understand this; you said when you first approached, you asked him if he had any kind of identification correct? [¶] A. Yes. [¶] Q. He said no? [¶] A. He said he does have a valid license, but he doesn’t have it with him at that point, physically with him. [¶] Q. You also said you were not going to allow him to drive because a person can’t drive without a license, correct, though? It’s a Vehicle Code violation, 12500? [¶] A. Correct. [¶] Q. After knowing that you were not going to allow him to drive, then you asked him for his personal information correct? Name, date of birth? [¶] A. No, I’m asking him if he was using drugs was part of the determination whether or not he could drive the vehicle. [¶] Q. My question to you is, after him telling you that he didn’t have a license, after him telling you he didn’t have a license, you then asked him about his personal information, correct? [¶] A. He related to me he did have a license, but he didn’t have it with him. [¶] Q. But my question to you is, after he told you that he did not have a license, you asked for his personal information, correct? [¶] A. Correct. [¶] Q. After asking for that personal information, you asked him if he had used drugs that day, correct? [¶] A. That’s right.”
“‘[A]sking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.’ (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185) [(Hiibel)].… [A]sking a person who is lawfully detained for identification does not constitute an independent violation of the Fourth Amendment. ‘Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. [Citations.]’ (Hiibel, supra, 542 U.S. at p. 186 [upholding a state ‘stop and identify’ statute requiring an individual who is detained pursuant to a Terry stop to disclose his or her identity].)” (People v. Vibanco (2007) 151 Cal.App.4th 1, 13, first, second & third bracketed insertions added.) Under this authority, we have no trouble concluding Officer Iturriria questioning of defendant about his identity and checking it for a driver’s license match did not implicate Fourth Amendment concerns.
With respect to Officer Iturriria’s questioning about whether defendant had used drugs that day, we note that, under both federal and state constitutional authority, “[q]uestioning [by police] during [a] 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. (U.S. v. Shabazz [(5th Cir. 1993)] 993 F.2d [431,] 436; accord, Florida v. Bostick (1991) 501 U.S. 429, 435, 439-440 [Police may approach a person in a public place and ask potentially incriminating questions and request permission to search without implicating the Fourth Amendment, so long as a reasonable person would understand he or she could refuse to cooperate.].) While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. (U.S. v. Shabazz, supra, at p. 437; accord, People v. Bell [(1996)] 43 Cal.App.4th [754,] 768.)” (People v. Brown, supra, 62 Cal.App.4th at pp. 499-500.) Moreover, “‘[i]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.]’ [Citation.]” (People v. Gallardo, supra, 130 Cal.App.4th at p. 238, first & third bracketed insertions added.)
Here, Officer Iturriria asked defendant the potentially incriminating question of whether he used drugs while waiting to see if there was a driver’s license match with the information defendant provided. Officer Iturriria testified he did not have to return to his patrol vehicle to contact dispatch but simply relayed the information defendant provided over the radio he wore. As soon as the officer learned there was no driver’s license match, he advised defendant and that he could not let him drive and suggested ways defendant could find a ride out of the area. There is no indication the officer’s investigatory activities (simultaneously asking defendant if he used drugs while waiting for the results of a driver’s license check) prolonged the stop beyond the time it would have otherwise taken.
Finally, we find no basis for reversing the trial court’s ruling based on defendant’s assertion that “the People did not establish that Officer Iturriria was authorized to order defendant from the truck pending arrival of the tow vehicle.” Defendant notes that while Vehicle Code section 22651, subdivision (h)(1), allows an officer to arrange for a vehicle to be towed where the driver has been arrested, the code section “is silent with respect to the authority to order passengers to alight prior to the arrival of the tow truck.…” Defendant does not explain how this observation relates to the lawfulness of defendant’s detention or the merits of his suppression motion. However, the evidence at the suppression hearing was not that the officer ordered defendant from the pickup but rather that he suggested that defendant could either wait for the tow truck to arrive or walk to a nearby market. Defendant has presented no basis for us to conclude that the officer’s suggestions were improper or that defendant had some possessory interest in the pickup which would give him the right to remain inside the vehicle following the driver’s arrest. It appears the officer was simply trying to help defendant find a safe ride from the area and we find no error has been demonstrated in this regard.
DISPOSITION
The judgment is affirmed.
Notwithstanding the court’s finding there was no detention until after the officer saw the evidence, the parties on appeal agree defendant was detained as a result of the traffic stop. However, the People contend defendant was no longer detained but “had been released by the officer and was told he was free to go prior to the methamphetamine falling from [his] pocket” and therefore there was no Fourth Amendment violation. It is unnecessary for us to decide whether or not defendant was still detained at the point the plastic baggie fell from his pocket based on our conclusion that, even assuming he was detained, his detention was lawful and not unduly prolonged.