Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF114440A. Clarence Westra, Judge.
Robert L. S. Angres, 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, Senior Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Ardaiz, P.J., Vartabedian, J. and Harris, J.
OPINION
INTRODUCTION
Charles Milton Makes appeals from the denial of a pre-plea motion to suppress. We affirm.
STATEMENT OF THE CASE
On May 12, 2006, the Kern County District Attorney filed an information charging appellant Makes with, in count 1, transporting cocaine (Health & Saf. Code, § 11352); in count 2, possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)); in count 3, false representation to a police officer (Pen. Code, § 148.9, subd. (a)); and, in count 4, operating a vehicle without a driver’s license (Veh. Code, § 12500, subd. (a)). The information further alleged as to count 1 that appellant suffered a prior drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and as to counts 1 and 2, that appellant suffered a prior drug conviction within the meaning of Penal Code section 667.5, subdivision (b).
On May 19, 2006, Makes pled not guilty on all counts and denied the allegations. He also moved to suppress evidence that was discovered incident to a pat-down search.
On July 24, 2006, the trial court conducted a hearing on the suppression motion. After hearing testimony and argument, the trial court denied the motion to suppress.
On August 4, 2006, Makes entered a plea of no contest to count 2 on the condition that he serve no more than two years in state prison, and the trial court dismissed the remaining counts on the prosecutor’s motion and struck the allegations.
On October 25, 2006, the trial court sentenced Makes to the middle term of two years in state prison. That same day, Makes filed a notice of appeal.
FACTS
On April 21, 2006, just before 2:00 o’clock in the morning, Bakersfield Police Officer Dennis Eddy noticed that the license plate light of a blue Subaru was not working, which is a violation of the Vehicle Code. The vehicle was in an area of Bakersfield known for narcotics activity. Appellant Makes was driving the vehicle.
Officer Eddy pulled the car over, and asked for “driver’s license, registration, and insurance.” Makes stated that he did not have his driver’s license with him. Officer Eddy then asked for Makes’s name and date of birth. Makes stated that his name was Manuel Lee and his date of birth was March 31, 1963. Officer Eddy tried to verify this information through his vehicle’s computer system and with police dispatch, but was unsuccessful. Officer Eddy explained this to appellant, who then gave a variation of the name, E. Manuel Lee. Officer Eddy also was unable to confirm Makes’s identity with this information.
Concluding that Makes had given him false information, Officer Eddy directed Makes to get out the car so he could conduct a pat-down search. During the pat-down search, Officer Eddy felt a bulge that he immediately identified was not a weapon. He squeezed the bulge and concluded that it was contraband. Officer Eddy arrested Makes. The bulge was a clear plastic bindle containing a chunky substance that appeared to be cocaine base.
Makes moved to suppress. He argued that pursuant to Minnesota v. Dickerson (1993) 508 U.S. 366, an officer can only perform a pat-down search for weapons and cannot search for contraband or other objects. He also argued that Officer Eddy had exceeded the scope of the lawful pat-down search by squeezing the bulge.
The prosecutor argued that prior to the pat down, Makes had given false information to a police officer in violation of Penal Code section 184.9. Thus, the search was incident to the arrest for that violation. The prosecutor argued that the search did not have to take place after the formal arrest but could take place prior to arrest. He also concluded that an objective standard applied; therefore, the search was valid.
The trial court ruled that the search was legal as incident to arrest since the officer had probable cause to arrest appellant because the officer was provided false information. The trial court also concluded that squeezing the bulge was not outside the lawful scope of the search.
DISCUSSION
I.
Standard of Review
An appellate court independently reviews a trial court’s ruling on a motion to suppress, except that any factual determinations are reviewed under the substantial evidence standard. (People v. Ayala (2000) 23 Cal.4th 225, 255.)
“As long as probable cause to arrest exists before the search, a search substantially contemporaneous with the arrest is incident thereto and proper.” (In re Jonathan M. (1981) 117 Cal.App.3d 530, 536.) “Once there is probable cause for an arrest it is immaterial that the search preceded the arrest.” (Id. at p. 536.) Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (People v. Kraft (2000) 23 Cal.4th 978, 1037.)
II.
Search Incident to Lawful Arrest
On appeal, Makes argues that Officer Eddy exceeded the lawful scope of a pat-down search during a traffic stop. However, this argument is moot if, as the trial court concluded, the search was incident to a lawful arrest because a lawful arrest justifies a full custodial search of the person. (See United States v. Robinson (1973) 414 U.S. 218, 225.) On this point, Makes argues that there was insufficient evidence to constitute probable cause for arrest. We disagree.
Penal Code, section 148.9 provides in relevant part that:
“Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer …, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.” (Pen. Code, § 148.9, subd. (a).)
Thus, if a police officer was provided with false identification information by a person, the officer could arrest that person, and incident to that lawful arrest, conduct a full custodial search of that person.
Here, the trial court concluded based upon Officer Eddy’s testimony that Makes had violated Penal Code section 148.9. Independently reviewing that legal ruling, we also conclude that Makes violated Penal Code section 148.9.
The record shows that Makes provided a false name to Officer Eddy twice. Officer Eddy tried to verify Makes’s identity both times, but was unable to do so. At this point, Officer Eddy believed and conscientiously entertained an honest and strong suspicion that he was provided false information. We conclude that a person of ordinary care and prudence also would, if in Officer Eddy’s position, believe and conscientiously entertain an honest and strong suspicion that Makes had provided false information.
Makes contends that In re Kelly W. (2002) 95 Cal.App.4th 468, 471, supports his argument that he did not violate Penal Code section 148.9, when he provided false names to Officer Eddy. We disagree. In that case, the juvenile’s true name was Kelly W.-K., a hyphenated last name consisting of his mother’s last name [W.] and his father’s last name [K.]. (In re Kelly W., supra, 95 Cal.App.4th at p. 471.) An officer found the juvenile in an intoxicated state and upon asking the juvenile’s name, the juvenile replied “Kelly K.” and also provided the officer with his correct date of birth. (Ibid.) The appellate court reversed the judgment that the juvenile had provided false information because it was indisputable that the juvenile did not represent himself as another person. (Id. at p. 473.) Here, appellant Charles Milton Makes told Officer Eddy that his name was “Manuel Lee” or “E. Manuel Lee.” Those names are not versions of his true name. Thus, Makes violated Penal Code section 148.9 by providing Officer Eddy with false names.
Makes also contends that Officer Eddy should have asked for further information such as Makes’s social security number or home address before the officer would have probable cause to arrest. We disagree. Officer Eddy had already tried to verify Makes’s information through his vehicle’s computer system and with police dispatch. Officer Eddy was not required to conduct additional inquiry because his attempted verifications were sufficient for him to believe and conscientiously entertain an honest and strong suspicion that Makes had violated Penal Code section 148.9.
Penal Code section 148.9 only requires that a person “falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer … upon a lawful detention” to be guilty of a misdemeanor. Officer Eddy could not verify the two names provided by Makes during the traffic stop. Thus, he reasonably believed and honestly suspected that Makes violated Penal Code section 148.9, and thus was subject to arrest.
Because there was probable cause to arrest Makes, the search incident to that arrest, which resulted in the discovery of narcotics, was legal. Thus, the trial court did not err in denying Makes’s motion to suppress.
DISPOSITION
The judgment is affirmed.