Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. LF7342A, Stephen P. Gildner and Louis P. Etcheverry, Judges.
Judge Gildner ruled on the motion to suppress; Judge Etcheverry imposed sentence.
Neil D. Chhabra, 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, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
Following the denial of his motion to suppress evidence, defendant Fernando Gonzalez Ramirez was convicted by jury trial of possession of methamphetamine and transportation of methamphetamine. On appeal, he contends the trial court should have granted the motion to suppress because (1) exigent circumstances did not justify the officer’s warrantless, nonconsensual patdown search of defendant because the officer had no duty to impound the vehicle and no duty to transport its occupants, (2) the officer failed to inform defendant he had the right to refuse a ride in the patrol vehicle and (3) even if the patdown search was permissible, the officer exceeded the permissible scope by lifting defendant’s pant leg and looking inside his boot. We will affirm.
PROCEDURAL SUMMARY
On October 26, 2007, the district attorney charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2).
Defendant moved to suppress evidence pursuant to Penal Code section 1538.5. Following a hearing, the trial court denied the motion. A jury found defendant guilty on both counts and the trial court sentenced him to the middle term of three years in prison on count 2. The court stayed a two-year term on count 1 (Pen. Code, § 654).
The facts are taken from the suppression hearing.
On September 19, 2007, at about 9:45 a.m., a California Highway Patrol officer was patrolling in a marked patrol vehicle on the northbound I-5 freeway in Kern County. The officer stopped a vehicle and cited the driver for speeding and for driving without a license. The officer did not book the driver into custody. Defendant was riding in the front passenger seat and one other passenger was in the vehicle. The officer told the driver the vehicle would have to be impounded for 30 days.
According to the officer, the vehicle’s occupants did not have an alternate means of getting off the freeway. The officer told them it was not safe to leave them on the freeway, and they would be transported off the freeway in patrol cars. The officer explained they would be patted down for weapons for the officers’ safety, placed in handcuffs and transported in the patrol cars, but they would not be under arrest. None of the vehicle’s occupants objected. The officer testified, however, that the occupants did not have a choice because they could not remain on the freeway and they were not free to walk along the freeway. Furthermore, the officer could not have allowed them to call someone to pick them up on the side of the freeway because it was illegal to stop on the freeway. The officer intended to transport them to the Flying J in the Lebec area so they could call someone or take a bus.
After the officer searched the driver, cuffed him and placed him in the patrol vehicle, defendant got out of the impounded vehicle and followed the officer’s directions to stand with his hands laced behind his head. Defendant was wearing long pants and cowboy boots. The officer began a patdown search of defendant. The officer was familiar with cowboy boots and knew that a weapon could easily be hidden inside a boot. The officer lifted defendant’s pant legs so he could look into his boots. Inside the upper part of defendant’s left boot, the officer saw a clear plastic baggie containing a white crystal substance. The package was a little larger than a golf ball. The officer handcuffed defendant and placed him under arrest.
DISCUSSION
When we review a trial court’s ruling on a suppression motion, we defer to the court’s factual findings that are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327.) Whether a search is constitutionally reasonable, however, is a legal question upon which we exercise our independent judgment. (Ibid.)
I. Authority to Impound Vehicle
Defendant first contends the officer had no duty to impound the vehicle after citing the driver and making no effort to determine whether either passenger could legally drive the car off the freeway.
“‘There is little doubt that law enforcement authorities under certain conditions have the right, and often the duty, to impound a motor vehicle.’ [Citation.] An officer may exercise discretion in deciding when to impound an automobile ‘“so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.…” [Citation.]’ [Citation.] ... Vehicle Code section 22651, subdivision (p), authorize[s] peace officers to impound a vehicle ‘[w]hen the peace officer issues the driver of a vehicle a notice to appear for a violation of Section 12500 [driving without a valid driver’s license] .…’ This is a clear statement of the circumstances under which the Legislature determined that a police officer may impound a vehicle. Additional support is provided by People v. Benites [(1992)] 9 Cal.App.4th 309, 327-328 and People v. Burch (1986) 188 Cal.App.3d 172, 176, wherein the courts held that officers, acting pursuant to section 22651, subdivision (p), in deciding to impound automobiles had followed standardized criteria within the meaning of Colorado v. Bertine (1987) 479 U.S. 367, 371.” (People v. Green (1996) 46 Cal.App.4th 367, 372-373.)
All statutory references are to the Vehicle Code unless otherwise noted.
Green cited the version of section 22651, subdivision (p) in effect at the time of the impoundment in that case (October 28, 1994). At that time, the statute “authorized peace officers to impound a vehicle ‘[w]hen the peace officer issues the driver of a vehicle a notice to appear for a violation of Section 12500 ... and there is no passenger in the vehicle who has a valid driver’s license and authorization to operate the vehicle.’” (People v. Green, supra, 46 Cal.App.4th at p. 373, italics added.) In 1994, however, legislation omitted the no-passenger requirement. (Stats. 1994, ch. 1221, §§ 16, 17.) Since 1995, the statute has authorized peace officers to impound a vehicle “[w]hen the peace officer issues the driver of a vehicle a notice to appear for a violation of Section 12500 ... and the vehicle is not impounded pursuant to Section 22655.5 [impoundment of motor vehicle by peace officer with probable cause to believe vehicle used as means to commit public offense or is evidence or contains evidence of crime].”
Here, the officer stopped the driver for speeding, then discovered the driver did not have a valid driver’s license, a violation of section 12500. This violation authorized the officer to impound the vehicle pursuant to section 22651, subdivision (p), regardless of whether the vehicle’s passengers were able to legally drive the vehicle off the freeway.
II. Duty to Transport
Defendant argues that the officer had no duty to transport the vehicle’s occupants because one of the passengers possibly could have driven the vehicle legally and, alternatively, the officer could have allowed the vehicle’s occupants to walk along the freeway.
First, as we have explained, the officer had the authority to impound the vehicle, regardless of whether any of the passengers could legally drive the vehicle (see § 22651, subd. (p)). After the officer did so, the vehicle’s occupants were no longer able to drive themselves off the freeway.
Second, the officer testified that walking along the freeway was illegal. (See § 21960, subd. (a) [Department of Transportation and local authorities may prohibit use of freeways by pedestrians].) Defendant points to the emergency provision for occupants of a vehicle disabled on the freeway (ibid. [“the driver or passengers of a disabled vehicle stopped on a freeway or expressway may walk to the nearest exit, in either direction, on that side of the freeway or expressway upon which the vehicle is disabled, from which telephone or motor vehicle repair services are available”]). The vehicle in this case, however, was not disabled. The occupants were without transportation not because of a mechanical misfortune but because of the officer’s act. Accordingly, the emergency provision of section 21960 did not apply. Furthermore, the officer testified that the occupants could not stay on the side of the freeway and wait for a ride because it was illegal for a car to stop on the side of the freeway. (See § 21718, subd. (a) [“[n]o person shall stop, park, or leave standing any vehicle upon a freeway”].) Finally, standing or walking along the freeway would have been dangerous. (See, e.g., People v. Tobin (1990) 219 Cal.App.3d 634, 639; Fry v. Young (1968) 267 Cal.App.2d 340, 347-350; Rangel v. Badolato (1955) 133 Cal.App.2d 254, 256-257.) The officer was present and able to protect the vehicle’s occupants from the peril of standing or walking along the freeway -- a peril the officer had created by impounding the vehicle. (See, e.g., Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 718 [under California law, a law enforcement officer has a duty to exercise reasonable care for the safety of those persons whom the officer stops; this duty includes the obligation not to expose such persons to an unreasonable risk of injury by third parties]; see also Williams v. State of California (1983) 34 Cal.3d 18, 27-28 [officers had no duty of care where, among other things, they did not create the peril in which plaintiff found herself, nor did they take any affirmative action which contributed to, increased, or changed the risk which would have otherwise existed].)
Under the circumstances in this case, we believe the officer had a duty to transport the vehicle’s occupants rather than allow them to illegally wait on the roadside or illegally walk along the freeway, exposing themselves to danger. Because we so conclude, we need not address defendant’s contention that the officer was required to inform him of his right to refuse to ride with the officer, a right that, as defendant acknowledges, exists only where no duty to transport exists. (People v. Scott (1976) 16 Cal.3d 242, 250 [where no duty to transport, officer had duty to inform defendant of right to refuse ride]; see People v. Tobin, supra, 219 Cal.App.3d at pp. 638-639 [where duty to transport, no right to refuse ride; Scott was distinguishable because no duty to transport existed there].)
III. Patdown Search
Having concluded the officer had a duty to transport the vehicle’s occupants off the freeway, we can also conclude that a limited search of the occupants for weapons was permissible before their transportation in the officer’s vehicle.
The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures by police officers and other government officials. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 335.) Under Terry v. Ohio (1968) 392 U.S. 1 (Terry), an officer may conduct a reasonable search of a nonarrestee for weapons for the officer’s protection if the officer has reason to believe he is dealing with an armed and dangerous individual. (Id. at pp. 26-27; People v. Scott, supra, 16 Cal.3d at p. 249.)
The need to transport a person in an officer’s patrol vehicle, however, creates an exigency that entitles the officer to conduct a limited search for weapons, even where the officer has no reason to believe the person is armed and dangerous. (People v. Brisendine (1975) 13 Cal.3d 528, 537 [where “exigencies of the situation require that officers travel in close proximity with arrestees, a limited weapons search is permissible”]; People v. Tobin, supra, 219 Cal.App.3d at p. 641 [patdown of passenger justified before transport; “[t]he appellate courts of this state have long recognized that the need to transport a person in a police vehicle in itself is an exigency which justifies a pat-search for weapons”]; People v. Mack (1977) 66 Cal.App.3d 839, 848 [patdown search for weapons warranted by need to transport traffic misdemeanant to magistrate]; People v. Ramos (1972) 26 Cal.App.3d 108, 112 [patdown of suspected witness before transport was a sensible precaution; policemen have been attacked and killed by back seat passengers with concealed guns and knives].) In such a situation the increased danger to the officer warrants the minor intrusion of a protective search. (People v. Brisendine, supra, at pp. 537-538; People v. Tobin, supra, at p. 641 [exigency and need for public safety supported minimally intrusive patdown].) “‘[T]he officer risks the danger that the [person] may be armed with and draw a weapon. This danger is not necessarily eliminated by handcuffing the [person] as he may still be able to reach a weapon secreted on his person. And, incident to the entire process of transportation, it may be impossible for the officer to keep the [person] under constant surveillance by reason of the requirements of driving the vehicle and other responsibilities.’” (People v. Brisendine, supra. at p. 537, fn. omitted.)
Accordingly, we conclude that the officer in this case was entitled to conduct a limited search for weapons before transporting the impounded vehicle’s occupants in the patrol vehicle.
IV. Scope of Search
Defendant lastly contends the officer exceeded the permissible scope of a patdown search when he lifted defendant’s pant leg and looked inside his boot.
A protective search must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” (Terry, supra, 392 U.S. at p. 26.) If the protective search goes beyond what is necessary to determine if the person is armed, the search is no longer valid and its fruits will be suppressed. (Sibron v. New York (1968) 392 U.S. 40, 65-66.) Because the sole justification for the search is the protection of the officer, the search “must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Terry, supra, at pp. 29-30; People v. Brisendine, supra, 13 Cal.3d at p. 542.) Terry, however, never articulated any specific limitations when an officer searches for weapons, instead stating “limitations will have to be developed in the concrete factual circumstances of individual cases.” (Terry, supra, at p. 29.) Accordingly, Terry does not limit a weapons search to a patdown or frisk. (United States v. Thompson (9th Cir. 1979) 597 F.2d 187, 191.) To the contrary, any limited intrusion designed to discover weapons is permissible. (United States v. Hill (9th Cir. 1976) 545 F.2d 1191, 1193.) Nonintrusive, reasonable means other than a frisk are permissible where those other means are necessary under the circumstances to ensure the person is not armed. (See, e.g., United States v. Thompson, supra, at p. 191 [where person was wearing bulky coat, reaching into coat pocket was permissible; patdown would not have determined whether coat contained weapon].)
We have located no California authority addressing whether an officer may lift a pant leg to search for weapons. But other jurisdictions have concluded that, where the person to be searched is wearing boots or similar shoes, officers may raise pant legs and even remove shoes while conducting a search for weapons under Terry. (See, e.g., Hodges v. State (Ala. 1996) 678 So.2d 1049, 1051 [where person wore hard leather boots, raising pant leg was permissible; patdown would not have resolved safety concerns]; People v. Sorenson (Ill. 2001) 752 N.E.2d 1078, 1089 [where person wore heavy boots, requiring him to remove boots was permissible]; Stone v. State (Ind. App. 1996) 671 N.E.2d 499, 503 [where person wore untied high-top athletic shoes, requiring him to remove shoes was permissible]; see also State v. Naranjo (Utah App. 2005) 118 P.3d 285 [where person was wearing regular shoes, raising pant leg was beyond permissible scope of Terry].) Similarly, we conclude here that the officer’s lifting of defendant’s pant legs, where defendant was wearing cowboy boots, was reasonably limited to that which was necessary to discover weapons and did not exceed the scope under Terry.
The trial court did not err by denying defendant’s motion to suppress evidence.
DISPOSITION
The judgment is affirmed.