Opinion
H036595
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. MANUEL QUINTERO RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS091943A)
After an investigatory traffic stop of the vehicle being driven by defendant Manuel Quintero Ramirez, police conducted a consensual search of the vehicle and found cocaine. Defendant unsuccessfully sought to suppress the evidence and now appeals (Pen. Code, § 1538.5, subd. (m)). We conclude that the traffic stop was not unduly prolonged, his consent to search was voluntary, and the "fruit of the poisonous tree" doctrine of Wong Sun v. United States (1963) 371 U.S. 471 is inapplicable. A. Procedural Background
After the filing of a criminal complaint, defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5 in the superior court.
An information charging defendant with three drug offenses (Health & Saf. Code, §§ 11350, subd. (a), 11351, 11352, subd. (a)) was filed on January 25, 2010. It also alleged two prior-conviction sentence enhancements under Health and Safety Code section 11370.2 and a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
The superior court held a hearing on defendant's motion to suppress. It denied the motion.
On December 14, 2010, pursuant to a negotiated plea agreement, defendant entered a no contest plea to a violation of Health and Safety Code section 11351 and admitted a prior conviction for the crime of transportation of a controlled substance in violation of Health and Safety Code section 11379 (Health & Saf. Code, § 11370.2). The plea agreement provided for imposition of a total term of seven years, execution suspended, a grant of probation, and a credit waiver.
The court sentenced defendant in accordance with the negotiated plea agreement, suspended execution of sentence, and placed defendant on probation for three years. B. Evidence at the Suppression Hearing
At about 2:45 p.m. on August 12, 2009, Officer Mike Livingston was driving in a fully marked patrol vehicle on Williams Road. He observed a white vehicle, which turned out to be a 1996 convertible Chrysler Sebring, traveling about 150 feet directly ahead of the patrol car. When the officer moved closer, he did not see a rear license plate or a license plate in the vehicle's rear window or a registration tag. The vehicle had a dealership placard with a dealer's logo in place of a license plate. Nothing about it seemed out of the ordinary. At the suppression hearing, the officer could not recall whether the back window was tinted but acknowledged it could have been.
Officer Livingston initiated a traffic stop of the vehicle, which was being driven by defendant. The officer's first concern was to contact the driver for officer safety reasons. Officer Livingston did not see the temporary registration in the front windshield when he approached on the driver's side of vehicle and stood outside the driver's window. He was not looking for it at that moment. Defendant did not point out the registration.
Officer Livingston then waited for Officer Lopez to arrive to help with translation. Officer Lopez arrived on the scene within minutes, estimated to be less than 10. Both officers were armed.
Officer Livingston asked defendant, through Officer Lopez, whether he had identification. Defendant responded that he did not have identification. Defendant did not have a driver's license. Officer Livingston arrested defendant.
Defendant was handcuffed and placed in the back of the patrol vehicle. Officer Livingston asked defendant whether there was anything illegal in the vehicle. Defendant said no. Officer Livingston then asked defendant if he could search the car but did not tell defendant that defendant could withhold consent. Defendant said, "Yes."
After he was done dealing with defendant, Officer Livingston saw the dealership or temporary registration in the front windshield. He walked around the car and discovered it himself. It was in the lower, right-hand corner of the front windshield on the passenger side. The officer learned the vehicle was in fact registered but not to defendant. Defendant said the car belonged to his son-in-law.
Officer Livingston's intention was to have the car towed if a records check revealed that defendant did not have a license or defendant had a suspended license. A records check revealed that defendant was driving on a suspended license. It is Officer Livingston's practice to tow a car if he determines the driver is driving on a suspended license and he customarily performs an inventory search when a car is towed.
Officer Livingston opened the glove compartment and checked inside. He then checked the area behind glove box. There he located a brown paper bag, which contained cocaine base.
The officer had the vehicle towed. A CHP-180 form was completed.
It was Officer Livingston's understanding that it is a violation of the Vehicle Code to drive with dealership plates on the rear without visible registration. The officer acknowledged that, in his experience, people oftentimes have temporary registration stickers in the front of their cars. He also conceded that it was not a violation of law to not have license plates, if they had not yet been issued for a vehicle.
The court found Officer Livingston to be a very credible witness. It first determined that the traffic stop was lawful and it was reasonable for the officer to ask for defendant's driver's license without first searching for a temporary registration. It concluded that, once it was determined that defendant had no driver's license, the officer properly arrested defendant for driving without a license. The court found defendant had given his consent to a search of the vehicle. In addition, the court found that it was inevitable that the contraband would have been discovered because the car was properly impounded.
The motion to suppress was denied. C. Motion to Suppress
1. Standard of Review
"The touchstone of the Fourth Amendment is reasonableness. (United States v. Knights (2001) 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497.) Whether an officer's conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances. (Souza, supra, 9 Cal.4th at p. 231 . . . .)" (In re Raymond C. (2008) 45 Cal.4th 303, 307.) "The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)." (U.S. v. Arvizu (2002) 534 U.S. 266, 273 .)
"A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. (Williams, supra, 20 Cal.4th 119, 127 . . . .) 'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. 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. [Citations.]' (People v. Glaser (1995) 11 Cal.4th 354, 362 . . . ; People v. Laiwa (1983) 34 Cal.3d 711, 718 . . . .)" (People v. Redd (2010) 48 Cal.4th 691, 719.) 2. Initial Traffic Stop
" 'The reasonableness of [an] officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.' (United States v. Sokolow (1989) 490 U.S. 1, 11, 109 S.Ct. 1581, 104 L.Ed.2d 1.) Nor is an officer required to eliminate all innocent explanations that might account for the facts supporting a particularized suspicion. (People v. Glaser (1995) 11 Cal.4th 354, 373 . . . .)" (In re Raymond C., supra, 45 Cal.4th at p. 308; see U.S. v. Arvizu, supra, 534 U.S. at p. 277 ["A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct"].)
"A temporary permit is to be placed in the lower rear window. However, if it would be obscured there, it may be placed in the lower right corner of either the windshield or a side window. (Dept. Motor Veh. Handbook of Registration Procedures (Oct. 2007) ch. 2, § 2.020 p. 7 available online at http:// dmv. ca. gov/ pubs/ reg_ hdbk_ pdf/ ch 02. pdf [as of Dec. 11, 2008].)" (In re Raymond C., supra, 45 Cal.4th at p. 305; see Dept. Motor Veh. Handbook of Vehicle Industry Registration Procedures (Dec. 2009) ch. 8, § 8.040, p. 8-7, available online at <http://dmv.ca.gov/pubs/reg_hdbk_pdf/ch8_ report_of_sale_used_vehicles.pdf> [as of Nov. 10, 2010].) When Officer Livingston observed that defendant's car did not have license plates or a temporary permit in the rear window, he was entitled to stop the vehicle to investigate. (See In re Raymond C., supra, 45 Cal.4th at p. 306, fn. 2.) Defendant concedes that the initial stop was based on reasonable suspicion that the vehicle was not registered.
When a dealer sells a car, it must "attach for display a copy of the report of sale on the vehicle before the vehicle is delivered to the purchaser." (Veh. Code, § 4456, subd. (a)(1).) "A vehicle displaying a copy of the report of sale may be operated without license plates or registration card until either of the following, whichever occurs first: [¶] (1) The license plates and registration card are received by the purchaser. [¶] (2) A six-month period, commencing with the date of sale of the vehicle, has expired." (Veh. Code, § 4456, subd. (c).) The Vehicle Industry Registration Procedures require the dealer to place a folded copy of a report of sale of a used vehicle in the lower rear window or, if the information will be obscured, in the lower right corner of either the windshield or a side window. (Dept. Motor Veh. Handbook of Vehicle Industry Registration Procedures (Dec. 2009) ch. 8, § 8.040, p. 8-7, available online at <http://dmv.ca.gov/pubs/reg_hdbk_pdf/ch8_report_of_sale_used_vehicles.pdf> [as of Nov. 10, 2010].) It further states that this purchaser's copy of the report of sale "authorizes operation of the vehicle until the buyer receives the license plates and registration card." (Ibid.)
If Officer Livingston had actually seen the temporary permit, he would not be entitled to stop defendant on that basis alone. "An officer who sees a vehicle displaying a temporary operating permit in lieu of license plates may not stop the vehicle simply because he or she believes that such permits are often forged or otherwise invalid. To support a stop the officer must have a reasonable suspicion that the particular permit is invalid." (People v. Hernandez (2008) 45 Cal.4th 295, 297.)
3. Duration of Detention
Defendant's principal contention on appeal is that the detention was unduly prolonged and, consequently, the probable cause to arrest him, his consent to search of the car following his arrest, and the officer's discovery of the controlled substance during the search were fruit of the poisonous tree. He maintains that Officer Livingston should have immediately checked for the registration sticker on the front windshield and should not have waited to do so until after Officer Lopez arrived to translate. He asserts that "[d]uring the time it took for Officer Lopez to arrive, Officer Livingston could have easily looked into the front windshield for the registration sticker." Defendant also maintains that "it was clearly feasible in broad daylight to . . . quickly examine the windshield, without losing control or sight of [him]."
"[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. . . . It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." (Florida v. Royer (1983) 460 U.S. 491, 500 (plur. opn. of White, J.) "A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." (Illinois v. Caballes (2005) 543 U.S. 405, 407 .) It is clear that "a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)." (Ibid.)
"But [the Supreme Court's] cases impose no rigid time limitation on Terry stops. While it is clear that 'the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,' United States v. Place, supra, 462 U.S., at 709, 103 S.Ct., at 2645, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. [Citations.] Much as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." (U.S. v. Sharpe (1985) 470 U.S. 675, 685 .)
In this case, the officer testified that his first act was to make contact with defendant for officer safety reasons. Then he waited for the arrival of Officer Lopez to translate for defendant, who received the services of a Spanish speaking interpreter at the hearing on the suppression motion.
The interest in officer safety is both legitimate and weighty. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110 [officer may order driver to get out of a lawfully stopped vehicle]; see Maryland v. Wilson (1997) 519 U.S. 408, 413 [officer making a traffic stop may order passengers to get out of car].) "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." (Terry v. Ohio (1968) 392 U.S. 1, 23 .) The Supreme Court has "specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile." (Pennsylvania v. Mimms, supra, 434 U.S. at p. 110.) It is understood that "traffic stops may be dangerous encounters." (Maryland v. Wilson (1997) 519 U.S. 408, 413 .)
Typically in a detention, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (Berkemer v. McCarty (1984) 468 U.S. 420, 439 .) In addition, once the vehicle being driven by defendant was lawfully stopped, Officer Livingston was "entitled to demand the driver's license and registration. (Veh.Code, §§ 4462, subd. (a), 12951, subd. (b); In re Arturo D. (2002) 27 Cal.4th 60, 67 . . . ; id. at pp. 88-89 . . . (conc. & dis. opn. of Werdegar, J.).)" (People v. Saunders (2006) 38 Cal.4th 1129, 1137.)
"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. [Citations.] 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. [Citation.] A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But '[t]he fact that the protection of the public might, in the abstract, have been accomplished by "less intrusive" means does not, itself, render the search unreasonable.' [Citations.] The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." (U.S. v. Sharpe, supra, 470 U.S. at pp. 686-687.)
Officer Livingston apparently was unable to communicate directly with defendant, including making any inquiries regarding registration. We do not think it was unreasonable for Officer Livingston to wait for the relatively prompt arrival of Officer Lopez to serve as a translator before proceeding any further. (See U.S. v. Ruiz (8th Cir. 2005) 412 F.3d 871, 876, 880 [approximate 10-minute delay in investigative stop awaiting arrival of Spanish-speaking officer was reasonable].) While he could have chosen to investigate the presence of temporary permit or registration on a window, we cannot say his choice to first communicate with defendant using a Spanish-speaking officer was unreasonable.
There was no evidence that Officer Livingston was able to see the registration or temporary permit on the front window from his vantage point next to the driver's window and there was no evidence that either officer saw the temporary registration on the windshield before defendant was asked for his driver license. This is not a case where the suspicion justifying the traffic stop was immediately dispelled.
4. Arrest
Defendant's arrest was permissible under the Fourth Amendment when Officer Livingston learned that defendant did not have a valid license. "A person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver's license issued under this code, except those persons who are expressly exempted under [the Vehicle] code." (Veh. Code, § 12500, subd. (a).) "[W]arrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the [federal] Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." (Virginia v. Moore (2008) 553 U.S. 164, 176 [Moore arrested for misdemeanor of driving on a suspended license, which was not an arrestable offense under state law]; see Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323 [Fourth Amendment does not forbid "a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine"].)
Since the traffic stop had not been unduly prolonged before defendant was asked for his driver's license, defendant's arrest for driving without a license was not fruit of the poisonous tree. (See generally Wong Sun v. United States, supra, 371 U.S. at pp. 484-488.)
5. Consent
a. Consent Voluntary
Defendant points out that, when he was asked for permission to search the car, he was in physical custody, handcuffed, and in the back of a patrol vehicle and he was "outnumbered" by the two officers. He also states that the evidence does not make it clear whether he was given his Miranda rights. He argues that no reasonable person could have believed that he could refuse to give his consent to search under these circumstances.
Defense counsel objected on Miranda grounds to Officer Livingston's testimony that defendant answered "no" when asked whether there was anything illegal in the car. After the court indicated that there was no incriminating statement, defense counsel withdrew his objection.
"The voluntariness of consent is a question of fact to be determined from the totality of circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (Schneckloth); Jenkins, supra, 22 Cal.4th 900, 973 . . . .) If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., 'that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.' (Schneckloth, supra, at p. 233, 93 S.Ct. 2041; see Royer, supra, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229.)" (People v. Boyer (2006) 38 Cal.4th 412, 445-446.)
Police officers are not required to inform a person from whom they seek consent to search that permission may be withheld. (Schneckloth v. Bustamonte (1976) 412 U.S. 218, 231-234.) A consent to search may be found to be voluntary without "proof of knowledge of the right to refuse consent." (Id. at pp. 232-233.) Also, "the fact of custody alone has never been enough in itself to demonstrate a coerced . . . consent to search." (U.S. v. Watson (1976) 423 U.S. 411, 424 .) Likewise, "the fact that defendant was handcuffed when his consent was sought does not demonstrate that his consent to a search was involuntary." (People v. Ratliff (1986) 41 Cal.3d 675, 686.) Even "the failure to give Miranda warnings does not render a consent to search involuntary. (People v. James, supra, 19 Cal.3d at pp. 114-115 . . . .)" (Ibid.) No one circumstance is determinative.
Here, the evidence did not show that the officer's request for permission to search was accompanied by any implied or express threat, promise, or show of force. Although Officer Livingston did not tell defendant he could refuse to consent, the officer did request permission to search. The request for consent to search implied that defendant could refuse. Defendant simply replied, "Yes." The trial court properly found, under the totality of circumstances, that defendant's consent was voluntary and not coerced. Therefore, the search of the vehicle was reasonable under the consent exception to the warrant requirement (see Schneckloth v. Bustamonte, supra, 412 U.S. at p. 219). b. Not Fruit of the Poisonous Tree
Defendant also asserts that his consent was "fruit of the poisonous tree" in that the detention was unduly prolonged. We have already determined that the detention was not unreasonably extended while Officer Livingston waited for Officer Lopez to arrive. The officer's request for permission to search did not prolong any investigative detention since defendant was already lawfully under arrest at that time. "Because the tree was not poisonous, its fruit was not tainted." (People v. Mickey (1991) 54 Cal.3d 612, 652.)
Given our determinations, the court properly denied the suppression motion.
DISPOSITION
The judgment is affirmed.
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ELIA, Acting P. J.
WE CONCUR:
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BAMATTRE-MANOUKIAN, J.
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Judge of the Santa Clara County Superior Court, assigned by the Chief Justice prsuant to article VI, section 6 of the California Constitution.
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