Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. SCR244431
Sepulveda, J.
Defendant, a passenger in a vehicle lawfully detained for a traffic investigation, appeals after entering pleas of no contest to charges of transportation of methamphetamine (Health and Saf. Code § 11379, subd. (a)), possession of methamphetamine (Health and Saf. Code § 11377, subd. (a)), and misdemeanor resisting arrest (Pen. Code § 148, subd. (a)(1)). The sole issue on appeal is whether the trial court improperly denied defendant’s motion to suppress evidence under Penal Code section 1538.5. His appeal raises the following narrow issue: may an officer who has legally stopped a vehicle due to a traffic violation (here, failure to have a front license plate) and who has already obtained the driver’s license and registration, request identification from a passenger in the vehicle (absent any additional suspicious conduct on the part of the driver or the passenger), for the purpose of running a criminal records check, in the name of officer safety? Under the facts of this case, we answer this question in the affirmative.
I. BACKGROUND
Fairfield Police Officer Frank Piro stopped a vehicle at approximately 10:17 p.m., because it did not have a front license plate displayed; there was no other reason for the stop. Officer Piro had no other information about the occupants of the vehicle, and did not have any suspicions that additional criminal activity had occurred, or was occurring. Piro approached the driver and obtained her license and registration; this occurred within the first 30 seconds of the detention. The officer at that point had all the information necessary to write a ticket for the traffic violation, although his citation book remained in his patrol car. Officer Piro approached the passenger, defendant, and asked if he had any identification, to which defendant responded positively. Piro asked defendant if he could see his identification; defendant handed over his identification and immediately volunteered that he was on parole. Officer Piro testified that prior to asking defendant if he had identification, he had not observed any suspicious behavior on defendant’s part, or on the part of the driver. Piro indicated that he did not need any information from defendant in order to write the ticket. Rather, it was his normal procedure in almost all traffic stops to request identification from passengers in order to run a records check, to see if they had any “wants or warrants” or were on probation or parole. Piro did this for officer safety, as a passenger could be on probation or parole for offenses involving drugs or weapons, information of which the officer would not otherwise be aware.
Since defendant entered a plea of no contest, the factual summary is taken from the evidence presented the preliminary hearing, where defendant initially raised his motion to suppress.
When defendant indicated that he was on parole, Officer Piro had the driver exit the vehicle and ran a “wants and warrants” check on defendant, confirming his parole status. Piro then had defendant exit the vehicle and informed him that he was going to conduct a parole search of his person and the vehicle. The officer located two baggies of methamphetamine in defendant’s shoes. After defendant unsuccessfully attempted to run away and refused to comply with orders to permit himself to be handcuffed, Officer Piro and a cover officer subdued defendant and placed him under arrest.
Defendant was charged with possession of methamphetamine, transportation of methamphetamine, and misdemeanor resisting arrest. After motions to suppress evidence (originally brought at the preliminary hearing, and later litigated through a Penal Code section 995 motion and another motion to suppress) were denied, defendant entered pleas of no contest to all of the charges, admitted an allegation that he had suffered a prior prison conviction and a prior unlawful substance conviction, and was sentenced to seven years in state prison, the execution of which was suspended. Defendant was placed on probation and ordered to serve 360 days in county jail, among other terms. This timely appeal followed.
The seven-year sentence consisted of the midterm of three years on the transportation charge, three years for a prior unlawful substance conviction enhancement, and one year for the prison prior; a concurrent term was imposed on the possession charge. Defendant was sentenced to six months on the misdemeanor resisting charge, with credit for time served.
II. DISCUSSION
As defendant has clarified in his reply brief, his contention on appeal is that Officer Piro’s request for his identification unduly prolonged an otherwise initially valid traffic detention, in violation of the Fourth Amendment.
Defendant takes issue with respondent’s attempt to rebut an argument that defendant contends he never intended to raise, “that a request for a passenger’s identification during a traffic stop in and of itself violates the Fourth Amendment.” Whether or not this distinction was made clear in defendant’s opening brief, a review of the law surrounding traffic detentions, as well as the law regarding requests for identification, is necessary to our determination of defendant’s contention on appeal.
An officer may detain an individual if he has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. (Terry v. Ohio (1967) 392 U.S. 1.) The stop of a vehicle for a traffic violation is a seizure, and thus must be supported, at the least, by an officer’s reasonable suspicion that a violation of traffic laws has occurred. (See, e.g., Delaware v. Prouse (1979) 440 U.S. 648, 663.) As the Supreme Court recently explained, “ ‘[M]ost traffic stops’ . . . ‘resemble, in duration and atmosphere, the kind of brief detention authorized in Terry [v. Ohio, supra, 392 U.S. 1].’ [Citation.]” (Arizona v. Johnson (2009) __ U.S. __ [129 S.Ct. 781, 786] (Johnson).)
Traffic stops “are ‘especially fraught with danger to police officers’ [citation]” and “ ‘ “The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized,” ’ [the court] stressed ‘ “if the officers routinely exercise unquestioned command of the situation.” ’ [Citations.]” (Johnson, supra, 129 S.Ct. 781 at p. 786.) Thus, our high court has authorized police officers conducting routine traffic stops to order both the driver (Pennsylvania v. Mimms (1977) 434 U.S. 106, 123) and passengers (Maryland v. Wilson (1997) 519 U.S. 408, 413-414) out of the vehicle, without further justification, for officer safety. (Id.) The court explained, “the risk of a violent encounter in a traffic-stop setting ‘stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.’ [Citation.] ‘[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime . . . is every bit as great as that of the driver.’ [Citation.]” (Id.) The Court has recently determined that passengers in a vehicle stopped for a traffic violation are themselves detained by the stop of the car, reasoning that: “What we have said in these opinions probably reflects a societal expectation of ‘ “unquestioned [police] command” ’ at odds with any notion that a passenger would feel free to leave” the scene of a traffic detention. (Brendlin v. California (2007) 551 U.S. 249 [127 S.Ct. 2400, 2407].)
With regard to a request for identification, the United States Supreme Court has unambiguously held: “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure” because a reasonable person would feel free to terminate the encounter and go about his or her business. (Immigration and Naturalization Service v. Delgado (1984) 466 U.S. 210, 218.) As our high court has explained, “Ordinarily, an investigating officer is free to ask a person for identification without implicating the [Fourth] Amendment.” (Italics added.) (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County (2005) 542 U.S. 177, 178.) California courts have similarly ruled that a request for identification does not transform into a detention what would otherwise be a consensual encounter. (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1370 [“mere request for identification does not transmogrify a contact into a Fourth Amendment seizure,” italics omitted]; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 [officer’s request for identification “did not—by itself—escalate the encounter to a detention”].) Whether the officer’s retention of an individual’s identification, with the intent of running a records check, would convert what would otherwise have been a consensual encounter into a detention, or whether then running the records check would do so, are questions that have been answered variously by reviewing courts. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1284-1287 [surveying array of federal and state cases regarding running warrants check]; Castaneda, supra, 35 Cal.App.4th at pp. 1227-1228 [once defendant complied with officer’s request for identification and submitted it to officer, detention occurred].) We agree with the Bouser court’s method of analysis on these issues: whether or not retaining an individual’s identification and running a records check converts an otherwise consensual encounter into a detention must be determined under the totality of the circumstances. (People v. Bouser, supra, 26 Cal.App.4th at pp. 1284-1287.)
Against this backdrop, we recognize that defendant, as a passenger in a vehicle that was stopped for investigation of a traffic violation, was already detained by the initial stop of the car. (Brendlin v. California, supra, 127 S.Ct. 2400 at p. 2407.) Thus, as defendant has clarified in his reply brief, the issue presented here is not whether the officer’s request for identification, retention of that identification, or running of the records check converted what was otherwise a consensual encounter into a detention. The issue is whether or not the officer’s actions in this regard unduly prolonged the initial valid detention. As the court explained in Hiibel, “ a Terry [, supra, 392 U.S. 1] stop [must] be justified at its inception and be ‘reasonably related in scope to the circumstances which justified’ the initial stop.” (Hiibel, supra, 542 U.S. at p. 178.) However, as the court recently clarified, “An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100-101 (2005).” (Johnson, supra, 129 S.Ct. 781 at p. 788, italics added.)
As a general matter, even though a request of a passenger for identification and the running of a records check regarding his criminal history are not directly related to the original purpose of the stop (to investigate and possibly cite the driver for the traffic violation), they are certainly reasonably related to the manner in which the officer conducts that investigation, in order to assure his safety and to maintain control of the situation. As the court recently reiterated in Johnson, passengers may be ordered out of a vehicle after it is stopped for a traffic violation as “ ‘the same weighty interest in officer safety’ [applies] . . . [and a] passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. [Citation.] And as ‘the passengers are already stopped by virtue of the stop of the vehicle’ [citation] ‘the additional intrusion on the passenger is minimal.’ ” (Johnson, supra, at p. 783.) Given the officer’s legitimate need to control the potentially volatile situation during a traffic investigation so as to secure officer safety, we cannot say that this very minimal additional intrusion occasioned by the request for identification and checking of a passenger’s criminal record is necessarily unreasonable. Thus, an officer conducting a traffic stop may request identification from a passenger in the car and run a criminal records check on the passenger without running afoul of the Fourth Amendment’s protection against unreasonable searches and seizures, so long as his actions in this regard do not “measurably extend the duration of the stop.” (Id. at p. 788.)
In the present case, as Officer Piro explained, his practice was to ask passengers for identification and to run criminal history checks on them in nearly all traffic stops, even if running the check had nothing to do with the initial purpose for his stop of the vehicle. He indicated that he did so for officer safety as “I like to know who else is in the car. [¶] . . . [¶] Because someone sitting in the passenger seat could be wanted, could be on probation with a gun, on parole with narcotics. We don’t really know unless we ask those questions. [¶] . . . [¶] It’s an officer safety issue to have somebody possibly sitting in a passenger seat that we don’t know nothing about, that may have a gun.” Officer Piro’s standard procedure was not unreasonable, so long as it was conducted in a reasonable manner that did not unduly extend the length of time required to otherwise complete the traffic stop.
The magistrate’s ruling on this issue at the preliminary hearing, where the motion to suppress was first heard, is illuminating. As the magistrate explained, “this [c]ourt will find that it’s eminently reasonable for a police officer, at 10:17 at night, dealing with two people in a car where he has to turn his back on that car to go write a citation, to know who the other person is, so in the event something happens, there’s some way of knowing who you’re dealing with. [¶] And also the notion of finding out if the other person has outstanding warrants, is wanted for something, armed and dangerous, that sort of thing. I think an officer who did not do that would be foolhardy. I think it’s very reasonable for a police officer to know who is behind him, when he’s out writing a citation. It’s a matter of common knowledge that police officers are subject to great risk when they are in these situations.” We cannot disagree with the magistrate’s analysis.
Whether or not the traffic stop here was unduly prolonged must be analyzed under a totality of the circumstances standard. (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358-359.) Officer Piro asked defendant for his identification approximately 30 seconds after the initial stop. He testified that only a minute or so elapsed from the initial stop of the car to when defendant informed him that he was on parole. Confirmation of defendant’s parole status was received by Piro from dispatch at 10:23 p.m., approximately six minutes after the officer first observed the traffic violation. These actions in no way unduly prolonged the initial detention by measurably extending its duration. Once defendant was legitimately detained by the initial stop of the vehicle, the brief delay occasioned by the officer’s actions in obtaining the defendant’s identification and running a criminal records check was a relatively minimal additional intrusion upon his rights which, when balanced against the officer’s need to maintain “unquestioned command of the situation” (Johnson, supra, 129 S.Ct. at p. 782) in the interest of officer safety, was entirely reasonable. We therefore find no Fourth Amendment violation.
Once defendant notified the officer of his parole status, the officer could have immediately conducted the parole search. Thus, under the facts of the present case, the detention was actually delayed only the very short period of time from the point where Officer Piro obtained the driver’s registration and license until defendant notified Piro of his parole status.
The recent Johnson case clarified that no additional reasonable suspicion, apart from the initial traffic violation, is required in order to justify the passenger’s detention occasioned by the stop of the vehicle, as “The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the [traffic] stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave . . . . [Citation.]” (Johnson, supra, 129 S.Ct. 781 at p. 788, italics added.)
III. DISPOSITION
The judgment is affirmed.
I concur: Reardon,J.
I agree that the judgment should be affirmed. However, I do not agree with the majority’s Fourth Amendment analysis, and instead conclude that, assuming there was a violation of appellant’s Fourth Amendment rights, a well-recognized exception to the exclusionary rule applies: the doctrine of inevitable discovery.
The Attorney General argues that, if there was a violation of appellant’s Fourth Amendment rights, the judgment should be affirmed on the basis of the “attenuation” doctrine, under authority of People v. Brendlin (2008) 45 Cal.4th 262. Although closely related, that theory is somewhat different from the inevitable discovery doctrine. (See Nix v. Williams (1984) 467 U.S. 431, 442-444.) Regardless, when the record establishes another basis for affirming the trial court’s ruling, and there does not appear to be any further evidence that could have been introduced to oppose its application, appellate courts are free to rely on that alternative basis to affirm the trial court’s ruling. (People v. Boyer (2006) 38 Cal.4th 412, 449; Green v. Superior Court (1985) 40 Cal.3d 126, 138-139.) Consequently, a theory “such as inevitable discovery, may be raised for the first time on appeal. [Citation.]” (People v. Watkins (1994) 26 Cal.App.4th 19, 30-31.)
The doctrine of inevitable discovery has been described recently by our Supreme Court as follows: “Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine ‘is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.’ (Murray v. United States (1988) 487 U.S. 533, 539 . . . .) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. (Nix v. Williams [supra,] 467 U.S. [at p. ]443, fn. 4 . . . .) The burden of establishing that illegally seized evidence is admissible under the rule rests upon the government. (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 682 . . .; see Nix v. Williams, supra, 467 U.S. at p. 444 . . . ].)” (People v. Robles (2000) 23 Cal.4th 789, 800-801, italics & fn. omitted; see also Green v. Superior Court, supra, 40 Cal.3d at pp. 136-137 [the “doctrine of ‘inevitable discovery[ ]’ . . . [pivots on the fact that] ‘there is no nexus [to the illegality] sufficient to provide a taint.’ [Citation.]”].)
The test is not whether “ ‘the police would have certainly discovered the tainted evidence, rather, it is only necessary to show a reasonably strong probability that they would have.’ (In re Javier A. (1984) 159 Cal.App.3d 913, 928 . . .; see also People v. Superior Court (Tunch)[, supra,] 80 Cal.App.3d [at p. 681].)” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1136.)
In Hernandez v. Superior Court (1980) 110 Cal.App.3d 355, the defendant claimed, among other arguments, that evidence seized without a warrant from a Volkswagen registered in his wife’s name should be suppressed because his wife did not give her consent to the search. Hernandez was on parole subject to a search condition. The court determined that, although registered to Hernandez’s wife, substantial evidence supported the superior court’s conclusion that the vehicle was under Hernandez’s control. Therefore, because the police search founded on the parole condition was lawful as to property under Hernandez’s control, his wife’s lack of consent was irrelevant. (Id. at p. 367.)
More recently, in In re Angel R. (2008) 163 Cal.App.4th 905, the juvenile ward of the court asserted ineffective assistance of counsel because trial counsel did not file a motion to suppress evidence (graffiti “stickers”) after he told police officers where the evidence could be found (in his shoe), in violation of his Miranda rights. The Fourth District, Division Three, explained that there was no need to address the likely merits of the unmade motion to suppress because the discovery of the stickers was inevitable. The minor had already been arrested for possession of a switchblade knife and a baggie of marijuana, and the eventual search of his person at booking incident to his arrest would have led to the contraband’s discovery. (Id. at pp. 909-910.)
Miranda v. Arizona (1966) 384 U.S. 436.
Applying these authorities to the facts of the case, and as the majority notes, within one minute of the traffic stop of the vehicle in which appellant was a passenger, and almost immediately after procuring the driver’s license and registration from the driver, appellant volunteered the information that he was on parole. As the majority also points out (maj. opn. of Sepulveda, J. at p. 6), asking passengers for identification does not alone constitute a violation of the Fourth Amendment. Once he became aware of appellant’s parole status, there is no doubt that Officer Piro planned to conduct a search of appellant based on that information:
“Q [prosecutor]: Once he advised—once the passenger advised you he was on parole, what did you do?
“A [Officer Piro]: I then explained that I was going to perform a parole search on his person and also the vehicle.”
Appellant does not dispute that he was subject to search at the time of the stop because of his parole status. Indeed, there is adequate legal justification for subjecting parolees to periodic searches. As noted by the Supreme Court in People v. Reyes (1998) 19 Cal.4th 743, as a convicted felon still subject to the jurisdiction of the Department of Corrections, a “parolee has conditional freedom—granted for the specific purpose of monitoring his transition from inmate to free citizen. The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.” (Id. at p. 752.)
Unquestionably, Officer Piro’s planned parole search would have revealed the methamphetamine. Under these circumstances, the discovery of the contraband was inevitable, even if the conduct of Officer Piro in taking the additional time to run appellant’s identification for “warrants and wants” “measurably extend[ed] the duration of the stop,” and thus constituted a violation of appellant’s Fourth Amendment rights. (Arizona v Johnson (2009) 129 S.Ct. 781, 788.)
I would affirm on this basis.