Opinion
C057078
8-4-2008
THE PEOPLE, Plaintiff and Respondent, v. KENNETH IAN ROSNER, Defendant and Appellant.
Not to be Published
After pleading guilty to transportation of a controlled substance (Health and Saf. Code, § 11379, subd. (a)), defendant Kenneth Ian Rosner appeals from the trial courts denial of his motion to suppress evidence. (Pen. Code, § 1538.5; undesignated statutory references are to the Penal Code.) Defendant contends a traffic stop for speeding changed impermissibly in focus and intensity and became unreasonably prolonged in violation of the Fourth Amendment to the United States Constitution, when a police dog (Maximus) sniffed the outside of defendants car for the odor of narcotics. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with: (1) Possession of a controlled substance (psilocybin mushrooms) for sale (Health & Saf. Code, § 11378); transportation of a controlled substance (psilocybin mushrooms) (Health & Saf. Code, § 11379, subd. (a)); and possession of marijuana in excess of 28.5 grams (Health & Saf. Code, § 11357, subd. (c)).
Defendant moved to suppress evidence, arguing the peace officer lacked probable cause to ask defendant to get out of his car for a traffic infraction and impermissibly prolonged the detention to conduct a dog sniff of the car for drugs. The following evidence was adduced at the suppression hearing:
At 11:00 a.m. on July 2, 2007, on Interstate 5, a deputy sheriff stopped defendants car for a speeding violation (Veh. Code, § 22349), 76 miles per hour in a posted 65 mph zone. Defendant was driving, and a 14-year-old male was a passenger. The deputy told defendant the reason for the stop and became suspicious of other possible criminal activity, because defendant was more nervous than usual for motorists stopped by law enforcement. Defendant avoided eye contact, his hands shook, his voice cracked, and his breathing was rapid. The deputy was also suspicious because defendants travel, as stated to the deputy, was a quick trip between port cities (Seattle and Carlsbad) — a travel pattern typical of drug-traffickers (though the deputy testified he believed it was correct that defendants papers showed he lived in Carlsbad). The deputy took defendants documents (license, insurance, and registration) back to his patrol car to complete the paperwork for the traffic citation. About five or six minutes into this paperwork, another deputy arrived to lend backup assistance.
The first deputy returned to defendants car and, in order to complete the citation process, asked defendant to step out of the car. At this point in the citation process, as was his routine in traffic stops, the deputy intended to engage defendant in conversation and ask questions to confirm residence and obtain statistical information.
However, the deputy first asked if he could search defendants car for contraband. Defendant said no. The first deputy then took his canine partner, Maximus, from his patrol car and had the dog, who was trained to detect narcotics, sniff the outside of defendants car. Defendant stipulated to the dogs qualifications. Maximus alerted to defendants car, indicating the odor of a controlled substance. Because of the positive alert, the deputy had the dog sniff the interior of the car. The dog alerted to a backpack. The deputies placed defendant and his passenger in a patrol car and conducted a hand search, which revealed 35 grams of marijuana in the backpack and 18 pounds of psilocybin mushrooms in the rear cargo unit of the car.
The record is somewhat ambiguous. The prosecutor asked the deputy what he did "after" engaging in conversation. The deputy answered he asked for consent to search the car. However, the deputy never testified that he first engaged in the intended conversation for completion of the citation process. Instead, the deputy testified he "would have" engaged in that conversation. Defendant acknowledges the deputy asked for consent to search the car before engaging in the conversation to complete the citation process. Thus, the deputy had not completed the citation process at the time of the dog sniff.
The deputy appears to have misspoken in stating it was 35 pounds.
The initial dog sniff took place about eight or nine minutes into the traffic stop. Traffic citations typically take the deputy 20 to 25 minutes.
The trial court denied defendants suppression motion, stating:
"First of all, the quote/unquote indicators that the officer noted, while they certainly may have some significance, they dont under the law rise to a reasonable suspicion of probable cause. There is nothing unlawful about ordering a person out of their vehicle during a traffic stop, and there was no undue prolongation of this citation process to do the sniff, which is not a search pursuant to [Illinois v. Caballes (2005) 543 U.S. 405]. [¶] Had the vehicle stop been concluded and there was a further detention, despite an earlier ruling I made, I probably would have granted the motion because I think the case law that I relied on the last time I ruled on something close to this, but not exactly the same, is probably on less solid constitution [sic] grounds than the cases which could have held an und[ue] prolongation inappropriate simply to have a drug dog arrive. But in the instant [case] the back-up officers arrive, the dog was there, the back-up officer arrived during the course of the citation process, and there was no prolongation of the stop. So the motion is denied."
Defendant pled guilty to Count 2, transportation of a controlled substance (Health and Saf. Code, § 11379, subd. (a)), and the other counts were dismissed.
The trial court imposed a sentence of two years.
DISCUSSION
Defendant contends his detention was unreasonably prolonged, and the traffic stop impermissibly changed in focus and intensity when the deputy conducted the dog sniff. We disagree.
On review of a trial courts denial of a suppression motion under section 1538.5, we review the trial courts factual findings under a substantial evidence standard and independently decide the legal effect of such determinations. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Windham (2006) 145 Cal.App.4th 881, 886.)
Defendant suggests we must accept the trial courts finding that the deputys observations (e.g., defendants excessive nervousness, etc.) did not give rise to a reasonable suspicion of probable cause for narcotics activity. However, the deputys observations were undisputed, and the "finding" to which defendant refers was actually a determination of the legal effect of the facts—a mixed fact-law question that is predominantly one of law and which we review de novo. (Alvarez, supra, 14 Cal.4th at p. 182; Windham, supra, 145 Cal.App.4th at p. 886.) Moreover, even if defendants excessive nervousness did not suffice for reasonable suspicion of probable cause of narcotics activity, we shall conclude there was no Fourth Amendment violation.
Though not disputed by defendant, we observe the Fourth Amendment does not require a reasonable suspicion to justify a peace officers ordering a motorist to get out of a car stopped for a traffic violation. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109-111 [54 L.Ed.2d 331, 336-337].)
Defendant contends the request to search his car (which he refused) and the dog sniff of the exterior of his car were unnecessary to the traffic citation and therefore impermissibly changed the focus and intensity of the traffic detention. Defendant does not challenge the further investigation after the dog alerted to the cars exterior.
The request to search the car did not impermissibly change the focus or intensity of the stop. Questioning during a routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation, as long as it does not result in an unreasonably prolonged detention. (People v. Brown (1998) 62 Cal.App.4th 493, 499 [officer did not violate Fourth Amendment rights of bicyclist stopped for traffic infraction by asking bicyclist if he was on probation and asking for consent to search fanny pack].) We discuss and reject, post, defendants contention that his detention was unreasonably prolonged.
As to the dog sniff, the Fourth Amendment does not require a reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. (Illinois v. Caballes (2005) 543 U.S. 405, 407 (Caballes); People v. Mayberry (1982) 31 Cal.3d 335, 342 [dog sniff of luggage].)
Caballes, supra, 543 U.S. 405, rejected an argument that the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation which was unlawful because the shift in purpose was not supported by any reasonable suspicion that the citizen possessed narcotics. (Id. at p. 408 .) Caballes held that "conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed [defendants] constitutionally protected interest in privacy." (Ibid.) A canine sniff by a well-trained narcotics-detection dog (the dogs credentials are not disputed in this case) discloses only the presence or absence of contraband. (Id. at p. 409 .) "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." (Id. at p. 410 .)
Accordingly, we reject defendants contention that the traffic stop impermissibly changed in focus and intensity, in violation of the Fourth Amendment, when the deputy asked for consent to search the car and then conducted the dog sniff.
We next consider—and reject—defendants contention that the request for consent to search the car and the dog sniff of the cars exterior were impermissible because they unreasonably prolonged his traffic stop.
A routine traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. (People v. McGaughran (1979) 25 Cal.3d 577, 586.) Those purposes include examining the drivers license and registration, writing a citation, obtaining the motorists promise to appear, discussing the violation with the driver, and ascertaining that the driver fully understands the conduct to be avoided. (Id. at p. 584.) "[T]he law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop." (Ibid.) If further investigation can be "completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights." (Ibid.) There is no set time limit for a permissible investigatory stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. (United States v. Sharpe (1985) 470 U.S. 675, 686-688 [20-minute investigative detention of suspected drug trafficker did not violate Fourth Amendment]; People v. Soun (1995) 34 Cal.App.4th 1499, 1520.)
Defendant contends McGaughran, supra, 25 Cal.3d 577, supports his position that his traffic stop was unreasonably prolonged. We disagree. McGaughran held a warrant check unduly prolonged a traffic stop, but the Supreme Court also said a warrant check would have been permissible if it could have been completed within the three or four minutes it would take for the particular officer to follow his routine for the particular type of stop—a common driver error for which the officer always let drivers off with a warning. The officers routine was to advise motorists of the reason for the traffic stop, examine the drivers license, and discuss the drivers explanation. (Id. at pp. 584-585.) The few moments necessary for the officer to return to his vehicle and initiate the warrant check would not constitute an impermissible prolongation of the traffic stop. (Ibid., fn. 6.) However, the warrant check in McGaughran, back in the olden days of 1979, took 10 minutes, during which the officer sat and waited for the results. (Id. at p. 586.) The California Supreme Court held that, since the officer had already detained the driver for the period necessary to perform the officers functions arising from the traffic violation, the subsequent detention for an additional period of time solely for the purpose of conducting a warrant check was impermissible. (Ibid.)
Defendant quotes from Williams v. Superior Court (1985) 168 Cal.App.3d 349, which said that the "clear intent of McGaughran is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not `reasonably necessary to completion of the officers traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses." (Id. at p. 358 [prolonged interrogation of vehicles occupants directed solely toward determining whether they were involved in recent robberies was not reasonably necessary to officers performance of duties relative to the traffic violation].)
However, "the statement [in Williams] must be read in light of the facts of that case and subsequent United States Supreme Court cases." (Brown, supra, 62 Cal.App.4th at p. 499.) Brown held there was no Fourth Amendment violation where an officer stopped a bicyclist for a traffic infraction, questioned him about his probation status, and requested permission to search a fanny pack (which the defendant granted) while the officer awaited the results of a warrant check. (Id. at p. 499) "One minute of generalized questioning during a routine traffic stop is not unreasonable. . . . [The] questions about defendants probation status did not constitute a general crime investigation. They merely provided the officer with additional pertinent information about the individual he had detained. [¶] Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. . . . [¶] Obviously, this rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. [Citations.]" (Ibid.) "[I]nvestigative activities beyond the original purpose of a traffic stop . . . are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.]" (Brown, supra, 62 Cal.App.4th at p. 498.)
Here, the deputy usually spends about 20 minutes on a traffic stop/citation. Defendant does not contend the request to search the car and defendants negative response took more than a couple of moments, and the dog sniff of the outside of defendants car took place only eight or nine minutes into the traffic stop. Five or six minutes of that time was spent at the patrol car checking defendants paperwork and writing the citation. The deputy then intended to speak with defendant, e.g., to confirm he lived at the address on his license. The police dog was in the patrol car of the first deputy at the scene, and thus there was no delay associated with bringing the dog to the scene.
Other authorities cited by defendant are unavailing. For example, the officer in Willett v. Superior Court (1969) 2 Cal.App.3d 555, intended to issue a warning for a burnt-out lightbulb on the defendants car but instead detained the defendant for 40 minutes to run a records check.
People v. Lingo (1970) 3 Cal.App.3d 661, said the officers had completed their activity on the traffic stop when they detained the defendant to ask about narcotics activity for which they admittedly had no grounds for suspicion, and the appellate court specified "we do not deal with a case of interrogation during a detention still lawfully continuing . . . ." (Id. at p. 664.)
In People v. Grace (1973) 32 Cal.App.3d 447, the officer claimed to have stopped the car for an inoperative brakelight but saw as soon as he alighted from the patrol car that the defendants brakelight was operative. The officer conducted an examination of the car until he found another equipment problem and then engaged the defendant in conversation while his partner wrote the traffic citation. (Id. at p. 450.)
Defendant cites another case, but it has since been depublished and therefore cannot be cited as precedent. (Cal. Rules of Court, rule 8.1115.) Even if it had remained published, the case would not have helped defendant. Thus, People v. Verdugo, formerly published at 150 Cal.App.4th Supp. 1, said the detention should have stopped once the driver, stopped for an expired registration, produced a valid, temporary registration, and since there had been no accident, the officer was not justified in asking for proof of insurance. Here, the deputy had not yet completed his routine handling of the traffic citation when he conducted the dog sniff, and we see no evidence that the deputy stalled the permissible detention for an improper purpose.
We conclude the request to search the car and the dog sniff did not unreasonably prolong or impermissibly exceed the scope of the traffic stop. The trial court properly denied the suppression motion.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P.J.
HULL, J.