Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR023122, Jennifer R.S. Detjen, Judge.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Doris Calandra, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Gomes, J.
INTRODUCTION
Appellant John Joseph Salcido, Sr., challenges his conviction for possession of methamphetamine on the grounds the trial court erred in denying his motion to suppress the evidence. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On October 24, 2005, about 9:45 p.m., Madera Police Officer Jason Gutknecht saw a Ford Mustang make an illegal turn at an intersection. He initiated a traffic stop. The female driver could not provide him with a driver’s license, so Gutknecht asked her to step out of the car and sit on the curb. This was his standard practice with anyone who could not present a driver’s license.
Salcido was a passenger in the car. After asking the driver to sit on the curb, Gutknecht asked Salcido to step out of the car. Salcido was wearing baggy clothing and Gutknecht conducted a patdown search of Salcido for officer safety purposes. Salcido was asked if he possessed any guns, knives, drugs, or similar items, to which he replied, “No.” Gutknecht asked Salcido for permission to search his pockets. Salcido replied, “Go ahead.” Gutknecht found methamphetamine in one of Salcido’s front pockets.
Salcido moved to suppress the evidence against him, contending the patdown was unlawful and therefore his consent to search his pockets was not voluntary.
The trial court denied the motion, finding that “there was no evidence that would indicate that this was anything other than a volitional consent to search [Salcido’s] person.”
Salcido then sought to set aside the information, contending that he was unlawfully detained during the traffic stop. The trial court denied this motion.
Salcido twice renewed his suppression motion and also once again sought to set aside the information. All the motions were denied. At no time in the trial court did Salcido contend his detention was unlawfully prolonged before the patdown and search of his pockets. Consequently, there was no evidence presented regarding the length or duration of the traffic stop.
DISCUSSION
It is undisputed that Salcido was a passenger in a car that was lawfully stopped because the driver made an illegal turn. Salcido also does not challenge as unlawful the request that he exit the vehicle. In this appeal, Salcido contends that after he was asked to exit the car, the traffic stop was transformed into an unconstitutional investigation of him.
In Pennsylvania v. Mimms (1977)434 U.S. 106, the United States Supreme Court held that once a motor vehicle has been lawfully detained for a traffic violation, officers may order the driver to get out of the vehicle without violating the Fourth Amendment. (Mimms, at p. 111.) The government’s legitimate interest in officer safety outweighs any minimal intrusion of requiring a driver lawfully stopped to exit a vehicle. (Id. at pp. 110-111.) In Maryland v. Wilson (1997)519 U.S. 804, 413 (Wilson), the U.S. Supreme Court held that officers lawfully may ask passengers to exit the vehicle during a traffic stop without violating the Fourth Amendment.
Traffic stops are “especially fraught with danger to police officers.” (Michigan v. Long (1983) 463 U.S. 1032, 1047.) Once a passenger has been asked to exit a vehicle during a traffic stop, an officer may lawfully conduct a patdown for weapons to protect officer safety if the officer reasonably concludes the person might be armed and presently dangerous. (Wilson, supra, 519 U.S. at pp. 414-415.)
In Brendlin v. California (2007) 551 U.S. 249, 255, the United States Supreme Court held that for the duration of a traffic stop, the police officer effectively seizes everyone in the vehicle—the driver and all passengers. In a traffic stop setting, an officer lawfully detains the driver and all passengers pending inquiry into the vehicular violation. (Id. at p. 263.) Even if officers have no basis for suspecting an individual of a crime, they may generally ask questions, ask for identification, and ask for consent to search. (People v. Brown (1998) 62 Cal.App.4th 493, 499.)
Gutknecht was alone on patrol at 9:45 at night when he stopped the car in which Salcido was a passenger. After he had to order the driver out of the car and to sit down on the curb, Gutknecht no longer was in a situation where he could readily observe both the driver and Salcido while completing the inquiry into the traffic violation. It was dark; Gutknecht was outnumbered; Salcido was wearing clothing that could have readily hidden a weapon; and Salcido was a passenger in a vehicle being driven by someone who could not produce the documentation ordinarily requested by an officer during a traffic stop. The risk of a violent encounter in a traffic stop “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.” (Wilson, supra, 519 U.S. at p. 414.)
While the driver and Salcido were detained pending the inquiry into the traffic violation, Gutknecht was entitled to protect his safety and conduct a patdown. A reasonable officer would harbor a suspicion that Salcido might be armed and dangerous because this had become more than a routine traffic stop when the driver failed to produce the requested documentation. Gutknecht was entitled to assure himself that before he turned his attention back to the driver, he was not permitting a dangerous person to stand behind him. (Arizona v. Johnson (2009) ___ U.S. ___ [129 S.Ct. 781, 788] (Johnson).)
Regardless of whether the patdown was justified, both the driver and Salcido were temporarily detained for the duration of the traffic stop. An officer’s inquiries into matters unrelated to the traffic stop do not convert the detention into an unlawful seizure, so long as the traffic stop is not measurably extended. (Johnson, supra, ___ U.S. at p. ___ [129 S.Ct. at p. 788].) There is virtually no evidence in the record that the traffic stop was measurably extended as a result of Gutknecht’s questions to Salcido. Consequently, contrary to Salcido’s claim, his consent to having his pockets searched was not invalidated by an unlawful detention because there was no unlawful detention.
Moreover, to a reasonable person in Salcido’s position, Gutknecht’s request to search his pockets carried with it the implication that Salcido could withhold consent. (People v. James (1977) 19 Cal.3d 99, 116.) Gutknecht requested permission to search; he did not order Salcido to submit to a search of his pockets.
Under the circumstances, we conclude the trial court properly denied the motion to suppress. (People v. Monterroso (2004) 34 Cal.4th 743, 758-759.)
DISPOSITION
The judgment is affirmed.