Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF219556. Joseph Kalashian, Judge.
Catherine Campbell, 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, Charles A. French and Michael A. Canzoneri, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Poochigian, J.
STATEMENT OF THE CASE
On July 20, 2009, the Tulare County District Attorney filed an information in superior court charging appellant as follows: count 1--felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count 2--felony possession of hydrocodone (§ 11350, subd. (a)); count 3--misdemeanor being under the influence of a controlled substance (§ 11550, subd. (a)); count 4--misdemeanor possession of a smoking device (§ 11364, subd. (a)); and count 5--misdemeanor driving with a suspended license for a prior driving under the influence conviction (Veh. Code, § 14601.2, subd. (a)).
On June 26, 2009, appellant filed a motion to suppress evidence (Pen. Code, § 1538.5). The prosecution filed written opposition to appellant’s motion on July 2, 2009. The court denied appellant’s motion to suppress on July 10, 2009.
On July 27, 2009, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On October 5, 2009, appellant filed a combined motion to suppress evidence (Pen. Code, § 1538.5) and to set aside counts 1 and 2 of the information (Pen. Code, § 995).
On October 20, 2009, the prosecution filed written opposition to the combined motion.
On October 27, 2009, the court conducted a contested hearing on the motion and took the matter under submission. On October 29, 2009, the court denied the combined motion.
On December 1, 2009, appellant entered into a plea agreement with the prosecution. Appellant pleaded no contest to counts 1, 3, 4, and 5, and the prosecution moved to dismiss count 2. Appellant agreed to an indicated sentence of felony probation subject to service of up to 180 days in local incarceration.
On January 4, 2010, the court conducted a sentencing hearing and placed appellant on formal probation for three years. The court imposed 90 days of local jail time on counts 1 and 3, for a total of 180 days, and dismissed count 2. The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of probation (Pen. Code, § 1202.44).
On January 6, 2010, appellant field a timely notice of appeal from the denial of the suppression motion and the judgment of the court. We affirm.
STATEMENT OF FACTS
Facts Underlying the Motion to Suppress
A motion to suppress evidence “shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted.” (Pen. Code, § 1538.5, subd. (a)(2).) A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact. In such a proceeding, the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. Upon review, it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness. (People v. Green (1996) 46 Cal.App.4th 367, 372.) Because the trial court considers facts set forth in the moving and opposing papers as well as facts elicited at the hearing on the motion, our recitation of those facts necessarily entails a certain amount of duplication.
The following facts are taken from the appellant’s motion to suppress filed on June 26, 2009:
“On January 7, 2009, Officer Knox was patrolling the area of Dater Avenue and Lotas Street in Tulare when he observed a red Ford Taurus parked next to a community style mailbox. Since the interior lights of the Taurus were on, the officer suspected the owner may be stealing mail due to a rash of recent mail thefts from community type mailboxes in the Porterville area.
“A male subject was sitting in the Ford Taurus when the officer made a U-turn and positioned his patrol car behind it. As the vehicle was driving out of the neighborhood, the officer initiated an investigative stop and contacted Defendant who was the driver. The officer asked for a driver’s license and Defendant provided a California Identification Card. The officer ran the name through PPD records and Dispatch advised him that Defendant’s driver’s license was suspended.
“Officer Knox ordered Defendant out of the vehicle and conducted a pat down cursory search for weapons. The officer felt a bulge in Defendant’s right front pocket which raised his suspicions that he might be concealing contraband. The officer arrested Defendant and conducted a search incident to Defendant’s arrest in which methamphetamine was found. When asked if he had any other items on his person, Defendant indicated he had a glass pipe in his inside coat pocket. Defendant was arrested and his car was impounded.”
Facts Elicited in the Written Opposition to Motion to Suppress
The prosecutor’s written opposition filed on July 6, 2009, derived facts from the January 7, 2009, Supplemental report of Porterville Police Officer M. Knox and stated in relevant part:
“The Defendant was transported to the Porterville Police Department and his vehicle was impounded. Once at the police station, an additional bindle of an off-white crystalline substance was located on Defendant’s person, as well as two halves of a white oval-type pill. Officer Knox advised Defendant of his Miranda rights which Defendant stated he understood. Defendant waived his Miranda rights and informed the officer that the off-white powder that was located on his person was methamphetamine and that he had smoked some through a pipe earlier that day. He also told Officer Knox that the pill halves located on his person were Vicodin. Officer Knox told Defendant that he had a strong odor of alcohol about him; Defendant informed the Officer that he had consumed two beers and a half pint of whiskey prior to getting into his vehicle, in addition to the methamphetamine he smoked through the pipe. Defendant stated that he used the methamphetamine in King City, which is in Monterey County, prior to driving his vehicle to Porterville to stay with his mother in Tulare.” (Bold in original.)
Facts Elicited at the July 10, 2009, Hearing on Motion to Suppress
Suppression hearings provided for in Penal Code section 1538.5 were intended to involve the testimony of investigating officers and other pertinent witnesses whose credibility is to be determined by the magistrate or judge presiding at the suppression hearing. (People v. Johnson (2006) 38 Cal.4th 717, 720.) The trial court must find the historical facts, select the rule of law, and apply it to the facts to determine whether the law as applied has been violated. (People v. Hoyos (2007) 41 Cal.4th 872, 891.) In reviewing a ruling on a suppression motion, the appellate court defers 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. (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)
Porterville Police Officer Mark Knox testified he was on duty patrolling near the area of Date Avenue and Lotas Street during the 2:00 a.m. hour on January 7, 2009. At 2:35 a.m., Officer Knox observed a vehicle parked next to a community-style mailbox. The vehicle was a red Ford Taurus and a male was sitting in the driver’s seat. An interior light illuminated the passenger compartment of the vehicle. Knox was aware that Porterville mailboxes had been subjected to tampering in previous weeks. Knox testified, “It raised my suspicions and I decided to see if there was anybody around the mailbox tampering with it.” Knox pulled his patrol vehicle behind the Taurus. As he did so, the brake lights of the Taurus illuminated and the Taurus proceeded southbound on Lotas Street toward Date Avenue and then westbound on Date Avenue. Knox initially thought the occupant of the vehicle was someone getting his mail. Knox followed the Taurus to see if it turned into the driveway of a nearby residence. When the Taurus drove away from the neighborhood served by the mailbox, Knox initiated a traffic stop on Newcomb Street just south of Olive Avenue.
On cross-examination, Knox testified: “As I recall, a community style mailbox is one of those large square gray mailboxes with several mailboxes, several. You know they are numbered 1, 2, 3, 4. I don’t know how many are there but maybe 10, 15, 20 mailboxes in one block of mailboxes.”
Knox contacted appellant, who was the driver of the Taurus. Appellant provided a travel identification card and Knox ran appellant’s name through dispatch. Knox determined appellant did not have a valid driver’s license. Knox asked appellant to step out of the vehicle so that Knox could issue him a citation. Knox conducted a patdown for his own safety and felt a bulge in appellant’s right front coin pocket. Knox explained, “Well, any time at 2:30 in the morning when I am out conducting or initiating investigations, I conduct searches on people to make sure I don’t get hurt, so I don’t hurt the person thinking they might have something that could cause them to hurt me. [¶] It’s just standard. That’s what I do when I pull somebody out of the car, I make sure that they don’t have anything on their body that could hurt me or anybody else.”
Knox said he next placed appellant under arrest pursuant to Vehicle Code section 14601.1 because of a suspended license. Knox then conducted a search of appellant’s person incident to arrest and found “a baggie or I call it a bindle of what I recognized through my training and experience as purported methamphetamine, off white crystalline substance.” Knox asked appellant if he had anything else on his person that would be a concern to the officer. Appellant said he had a glass pipe in the inside pocket of his jacket and Knox located it. The pipe had a black or burnt bowl and the stem bore off-white residue. At some point in the early morning, Knox conducted a NARK test and the result was presumptively positive for methamphetamine. Knox took appellant to Sierra View District Hospital for a blood test. During booking, Knox found an additional bindle of what appeared to be methamphetamine on appellant’s person. Knox also found two half pills of a prescription-type medication. Appellant told Knox the pills were Vicodin and had been prescribed to him by a doctor. Knox said he detected the odor of alcohol on appellant’s person. When Knox questioned appellant about alcohol consumption, appellant said he drank two beers and also half a pint.
“NARK” apparently stands for Narcotics Analysis Reagent Kit. NARK is a portable kit that has the claimed capability of presumptively identifying several families of substances suspected of being abused drugs.
On cross-examination, Knox said he never shined his vehicle spotlights on the mailbox or checked the mailbox for damage because the Taurus took off so quickly. Knox acknowledged, “As it turned out, Mr. Slaten did have a key to that mailbox and he did collect mail with his name on it.” However, Knox never saw appellant actually get mail from the box. On cross-examination, Knox said he detained appellant, told him the reason for the stop was the suspended license, and started to pat him down. Before Knox felt the bulge in appellant’s pocket, his intent was only to issue appellant a citation and to store appellant’s vehicle. Knox did not initially intend to take appellant into custody. He explained, “I wouldn’t have taken him into custody for just a regular citation, however, I would have conducted a patdown cursory search.” Knox said he followed the standard practice of conducting a patdown at that time of the morning “to make sure we are both safe and nobody gets hurt.”
Ruling of the Trial Court at the July 10, 2009, Hearing
After hearing the arguments of counsel, the court ruled:
“With regard to the 1538.5 Motion, that is denied. I believe that the officer did demonstrate articulable suspicion. I believe the detention was minimal and subsequent to the detention. It was clear that the officer had the authority to arrest Mr. Slaten for driving on a suspended license.
“I believe that the time of day and the situation justified the patdown search for officer’s safety which the officer did testify to was for his safety so there was evidence as to why he did the patdown search so the motion is denied.”
DISCUSSION
THE TRIAL COURT PROPERLY DENIED THE SUPPRESSION MOTION
Appellant contends the automobile stop was illegal under the California and United States Constitutions and the trial court improperly denied his suppression motion.
The California Supreme Court recently set forth the governing law in this situation:
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’ (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.) On appeal we consider the correctness of the trial court’s ruling itself, not the correctness of the trial court’s reasons for reaching its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976.) [if the trial court’s ruling is correct ‘ “ ‘upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion’ ” ’]; People v. Braeseke (1979) 25 Cal.3d 691, 700-701.)” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145, italics in original.)
A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) The appellate court reviews the objective reasonableness of the facts known to the officer and not the officer’s legal opinion about those facts. (People v. Limon (1993) 17 Cal.App.4th 524, 539.) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. The principal function of the officer’s investigation is to resolve that very ambiguity and establish whether the activity is legal or illegal. (In re H.M. (2008) 167 Cal.App.4th 136, 145.)
Traffic stops are seizures under the Fourth Amendment, so officers must have at least a reasonable suspicion of criminal misconduct before detaining a driver. Reasonable suspicion is formed by specific, articulable facts. An officer is entitled to rely on his or her training and experience in drawing inferences from the facts he or she observes. These inferences must be grounded in objective facts and be capable of rational explanation. (United States v. Rojas-Millan (9th Cir. 2000) 234 F.3d 464, 468-469.) A variety of factors may contribute to the formation of an objectively reasonable suspicion of illegal activity. Among the facts that justify further questioning are having no proof of authority to operate the vehicle in question. (United States v. Hunnicutt (10th Cir. 1998) 135 F.3d 1345, 1349.) Investigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. (People v. Vibanco (2007) 151 Cal.App.4th 1, 13.) If an officer has probable cause to believe an individual has committed even a very minor criminal offense in his or her presence, the officer may arrest the offender without violating the Fourth Amendment. (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354.) When an occupant of an automobile is the subject of a lawful arrest, the Fourth Amendment permits the arresting officer to contemporaneously conduct a warrantless search of the occupant’s person. (United States v. Gonzalez (11th Cir. 1996) 71 F.3d 819, 825.)
In addition, when an officer detains an individual, the officer may conduct a patdown search of the person’s outer clothing if the officer has an objectively reasonable suspicion that the person is armed and dangerous, regardless of whether the officer has probable cause to arrest. (Terry v. Ohio (1968) 392 U.S. 1, 27, 30; People v. Lopez (2004) 119 Cal.App.4th 132, 135-136.) The test for a patdown search is whether “a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger. [Citation.]” (Terry v. Ohio, supra, 392 U.S. at p. 27.) The officer need not be absolutely certain that the individual is armed. (Ibid.)
We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. (People v. Garry, supra, 156 Cal.App.4th at p. 1106.) Officer Knox, who had been a police officer for nine and one-half years, testified he was patrolling the area of Lotas and Date at 2:35 a.m. on January 7, 2009. He observed a red Ford Taurus with an illuminated interior parked next to a community mailbox. Officer Knox said that in the weeks preceding this assignment, he had participated in briefings and learned “there had been mailboxes tampered with in the Porterville area.” Because of these briefings, Knox’s suspicions were aroused and he pulled in behind the red Taurus. Once Knox pulled in, the Taurus took off southbound on Lotas Avenue and then made a westbound turn onto Date Avenue. Knox initially believed the Taurus was occupied by a neighborhood resident who was getting his mail. Knox followed the Taurus to see if it turned into the driveway of a nearby residence. When the car drove away from the neighborhood represented by the community mailbox, Knox followed the vehicle and initiated a stop on Newcomb Street just south of Olive Avenue. Appellant was the driver of the vehicle and provided a travel identification card. Knox ran appellant’s name through dispatch and determined he did not have a valid driver’s license. Knox then asked appellant to get out of the vehicle so that he could issue appellant a citation. Knox conducted a patdown search and discovered contraband in appellant’s right front coin pocket. Knox explained that his standard practice was to conduct a patdown search “any time at 2:30 in the morning when I am out conducting or initiating investigations.…” He testified, “That’s what I do when I pull somebody out of the car, I make sure that they don’t have anything on their body that could hurt me or anybody else.” Knox placed appellant under arrest, conducted a search incident to that arrest, and found a bindle of apparent methamphetamine and a glass methamphetamine pipe with a burnt bowl. Under the totality of the circumstances in this case, Officer Knox had specific and articulable facts which, taken with rational inferences from those facts, reasonably warranted the intrusion upon appellant.
Appellant cites to a number of cases to justify suppression of evidence in this case but these precedents are factually distinguishable. In People v. Hernandez (2008) 45 Cal.4th 295, the Supreme Court held 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 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. Otherwise, any car with such a permit could be stopped without particularized cause.
In United States v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, a San Diego police officer incorrectly believed that Baja California Vehicle Code required a vehicle registration sticker visible from the rear. The code actually directed that the sticker be displayed on the upper right-hand corner of the windshield. The officer detained the defendant’s Baja-plated car when he did not see a sticker on the rear or left-side windows. When the officer asked for proof of registration, the defendant pointed to a piece of paper affixed to the rear window. The printing on the paper was light and the officer leaned into the car to remove the paper for a closer look. He did so and detected the odor of marijuana. A search of the car revealed 400 kilos of the substance. The Ninth Circuit Court of Appeals reversed the defendant’s drug conviction because the traffic stop was not objectively grounded in the governing law. What the detaining officer reasonably suspected, i.e., that defendant had not affixed a registration sticker to his rear window, simply was not a violation of Baja California law. This state of facts could not justify the stop under the Fourth Amendment.
In People v. Aldridge (1984) 35 Cal.3d 473 (Aldridge), a veteran San Diego police officer testified a specific liquor store parking lot was a place where drug transactions were common and people were frequently armed with weapons. He made it his routine practice to conduct field interviews of every person he saw in the parking lot. One evening, a group of four men departed the lot and the officer radioed a nearby patrol car to stop and interview the quartet for any kind of narcotic activity. Officers in the nearby car detained and questioned the four men, who were carrying packages that appeared to contain alcoholic beverages. Fearing for his safety, one of the detaining officers asked if any of the men had guns or knives. After one man produced a knife, the officer ordered all of them to turn around and place their hands on the patrol car. While patting down the defendant, the officer discovered a stolen, loaded gun. The Supreme Court held that the fact it was nighttime, that the incident took place in an area of continuous drug transactions, and the fact that the defendant and his companions sought to evade police did not justify the detention. The Supreme Court specifically concluded the veteran officer’s “stated intent and consistently repeated policy was to conduct a general detention and interrogation of all persons on the lot, evidently hoping to uncover some evidence of some crime by some person. Our state and federal Constitutions were written precisely to outlaw such unrestricted general sweeps and searches.” (Id. at p. 480.)
In the instant case, appellant does not directly challenge the constitutionality of the pat down search, which Officer Knox described as “standard for me.” Rather, he focuses on the constitutional reasonableness of the investigatory stop. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Adams v. Williams (1972) 407 U.S. 143, 146.) Appellant’s evasive behavior near the community mailbox justified the further inquiry by Officer Knox. As to the patdown, Knox initially testified, “Generally when I make a traffic stop, I will pull the person out of the vehicle and have them come over and stand. That’s what I do.” Although Knox declined to characterize “a patdown cursory search” as his “policy, ” he did explain, “Once he [the driver] is out of the vehicle, it’s 2:30 in the morning, that’s standard for me.” He added, “It’s for my safety and his safety. I don’t have any policies that I go by.… [¶] I pat people down to make sure we are both safe and nobody gets hurt.”
The officer in Aldridge had a “consistently repeated policy” of conducting “field interviews”—a general detention and interrogation—of all persons on a specified parking lot in a high-crime area. In contrast, Officer Knox acted on particularized circumstances by following and stopping appellant’s vehicle after recalling that mailboxes in the Porterville area had been subjected to tampering and that the tampering “was sporadic throughout the city. It wasn’t one concentrated area. It was all over the place.” Officer Knox saw appellant’s vehicle “at 2:30 in the morning by a community style mailbox.” Knox said the mailbox was located on a sidewalk and faced the roadway on Lotas. Knox saw appellant’s car parked on the curb between four and six feet directly east of the mailbox, rather than adjacent to the community mailbox. When Knox made a U-turn behind appellant’s Taurus, the brake lights of the Taurus illuminated and the Taurus “took off” southbound on Lotas toward Date Avenue. The Supreme Court has long recognized: “[E]xperienced police officers develop an ability to perceive the unusual and suspicious, and we recognize the right and duty of officers to make reasonable investigation of such activities.” (People v. Aldridge, supra, 35 Cal.3d at p. 477.)
As to the patdown itself, Officer Knox explained: “Well, any time at 2:30 in the morning when I am out conducting or initiating investigations, I conduct searches on people to make sure I don’t get hurt, so I don’t hurt the person thinking they might have something that could cause them to hurt me.” A warrantless protective patdown search is permitted on the basis of reasonable suspicion less than probable cause and 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. When an officer lawfully pats down a suspect’s outer clothing “and feels an object whose contour or mass makes its identity immediately apparent” as contraband, the officer may nevertheless lawfully remove the object. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373, 375-376.) The “plain feel” exception has been applied in situations where officers immediately determine an object is contraband during patdown searches. (People v. Dibb (1995) 37 Cal.App.4th 832, 836-837; People v. Limon, supra, 17 Cal.App.4th at p. 536.)
Appellant’s conduct near the community mailbox combined with his lack of proof of authority to operate the vehicle contributed to Officer Knox’s formation of an objectively reasonable suspicion of illegal activity. After determining that appellant was operating a vehicle without a valid license, Officer Knox reasonably asked appellant to step out of the vehicle and conducted a brief patdown search for weapons to protect officer safety. Under the totality of the circumstances, appellant’s detention, questioning, arrest, and search were supported by a reasonable, articulable suspicion of illegal activity. The trial court properly denied appellant’s motion to suppress.
DISPOSITION
The judgment is affirmed.