Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F10211
Duffy, J.
This appeal arises from a felony conviction following a plea of no contest by defendant Carol Lee Slater to maintaining a place for the purpose of selling, giving away or using a controlled substance (Health & Saf. Code, § 11366). Prior to entry of the plea, defendant made motions to suppress seized evidence pursuant to Penal Code section 1538.5 and to exclude extrajudicial statements made to the peace officer at or about the time of her arrest. Those motions were largely unsuccessful. She now challenges the conviction entered on her no contest plea, contending that it was based upon an illegal traffic stop and a later unlawful search of her truck.
All further statutory references are to the Penal Code unless otherwise stated.
For the reasons below, we conclude that the traffic stop was lawful and the court below properly denied defendant’s suppression motion. Accordingly, we affirm the judgment of the trial court.
The facts are taken from the testimony of the peace officer at the hearing on defendant’s motion to suppress.
At approximately 10:30 on the evening of September 4, 2004, Santa Cruz County Deputy Sheriff Steven Christensen was patrolling northbound on Highway 9 near the intersection of Graham Hill Road. He observed directly in front of him a red Toyota pickup truck with a white camper shell that was traveling in “a serpentine fashion . . . in the roadway, and it crossed over the solid white shoulder line on the right hand side twice, and then on the third occasion when it crossed over the solid white line, it traveled for about 200 feet about four feet to the right of the line. [¶] So actually, it was virtually completely out of the northbound lane on the side of the road.” Deputy Christensen employed his red lights and pulled the truck over in the vicinity of El Solyo Heights. He stopped defendant because he believed that she had committed a Vehicle Code violation, because of her “erratic driving,” and because “[s]he looked like a drunk driver to [him].”
When he approached the driver’s side of the truck, Deputy Christensen observed that the driver, defendant, “was mumbling almost incoherently. Her head was dipping down continually. [He] really couldn’t understand much of what she was saying, and [he] had to have her repeat herself and her eyes were darting back and forth as [they] spoke.” He then observed that defendant’s pupils were dilated to about six millimeters. Based upon his training and 16 years of law enforcement experience, he concluded that defendant was under the influence of methamphetamine.
Deputy Christensen asked defendant to step out of her truck. She was unsteady on her feet and told him that she had a problem with a prior broken leg. He evaluated defendant for the possibility of being under the influence of a controlled substance by “introduc[ing] light into both of her eyes.” He “found that her pupils were dilated to six millimeters and fixed.” Deputy Christensen asked her if she had recently used methamphetamine; she responded that she had ingested some methamphetamine that day at about 3:00 a.m. He then asked if defendant had anything illegal in her truck because he planned to search it. She responded that she had some marijuana in her purse.
Deputy Christensen testified that, based upon his training and experience, the normal range of pupil size when bright light is introduced to the eyes is from one to two millimeters.
After Deputy Christensen placed defendant in the back of his patrol car, he searched her truck. In it, he located defendant’s purse, which contained two brown paper bags. One bag had five individually packaged bags with lower grade marijuana; the other bag had two individually packaged bags of higher grade marijuana and a third baggie that had a small marijuana bud.
After the search of the truck, Deputy Christensen told defendant that he “was going to book her into jail minimally for being under the influence of a stimulant.” He then advised her of her rights under Miranda. Defendant appeared to understand the Miranda warnings. While Deputy Christensen was transporting her to jail, she agreed to speak with him. He asked defendant about the marijuana in her purse. She said that she was planning to sell the individual bags because she was unemployed and needed some money to buy a birthday present for her boyfriend.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
PROCEDURAL BACKGROUND
A three-count information against defendant was filed December 8, 2004. Defendant was charged with transportation of marijuana, a felony (Health & Saf. Code, § 11360, subd. (a)); possession of marijuana, a felony (Health & Saf. Code, § 11359); and being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a)).
Defendant filed a motion to suppress evidence pursuant to section 1538.5. She argued that the initial traffic stop was unlawful because Deputy Christensen had no reasonable suspicion that a violation of the law had occurred. Defendant also sought through the motion an order suppressing her statements that she had used methamphetamine in the recent past and that she possessed marijuana, arguing that the statements were illegally obtained. The People opposed the motion. Defendant thereafter filed a motion in limine to exclude the two statements made before she was given Miranda advisements, as well as her postarrest statements that she was planning to sell the marijuana in her possession in order to buy her boyfriend a birthday present. The People opposed that motion as well. After an evidentiary hearing on June 17, 2005, the court denied the motion to suppress with the exception of the statement defendant made to the effect that there was marijuana in her purse.
Since the court denied defendant’s section 1538.5 motion to suppress any evidence seized in connection with the traffic stop and arrest, we will hereafter refer to the court’s ruling as having denied the suppression motion; we recognize, however, that the court did grant defendant’s motion to exclude the one pre-Miranda statement. Defendant filed a motion to reconsider the court’s ruling denying the bulk of her motion to suppress, which the People opposed, inter alia, on the basis that the court had no jurisdiction to reconsider the denial of a motion under section 1538.5. The record reflects that defendant withdrew the motion at the time she entered the no contest plea.
On December 16, 2005, the information was amended to add count 4—maintaining a place for the purpose of selling, giving away or using a controlled substance (Health & Saf. Code, § 11366)—and defendant pleaded no contest to that count. Counts 1 through 3 were then dismissed by the court on the People’s motion. The court suspended imposition of the sentence for 36 months and placed defendant on probation for the same time period. Defendant filed a timely notice of appeal of the denial of the motion to suppress. The denial of the suppression motion may be challenged by an appeal from the judgment entered after defendant’s guilty or no contest plea. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
Defendant’s former appointed appellate counsel filed a brief in June 2006 that stated the case and the facts but raised no issues. We notified defendant that (1) this court, pursuant to People v. Wende (1979) 25 Cal.3d 436, intended to review the entire record to determine whether there were any arguable issues on appeal, and (2) she had the right to submit written argument on her own behalf. Defendant in pro per then filed a lengthy supplemental opening brief raising a number of claims of error. Thereafter, we requested supplemental briefing from defendant’s appointed appellate counsel, specifically asking for further briefing on the matters raised in defendant’s brief filed in pro per. After additional briefing by the parties, and the parties’ waiver of oral argument, we ordered the case submitted on February 5, 2008.
After appointed counsel for defendant filed a brief on October 23, 2006, we granted defendant’s motion to discharge her counsel and to represent herself in the appeal. In May 2007, pursuant to defendant’s application, we struck the brief of defendant’s former appointed counsel along with the respondent’s brief and granted defendant leave to file a new opening brief. On June 5, 2007, defendant in pro per filed a new opening brief. The Attorney General filed a new response, and defendant in pro per filed her reply on December 5, 2007.
DISCUSSION
I. Issues on Appeal
Defendant raises the following issues on appeal:
1. Defendant was deprived of a full and fair hearing on her motion to suppress.
2. The motion to suppress should have been granted because the traffic stop was unlawful and the subsequent vehicle search was not a valid search incident to defendant’s arrest.
3. Defendant’s motion to suppress her extrajudicial statements to Deputy Christensen should have been granted.
We address these contentions below.
II. Standard of Review
“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.) All presumptions favor the trial court’s exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences, “ ‘and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160.) And where “the facts are basically undisputed, we independently review the [trial court’s] decision . . . .” (People v. Downing (1995) 33 Cal.App.4th 1641, 1650, fn. omitted.)
Based upon its factual findings, the trial court has the duty to determine whether “the search was unreasonable within the meaning of the Constitution.” (People v. Lawler, supra, 9 Cal.3d at p. 160.) This issue is a question of law. Therefore, we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.; People v. Leyba, supra, 29 Cal.3d at p. 597.)
Under California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) Only evidence that is the product of an unreasonable search and seizure in violation of federal standards shall be suppressed. (In re Lance W. (1985) 37 Cal.3d 873, 890.)
III. Whether Defendant Received Full and Fair Hearing
Defendant argues that she was deprived of a full and fair hearing on her motion to suppress because of prosecutorial misconduct and misconduct by the arresting officer, Deputy Christensen. She contends that the prosecution committed a “fraud on the court” in presenting testimony of Deputy Christensen that defendant’s operation of her truck constituted a violation of unspecified provisions of the Vehicle Code. The prosecution compounded this “fraud” by arguing to the court that defendant’s driving constituted a Vehicle Code violation. In fact (defendant argues), defendant’s driving immediately before she was stopped by Deputy Christensen did not constitute a violation of any provision of the Vehicle Code. Defendant also cites Deputy Christensen for misconduct for allegedly presenting false testimony concerning the existence of a Vehicle Code violation.
Defendant argues further that the deputy district attorney “misrepresented the facts and the law” relative to the potential suppression of statements made by defendant after Deputy Christensen had given her Miranda advisements. Specifically, the prosecution asserted that Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), condemning the “question-first” police practice of intentionally questioning a suspect before giving Miranda advisements, was inapplicable because Deputy Christensen’s procedure here of pre-Miranda questioning of defendant was inadvertent. In fact (defendant argues), Deputy Christensen’s question-first approach was deliberate and intentional.
We address directly the issue of defendant’s challenge to the court’s denial of her motion to suppress extrajudicial statements in part V, post.
A claim of error based upon prosecutorial misconduct ordinarily must be preserved through objection in the trial court. The “failure to object and request an admonition waives a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective.” (People v. Arias (1996) 13 Cal.4th 92, 159; see also People v. Pugh (2002) 104 Cal.App.4th 66, 74 [prosecutorial misconduct claim not cognizable on appeal due to failure to object, notwithstanding self-represented defendant’s assertion that court discouraged objection].)
The Attorney General correctly notes that defendant failed to assert an objection at the time of the hearing that the prosecution was guilty of misconduct. Defendant did not object to any alleged “fraud” perpetrated on the court or to any other claimed prosecutorial misconduct. And defendant did not allege any prosecutorial misconduct in the motion to reconsider the denial of her motion to suppress. Defendant failed to preserve any appellate challenge based upon prosecutorial misconduct.
In her reply brief, defendant argues without elaboration that she did not forfeit her claim of prosecutorial misconduct “[b]ecause an objection would have been futile . . . .” We will not consider this perfunctory contention unsupported by any argument. (People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.)
Putting aside the forfeiture of defendant’s misconduct challenge, we reject her claim that she was deprived of the opportunity of a full and fair hearing on her suppression motion. Under section 1538.5, subdivision (a)(1), a defendant may make a motion “for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. . . .” That motion must be in writing and include a supporting points and authorities that specifies the property to be suppressed or returned. (§ 1538.5, subd. (a)(2).) As is applicable here because defendant filed the suppression motion after she was held to answer at the preliminary hearing, “the defendant shall have the right to . . . make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, . . . Any written response by the people to the motion shall be filed with the court and personally served on the defendant or his or her attorney of record at least two court days prior to the hearing, . . . [T]he defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. . . . The court shall base its ruling on all evidence presented at the special hearing . . . .” (§ 1538.5, subd. (i).)
Defendant was given a full opportunity to be heard on her suppression motion. She filed a written motion to suppress under section 1538.5, received timely written opposition from the prosecution, and filed an additional in limine motion to exclude extrajudicial statements made to Deputy Christensen. Defendant, through her counsel, cross-examined at some length the one witness called at the hearing on the suppression motion (Deputy Christensen) and presented detailed closing argument. And in both his cross-examination of the peace officer and in his argument, defense counsel made it clear that it was his position that defendant did not commit a Vehicle Code violation. There is nothing to suggest that defendant was restricted in any way in her examination of the witness or in the presentation of any evidence to support her suppression motion; accordingly, she was not deprived of a full and fair opportunity to be heard. (See People v. Gallegos (1997) 54 Cal.App.4th 252, 267 [due process rights of criminal defendant not abridged where he was not restricted as to witnesses he could call or evidence he could present at hearing on his suppression motion]; see also People v. Britton (2001) 91 Cal.App.4th 1112, 1117-1118.)
Defendant also asserts on appeal that she was disadvantaged at the suppression hearing because Deputy Christensen testified that her alleged erratic driving occurred in the area of Fall Creek Road, thereby contradicting his report in which he noted the location as El Solyo Heights. As a result, the photographs of the roadway in the vicinity of El Solyo Heights that defendant had prepared for the hearing became “largely irrelevant.” Because this testimony “unfairly took defendant by surprise, and denied her the ability to fully and fairly cross-examine” the deputy, she urges that she should be afforded an opportunity for a new hearing on her motion to suppress. There is no authority cited for this requested “do-over,” and it is plain that defendant was afforded a full and fair opportunity to be heard at the suppression hearing. Moreover, she did not object to this supposed surprise testimony at the hearing, request a continuance to address it, or, indeed, even present argument that it undermined the deputy’s credibility. This claim was thus waived and in any event has no merit. (See People v. Ott (1978) 84 Cal.App.3d 118, 128 [claim concerning surprise introduction of documents at suppression hearing rejected as “specious” because, inter alia, the defendant did not request continuance and was afforded a full opportunity to be heard], disapproved on another ground in People v. Beeman (1984) 35 Cal.3d 547, 560.)
IV. Defendant’s Motion to Suppress
A. Defendant’s Contentions
Defendant contends that the court’s denial of her suppression motion was error because the initial traffic stop was unlawful. She claims that there were no reasonable grounds for Deputy Christensen’s initiation of the traffic stop. Although the peace officer testified that he believed that defendant’s driving violated an unspecified provision of the Vehicle Code, defendant contends that he was mistaken—that the Vehicle Code does not prohibit what she claims occurred here, i.e., the momentary driving of her vehicle on the roadway but partially over the fog line. Defendant claims that it was incumbent on Deputy Christensen to specify the Vehicle Code provision that he believed she had violated that prompted him to make the traffic stop. Accordingly (defendant argues), the prosecution failed to meet its burden of establishing that the traffic stop was justified.
Defendant argues that her operation of her truck was entirely lawful. She asserts that her driving twice over the fog line was lawful. She argues that in the third instance in which she crossed the white line on the right-hand side of the roadway—in which she traveled for 200 feet straddling the fog line—her driving was appropriate under Vehicle Code section 21754, subdivision (e), “because she was a ‘slow moving driver’, who had a duty to move over to the right side of the roadway, to allow other cars to pass, when the roadway conditions permitted her to safely do so.” Defendant contends that in that third instance, she was acting “as a courteous driver who was moving over (when conditions permitted), to allow [Deputy] Christensen to pass.”
Defendant also claims that there were insufficient factual findings made by the trial court to support its denial of the suppression motion. Specifically, defendant argues that the court concluded that the traffic stop was justified because defendant’s violations of the Vehicle Code were “substantial,” even though no specific statute was identified. Further (defendant argues), the court made no finding that she “had been ‘swerving’ or ‘weaving’, or otherwise engaged in ‘erratic driving.’ ”
Lastly, defendant argues that the court erred by failing to suppress the marijuana seized after Deputy Christensen conducted a warrantless search of the truck and defendant’s purse located in the truck. She contends that because the search occurred before her arrest, it could not be justified as a search incident to that later arrest. She also asserts that the inevitable discovery doctrine could not be applied to save the invalid search, because the truck was never towed, impounded or inventoried.
B. Whether Motion to Suppress Was Properly Denied
1. Validity of traffic stop
The legal basis upon which a peace officer may detain a citizen has been explained as follows: “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other grounds by Cal. Const., ar. I, § 28.) “The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]” (In re Tony C., supra, at p. 893, citing Terry v. Ohio (1968) 392 U.S. 1, 22.)
“Since the passage of Proposition 8 in 1982 (Cal. Const., art. I, § 28), the subjective belief of the citizen set out in In re Tony C.[, supra,] 21 Cal.3d 888, no longer applies in analyzing whether an encounter is a detention. [Citation.] Rather the federal standard of analyzing the objective facts of the incident controls. [Citation.]” (In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2, citing In re Lance W. (1985) 37 Cal.3d 873.)
In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273, quoting United States v. Cortez (1981) 449 U.S. 411, 417; see also People v. Souza (1994) 9 Cal.4th 224, 239.) This standard of “ ‘reasonable suspicion’ . . . [is] less demanding than that for probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ ” (People v. Souza, supra, 9 Cal.4th at pp. 230-231, quoting Alabama v. White (1990) 496 U.S. 325, 330.) A traffic stop, lawful at its inception based upon “a reasonable suspicion that any traffic violation has occurred,” is not made unlawful simply because the peace officer does not ultimately cite the motorist. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.) And the officer’s subjective intent relative to the potential seizure of a citizen “is relevant . . . only to the extent that that intent has been conveyed to the person confronted.” (Michigan v. Chesternut (1988) 486 U.S. 567, 575, fn. 7.)
Here, Deputy Christensen observed a truck being operated late at night in a manner he described as “erratic.” It was being driven in “a serpentine fashion . . . in the roadway”; it twice crossed the solid white shoulder line and, on a third occasion, it crossed over the shoulder line and traveled approximately four feet to the right of the line for a considerable distance (about 200 feet). The driver was “swerving in and out of the roadway and then actually four feet over the roadway on the right.” The way the truck was being driven led the deputy to believe that he was dealing with “a drunk driver.” There was no apparent reason for the truck being driven on the shoulder. Although Highway 9, in that area, had “a few turns,” the deputy did not consider it a windy road. Therefore, at the time he made the traffic stop, Deputy Christensen had “specific and articulable facts causing him to suspect that (1) some activity relating to crime . . . [was then] occurring . . ., and (2) the person he intend[ed] to stop or detain [i.e., the driver of the truck, was] involved in that activity.” (In re Tony C., supra, 21 Cal.3d at p. 893.)
As this court recently observed, “[m]ore than one California court has found that ‘weaving’ within a lane provides sufficient cause to conduct an investigatory stop. [Citations.]” (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1485 (Arburn).) For instance, in People v. Perez (1985) 175 Cal.App.3d Supp. 8, 10 (Perez), the officer’s observation of “pronounced weaving” within the lane on an Interstate highway at 2:15 a.m. that “continue[d] for a substantial distance” (id. at p. Supp. 11) justified the traffic stop. Likewise, in People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 4 (Bracken), the officer’s observation of a “vehicle weav[ing] within its lane for a considerable distance [i.e., approximately one-half mile]” presented reasonable suspicion justifying the traffic stop. And in People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 14, the officer’s detention of the motorist was held to have been justified, based upon the defendant having driven his vehicle 20 miles under the speed limit in a manner where he was “weaving abruptly from one side of his lane to the other.”
Defendant argues in her reply brief that an application of Arburn compels reversal here because “the alleged ‘erratic driving’ is of an even milder form than occurred in the Arburn [c]ase.” We disagree.
In Arburn, the officer observed the motorist weaving within his lane at the speed limit on a city street at approximately 5:00 p.m. (Arburn, supra, 151 Cal.App.4th at p. 1482); he “ ‘almost hit the west curb’ ” bordering the lane in which he was traveling. (Id. at p. 1483.) After the officer initiated a traffic stop, he observed objective signs that the motorist was intoxicated. (He was ultimately determined to have had a blood alcohol content almost three times the legal limit.) Although the trial court concluded that the suspension of the motorist’s license by the Department of Motor Vehicles could not be upheld because the officer did not have a reasonable suspicion to initiate the traffic stop, we reversed. The majority of our court rejected the motorist’s contention that the record showed only a single weave within the lane and that this minimal deviation did not support a reasonable suspicion that the motorist was intoxicated; we reasonably inferred from the record that the motorist weaved within the lane and, at one point as it was moving back and forth, almost struck the curb. (Ibid.) In so holding, the majority rejected the argument that the absence of evidence that the motorist had been observed to have been weaving for a distance that was “substantial” (Perez, supra, 175 Cal.App.3d at p. Supp. 11) or “considerable” (Bracken, supra, 83 Cal.App.4th at p. Supp. 4) did not preclude a finding that the officer entertained a reasonable suspicion warranting the traffic stop. (Arburn, supra, at p. 1485.) “ ‘Weaving’ for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop. In Perez, the issue presented was whether weaving over three-quarters of a mile (referred to as a ‘ substantial distance’) alone could provide sufficient justification for an investigatory stop. (Perez, supra, 175 Cal.App.3d at p. Supp. 10.) The court found that it did, and had no cause to determine whether a shorter distance would be sufficient. (See id. at p. Supp. 11.)” (Id. at pp. 1485-1486.)
The dissent in Arburn disagreed that the officer had a reasonable suspicion to initiate the traffic stop, concluding that based upon “the incomplete state of the record presented at the DMV hearing, . . . [a]ll that may be gleaned from the record is that [the motorist], while proceeding at the speed limit, drove poorly for a brief period of time and over a short distance.” (Arburn, supra, 151 Cal.App.4th at p. 1487, dis. opn. of Duffy, J.)
The record here presents a showing of reasonable suspicion to justify the traffic stop that is in fact more compelling than the record that existed in Arburn. Defendant was driving in “a serpentine fashion . . . in the roadway.” She inexplicably crossed the solid white shoulder line three times in succession and on the third occasion, traveled with the majority of her truck over the white line for a considerable distance of 200 feet. Deputy Christensen observed that the manner in which defendant was driving suggested to him that she was a drunk driver. Under Arburn, the totality of these circumstances constituted a reasonable basis for Deputy Christensen’s initiation of the traffic stop.
We also reject defendant’s claim that her actions demonstrated that—in compliance with Vehicle Code section 21754—she was simply acting “as a courteous driver who was moving over (when conditions permitted), to allow [Deputy] Christensen to pass.” This argument is nothing more than defendant’s “spin” of the evidence. The record does not indicate that defendant crossed over the solid white line on the right hand side of the roadway to permit Deputy Christensen to pass. Moreover, even were there evidentiary support for this position—and that defendant somehow communicated to the deputy that she was pulling over to let him pass—this would not negate reasonable suspicion for the traffic stop. “The possibility of an innocent explanation for [erratic driving] does not preclude an officer from effecting a stop to investigate the ambiguity. [Citations.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1136-1137.) “ ‘Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to “enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. [Citation.]” ’ [Citations.]” (People v. Leyba, supra, 29 Cal.3d at p. 599, quoting In re Tony C., supra, 21 Cal.3d at p. 894.)
“The driver of a motor vehicle may overtake and pass to the right of another vehicle only under the following conditions: [¶] (a) When the vehicle overtaken is making or about to make a left turn. [¶] (b) Upon a highway within a business or residence district with unobstructed pavement of sufficient width for two or more lines of moving vehicles in the direction of travel. [¶] (c) Upon any highway outside of a business or residence district with unobstructed pavement of sufficient width and clearly marked for two or more lines of moving traffic in the direction of travel. [¶] (d) Upon a one-way street. [¶] (e) Upon a highway divided into two roadways where traffic is restricted to one direction upon each of such roadways. [¶] The provisions of this section shall not relieve the driver of a slow moving vehicle from the duty to drive as closely as practicable to the right hand edge of the roadway.” (Veh. Code, § 21754.)
Furthermore, there is no merit to defendant’s claim that the traffic stop was unlawful simply because Deputy Christensen failed to cite a particular Vehicle Code section. Although defendant focuses only on the deputy’s testimony that her actions of crossing over the solid white line constituted violations of unspecified sections of the Vehicle Code, he also testified that defendant had been driving erratically, in “a serpentine fashion,” and that she appeared to him to have been a drunk driver. Whether Deputy Christensen identified the particular code section or not, the circumstances created a reasonable suspicion that the driver of the truck had committed the offense of driving under the influence of alcohol or drugs in violation of Vehicle Code section 23152, subdivision (a). (Cf. In re Justin K. (2002) 98 Cal.App.4th 695, 700 [detention is nonetheless lawful even if based on officer’s reliance on wrong statute, if objective circumstances preceding detention justify it].)
“It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.” (Veh. Code, § 23152, subd. (a).)
Moreover, we do not find error because of any factual findings enunciated by the trial court. In her brief, defendant isolates the court’s words immediately after its conclusion that there was justification for the traffic stop: “The driving described, it was crossing . . . over the fog line twice and then traveling over the fog line four feet for another 200 feet. That’s substantial.” She claims that the evidence presented did not support the court’s conclusion that the manner in which the truck was driven constituted a Vehicle Code violation that was “substantial.” But it is unclear whether the court’s use of the word “substantial” was in reference to (1) a Vehicle Code violation, (2) the extent to which the driving observed by the deputy was erratic, or (3) the extent or severity of the third instance of driving over the fog line. The court followed its comment by noting that that there was no innocent explanation for the manner in which the truck was being driven that was readily available: “Highway 9 is pretty straight in that particular area and it wouldn’t appear that [defendant] was having a hard time staying in her lane because of the narrowness of the lane or a sharp curve.” These express and implied factual findings that defendant drove her truck in an inexplicably erratic manner were supported by substantial, undisputed evidence. (See People v. Middleton (2005) 131 Cal.App.4th 732, 738: “If factual findings are unclear, the appellate court must infer ‘a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.’ ”) We therefore determine as a matter of law on the basis of these facts that the traffic stop was reasonable. (People v. Aguilar (1996) 48 Cal.App.4th 632, 637.)
Finally, we reject defendant’s argument that the trial court’s finding that the stop was justified cannot be upheld because it was based upon reliance on an alleged violation of a nonexistent statute, Vehicle Code section 21668 [sic]. First, the court’s reference to this nonexistent statute occurred during questioning of counsel during argument; it was not cited by the court in support of its decision on the motion to suppress. Second, even were it reasonable to construe the record as the court having based its decision on an incorrect legal conclusion—either that driving over the fog line constituted a violation of Vehicle Code section 21668 [sic] or that it constituted a violation of some other provision of the Vehicle Code—we would nonetheless affirm. “ ‘ “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right 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.” [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 976.) Thus, for instance, in one recent case, the appellate court affirmed the denial of a suppression motion on a legal theory advanced by the prosecution but not adopted by the trial court. (People v. McDonald (2006) 137 Cal.App.4th 521, 528.) “We may sustain the trial court’s decision without embracing its reasoning. Thus, we may affirm the superior court’s ruling on [the defendant’s] motion to suppress if the ruling is correct on any theory of the law applicable to the case, even if the ruling was made for an incorrect reason. [Citation.]” (Id. at p. 529.)
In response to argument by defense counsel that crossing over the fog line did not constitute any “Vehicle Code violation that I’m aware of,” the court stated: “Well, there is one going over the fog line. I don’t know if it’s [section] 21668 or a different code section, but I’m well aware that there is.”
2. Search of the vehicle
Although the bulk of defendant’s extensive appellate briefing challenges the denial of the suppression motion by arguing that the traffic stop was illegal, defendant contends briefly in her opening brief that the court should have suppressed the marijuana seized from her purse that had been in her truck. She argues that because the search of the vehicle occurred before her arrest, it was not justified as a search incident to her (later) arrest. The argument is without merit.
In New York v. Belton (1981) 453 U.S. 454 (Belton), the United States Supreme Court considered the reasonableness of a search of a car incident to the arrest of its passengers after the car was stopped for speeding. After contacting the driver and determining that none of the four occupants owned the car or was related to its owner, the policeman smelled burnt marijuana and observed an envelope that he believed to contain marijuana. (Id. at pp. 455-456.) After directing the occupants to get out of the car and placing them under arrest, the officer searched the passenger compartment of the car; in the back seat, he located a jacket that belonged to the defendant, unzipped one pocket, and discovered cocaine. (Id. at p. 456.) The court held that the search was lawful, relying on Chimel v. California (1969) 395 U.S. 752, which had authorized the warrantless search of a person contemporaneous with his or her arrest. The Belton court concluded “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. [¶] It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [Citations.]” (Belton, supra, at pp. 460-461, fns. omitted.)
And the Supreme Court later explained that the principles enunciated in Belton were not based upon whether the officer ordered the occupants out of the car or made contact with them while they were still in it. (Thornton v. United States (2004) 541 U.S. 615, 620.) Accordingly, it held that if a lawful arrest is made of a recent occupant of a vehicle present at the scene, the officer may search the entire passenger compartment of the car to ensure the officer’s safety and to preserve evidence. (Id. at pp. 622-623.)
There are four components under Belton to a lawful search of the passenger compartment of a vehicle incident to an arrest. (People v. Stoffle (1991) 1 Cal.App.4th 1671, 1679-1680.) They are (1) a “ ‘lawful custodial arrest’ ” (id. at p. 1679); (2) “the search must be contemporaneous with the arrest” (ibid.); (3) the search must only involve the passenger compartment (id. at p. 1680); and (4) “the arrestee must have been an occupant or recent occupant of the auto searched.” (Ibid.) Here, each of the four Stoffle elements was satisfied.
First, after Deputy Christensen initially observed the truck being driven in a manner that suggested to him that the driver was intoxicated, he conducted a valid traffic stop. He observed that defendant, while she was in the truck, exhibited objective signs of being under the influence of methamphetamine—including that she was “mumbling almost incoherently,” her head was dipping down repeatedly, and her eyes were dilated to six millimeters. He further confirmed that defendant was under the influence of the drug after he had her step out of the truck; she in fact confirmed that she had taken methamphetamine early in the morning. There was thus a lawful custodial arrest. (See People v. Carter (2005) 36 Cal.4th 1114, 1141-1142 [after traffic stop due to officer’s observation of reckless driving, officer observed additional indicia of unlawful conduct, i.e., marijuana use, providing probable cause to arrest motorist].)
Defendant argues briefly that the court made no factual findings as to whether defendant exhibited signs that she was under the influence of methamphetamine that gave Deputy Christensen probable cause to arrest her. The undisputed evidence, based upon Deputy Christensen’s testimony, clearly demonstrated that he had probable cause to arrest defendant for being under the influence of methamphetamine. The court impliedly found that there were sufficient facts establishing probable cause to arrest defendant; our independent review of the court’s decision based upon those undisputed facts (People v. Downing, supra, 33 Cal.App.4th at p. 1650) compels our conclusion that there was, indeed, probable cause for the arrest.
Second, the search of the truck was contemporaneous with the arrest. The fact that defendant had not been formally placed under arrest prior to the vehicle search is immaterial. A search incident to a lawful arrest need only be contemporaneous with it; the search may precede the arrest as long as probable cause for the arrest exists before the search is conducted. (People v. Cockrell (1965) 63 Cal.2d 659, 666; see also In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239.) Here, the search was in fact contemporaneous with the arrest. And the search conducted by Deputy Christensen was of the truck’s passenger compartment only, thereby satisfying the third Stoffle element. Under Belton, supra, 453 U.S. at page 460, the search could lawfully include “the contents of any containers found within the passenger compartment,” namely, the purse that contained the marijuana. Lastly, there is no dispute that defendant was an occupant of the truck.
3. Conclusion
Accordingly, “view[ing] the record in the light most favorable to the trial court’s ruling and defer[ring] to its findings of historical fact, whether express or implied, if they are supported by substantial evidence” (People v. Miranda (1993) 17 Cal.App.4th 917, 922), we conclude that Deputy Christensen was justified in making the traffic stop. Likewise, we hold that the search of the truck that resulted in the discovery of the marijuana was a valid search incident to defendant’s arrest. Accordingly, the court properly denied defendant’s motion to suppress.
V. Suppression of Defendant’s Extrajudicial Statements
Defendant challenges the court’s denial of her motion to exclude statements concerning her plans to sell the marijuana in her purse that she made to Deputy Christensen after she was arrested and given Miranda advisements. She contends that the statements were the product of a deliberate “question-first” policy of intentionally questioning a suspect before giving Miranda advisements, a police practice condemned in Seibert, supra, 542 U.S. 600. And the same peace officer conducted the questioning on both occasions, the same topics were involved, and only a short period of time elapsed (15 minutes) between the pre- and post-Miranda questioning. Accordingly, under Seibert, defendant argues that her post-Miranda statements should have been suppressed along with the pre-Miranda statement (concerning her ingestion of methamphetamine) that the court below did suppress.
The Attorney General responds that this challenge to the statements made to the peace officer are not cognizable on appeal. We agree.
In People v. DeVaughn (1977) 18 Cal.3d 889, 893 (DeVaughn), the defendants argued that their detentions and subsequent arrests by the police were illegal and that extrajudicial statements that they made over the course of the detentions and arrests were unlawfully obtained. Although the Supreme Court concluded that the police lacked probable cause to arrest the defendants (id. at p. 895), it found that their guilty pleas prevented any appellate challenge to the lawfulness of their arrests or to the voluntariness of their extrajudicial statements. “Notwithstanding the question of the legality of their arrests and the consequences which flowed therefrom, each defendant’s guilty plea operated to remove such issues from consideration as a plea of guilty admits all matters essential to the conviction. [Citation.] Issues cognizable on an appeal following a guilty plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ resulting in the plea. (§ 1237.5; [citation].) . . . [¶] Given the accused’s guilty plea, an extrajudicial statement relating to his guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on ‘constitutional, jurisdictional or other grounds going to the legality of the proceedings’ resulting in the plea . . . . [The d]efendants in the instant case, accordingly, cannot raise on this appeal claims that their extrajudicial statements were involuntarily induced.” (Id. at pp. 895-896, fn. omitted.)
Here, defendant contends that, although the trial court properly suppressed her statement pre-Miranda about marijuana possession, it erred when it failed to suppress her pre-Miranda statement about amphetamine use and her post-Miranda statements about a planned marijuana sale. Under DeVaughn, these challenges are plainly barred by defendant’s no contest plea. (See also People v. Geitner (1982) 139 Cal.App.3d 252, 254 [following DeVaughn, appeal following guilty plea not cognizable, notwithstanding court’s issuance of “certificate of probable cause purporting to certify for appeal its ruling” denying motion to suppress statements to police].) And the fact that defendant here pleaded no contest rather than guilty does not alter our conclusion that her challenge to the denial of her motion to exclude her extrajudicial statements is not cognizable on appeal. (People v. Mazurette (2001) 24 Cal.4th 789, 794 [citing § 1016 for proposition that legal effect of no contest plea is same as guilty plea for all purposes].)
Accordingly, we hold that defendant’s challenge to the court’s rulings denying her motion to exclude extrajudicial statements is not cognizable on appeal.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR, Mihara, Acting P.J., McAdams, J.