Opinion
NOT TO BE PUBLISHED
Solano Super. Ct. Nos. VCR184750 & FCR226429
McGuiness, P.J.
Appellant Douglas Roy Taylor challenges his conviction for methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)), contending the trial court erred by denying his motion to suppress evidence. Appellant also claims there was insufficient evidence to prove that the amount of methamphetamine seized was a usable quantity. We affirm.
Factual and Procedural Background
As he was patrolling a rest stop along the freeway on August 3, 2005, California Highway Patrol officer Steven Hawkinson noticed a pickup truck with an expired registration tag. He activated the enforcement lights on his marked patrol car and stopped the vehicle. Appellant was the vehicle’s sole occupant. Hawkinson approached appellant and asked for his license, registration, and insurance. After he had returned to the patrol car to verify appellant’s information and write the citation, Hawkinson looked back toward the pickup’s back window. He noticed that appellant was moving “real nervously” and kept looking in the side mirror on the driver’s side of the pickup.
Through the rear window of the pickup, the officer could see appellant fidgeting nervously with something in his lap. Hawkinson saw appellant shove something into a glove that he then stuffed underneath the center part of the pickup’s bench seat. Hawkinson asked appellant to exit the vehicle while he called for backup. After another officer arrived on the scene, Hawkinson went back to the pickup and reached under the bench seat, retrieving a glove. He removed two hard cylinders from the fingers of the glove. One cylinder contained a white residue and the other contained a small amount of a powdery substance. A third, amber-colored vial containing a liquid was recovered from the pickup during a subsequent inventory search. The powdery substance tested positive for methamphetamine.
In an information filed in case number VCR184750, appellant was charged with a single count of methamphetamine possession. (Health & Saf. Code, § 11377, subd. (a).) Appellant filed a motion to suppress all evidence seized in the case pursuant to Penal Code section 1538.5, contending the detention for a mere traffic violation was unreasonably prolonged and that officer Hawkinson lacked reasonable suspicion to detain appellant after he had completed the task of writing a citation for an expired registration. The trial court denied the motion.
The matter proceeded to trial before a jury. Shana Meldrum, a forensic toxicologist, testified that she tested the substances in two of the three vials recovered from appellant’s pickup truck. No controlled substances were found in the amber vial containing a liquid. One vial was found to contain methamphetamine. She reported the weight of the methamphetamine as .08 grams. Meldrum opined that the amount was “usable” because she could manipulate, weigh, and identify it. She did not test the substance in the third vial, which she characterized as a residue amount.
The jury found appellant guilty of methamphetamine possession. The trial court deferred sentencing appellant pending trial in case number FCR226429.
In case number FCR226429, appellant was charged with burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496, subd. (a)). It was also alleged that he was on release on his own recognizance in case number VCR184750 at the time of the offenses. (Pen. Code, § 12022.1.) Appellant waived his right to a jury trial on the enhancement allegation under Penal Code section 12022.1. Following a jury trial, appellant was found guilty of the burglary and receiving stolen property charges.
Because appellant does not raise any issues on appeal with respect to his conviction in case number FCR226429, we do not discuss the facts giving rise to his conviction in that case.
At a joint sentencing hearing in case numbers VCR184750 and FCR226429 held on April 9, 2007, the court suspended imposition of sentence in both cases, placed appellant on formal probation for three years, and ordered him to serve 270 days in county jail.
On April 12, 2007, the court recalled the matter after it was acknowledged the court had failed to conduct a trial on the enhancement allegation under Penal Code section 12022.1 before imposing sentence. After receiving evidence and hearing argument, the trial court found the allegation true that appellant had been released on his own recognizance in case number VCR184750 at the time of the offenses in case number FCR226429. The court again suspended imposition of the sentence and admitted appellant to probation on the same terms and conditions as had been ordered at the earlier sentencing hearing.
Appellant timely appealed from the judgments of conviction in case numbers VCR184750 and FCR226429.
Discussion
1. The trial court did not err in denying the motion to suppress.
a. Facts
Appellant moved to suppress all tangible and intangible evidence seized as a result of his detention and arrest on August 3, 2005. At a suppression hearing held on September 29, 2006, California Highway Patrol officer Hawkinson was the sole witness. Hawkinson testified that he was conducting regular traffic patrol on August 3, 2005, when he noticed a small pickup truck with an expired registration at a rest stop. He pulled the vehicle over and spoke to appellant, who was its driver and sole occupant. After appellant gave Hawkinson the requested documents and information, the officer returned to his patrol car to relay the information to dispatch. Hawkinson wrote the citation and got the requested confirmation from dispatch in a period of roughly three to four minutes. Hawkinson described the citation as a “fix-it” ticket, which meant it was one appellant could resolve without going to court. Dispatch confirmed that appellant had paid his registration fees but that his vehicle remained to be smog-checked.
During the roughly four-minute period while Hawkinson was writing the citation and waiting for information from dispatch, he went back toward appellant’s vehicle to confirm the authenticity of the registration sticker. As he approached appellant’s vehicle, he observed appellant nervously fiddling with something in his lap. Hawkinson stopped and watched for a minute from a vantage point behind the pickup. He saw appellant stuff something into a leather glove. Appellant was looking around as if he were trying to ascertain whether the officer could see him. Hawkinson saw appellant push the glove underneath the center of the pickup’s bench seat. The glove was still within appellant’s reach. When the officer saw that appellant’s hands were free and not near the glove, he approached the vehicle and asked appellant to step out. Hawkinson testified his concern was “an officer safety issue” and that he needed to get appellant away from the concealed item for his own safety.
After appellant got out of the vehicle, Hawkinson called for back up. After two to three minutes, another officer arrived. While that officer stood by, Hawkinson returned to appellant’s vehicle and went to the exact spot where he had seen the glove placed. The officer retrieved a leather glove. As he grabbed the glove, he felt two hard cylinders in the glove’s fingers. He removed the cylinders and saw that they contained a white crystal substance, which he suspected was methamphetamine. At that point, he arrested appellant.
After hearing argument on the motion to suppress, the trial court denied the motion. The court stated, “The defendant’s actions reasonably caused [Hawkinson] grave concern. He thus acted reasonably for officer safety. He had not completed [his traffic stop]; he was in the process of checking, as he testified, that registration sticker, so his traffic investigation was not completed, I’ll find.” The court also found the traffic stop and appellant’s detention were not unduly prolonged. The court further found that the search was not a “fishing expedition” in that the officer did not generally search the vehicle but instead focused on the item he believed gave rise to a safety concern.
b. Analysis
Appellant contends the court erred in denying his motion to suppress, arguing the officer continued to detain him acting on nothing more than a hunch after the officer had completed his task of writing the citation. We disagree.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer 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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
An officer who stops a vehicle for a traffic violation “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.” (People v. McGaughran (1979) 25 Cal.3d 577, 584.) The corollary to this rule, as appellant points out, is that an initially lawful detention may become unlawfully prolonged if it continues beyond the time necessary to resolve the initial detention. (Id. at p. 586.) In People v. McGaughran, the court held that when an officer has completed his duties flowing from a traffic violation, the offender must be released “ ‘forthwith’ ” and that no further detention is allowed. (Ibid.)
Officers conducting traffic stops may take such steps as are reasonably necessary to protect their personal safety. (United States v. Hensley (1985) 469 U.S. 221, 235.) An officer may order a driver who has been lawfully detained for a traffic violation to step out of the vehicle. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111.) In addition, “[a] peace officer may also search the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, if the officer possesses a reasonable belief the suspect is dangerous and may gain immediate control of a weapon. [Citation.]” (People v. Dolly (2007) 40 Cal.4th 458, 463.) The United States Supreme Court has explained: “Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Michigan v. Long (1983) 463 U.S. 1032, 1049, fn. omitted.) The rule applies even when the defendant is outside the vehicle and nominally under the control of law enforcement officers. (Id. at pp. 1051-1052.)
Here, the detention was not unduly prolonged. Three to four minutes after the initial stop, before Hawkinson had completed his investigation of appellant’s expired registration, he observed appellant acting in a suspicious manner and engaging in specific conduct giving rise to a reasonable belief that appellant may have had a weapon within his reach. Appellant was delayed for a matter of only a few minutes more while Hawkinson waited for backup to arrive in order to conduct the search safely. Hawkinson was not, as appellant contends, acting on nothing more than a mere hunch and for no reason other than mere curiosity. Appellant was not simply acting nervous. Rather, Hawkinson described a specific action that led him to be concerned about the presence of a weapon within appellant’s reach. It was reasonable to believe appellant might be dangerous because he appeared to be trying to hide his actions from the officer, he concealed something from the officer’s view, and he placed the concealed item within his reach. There is substantial evidence to support the trial court’s conclusion that Hawkinson had specific and articulable facts to support his investigation. Further, Hawkinson limited his search to the specific area of the vehicle in which he suspected a weapon might be present.
The cases on which appellant relies, People v. Lingo (1970) 3 Cal.App.3d 661, 663-664, and People v. Lusardi (1991) 228 Cal.App.3d.Supp. 1, 3-5, involved officers who unlawfully extended the detention and asked about drugs when there was no reasonable basis to believe there was a violation of the drug laws. By contrast, in this case Hawkinson had a specific and articulable basis for his reasonable suspicion. He was not engaging in a “fishing expedition” like the officers in Lingo and Lusardi.
Appellant argues Hawkinson had an obligation to end the detention after he had written the ticket. However, the trial court found based on the testimony presented that Hawkinson had not fully discharged his duties when he observed the suspicious conduct giving rise to a safety concern. Moreover, we cannot expect an officer to overlook safety concerns simply because the officer has finished writing a citation that has yet to be delivered to the driver of a vehicle. If an officer reasonably believes that a driver may present a danger and have a weapon within reach, that concern remains a valid one until the encounter comes to its conclusion. Here, Hawkinson could not be expected to approach appellant’s vehicle to deliver a completed citation when he had reason to suspect appellant had within his reach a weapon that appellant might be prepared to use. Hawkinson was justified in requesting backup and prolonging the detention for a few minutes more to satisfy safety concerns.
We conclude the trial court did not err in denying appellant’s suppression motion.
2. There was sufficient evidence to prove the amount of methamphetamine seized was a usable quantity.
a. Facts
Forensic toxicologist Shana Meldrum testified at trial that she tested the substances in two of the three vials recovered from appellant’s pickup truck. One vial did not contain controlled substances. A second vial was found to contain methamphetamine weighing .08 grams. Meldrum opined that the amount was “usable” because she could manipulate, weigh, and identify it. She did not test the substance in the third vial, which she characterized as a residue amount that would likely be entirely consumed in the testing process. She testified that a residue amount is usually less than 10 milligrams, or .01 grams. She stated that the .08 grams of methamphetamine seized was many times larger than what is considered to be a residue amount.
In the transcript, Meldrum is quoted as saying that 10 milligrams equals .001 grams. In fact, 10 milligrams equals .01 grams and 1 milligram equals .001 grams.
When asked whether the residue amount was “usable” under her definition, she responded: “Well, again, in my opinion, a usable amount is just one that I can manipulate and identify, and I could manipulate and identify this to weigh it. I might have to consume all of it to do it . . . but it would be a usable amount in my definition.” Upon cross-examination, Meldrum confirmed that her definition focused upon her ability as a lab technician to manipulate the substance, not upon what other persons might consider a usable amount. She did not claim to be an expert in the use of drugs, and the prosecution offered no other witness to testify as to whether .08 grams of methamphetamine is a usable amount.
After the prosecution rested its case, appellant moved under Penal Code section 1118.1 for a judgment of acquittal on the ground there was insufficient evidence that he possessed a usable amount of methamphetamine. When the court questioned whether it was necessary to present the testimony of an expert in the use of drugs, the prosecuting attorney responded that it was unnecessary to prove the seized amount would have a narcotic effect. He stated, “I just believe that I have to prove that it wasn’t some kind of residue, and I think I’ve proven that.” The court denied the motion.
b. Analysis
Appellant contends there was insufficient evidence offered at trial to establish that the amount of methamphetamine seized was a usable quantity. When reviewing a judgment for sufficiency of the evidence, an appellate court must “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) “The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. [Citations.]” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) Circumstantial evidence may be sufficient to prove a defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)
In order to establish the offense of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), the prosecution must prove that the amount of a controlled substance possessed by the defendant was “ ‘in a quantity usable for consumption or sale.’ ” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) This element of the offense may be established by circumstantial evidence. (Ibid.) There is no requirement that a witness testify that an amount in question was in a usable quantity. (People v. Stafford (1972) 28 Cal.App.3d 405, 413-414; People v. Simmons (1971) 19 Cal.App.3d 960, 965-966.) Thus, for example, in People v. Stafford, a testifying chemist did not weigh the controlled substance or offer an opinion as to the quantity of the substance. (People v. Stafford, supra, 28 Cal.App.3d at p. 413.) The reviewing court nonetheless found that the real evidence, in the form of capsules containing white powder, together with the chemist’s testimony identifying the substance, established a prima facie case that the defendant possessed a usable quantity. (Id. at pp. 413-414.)
A usable amount of a controlled substance is an amount sufficient to be used in any manner customarily employed by users of the substance, as opposed to useless traces or debris. (People v. Piper (1971) 19 Cal.App.3d 248, 250.) In People v. Leal (1966) 64 Cal.2d 504, 512, our Supreme Court held that “in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such a substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption . . . does not constitute sufficient evidence in itself to sustain a conviction.” In People v. Rubacalba (1993) 6 Cal.4th 62, 66, the Supreme Court clarified that “the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. . . . No particular purity or narcotic effect need be proven.”
Appellant claims the toxicologist’s testimony was insufficient to establish that the amount of methamphetamine was usable, arguing that she relied upon a legally incorrect definition of what constitutes a usable amount. We agree that the toxicologist’s definition is not consistent with the legal standard for what constitutes a usable amount of a controlled substance. The fact that a scientist can detect and identify a controlled substance does not establish that the substance is in an amount that is usable for purposes of consumption or sale. (See People v. Rubacalba, supra, 6 Cal.4th at p. 67.) While it is true the toxicologist offered a definition of “usable amount” that is at odds with the legal definition, we nonetheless believe there was sufficient evidence to establish that the amount of methamphetamine possessed by appellant was “usable,” as that term is applied to statutes criminalizing possession of controlled substances.
We observe that the jury was properly instructed on the definition of “usable amount,” as follows: “A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces of Methamphetamine are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.”
The toxicologist testified that one of the vials contained a residue while another vial contained a substance 80 times the volume of what is considered a residue amount. The jury had before it evidence of a residue amount and evidence of an amount significantly larger, which the jury could infer was usable by comparing it with the residue amount. Indeed, that is the very analysis the prosecutor offered to the jury in closing argument. He compared the two vials and reiterated the testimony establishing that one contained a residue amount while the other contained an amount 80 times larger. Notably, he emphasized that the prosecution was not suggesting the residue amount was usable, despite the toxicologist’s testimony otherwise.
The jury was entitled to infer that .08 grams of methamphetamine is a usable amount based upon the comparison drawn between that amount and a residue amount found in another vial. Absent any contrary evidence from appellant, the only reasonable inference to be drawn from the evidence at trial was that the recovered contraband in one of the vials was neither a useless trace nor mere residue. There was sufficient evidence to support a finding that appellant possessed a usable amount of methamphetamine.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.