Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. James Oppliger, Judge, Super. Ct. No. F07600053
Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
HILL, J.
INTRODUCTION
Appellant Kenneth Wadley was driving his truck on a highway when he swerved over the center line and nearly hit a patrol car. The officer immediately conducted a traffic stop, appellant consented to a search of the truck, and methamphetamine and cocaine were found in a toolbox located in the truck bed. Appellant filed a motion to suppress (Pen. Code, § 1538.5) and argued he never consented to the search. The motion was denied. Thereafter, appellant pleaded no contest to count I, possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and count II, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and admitted three prior strike convictions (§ 667, subds. (b)-(i)) and four prior prison term enhancements (§ 667.5, subd. (b)). The court reduced count II to a misdemeanor, dismissed two of the prior strike convictions pursuant to section 1385, and imposed the second strike term of 10 years.
All further statutory cites are to the Penal Code unless otherwise indicated.
On appeal, appellant challenges the court’s denial of his suppression motion, and argues his testimony about the incident was more credible than the officers’ testimony at the suppression hearing, and his testimony establishes the traffic stop was illegally prolonged and he never consented to the search of the truck. We will affirm.
The following facts are taken from the suppression hearing conducted on June 14 and 15, 2007.
Around 6:30 p.m. on January 6, 2007, Sergeant John Zanoni of the Fresno County Sheriff’s Department was on patrol and driving a marked unit westbound on Highway 180. A Chevrolet S10 pickup truck was traveling in the eastbound lane. The truck swerved across the solid double yellow center lines into the westbound lane toward Zanoni’s patrol car. Zanoni had to take evasive action to avoid being hit by the pickup truck, and he swerved his patrol car to the dirt shoulder on the right side of the road. The pickup truck continued to travel eastbound.
Sergeant Zanoni immediately turned around and headed eastbound on Highway 180, informed dispatch about the incident, pulled behind the pickup truck, and conducted a traffic stop because the driver had violated Vehicle Code section 21460, subdivision (a) by crossing over the solid double yellow lines. Zanoni did not run a record check on the vehicle or obtain any background information on the registered owner prior to conducting the traffic stop.
The pickup truck stopped and Sergeant Zanoni contacted appellant, who was the driver and sole occupant. Zanoni testified that when he first approached appellant, “I could smell what I thought was a slight odor of alcohol but I wasn’t sure if it was coming from his breath or the vehicle at that point.” Zanoni thought appellant’s pupils looked constricted. Based on these observations, Zanoni asked appellant if he had been drinking or using narcotics, and if that would have caused him to swerve over the center line. Appellant said he had about half a beer earlier at his daughter’s house, prior to getting into his truck.
Sergeant Zanoni asked appellant to step out of the truck, and explained that he was going to conduct field sobriety tests to determine if it was safe for him to drive. Appellant said that he had some problems with his leg and balance. Zanoni asked him to sit on the already open tailgate of his pickup truck.
Deputy Irvin Mathis had been traveling behind Sergeant Zanoni on westbound Highway 180, and saw Zanoni quickly turn around. Mathis heard the dispatch that Zanoni was going to perform a traffic stop, he immediately turned around to assist Zanoni, and Mathis arrived at the traffic stop scene right behind him. Zanoni asked Mathis to conduct a patdown search and evaluate appellant, and Mathis and took over the investigation.
Deputy Mathis testified he “didn’t really conduct” any field sobriety tests, but he could smell the odor of an alcoholic beverage on appellant’s breath. Mathis did not conduct a breathalyzer test because he did not have a machine in his unit. Zanoni stood by while Mathis spoke to appellant, and Zanoni did not search or look inside the truck.
Deputy Mathis asked appellant if he had any guns or drugs on his person, and appellant said no. Mathis testified this was a standard question he asked. Mathis next asked appellant if he could search his person, and appellant said yes. Appellant stood up from the tailgate, Mathis conducted the patdown search, and he did not find any contraband.
After the patdown search, appellant remained at the tailgate of the pickup truck with Mathis and Zanoni. Mathis asked appellant if he had any guns or drugs “inside of the vehicle” and appellant said no. Mathis testified he did not see any guns or drugs inside the vehicle, but he asked the question because “it was just kind of a phrase that I use,” and “[m]aybe there was [sic] guns and drugs in the vehicle.” Mathis also thought appellant might have alcohol in the truck because of the erratic driving witnessed by Zanoni. Mathis testified “a lot of people, you know, have drugs in their vehicle and say that they don’t.”
Deputy Mathis testified he next asked appellant “if I could search his vehicle,” and appellant said “Yes, I could search the vehicle.” Mathis did not ask appellant if he could search the “inside of the vehicle,” but asked “if I could search his vehicle. I asked him if he had any guns or drugs inside his vehicle and he said no, he didn’t. Then I asked him if I could search his vehicle and he said yes.”
Sergeant Zanoni testified that he heard Mathis ask appellant if he could search his truck, and appellant said “something about go ahead or yes. I just remember that consent was not denied. Consent was given. I don’t remember the exact words.”
Deputy Mathis searched the truck’s cab, found some pills and personal items, and did not find any contraband. Deputy Mathis testified there was a toolbox in the truck bed that was attached to the back of the cab, and the toolbox was locked. Mathis asked appellant where the key was for the toolbox lock, and appellant said “it was inside of the truck.” Mathis did not ask appellant if he could search the toolbox because he had already obtained appellant’s consent “to search his vehicle.”
Sergeant Zanoni testified he heard Mathis ask appellant, “Where are the keys to the tool box in the bed of the truck? And I remember [appellant] motioning and saying they’re in the vehicle. I thought I heard him say they were in the glove box but I wasn’t sure.” Zanoni never heard appellant object to the search.
Deputy Mathis testified the toolbox key was in the truck’s cab, but he could not remember the exact location, and thought a set of keys was possibly in the truck’s ignition. He obtained the toolbox key, unlocked the toolbox, and found a knife and a small plastic box inside the larger toolbox. “[I]t was a plastic box and it had like little indentions in it, so it was like in the indention of the tool box.” The small plastic box was “open on the top like where the handles would be on the sides” and it did not have a lid or cover. On the top of the small box, Mathis found a brown plastic bottle with a white cap, and that bottle contained a white crystalline substance that Mathis believed was methamphetamine. Mathis picked up the bottle, and found a clear plastic baggie underneath it, which contained a white powdery substance consistent with cocaine. Mathis also found hypodermic needles in the truck.
Deputy Mathis testified appellant never revoked his consent to search the truck, from the point he gave the consent to when Mathis found the drugs. Appellant never asked why Mathis was searching the truck, and he never said that Mathis could not look in the back of the truck. Zanoni testified appellant never revoked his consent or made any statements about revoking his consent to the search of the truck.
After the drugs were found, Zanoni placed appellant in handcuffs and he was taken to the patrol car. Mathis advised appellant of his rights, and appellant said he understood and waived his rights. Mathis asked appellant about the crystalline substance and appellant said it was ice. Mathis asked if he meant ice was methamphetamine, and appellant said yes. Mathis asked appellant about the baggie with the white powdery substance, and appellant said it was cocaine.
Appellant’s suppression hearing testimony
Appellant testified at the suppression hearing, and said he spent the day at his daughter’s house in Fresno to help her move. Appellant testified he had half a beer at noon, and split the beer with his “hundred pound dog” that was in the truck with him. Appellant was driving home to Orange Cove, and admitted he veered over the line into oncoming traffic and noticed a vehicle had to pull over. However, appellant insisted he “wasn’t doing nothing wrong.... I wasn’t doing nothing wrong but I had a hundred pound dog in the truck with me” and the dog would not remain still.
Appellant testified the officer pulled him over, asked for his driver’s license and insurance, and asked if he had been drinking. Appellant told the officer he drank half of a 24-ounce beer around noon, and he was tired because he worked on his own house and then helped his daughter move. The officer asked appellant if he could take a sobriety test, and appellant said he had equilibrium problems from a car accident and could not take a walking test. The officer also asked if he was on probation or parole, and appellant said no.
Appellant testified he gave his driver’s license to the officer. When he reached for his insurance card, another officer was on the other side of the truck and ordered appellant to keep his hands in plain sight. Appellant testified this officer was not Zanoni or Mathis but an unknown third officer.
Appellant testified the first officer, presumably Zanoni, ordered him out of the pickup truck and told him to sit on the tailgate. The second officer, Mathis, started to question him. The unknown third officer, who had ordered him to keep his hands in sight, searched the truck, removed some knives, and showed the knives to the first officer. Appellant asked the officer what he was doing with the knives and the officer did not respond.
Appellant testified that before he saw the officers search the truck, Mathis asked for his consent to search the truck. Appellant said no, that he was no longer on parole and “I’ve been waiting 28 years to tell a person no.” Appellant testified Mathis again asked for consent, he again said no, and he could see the officer “was getting pissed off” and upset with him. Appellant testified the officers asked for his consent to search eight to 10 times, and he repeatedly said no.
Appellant testified Mathis kept asking “all these questions with this tape recorder running trying to get me to say yes to something.” “I knew what he was doing. I wasn’t born yesterday, you know.” Appellant refused to say “yes” on the tape-recorder “because I know what he was trying to do. You know, I’ve been – this ain’t my first time in trouble, if you know what I mean.”
Appellant testified he sat on the tailgate while Deputy Mathis conducted a “finger test” to see if he was drunk. At the same time, appellant saw the other two officers search his truck, and one officer threatened to shoot his dog in the cab. Appellant said he was not on parole anymore, and an officer replied that appellant did not have any more rights.
At one point, an officer said they were going to call the highway patrol and conduct a breathalyzer test, and appellant said they could do what they were going to do. The officers also said they were going to bring dogs to search the truck, “and they threatened me with that and I told them you do what you got to do.”
Appellant testified the officers finished searching the cab and asked about the keys to the toolbox. Appellant thought the keys were still in the ignition. The officers never asked for his consent to search the toolbox, but they found the keys, unlocked the toolbox, and found the drugs. Appellant knew the drugs were in the toolbox, which is why he refused consent because he had “several strikes” and “[m]ight as well [stick] a rope around my own neck.”
As explained in the probation report, appellant has a lengthy criminal history dating back to 1973, with convictions for violent offenses including burglary, assault with a deadly weapon, and armed robbery. He has spent the greater part of the past 20 years in prison, and the instant case constituted appellant’s tenth felony conviction as an adult. Appellant faced an indeterminate third strike term in this case but entered into a negotiated disposition for a second strike sentence.
Appellant believed he had been sitting on the tailgate for about 20 minutes when the officers found the drugs. The officers never said he was free to leave or that he was under arrest for driving under the influence.
The court’s ruling
At the suppression hearing, appellant argued the officers “completely overstepped their boundaries” in a routine traffic stop, their credibility was “clearly suspect” as to whether they detained appellant for a traffic violation, they were on a “fishing expedition,” and neither officer “was interested” in whether appellant was intoxicated. Appellant argued he should have been allowed to leave once the officers determined he was not intoxicated. Appellant asserted his testimony about the incident was more credible because he had waited 28 years to get off parole and refuse consent to search. Appellant further asserted that even if the officers obtained consent to search the truck, that consent did not extend to the locked toolbox in the truck bed.
The prosecutor argued that appellant was lawfully stopped for swerving over the center line, the officers’ testimony was credible about appellant’s consent to search the vehicle, and that consent extended to the search of the locked toolbox.
The court denied appellant’s suppression motion. The court had “trouble giving much credibility” to appellant’s testimony and found his account was exaggerated “and perhaps more than that.” The court found appellant swerved over the double center line and the officers detected a slight odor of alcohol from him, which was “an admission as to the use of alcohol particularly the driving over the line [which is] a common and persistent factor in driving under the influence,” and such factors gave rise to “probable cause for a temporary detention to conduct a DUI investigation.” The court found the officers did not exceed the scope of the investigation, their questions to appellant were “within some type of reasonable bounds,” and the detention was not unduly prolonged for the nature of the traffic violation and stop.
The court also found appellant’s “consent to search specifically for drugs and-or weapons which are small items implicitly leads to consent to search containers.” The court noted that appellant testified and argued that he never consented to the search, and again found that his testimony was not credible. The court further noted appellant did not offer any evidence that his consent was involuntary or given in submission to authority.
After the trial court’s denial of the suppression motion, appellant filed a petition for writ of mandate with this court seeking review of the trial court’s ruling. This court summarily denied the petition. Appellant then filed a similar petition for writ of mandate with the California Supreme Court, which was also summarily denied. Appellant subsequently entered into the negotiated plea and received the second strike term of 10 years.
DISCUSSION
Appellant asserts the trial court should have granted his suppression motion because his hearing testimony was more credible than the officers’ account, the traffic stop was unduly prolonged, he never consented to the vehicle search, and the search of the locked toolbox exceeded the scope of any consent given.
A. Standard of review.
We begin with the applicable standard of review. Appellant argues his suppression motion should have been granted based upon his hearing testimony that he never consented to the search of his truck, he repeatedly refused to give consent, the traffic stop lasted 20 minutes and was unduly prolonged, and any consent was coerced based upon the nature and circumstances of the incident. Appellant recognizes that these arguments are entirely based upon his own testimony at the suppression hearing, but contends this court should rely upon his hearing testimony because he was more credible than the officers, and the trial court’s factual findings are not supported by substantial evidence.
“As the finder of fact in a proceeding to suppress evidence..., the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.]” (People v. Woods (1999) 21 Cal.4th 668, 673.) “A search without a warrant is presumed to be illegal. [Citation.] Once a defendant shows the search was warrantless, the burden shifts to the People to justify the search by establishing the search fell within an exception to the warrant requirement. [Citation.]” (People v. Bishop (1996) 44 Cal.App.4th 220, 237; People v. Williams (1999) 20 Cal.4th 119, 127, 136.)
On appeal, we are bound by the trial court’s factual findings, including credibility determinations, whether express or implied, if they are supported by substantial evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1140; People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Oldham (2000) 81 Cal.App.4th 1, 9.) We independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
The trial court herein presided over an extensive suppression hearing in which Sergeant Zanoni and Deputy Mathis testified about the traffic stop, appellant’s consent, and the search of the truck and toolbox. Appellant testified that he never consented to the search and offered an entirely different version of the traffic stop. At the conclusion of the suppression hearing, the trial court completely rejected appellant’s credibility and all aspects of his testimony.
“I have to start off, and so I’ll begin the ruling by, and I’ll probably do this more than once, is that the court had to in this case clearly weigh the testimony of the various parties and that of the police officers and [appellant]. And I had trouble giving much credibility to [appellant]. There was, for instance, where you said that there was a request for consent I think he said seven, eight or eight or nine times where there was the, where he talked about the detention lasting 20 minutes. Clearly those are, those are at the very best those are exaggerations and perhaps more than that.”
The court further stated that it “evaluated each of the witnesses’ testimony on the issue of consent and found that [appellant’s] version of no consent was untruthful.”
As we have explained, the trial court in a suppression hearing is the exclusive judge of the credibility of witnesses. As the reviewing court, we have no power to reweigh the evidence or reconsider the credibility of witnesses, because “[w]e review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.]” (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) When the trier of fact has believed a witness, we cannot reject that finding unless the testimony was either physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’” (People v. Mayberry (1975) 15 Cal.3d 143, 150.) “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.]”’” (Ibid.; People v. Duncan (2008) 160 Cal.App.4th 1014, 1018.) Conflicts and even testimony subject to justifiable suspicion do not justify the rejection of a trial court’s factual findings, for it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Hovarter (2008) 44 Cal.4th 983, 1016.)
At the suppression hearing herein, the court was presented with two vastly different versions of the traffic stop, and it determined the officers were credible and appellant was not. The court’s factual and credibility findings are supported by substantial evidence and the officers’ testimony about the incident was not physically impossible or inherently improbable. We thus turn to our independent determination of whether the warrantless search of the truck and toolbox were reasonable.
B. The traffic stop and detention.
We next consider whether the traffic stop and detention were constitutionally reasonable under the circumstances. An officer may stop and detain a motorist in a traffic stop on reasonable suspicion that the driver has violated the law. (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 (Wells).) A routine traffic stop “is a relatively brief encounter and ‘is more analogous to a so-called “Terry stop”... than to a formal arrest.’ [Citations.]” (Knowles v. Iowa (1998) 525 U.S. 113, 117 (Knowles); Terry v. Ohio (1968) 392 U.S. 1.)
“The Fourth Amendment’s protection against unreasonable searches and seizures dictates that traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law. [Citation.]” (People v. Durazo (2004) 124 Cal.App.4th 728, 731.) Once a vehicle has been lawfully detained for a traffic violation, the officer may order the driver and passengers to exit the vehicle without any articulable justification. (Knowles, supra, 525 U.S. at pp. 117-118; People v. Hoyos (2007) 41 Cal.4th 872, 892-893.)
It is undisputed that appellant swerved from the eastbound lane of Highway 180 over the double yellow center lines into oncoming westbound traffic, and forced Sergeant Zanoni to take evasive action on the right dirt shoulder. Indeed, appellant admitted at the suppression hearing that he veered over the line into oncoming traffic and noticed a vehicle had to pull over. Zanoni immediately turned around and conducted a traffic stop of appellant’s truck based upon his violation of Vehicle Code section 21460, subdivision (a), which states that “[w]hen double parallel solid lines are in place, no person driving a vehicle shall drive to the left thereof,” except for reasons not applicable in this case. Zanoni’s traffic stop of the truck was objectively reasonable based appellant’s violation of the Vehicle Code, and Zanoni properly asked appellant to step out of the truck.
Appellant concedes that Zanoni lawfully conducted the traffic stop, but argues the traffic stop was unduly prolonged such that Mathis’ subsequent request for consent to search the truck was belated and unreasonable. A traffic stop is treated as an investigatory detention for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed. (People v. Bell (1996) 43 Cal.App.4th 754, 760-761; Wells, supra, 38 Cal.4th at pp. 1082-1083.) An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. (Florida v. Royer (1983) 460 U.S. 491, 500 (Royer).) “A detention that is unreasonably prolonged amounts to a de facto arrest that must be supported by probable cause to be constitutionally valid. [Citation.]” (People v. Gomez (2004) 117 Cal.App.4th 531, 538 (Gomez).)
Thus, while a police officer may stop a motorist for a traffic violation, the detention cannot be prolonged beyond the time period necessary to address the violation. (People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran); People v. Gallardo (2005) 130 Cal.App.4th 234, 238 (Gallardo).) However, “[t]here is no fixed time limit for establishing the constitutionality of an investigatory detention. Rather, such a detention will be deemed unconstitutional ‘when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.]’ [Citation.] The issue then ‘is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]’ [Citation]” (Gomez, supra, 117 Cal.App.4th at pp. 537-538.) There is “no hard-and-fast limit as to the amount of time that is reasonable; rather, it depends on the circumstances of each case. [Citation.]” (Gallardo, supra, 130 Cal.App.4th at p. 238.)
Appellant relies upon McGaughran in support of his argument that the traffic stop herein was unduly prolonged, such that he was illegally in custody when he was asked for his consent to search the vehicle. In McGaughran, an officer stopped the defendant for driving the wrong way on a one-way street. During a three to four minute detention, the officer discussed the traffic violation with the defendant but he did not issue a ticket. Thereafter, the officer initiated a warrant check of the defendant and his passenger, which extended the detention another 10 minutes. The officer learned the defendant had a burglary warrant and the passenger had two traffic warrants, called for assistance, and asked for confirmation of the warrants. The officer received confirmation via radio regarding the warrants 20 to 25 minutes later, and then arrested the defendant and searched his car. The defendant was taken into custody but the passenger was allowed to drive the car to the police station. The car was again searched and the police found property which had been stolen that morning in a vehicle burglary. The defendant’s fingerprints were later found on the vehicle which had been burglarized, and he was charged with the offense. (McGaughran, supra, 25 Cal.3d at p. 581.)
McGaughran held the period of time during which the officer conducted the warrant check on the defendant and his passenger turned the lawful traffic stop into an unlawful detention. “[T]he warrant check in the case at bar was not conducted during the period of temporary detention that is permissible even after a traffic stop in the latter class of cases. That period, although brief, is not insignificant. To begin with, it must necessarily include the time required by the officer to write out the citation and obtain the offender's promise to appear pursuant to the above-mentioned statutes. Other code provisions imply that it will include more. Thus upon demand of a police officer every motorist must present for ‘examination’ both his driver’s license [citation] and the registration card of the vehicle [citation]. If the officer reasonably believes the vehicle is in a dangerously unsafe condition, he may in addition submit it to appropriate ‘inspection’ and ‘tests.’ [Citations.] And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are no less intimately related to the citation process: for example, the officer will usually discuss the violation with the motorist and listen to any explanation the latter may wish to offer; and if the vehicles of either are exposed to danger, the officer may require the driver to proceed to a safer location before the investigation continues. [Citations.]” (McGaughran, supra, 25 Cal.3d at p. 584, fn. omitted.)
“[T]he law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop. If a warrant check can be completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.” (McGaughran, supra, 25 Cal.3d at p. 584, fn. omitted.)
McGaughran found a constitutional violation had occurred because the traffic stop was unduly prolonged, and “the event that made the initial detention permissible was defendant’s conceded violation of the one-way traffic pattern. All that was ‘reasonably necessary’ to deal with the offense, however, was for [the officer] to examine defendant’s license and registration, explain the violation, and then issue either a citation or a warning. The additional period of detention for the purpose of seeking out unrelated arrest warrants in the name of defendant or his passenger was not ‘reasonably necessary’ to that process, and hence ‘exceeded constitutional limitations’ under the foregoing rule.” (McGaughran, supra, 25 Cal.3d at p. 587, fn. omitted; also People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, 5; People v. Grace (1973) 32 Cal.App.3d 447, 452-453.)
McGaughran’s holding has been somewhat limited, however, such that the reasonableness of a traffic detention period must be judged on its particular circumstances. (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.)
“The holding of McGaughran does not mean that the officer may detain and interrogate the traffic offender as to possible unrelated offenses for the time it would otherwise take to fully perform his citation duties.... The import of McGaughran is not the setting of a general outside time limit for minor traffic offense detentions. Implicit in the McGaughran analysis is a recognition that the circumstances of each traffic detention are unique and that the reasonableness of each detention period must be judged on its particular circumstances. The clear intent of McGaughran is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not ‘reasonably necessary’ to completion of the officer’s traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses.” (Williams v. Superior Court, supra, 168 Cal.App.3d at p. 358, italics added.)
The United States Supreme Court has thus clarified:
“In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. [Citations.] A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. [Citation.] A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But ‘[t]he fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, itself, render the search unreasonable.’ [Citations.] The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” (U.S. v. Sharpe (1985) 470 U.S. 675, 686-687.)
The United States Supreme Court again readdressed this rule in a recent case:
“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. [Citation.] An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. [Citation.]” (Arizona v. Johnson (2009) __ U.S. __ [129 S.Ct. 781, 788], italics added.)
Thus, 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. Brown (1998) 62 Cal.App.4th 493, 498 (Brown).) Moreover, it is well established that “[a]n officer has every right to talk to anyone he encounters while regularly performing his duties.” (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) “Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. [Citations.] While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.] [¶] Obviously, this rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. [Citations.]” (Brown, supra, 62 Cal.App.4th at p. 499.) An officer may seek permission to search during a lawful traffic stop, and reasonable suspicion is not required to request consent if that request does not otherwise prolong the traffic stop. (Gallardo, supra, 130 Cal.App.4th at p. 239.)
Appellant relies on McGaughran and argues the officers should have simply issued a traffic citation and allowed him to leave, and they illegally prolonged the traffic stop when they asked consent to search him and the vehicle. As illustrated by the United States Supreme Court’s cases, however, the question in the instant case is whether the officers pursued their investigation in a diligent and reasonable manner under the circumstances. The answer is yes. Sergeant Zanoni observed the pickup truck swerve over the double yellow center lines and narrowly escaped being hit, and immediately turned around and pursued the pickup truck. He immediately detected the odor of alcohol when he approached appellant in the driver’s seat, and asked him to step out of the truck.
Appellant asserts the traffic stop became prolonged when Zanoni ceased his involvement and handed over the investigation to Mathis. However, the record clearly indicates that Mathis arrived at the scene almost immediately after the Zanoni conducted the traffic stop: Mathis testified he was traveling behind Zanoni, he saw Zanoni quickly turn around, he heard the dispatch that Zanoni was going to perform a traffic stop, Mathis immediately turned around to assist Zanoni, and he arrived at the scene right behind him.
The record is silent as to exactly how many minutes elapsed between the traffic stop and appellant’s consent to search the truck. At the suppression hearing, the officers were not asked, and they did not testify about, the exact passage of time between the two events. The record, however, strongly suggests the time span was extremely brief. The questions and answers would have only taken a matter of seconds or a few minutes, and there is no indication of any unreasonable delays as events unfolded at the scene of the traffic stop.
Appellant argues the traffic stop was unreasonably prolonged based upon his own hearing testimony that 20 minutes passed between the traffic stop and the search of the truck. Appellant contends that his testimony about the exact length of the detention must be accepted in the absence of contrary testimony on that point. As we have explained ante, however, the trial court completely rejected all aspects of appellant’s hearing testimony as not credible, including his claim that the detention lasted 20 minutes, and the court’s factual findings are supported by substantial evidence.
Appellant contends the officers should have simply written a citation and allowed him to leave, and any conduct beyond that required to write a citation meant the detention was unduly prolonged. However, both officers immediately detected the odor of alcohol when they approached appellant, and their attempts to conduct field sobriety tests were hampered by appellant’s claimed inability to perform those tests. While appellant claimed to have only consumed half a beer earlier in the day, and he denied the presence of drugs in the vehicle, both officers were clearly concerned as to appellant’s sobriety and whether he was under the influence. (See, e.g., Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1485 [“More than one California court has found that ‘weaving’ within a lane provides sufficient cause to conduct an investigatory stop”].) Given such objective circumstances, the officers were entitled to expand the scope of the traffic stop beyond merely writing a citation for crossing over the center line, to determine whether appellant could safety resume driving the truck. (See, e.g., People v. Webster (1991) 54 Cal.3d 411, 430-431 [officer may reasonably expand the scope of a traffic stop depending on the circumstances].) The request to search in this case did not unduly prolong the detention or extend the period justified by the valid traffic stop.
Appellant relies on Knowles, supra, 525 U.S. 113, and argues the officers should have simply issued a citation and allowed him to leave, because all the evidence necessary to prosecute the traffic violation had been obtained, and the issuance of a traffic citation does not authorize an officer to conduct a full search of the vehicle. Appellant fails to mention that Knowles dealt with a situation where officers issued a traffic citation and searched the entire vehicle. The officers in Knowles claimed the search was justified as a “‘search incident to citation,’” but Knowles rejected that argument. (Id. at p. 118.) “Once [the defendant] was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.” (Ibid.) In contrast, the officers herein did not conduct a warrantless search of appellant’s truck as a “‘search incident to citation’” as in Knowles, but as we will discuss post, they searched the vehicle based upon appellant’s lawful and voluntary consent. (Ibid.)
C. Consent and voluntariness.
Appellant’s next argument is that he did not validly consent to the search of his truck. A defendant’s voluntary consent to a search is a recognized exception to the warrant requirement. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; People v. Bishop, supra, 44 Cal.App.4th at p. 236.) At the suppression hearing in this case, the officers testified that appellant consented to the search of the vehicle. In contrast, appellant testified that the officers repeatedly asked him for consent to search the vehicle, he repeatedly denied his consent, Mathis tried to get him to say “yes” on a tape-recorder, appellant never consented to the search, the officers told him he had no rights, and the officers searched the truck anyway. As we have explained ante, the trial court found appellant’s hearing testimony was not credible and rejected the entirety of his account, and the court’s factual findings are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Given the court’s factual findings, we find appellant consented to the search of his truck.
In the alternative, appellant contends that his consent to search the vehicle was coerced, involuntary, and only given in submission to the officers’ authority. A search that is the result of a mere submission to authority is not voluntary. (Royer, supra, 460 U.S. at p. 497.) “‘When the People seek to justify a search on the ground that consent was given, they have the burden of proving... that the consent was lawful, was not a mere submission to authority, and was not inextricably bound up with unlawful conduct.’ [Citation.]” (People v. Lawler (1973) 9 Cal.3d 156, 163.)
“‘The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings--whether express or implied--must be upheld if supported by substantial evidence.”’ [Citations.]” (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558-1559 (Ramirez).)
Appellant contends that any consent was not voluntary because he merely submitted to the authority of the officers, the first officer took his driver’s license and there is no evidence the license was returned to him, he repeatedly refused to give his consent, the officers were upset about his refusals, the officers threatened to shoot his dog, Mathis tried to get appellant to say “yes” to various innocuous questions on a tape-recorder, the officers failed to inform him that he had the right to refuse consent, and none of this evidence was refuted by the prosecution witnesses.
As with his other contentions, appellant acknowledges that his voluntariness arguments are based upon his own testimony at the suppression hearing. The trial court herein rejected appellant’s testimony about the nature and circumstances of the traffic stop, and specifically addressed his testimonial assertions about the voluntariness of his consent: “Now in this case, and I think [counsel was] eluding to this by, and maybe even [appellant] was eluding to this, the circumstances might have lent themselves to a suppression motion based on a lack of voluntariness through some, a submission to authority by the activities of the officers. But [appellant] offered no evidence on that and instead he claimed there was no consent.”
Given the trial court’s factual and credibility findings, there is absolutely no evidence to support appellant’s argument that his consent to search the truck was involuntary or coerced. Moreover, the officers’ purported failure to inform appellant of his right to refuse consent does not invalidate an otherwise facially voluntary consent. (Ramirez, supra, 59 Cal.App.4th at p. 1559.) “[I]nforming an accused of his constitutional right to refuse permission to a search and seizure has never been indispensable to a valid search and seizure.” (Ibid.) “‘The mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.’ [Ciation.] Likewise, the failure to give proper Miranda warnings before asking for permission to search also has been held not to invalidate an otherwise valid consent. [Citation.]” (Ibid.)
In addition, there is no evidence the officers asserted authority that may have coerced appellant into giving consent or made his consent less than voluntary. The officers did not draw their guns on appellant or threatened to obtain a warrant if he refused consent. (Ramirez, supra, 59 Cal.App.4th at p. 1560.) In rejecting the credibility of appellant’s hearing testimony, the court similarly rejected his claim that the officers threatened to shoot his dog when he purportedly refused consent to search. As we have explained, the court’s factual findings are supported by substantial evidence and there is no evidence to support appellant’s claim that his consent was not voluntary.
D. The scope of the consent.
Appellant contends that to the extent he consented to a search of the truck, that consent was limited to the interior of the cab and not to the contents of the truck bed. He argues Deputy Mathis exceeded the scope of his consent when Mathis retrieved the keys from the truck, unlocked the toolbox in the truck bed, and found the drugs inside.
A consensual search may not legally exceed the scope of the consent supporting it. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408 (Crenshaw).) Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. (Ibid.) “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno).) “The scope of a search is generally defined by its expressed object. [Citation.]” (Ibid.)
“When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass. [Citation.]” (U.S. v. Strickland (11th Cir. 1990) 902 F.2d 937, 941.) “Although an individual consenting to a vehicle search should expect that search to be thorough, he need not anticipate that the search will involve the destruction of his vehicle, its parts or contents.” (Id. at p. 942.) “[O]pen-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way, and that a general consent to search includes consent to pursue the stated object of the search by opening closed containers. [Citations.]” (People v. Jenkins (2000) 22 Cal.4th 900, 975.)
In Jimeno, a police officer stopped a vehicle for a moving violation and informed the defendant, who was the driver, that he suspected the defendant was carrying narcotics in the car. The defendant gave consent to search the car. The officer opened the passenger side door, and saw a folded, brown paper bag on the floorboard. He picked up the back, opened it, and found a kilogram of cocaine inside. (Jimeno, supra, 500 U.S. at pp. 249-250.)
Jimeno held the driver’s “general consent to a search of his car” reasonably could be understood to include within its scope the search of a closed paper bag. (Jimeno, supra, 500 U.S. at p. 251.) Jimeno held the standard for measuring the scope of consent is to ask “what would the typical reasonable person have understood by the exchange between the officer and the suspect.” (Ibid.)
“The scope of a search is generally defined by its expressed object. [Citation.] In this case, the terms of the search's authorization were simple. [The defendant] granted [the officer] permission to search his car, and did not place any explicit limitation on the scope of the search. [The officer] had informed [the defendant] that he believed [the defendant] was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search [the defendant’s] car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. ‘Contraband goods rarely are strewn across the trunk or floor of a car.’ [Citation.] The authorization to search in this case, therefore, extended beyond the surfaces of the car’s interior to the paper bag lying on the car’s floor.” (Id. at p. 251.)
Jimeno cautioned that the defendant's consent probably would not extend to a locked briefcase in the trunk of the car, but it rejected the defendant's contention that the police must request separate permission to search each container in the area to be searched. (Jimeno, supra, 500 U.S. at pp. 251-252.) Jimeno found no basis for adding such a requirement: “A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.” (Id. at p. 252.)
In United States v. Sierra-Hernandez (9th Cir. 1978) 581 F.2d 760 (Sierra-Hernandez), border patrol agents conducted a traffic stop on a truck suspected of transporting narcotics. (Id. at p. 762.) One of the agents asked the driver, “‘May I look inside the truck?’” The answer was in the affirmative, and the agent looked in the cab, the back cargo portion, and under the hood, and discovered marijuana under the hood. The driver asserted the agent went beyond the scope of his consent when he opened the hood. (Id. at p. 764.) The court found the search was within the scope of the consent:
“Before the hood was opened the appellant gave permission for an agent to look in the back of the truck and even went so far as to aid in the search. He expressed no concern when the agent proceeded to the hood, and apparently made no attempt to retract or narrow his consent. [Citation.] Failure to object to the continuation of the search in these circumstances is properly considered as an indication that the search was within the scope of the initial consent.” (Id. at p. 764, italics added.)
In U.S. v. Cannon (9th Cir. 1994) 29 F.3d 472, an officer performed a traffic stop on a suspected drug dealer for driving without a license. The officer asked the defendant for permission to search the car, the defendant replied, “‘sure, go ahead,’” and he did not protest when the officer searched under the hood, in the passenger compartment, and inside the trunk, and found contraband related to narcotics trafficking. (Id. at p. 474.) The court rejected the defendant’s argument that the search exceeded the scope of his consent.
“Here, [the defendant] told [the officer] to ‘go ahead’ and look in his car. He did not protest when [the officer] searched the interior of the car, including the glove compartment, or when [the officer] walked around to the trunk and used [the defendant’s] key to open it. Failure to object to the continuation of a vehicle search after giving general consent to search ‘is properly considered as an indication that the search was within the scope of the initial consent.’ [Citations.] Although a suspect’s consent to search a car may not automatically include consent to search the trunk, in the present case, the district court did not clearly err in finding that [the defendant’s] consent included the trunk. [Citations.]” (Id. at p. 477, italics added.)
In the instant case, Deputy Mathis informed appellant about the object of his search when he asked if there were any guns or drugs inside the vehicle. Mathis then asked appellant if he could search the vehicle. “[N]arcotics are generally carried in some form of a container.” (Jimeno, supra, 500 U.S. at p. 251.) As in Jimeno, it was not unreasonable that a search of the vehicle for guns or drugs would include the truck bed and any containers in that bed. (Crenshaw, supra, 9 Cal.App.4th at p. 1415.)
Appellant focuses on Deputy Mathis’ hearing testimony, that he asked appellant if there were guns or drugs “inside the vehicle,” appellant said no, and then Mathis asked if he could “search the vehicle.” Appellant asserts that based upon the sequence of questions, Mathis’ request to search was necessarily limited to the “inside of the vehicle,” since those words were used in the question that prefaced his request to search, and appellant never consented to the search of the truck bed.
Appellant’s argument is based upon an unwarranted semantic parsing of words. Mathis asked to search appellant’s vehicle and appellant said yes. As in Sierra-Hernandez and Cannon, appellant never restricted his consent to search only to the cab or unlocked containers in the bed. Moreover, Mathis did not break open the locked tool box. (Cf. Jimeno, supra, 500 U.S. at pp. 251-252; People v. Cantor (2007) 149 Cal.App.4th 961, 966-967.) Instead, he asked appellant for the keys, appellant disclosed the location of the keys, and appellant did not object to the use of the keys to unlock the toolbox.
“[T]here is no talismanic phrase which must be uttered by a suspect in order to authorize a search.” (People v. James (1977) 19 Cal.3d 99, 113.) “Indeed, no words at all need be spoken: in appropriate circumstances, consent to enter may be unmistakably manifested by a gesture alone. [Citations.]” (Ibid.) For example, in People v. Carvajal (1988) 202 Cal.App.3d 487, the defendant consented to a search of his truck. An officer indicated that keys were necessary to open the camper shell by saying the word “keys” in Spanish, and the defendant immediately retrieved the keys from his pocket and handed them to the officer. The court found “[n]othing more was required to establish the voluntariness of [the defendant’s] consent.” (Id. at pp. 496-497.) As in Carvajal, appellant’s conduct in readily disclosing the location of the toolbox keys to Deputy Mathis, similarly establishes the voluntariness of his consent to the search of the locked toolbox.
We conclude the entirety of the record reflects that the officers obtained appellant’s general, unrestricted consent to search his vehicle for guns or drugs. He relinquished the key to the locked toolbox knowing it would be used to open the box, and he did so without placing any limits on the scope of the search. Based on the trial court’s factual findings, there is no evidence appellant relinquished the key involuntarily or in submission to authority.
DISPOSITION
The judgment is affirmed.
WE CONCUR, WISEMAN, Acting P.J., DAWSON, J.