Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F06908005 James R. Oppliger and David Andrew Gottlieb, Judges.
Judge Oppliger denied defendant’s motion to suppress; Judge Gottlieb sentenced defendant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J. and Wiseman, J.
Defendant Troy Leon Clowers, Jr., made a motion in the trial court to suppress ammunition and a handgun seized from his person during a vehicle stop. After hearing, the court denied the motion. Defendant then pleaded no contest to being a felon in possession of a firearm and driving under the influence of alcohol or drugs after a prior conviction for the same offense. He additionally admitted enhancements for being out on bail or on his own recognizance and for having served three prior prison terms. He was sentenced to prison for four years, based on a two-year middle term and a two-year enhancement. On appeal, he challenges the denial of his motion to suppress.
FACTS
Robert Esquibel, a Fresno police officer riding his police motorcycle, observed a vehicle with a registration tag that appeared to be peeling off. He initiated a traffic stop of the vehicle, which was driven by defendant, upon confirming his suspicion with police dispatch that the vehicle registration had expired and the displayed current-year tag was false. It turned out that the vehicle was owned by the front seat passenger, Latisha Gonzales.
Upon contacting defendant through the open car window and advising him of the reason for the stop, Officer Esquibel noticed that defendant was nervous; his eyes were red, bloodshot and watering and did not react to light; and his speech was slurred. Esquibel additionally detected a moderate odor of alcohol on defendant’s breath. Esquibel asked for defendant’s driver’s license. Defendant responded that he had no identification with him.
Esquibel decided he would conduct a field sobriety test upon defendant; but first, upon having defendant step out of the vehicle, he grabbed defendant’s wrist and patted him down, as was the officer’s custom, before conducting a sobriety test. Esquibel noticed a black bandana protruding from defendant’s back left pocket along with a black and silver substance that he thought might be the handle of a butterfly knife. Upon retrieving this latter item, Esquibel discovered it was a magazine loaded with silver-colored rounds of ammunition. Another officer then located a loaded .22 caliber handgun in defendant’s waistband.
DISCUSSION
Defendant contends the evidence should have been suppressed. He argues that Esquibel’s employment of his standard practice of frisking a suspected drunk driver before conducting a further sobriety investigation is not reasonable unless there are further justifying circumstances creating a reasonable suspicion that the suspect is armed and dangerous. No such further circumstances existed here, claims defendant, prior to Esquibel’s pat down of defendant.
As one of their counterarguments, the People assert that Esquibel’s actions were justified because defendant was the subject of a de facto arrest. Principal reliance for this proposition is placed on People v. Gomez (2004) 117 Cal.App.4th 531.
In Gomez, a police officer, assisting a narcotics enforcement team that had Gomez under surveillance, initiated a traffic stop of Gomez’s vehicle because he was violating the Vehicle Code by not wearing his seat belt. (People v. Gomez, supra, 117 Cal.App.4th at p. 536.) Upon also observing two large containers sealed with duct tape in the rear of the vehicle, the officer detained Gomez for further narcotics investigation, which eventually led to a dog sniff search that divulged narcotics evidence. (Ibid.) Gomez challenged the seizure as being the product of an unconstitutionally long detention. (Id. at p. 537.) The Court of Appeal found that, while the detention was unreasonably prolonged, probable cause existed to support a de facto arrest and reasoned: “the seatbelt violation that led to the initial detention also supplied probable cause for defendant’s de facto arrest. In Atwater [Atwater v. City of Lago Vista (2001) 532 U.S. 318], the Supreme Court held that an officer who ‘has probable cause to believe that an individual has committed even a very minor criminal offense in his presence … may without violating the Fourth Amendment arrest the offender.’” (Id. at p. 538-539.)
Gomez attempted to distinguish the facts of his case from Atwater and People v. McKay (2002) 27 Cal.4th 601, contending he was not cited for the seat belt violation and could not be arrested for such under state law. (People v. Gomez, supra, 117 Cal.App.4th at p. 539.) In McKay, the California Supreme Court found it was not inherently unconstitutional for an officer to effect a custodial arrest for a fine-only offense. (People v. McKay, supra, 27 Cal.4th at p. 607.) Accordingly, noted the Gomez court, it is irrelevant that a seat belt violation typically would not result in an arrest because, as is stated in McKay, “‘the Fourth Amendment inquiry does not depend on whether the challenged police conduct was authorized by state law.’” (People v. Gomez, supra, 117 Cal.App.4th at p. 539.) The Gomez court thus concluded, “It is undisputed Floren [the officer] had probable cause to believe defendant violated a traffic law. He thus had probable cause to arrest defendant [Gomez] on that basis. That probable cause did not evaporate because Floren also detained defendant for purposes relating to the narcotics investigation.” (Ibid.)
In his reply brief, defendant claims Gomez is distinguishable because “[t]here, unlike the case at bar, the officer’s justification for the search was a traffic violation.” Not so. While in Gomez a narcotics officer radioed the traffic officer to make a traffic stop of Gomez’s vehicle in order to obtain Gomez’s permission to search his vehicle, when Gomez refused to consent to a search, the traffic officer advised Gomez “he was being detained due to an ongoing narcotics investigation.” (People v. Gomez, supra, 117 Cal.App.4th at p. 536.)
Thus Gomez was not formally arrested or cited for the no-seat-belt traffic violation and was not searched pursuant to arrest for that violation; yet the appellate court there found that the objective probable cause for his arrest on that basis did not evaporate simply because he also was detained for a prolonged purpose relative to the narcotics violation. Similarly here, defendant was not formally arrested or cited for Vehicle Code violations for expired registration/false registration or for driving without a valid driver’s license in his possession. But because he was properly stopped and further detained for these violations, and these violations were constitutionally sufficient to justify arrest and search pursuant to that arrest, the mere fact that Officer Esquibel improperly reasoned that he was justified to pat defendant down as a prelude to administering a field sobriety test did not cause the objective probable cause to “evaporate.”
Accordingly, we agree with the People that because the seizure of the ammunition and firearm were incident to a de facto arrest, the trial court did not err when it denied defendant’s motion to suppress. Because this argument is dispositive, we need not discuss the alternative contentions.
DISPOSITION
The judgment is affirmed.