Opinion
D057784
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. SEASONS AMBER HALL-CRECCO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD222601)
APPEAL from a judgment of the Superior Court of San Diego County, William H. Kronberger, Jr. and Frederick Maguire, Judges. Affirmed.
After the trial court denied her Penal Code section 1538.5 motion to suppress evidence, defendant Seasons Amber Hall-Crecco pleaded guilty to possessing a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11378). The trial court sentenced her to local custody for one year followed by supervised probation. Hall-Crecco appeals, contending her detention following an investigative stop was unduly prolonged and unlawful under the Fourth Amendment. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the March 4, 2010, section 1538.5 suppression hearing.
On August, 27, 2009, San Diego Police Officer Doru Hansel was patrolling westbound El Cajon Boulevard when he observed a white car travelling north on Arizona Street turn onto El Cajon Boulevard and drive against traffic toward his police car. He turned on his lights and siren and followed after the car made a U-turn, pulled onto northbound Arizona Street, and stopped. Officer Hansel walked up to the car and saw the driver and Hall-Crecco in the front passenger seat. He introduced himself and asked the driver for her registration, insurance, and driver's license. While the driver dug through her purse, he asked if anyone in the car was on probation or parole and Hall-Crecco mentioned in response "something about probation." Office Hansel then asked for Hall-Crecco's driver's license and also asked the driver if she had any idea why he stopped her. The driver acknowledged driving the wrong way, stating she was unfamiliar with the area. These initial standard procedure questions took one to two minutes.
Officer Hansel walked back to his car and conducted a records check on the driver and Hall-Crecco. It took the officer five to seven minutes to walk back to his car and run the records check. After the check revealed that Hall-Crecco had a valid fourth waiver search condition, Officer Hansel returned to the car and informed her he had requested a female officer to come to the scene and conduct a search. Sergeant Cedrun, who was close by, arrived almost immediately; she searched Hall-Crecco and found a bag containing methamphetamine in her bra. Officer Hansel arrested Hall-Crecco, took custody of the bag, and searched her purse where he found $65 in her wallet and $150 in a money clip.
While Officer Hansel worked on paperwork in his car, another police officer, Thomas Gardinhire, knocked on his window to offer assistance. Officer Hansel testified he did not know if Officer Gardinhire approached or spoke to the girls while he finished the paperwork. Hall-Crecco testified that it was Officer Gardinhire who first came up to the car and asked for her driver's license. She denied admitting she was on probation. The court found it was a legitimate stop and that the testimony regarding Officers Hansel and Gardinhire was not inconsistent: Officer Hansel approached first, went back to his car, and despite Officer Hansel's control over the scene, Officer Gardinhire still went to the car.
The record can be interpreted as indicating the sergeant arrived six to eight minutes after the time of the initial stop.
Hall-Crecco moved under section 1538.5 to suppress all evidence acquired in violation of her Fourth Amendment rights following the traffic stop. She argued the traffic stop was the result of entrapment: that the intersection was deliberately misleading to cause people in high crime areas to commit infractions. Following a lengthy hearing, the trial court ruled Officer Hansel had probable cause that the driver had committed an infraction and thus made a valid detention stop; that the officer was entitled to ask routine questions concerning license, registration, and probation; and that the stop was not unduly prolonged. It denied Hall-Creco's motion.
DISCUSSION
I. Standard of Review
" 'In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.' " (People v. Brendlin (2008) 45 Cal.4th 262, 268.)
II. Legal Principles
"The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures of persons, including unreasonable investigative stops. [Citations.] With respect to seizures, '[a] seizure occurs whenever a police officer, "by means of physical force or show of authority" restrains the liberty of a person to walk away.' " (People v. Vibanco (2007) 151 Cal.App.4th 1, 8.) "Under the current provisions of the California Constitution, evidence sought to be introduced at a criminal trial is subject to suppression as the fruit of an unconstitutional search and seizure 'only if exclusion is . . . mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment [of the United States Constitution].' " (People v. Maikhio (2011) 51 Cal.4th 1074, 1089.)
"A traffic stop constitutes a detention under the Fourth Amendment. [Citation.] 'As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred' [citation] or where they can at least ' "point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity[.]" ' [Citation.] '[T]he constitutional reasonableness of traffic stops' does not 'depend[ ] on the actual motivation of the individual officers involved.' " (People v. Torres (2010) 188 Cal.App.4th 775, 785.) When an officer stops a vehicle, both the driver and passenger are seized and detained within the meaning of the Fourth Amendment, entitling the passenger to challenge the constitutionality of the stop. (Brendlin v. California (2007) 551 U.S. 249, 251, 263.)
"Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. . . . While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking." (People v. Brown (1998) 62 Cal.App.4th 493, 499.) Circumstances may develop during a detention providing an officer with reasonable suspicion to prolong the detention and "the most useful, most available tool for such investigation is general on-the-scene questioning." (People v. Warren (1984) 152 Cal.App.3d 991, 996-997; People v. Russell (2000) 81 Cal.App.4th 96, 102.) An officer may make inquiry into such matters as long as the questions do not measurably extend the stop's duration. (Arizona v. Johnson (2009) 555 U.S. 323, _____ [129 S.Ct. 781, 783, 788] [officer's inquiries into matters unrelated to the justification for a lawful roadside stop do not convert the encounter into something other than a lawful seizure as long as the inquiries do not "measurably extend the duration of the stop"]; People v. Vibanco, supra, 151 Cal.App.4th at p. 13 [" ' "[I]nvestigative 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" ' "].)
"There 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.' " (People v. Gomez (2004) 117 Cal.App.4th 531, 537-538.) The amount of time that is reasonable depends on the circumstances of each case. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.)
III. The Stop Was Not Unduly Prolonged
Though the People do not raise forfeiture, we observe that Hall-Crecco did not argue in her section 1538.5 motion that her detention was unreasonably prolonged, nor did she make such arguments to the court at the hearing on her motion. Rather, the court determined in the first instance during its ruling that Officer Hensel did not detain Hall-Crecco longer than reasonably necessary. By failing to make this argument below, Hall-Crecco has arguably forfeited it on appeal. (People v. Williams (1999) 20 Cal.4th 119, 136.) Because the People do not discuss forfeiture in their brief, we will address her contentions. In doing so, we conclude they are without merit.
Hall-Crecco does not squarely challenge the validity of the initial traffic stop, and thus we do not address that question. Rather, she contends because Officer Hansel "delayed the detention, not to write a citation for the observed violation, but to investigate both the driver and passenger and seek to uncover any other criminal activity he might find[,] [t]hat delay violated [her] Fourth Amendment Right."
Hall-Crecco asserts in reply that the detention was invalid because the officers sought to uncover other criminal activity apart from the stop itself. The only argument made in her opening brief, however, is that her detention was prolonged in violation of the Fourth Amendment. We do not address arguments made for the first time in a reply brief, particularly when we have not been shown any good reason for the failure to present them before. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.)
Hall-Crecco relies solely on People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran)and Williams v. Superior Court (1985) 168 Cal.App.3d 349 (Williams) as examples of cases in which California courts found other detentions unreasonable. In McGaughran, supra, 25 Cal.3d 577, police stopped a driver for traveling in the wrong direction on a one-way public street. The officer explained the reason for the stop and examined the licenses of the driver and passenger, who told him they were lost. (Id. at p. 581.) Typically he would let the motorist go with a warning about the unusual traffic pattern (id. at p. 585) but instead, he returned to his patrol vehicle after his three- to four-minute discussion with the driver and the passenger and initiated a radio check for outstanding warrants in both names. (Id. at p. 581.) About 10 minutes later, the dispatcher notified the officer of outstanding warrants. (Ibid.) The California Supreme Court held this "additional period of detention for the purpose of seeking out unrelated arrest warrants . . . was not 'reasonably necessary' " to deal with the initial offense of violating the one-way traffic pattern, and it therefore " 'exceeded constitutional limitations.' " (Id. at p. 587.)
In Williams, supra, 168 Cal.App.3d 349, a vehicle was pulled over for a traffic violation. The police officer was suspicious of the men in the car, believing they might have been involved in recent robberies, and he engaged them in conversation unrelated to the traffic violation for five to ten minutes and had them sit on the curb before obtaining consent to search the car. (Id. at pp. 355-356.) The officer never commenced writing a traffic citation and never removed his citation book from his vehicle. (Id. a pp. 356-357.) The Williams court held that the consent was invalid because the prolonged detention was not " 'reasonably necessary' to the officer's performance of his duties relative to the traffic violation." (Id. at p. 359.)
The Williams court explained that "McGaughran enumerated the specific duties 'reasonably necessary' to complete a traffic infraction detention. The period of lawful detention is limited to the time reasonably necessary for the officer to prepare the notice to appear (i.e., a citation or 'ticket'). . . . The time it takes the officer to return to the patrol vehicle to request a timely warrant or registration check may also be included as part of the necessary period of detention." (Williams, supra, 168 Cal.App.3d at p. 358.) Williams then clarified the holding of McGaughran, as follows: "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, at p. 358.)
The continuing validity of McGaughran is open to question in light of the 1982 Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), Atwater v. City of Lago Vista (2001) 532 U.S. 318, and People v. McKay (2002) 27 Cal.4th 601. (People v. Gomez, supra, 117 Cal.App.4th at pp. 538-539.)
Both McGaughran and Williams are readily distinguishable. Unlike Hall-Crecco, the defendants in those cases did not provide the officers with knowledge of their probation status (McGaughran, supra, 25 Cal.3d at pp. 581-582), or information regarding outstanding criminal activity (Williams, supra, 168 Cal.App.3d at pp. 355-356), as did Hall-Crecco, prior to the probation check. In McGaughran, the officer had completed the duties associated with the stop before commencing the warrant check whereas Officer Hansel conducted the check concurrently with the duties associated with the traffic violation. (McGaughran, supra, at pp. 581-582.) This activity falls squarely within McGaughran's holding that "[i]f 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 . . . as a result of [the] violation." (McGaughran, supra, at p. 584.)
Hall-Crecco further contends, more specifically, that Officer Hansel's question about her probation status unreasonably prolonged the detention in violation of the Fourth Amendment because it was entirely unrelated to the purpose of the detention and constituted a mere "fishing expedition . . . ." She attempts to distinguish People v. Brown, supra, 62 Cal.App.4th 493, on grounds the defendant there was the driver subject to the detention stop (not the passenger as was Hall-Crecco), and the officer questioned him and conducted the challenged search while waiting for a warrant check.
These arguments are without merit. As we have summarized above, while performing a traffic stop, an officer may legitimately question any of the occupants in the car — including the passenger — about matters unrelated to the justification for the stop. (Arizona v. Johnson, supra, 555 U.S. 323, _____ [129 S.Ct. at pp. 787-788]; People v. Vibanco, supra, 151 Cal.App.4th at pp. 6, 13-14; People v. Brown, supra, 62 Cal.App.4th at p. 499.) Officer Hansel's routine question to Hall-Crecco about her probation status did not by itself convert the stop into an illegal seizure. And, as in Brown, "questions about defendant's probation status did not constitute a general crime investigation. They merely provided the officer with additional pertinent information about the individual he had detained." (Brown, at p. 499.) Though an investigative stop exceeds constitutional bounds when it is extended beyond what is reasonably necessary under the circumstances surrounding its initiation, additional circumstances may develop providing reasonable suspicion to prolong the detention. (People v. Warren, supra, 152 Cal.App.3d at pp. 995-997; People v. Russell, supra, 81 Cal.App.4th at p. 102.) Here, Hall-Creco's confirmation of her probation status entitled Officer Hansel to expand the scope of the traffic stop and conduct a probation search.
Officer Hansel's inquiry into Hall-Crecco's probation status occurred within two minutes of the traffic stop. In total, less than ten minutes passed from the time of the stop until Officer Hansel confirmed Hall-Crecco was subject to warrantless, suspicionless probation searches (one to two minutes for questioning and five to six minutes for paperwork and checking probation status) and the time it took Sergeant Cedrun to arrive and conduct the search. We conclude that the five to six minutes it took Officer Hansel to return to his car and confirm Hall-Crecco's probation status, while he checked the driver's record, was reasonable and did not measurably extend the duration of the stop.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.