Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR187895.
Siggins, J.
Defendant Adam Richard Henry was convicted by a jury of possession of methamphetamine and a smoking device in violation of the Health and Safety Code. Defendant appeals the trial court’s denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, and his motion to dismiss pursuant to section 995. Defendant contends the trial court should have suppressed the evidence because the police unlawfully detained him, the detention was impermissibly prolonged, and a patsearch was illegal. We disagree and affirm.
All further statutory references are to the Penal Code.
BACKGROUND
I. Facts
At approximately 3:30 a.m. Vallejo Police Officer Brian Crutcher was alone on duty when he observed a blue Ford commit a traffic violation by failing to yield to traffic at the intersection of Georgia and Solano Streets. Crutcher followed the vehicle through the intersection and advised dispatch he intended to stop the vehicle. As he followed the vehicle, Crutcher observed the two occupants of the car bending over and leaning. Crutcher followed the vehicle for approximately 20 seconds after observing the failure to yield. He intended to effect a traffic stop, but the vehicle abruptly turned into a driveway without signaling before Crutcher could stop it. At that point Crutcher stopped at the driveway and approached the passenger’s side of the vehicle.
Crutcher testified he thought the occupants might have been hiding or retrieving weapons when they were bending and leaning over in the car. Accordingly, he approached from the passenger’s side of the car because most suspects are right-handed and he had concerns for his safety. As he approached the car, Crutcher again noticed the occupants bending at the waist.
When he was at the passenger’s side of the car, Crutcher noticed that the driver (McQueen) was making rapid uncontrollable movements, appeared unable to sit still, and that his hands were twitching. When Crutcher asked McQueen if he was under the influence of a drug McQueen became extremely defensive, and his uncontrolled body movements increased. McQueen opened the car door, said, “I’m going to go in the house,” and started to get out. Crutcher ordered McQueen to get back in the car and ran around the car to meet him at the driver’s side door. Approximately 10 to 15 seconds lapsed from the time Crutcher arrived at the passenger side door to the time he ran around the rear of the car to intercept and subdue McQueen. Crutcher told McQueen that he should relax and get back in the car, but McQueen refused. Crutcher and McQueen then became involved in a struggle.
As Crutcher tried to subdue McQueen he was concerned that defendant would get out of the car and assault him. Accordingly, Crutcher divided his attention between McQueen and defendant during the struggle. At some point Crutcher was able to call for backup. Crutcher finally pushed McQueen onto the ground, handcuffed him, and detained him. Up to this point defendant remained in the car and had done nothing to draw Crutcher’s attention to his behavior, other than bend at the waist.
As Crutcher handcuffed McQueen, defendant got out of the car and started to walk around the front. Crutcher asked defendant to come over to him. Defendant complied and Crutcher handcuffed and detained him without further incident. A second officer arrived on the scene as Crutcher was handcuffing defendant. Crutcher patsearched both suspects for weapons, but did not find anything on defendant. Although both suspects were in handcuffs and another officer had arrived at the scene, Crutcher was still concerned for the officers’ safety because there could be a weapon in the car or someone could come out of the house and aggravate the situation.
Officer Mark Bassett arrived at the scene while defendant was handcuffed and on the ground. All the other officers at the scene were handling the situation with McQueen. Without conferring with the other officers, Bassett placed defendant in the back seat of his patrol car to prevent him from causing any further disturbance. Bassett obtained defendant’s identification and called dispatch to run a warrants check on him. When dispatch responded, Bassett learned defendant was on active probation with search conditions. Bassett then searched defendant and found a glass pipe in his pocket. Later, when defendant was searched at the Vallejo Police Department, Bassett found three baggies in defendant’s sock. One was empty with white residue in it, one contained a crystallized substance, and one contained a green leafy substance. The substances were later identified as 1.81 grams of methamphetamine and .71 grams of marijuana, both usable amounts.
II. Procedure
Defendant was charged with possession of a controlled substance, methamphetamine, and a smoking device. At the preliminary hearing defense counsel moved to suppress evidence pursuant to section 1538.5. He argued the search and seizure was illegal because the police lacked a warrant and the People failed to show justification for a warrantless search. There was conflicting testimony regarding the discovery of the pipe. Officer Crutcher testified that, although he patsearched defendant for weapons, he did not find anything. Officer Bassett testified that he did not search defendant until he learned defendant was on active probation and had a search condition, and that he found the pipe. But defendant testified that Crutcher, not Bassett, found the pipe.
The trial court denied the motion to suppress. It concluded the detention was reasonable based on the suspect’s furtive movements, the fact that defendant left the car while the officer was involved in an altercation with the driver, and the fact that a reasonable suspicion existed that the officer’s safety might be in danger. The trial court also found that Officer Bassett discovered the pipe when he searched defendant pursuant to defendant’s search condition.
Defense counsel later moved to dismiss pursuant to section 995, again arguing that the warrantless search and seizure was illegal because the police lacked probable cause. Viewing the evidence in the light most favorable to the People, the trial court found that the pipe was discovered after the probation condition became known, and denied the motion to dismiss.
At trial, defense counsel sought to orally renew the motion to suppress pursuant to section 1538.5. The trial court rejected the motion for failure to provide timely notice.
A jury unanimously found defendant guilty of possession of methamphetamine and a smoking device. Defendant appeals. He challenges the denial of the motion to suppress evidence pursuant to section 1538.5, the denial of his motion to dismiss pursuant to section 995, and the denial of the renewed motion to suppress evidence pursuant to section 1538.5.
DISCUSSION
Defendant asserts that the evidence was the product of an illegal search and seizure and should have been suppressed by the trial court because the police detained him without reasonable suspicion that he was involved in criminal activity, the detention was prolonged to a constitutionally impermissible length, and the police conducted an illegal patsearch. We disagree.
I. Standard of Review
A defendant may challenge the reasonableness of a search and seizure by making a motion to suppress at the preliminary hearing, and may renew that challenge by making a motion to dismiss before the superior court. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) On review, the appellate court defers to the factual findings of the trial court and must uphold those findings where supported by substantial evidence. In determining whether the search or seizure was reasonable on those facts, the appellate court exercises independent review. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Laiwa (1983) 34 Cal.3d 711, 718.) Here, we review the trial court’s factual findings at the preliminary hearing under the substantial evidence standard, and exercise our independent review of the reasonableness of the search and seizure.
II. The Detention Was Legal and Was Not Unconstitutionally Prolonged
A person is seized within the meaning of the Fourth Amendment when an officer, by physical force or show of authority, intentionally restrains or terminates that person’s freedom of movement. (Florida v. Bostick (1991) 501 U.S. 429, 434.) However, “[a] police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission.” (Brendlin v. California (2007) __ U.S. __ [127 S.Ct. 2400, 2405].) The test for determining when seizure occurs is whether, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980) 446 U.S. 544, 554.)
In Brendlin the court held that when a police officer makes a traffic stop, the passenger of the vehicle is seized within the meaning of the Fourth Amendment and may challenge the constitutionality of the stop. (Brendlin v. California, supra, 127 S.Ct. at p. 2403.) The Brendlin court reasoned that “[a]n officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. [Citation.] [¶] It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety.” (Id. at p. 2407.)
Defendant’s argument that the police illegally detained him rests on the assumption that the police lacked reasonable suspicion that he was involved in criminal activity. However, as the United States Supreme Court held in Brendlin, the driver’s traffic violations provide probable cause for the traffic stop even though the passenger is also detained as a result. (Brendlin v. California, supra, 127 S.Ct. at p. 2407; Whren v. United States (1996) 517 U.S. 806.) Here, the officer witnessed the driver of the car commit two traffic violations: failure to yield and failure to signal. Accordingly, the officer had probable cause to effect a traffic stop, thus legally detaining both the driver and his passenger.
Defense counsel erroneously argues that defendant was not initially seized when the traffic stop occurred. This contention is inconsistent with the holding of Brendlin. If a traffic stop occurred, as both parties admit, then defendant was legally seized when the officer approached the vehicle to effect the stop. (Brendlin v. California, supra, 127 S.Ct. at p. 2403.) Moreover, defendant submitted to the officer’s show of authority when he remained in the car during the traffic stop and subsequent altercation between McQueen and Officer Crutcher. (Id. at p. 2409). Even if the detention of defendant occurred when Officer Crutcher handcuffed him, this detention would have been legal, in light of the officer’s safety concerns, the preceding altercation with McQueen, and the fact that the investigation was ongoing. (Id. at p. 2407; Maryland v. Wilson (1997) 519 U.S. 408.)
Defendant also argues his detention was unconstitutionally prolonged. However, given the officer’s concerns for his safety, the fact that McQueen objectively appeared to be under the influence of drugs, and the altercation between the officer and McQueen, no reasonable person in these circumstances would expect to be allowed to move around freely while the officer’s investigation was ongoing. (Brendlin v. California, supra, 127 S.Ct. at pp. 2407-2408). When defendant left the car while Officer Crutcher was placing handcuffs on McQueen, it was reasonable for Officer Crutcher to further detain defendant by handcuffing him. For these same reasons, it was reasonable for Officer Bassett to place defendant in his patrol car, further prolonging defendant’s detention. After Bassett discovered defendant’s search condition, it was reasonable for Bassett to detain defendant to search him.
For the foregoing reasons, the trial court did not err in denying defendant’s motions to suppress and to dismiss. Also for these reasons, and because no notice was given to the People, the trial court did not err in denying defendant’s oral renewal of the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J, Pollak, J.