Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 06SF0447 of Orange County, Kazuharu Makino, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Moore, J., and Aronson, J.s
Defendant Jesus Gomez Martinez challenges the trial court’s denial of his Penal Code section 1538.5 motion to suppress evidence. He contends the motion to suppress should have been granted because he was subject to an unduly prolonged detention after a routine traffic stop, and he did not consent to a search of his person and his vehicle. Or, if he did, the consent was vitiated because it was given during a period of prolonged detention. We find no merit in his contentions and affirm the judgment.
Four baggies of cocaine totaling over 72 grams, an electronic scale, $3,575, a Baja driver’s license issued under an assumed name; and a VHS videocassette detailing the events related to his detention and arrest.
I
Proceedings
Defendant was convicted by a jury on November 5, 2008, of sale or transportation of a controlled substance (count 1); possession for sale of a controlled substance (count 2); and making a false representation to a peace officer (count 3.) The court also found it to be true he suffered numerous priors, including two prior prison terms. He was sentenced to serve a total term of 15 years in state prison which included the middle term of four years for count 1, nine years for three prior Health and Safety Code violations, and two years for the two prior prison terms. The court stayed the middle term imposed for count 2 pursuant to section 654.
All further references are to the Penal Code unless otherwise noted.
Defendant was charged in count 4 with driving a motor vehicle without a valid license. This count was dismissed on the People’s motion.
I
The following evidence was adduced at the combined preliminary hearing, and the evidentiary hearing on the section 1538. 5 motion to suppress.
At approximately 11:00 p.m. on April 27, 2006, Orange County Deputy Sheriff Todd Stephen Schmaltz (Schmaltz) was on vehicle patrol along with his canine companion Maximus. Schmaltz initiated a routine traffic stop of defendant’s 2000 Ford F-150 pick-up truck after observing that the vehicle’s rear license plate was obstructed by a trailer ball hitch, and that some of the license plate numbers were partially obscured by paint or some other type of substance.
Defendant pulled his truck into the parking lot of a Taco Bell restaurant. As Schmaltz approached the driver’s side of the vehicle, he noticed defendant leaning towards the dash board cup holder which contained a green glass bottle. Schmaltz initially thought the bottle contained beer, but defendant immediately told him it contained water. Schmaltz then asked defendant for his license, his registration, and proof of insurance. Defendant handed Schmaltz a Baja California license in the name of “Macias” and then leaned towards the glove compartment to look for his other papers.
Defendant told Schmaltz he had applied for a California’s driver’s license but was unable to obtain one since he did not have a social security number. He also told Schmaltz he had been driving in California with his Baja license for the past two months while he had been living and working in California.
Schmaltz said that he believed that under the Vehicle Code, a person living and working in California was required to have a California driver’s license within 10 days.
Schmaltz said defendant seemed “nervous” as he reached into the glove box to look for his other papers. He kept looking at Schmaltz while turning his shoulders in such a way that they blocked the officer’s view of what he was doing. Defendant’s actions made Schmaltz fear that he was about to reach for a gun, and Schmaltz told him to sit back in his seat. Schmaltz asked him if he had weapons or anything illegal in the car. He then asked defendant if he could search the vehicle and his person.
Defendant replied “yeah” in English. He accompanied his verbal response with an “inviting,” or a sweeping motion with the open palm of his hand. Schmaltz asked defendant to step out of the vehicle, and to move towards the patrol car. At this point which was approximately three to four minutes into the initial traffic stop, Schmaltz also requested the assistance of a back-up officer. In the meantime, another five minutes passed while Schmaltz waited for the back-up officer to arrive. During this waiting period, he tried to run a record check on the name “Macias,” but the record check proved unsuccessful.
Deputy Simmons arrived about nine minutes into the initial traffic stop. Upon Simmons’s arrival, Schmaltz again asked defendant for permission to search his vehicle and his person. Schmaltz said he made this second search request because he had noticed that the light on his patrol video system was not working, and he thought the microphone had not recorded their earlier conversation. When Schmaltz asked for consent to search the second time, he testified that defendant made the same sweeping motion with his hands as he did previously, and he also shook his head affirmatively.
The search of defendant’s person uncovered $3,575 in U.S. currency which was found in his right front pant pocket. After the money was discovered, Schmaltz had Simmons move defendant in the direction of Schmaltz’s patrol car, and also had him take off his shoes and his socks.
Schmaltz began a canine search of defendant’s vehicle. Maximus immediately alerted at the driver’s door and tried to jump through the window. After Maximus entered the vehicle, he immediately moved towards the dashboard and pushed his nose into the spot where the green bottle was located. Schmaltz recovered a bag containing 7.5 grams of cocaine, and a digital scale with cocaine residue on it. Maximus continued to search the vehicle and alerted on a plastic strip along the floorboard. Schmaltz lifted up the floorboard and found three separate bags of cocaine in the amounts of 57.2 grams, 7.8 grams, and 7.2 grams.
Schmaltz Mirandized defendant. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant told Schmaltz he knew about the presence of the drugs but also said they did not belong to him, and that he did not wish to reveal who they belonged to. He additionally told Schmaltz that because he watched the “Discovery Channel,” and another television show called “Cops” he knew that the police found cocaine in people’s cars “all the time.”
Schmaltz conducted all of his dealings with defendant in English. Schmaltz said defendant appeared to understand the English language, and was able to respond appropriately in English to the questions that were asked of him. At trial, defendant utilized the assistance of a Spanish speaking translator.
The Denial of Defendant’s Section 1538.5 Motion
In his section 1538 motion to suppress evidence defendant argued there was no justification for the initial traffic stop, his detention was unreasonably prolonged, and he did not consent to search, or if he did, the consent was rendered invalid because it was the product of an unreasonably prolonged detention.
In denying the motion, the magistrate noted that “there is no fixed time for establishing the constitutionality of an investigatory detention,” and thus found defendant was not unduly detained. The magistrate relied on the following factors in his ruling. He found that: (1) Schmaltz’s suspicions began to emerge once he noticed defendant “futzing” with a green glass bottle that may have contained beer. (2) Almost immediately thereafter, Schmaltz became concerned for his personal safety when defendant shielded the glove compartment with his shoulders. Schmaltz’s concern that defendant might be harboring a gun led him to ask the, “obvious” question ‘“Is there anything illegal inside the car?’” (3) Once defendant was outside of the vehicle, only “minutes” passed before the money was found on him. The discovery of the money justified the performance of a drug related or canine search investigation.
The magistrate also utilized the police generated videotape to support his finding that the detention was not unduly prolonged. Here, the magistrate found the tape “made [it] very clear” that Schmaltz’s request for defendant to vacate the vehicle “was not” (emphasis added) premised upon an unfounded hunch or suspicion. Rather, the request was based on Schmaltz’s knowledge as an “experienced” police officer, and also was based upon Schmaltz’s observations during a series of “interconnecting” events.
After the magistrate denied defendant’s section 1538.5 motion, and further held defendant to answer, defendant brought an unsuccessful section 995 motion to set aside the information. The section 995 motion was based on the denial of defendant’s section 1538.5 motion to suppress.
II
Discussion
The Court Properly Denied Defendant’s Motion to Suppress Evidence
Defendant argues his motion to suppress evidence was improperly denied. He contends that the evidence obtained from Schmaltz’s search of his vehicle and his person should have been suppressed because it was obtained during a traffic stop which became unduly prolonged as a result of officer “bootstrapping.” He further argues he did not consent to a search of his vehicle and his person, but if he did, any consent was vitiated because it was obtained during a prolonged detention.
Defendant’s arguments fail. We conclude his detention was not unduly prolonged. Moreover, he gave valid consent to search his vehicle and his person.
The Trial Court Properly Denied Defendant’s Motion to Suppress
A. The Standard of Review
In reviewing the denial of a motion to suppress evidence, we employ a two-part standard of review. For issues of fact, we defer to the trial court’s express or implied findings if supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) For the application of law to those facts, and for issues of reasonableness under the Fourth Amendment, we employ a de novo or independent standard. (Ibid.) Moreover, we further consider “‘[t]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power...’” (In re Arturo D. (2002) 27 Cal.4th 60, 77.)
B. The Initial Traffic Stop Was Lawful
In his appellant’s opening brief, defendant fails to clarify whether he is disputing the lawfulness of his initial detention. He makes the vague claim that the legality of the initial traffic stop turns on whether the ball hitch obscured the license plate. Even if we assume, however, that he makes such a claim, it fails.
In People v. White (2001) 93 Cal.App.4th 1022, 1025-1206, the court held where a license plate is partially obstructed from view by a trailer hitch ball in violation of Vehicle Code section 5201, a routine traffic stop is justified. Schmaltz testified his view of the middle of defendant’s license plate was obstructed by the trailer hitch ball, and his view of other numbers on the license plate was also obstructed due to paint or some other substance. Thus, substantial evidence amply supports the finding that the initial traffic stop was legal.
This satisfies our initial inquiry only. Once lawfully stopped however, a routine traffic 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.) We then address the next issue, that is, if a defendant consents to a search while being illegally detained, i.e., the detention is unlawfully continued after a lawful and proper period has passed, is the consent given thus vitiated by the illegal detention? (See People v. Zamudio (2008) 43 Cal.4th 327, 341 [“[c]onsent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure”].)
As to be discussed below, we conclude that substantial evidence supports the finding that defendant’s detention was not unduly prolonged, and that the consent he gave to search during this period was not vitiated.
C. Defendant’s Detention Was Not Unduly Prolonged
Defendant contends his detention was unduly prolonged because of police “bootstrapping” which caused it to last a total of 20 minutes instead of lasting about three to five minutes, or the time it normally should have taken for the police to issue a citation and impound his vehicle for a routine traffic violation involving a trailer hitch. We disagree.
An investigatory detention exceeds constitutional limits when it extends beyond what is reasonably necessary under the circumstances that made its initiation permissible. 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 particular violation. (People v. McGaughran (1979) 25 Cal.3d 577, 584.)
The issue we come up against ‘“is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]”’ (People v. Gomez (2004) 117 Cal.App.4th 531, 538.)
In determining whether the police have acted diligently, we ascertain whether circumstances have developed during the detention which justify or provide a reasonable suspicion for the police to prolong it. (People v. Russell (2000) 81 Cal.App.4th 96, 101, 103.) In general however, “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.]” (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.)
For example, the court in People v. Russell, supra, 81 Cal.App.4th at pp. 101, 103, denied the defendant’s motion to suppress drugs because it concluded there was valid consent given to search. In Russell, erratic driving led the police to initially stop the vehicle to determine whether the driver was intoxicated. When the officer approached the vehicle, he smelled an overwhelming masking odor. The overwhelming masking odor along with the driver’s nervousness and hesitancy in answering questions; the absence of the car’s owner; the presence of a pager, cell phone, and visible dashboard screw [indicating its possible removal] all led the court to conclude that further investigation regarding possible drug activity was justified, even before the officer made a determination regarding driver fitness.
In People v. McGaughran, supra, 25 Cal.3d at pp. 582, 587, however, the court concluded otherwise, and found the consent given to search was vitiated based on a prolonged detention. In McGaughran, the officer detained defendant and his passenger for an extra 10 minutes solely for the purpose of seeking out unrelated arrest warrants. The court concluded the additional period of detention exceeded permissible constitutional limitations because the extra delay was not necessary to examine defendant’s license and registration, for explaining the violation, or for issuing defendant a citation or a warning.
Moreover, the court in Williams v. Superior Court (1985) 168 Cal.App.3d 349, 359, 362, concluded similarly. That is, the court in Williams found that the consent given to search was vitiated where the officer stopped the vehicle for a traffic violation, but engaged the passengers in an unrelated five to 10 minute conversation before seeking consent to search the car.
In contrast, however, the court in People v. Brown (1998) 62 Cal.App.4th 493, 495, 498, concluded that consent given during a warrant check which lasted for one minute, and which turned up methamphetamine in the defendant’s fanny pack, was not the product of an unduly prolonged detention. In Brown, defendant was stopped for riding his bicycle without a light or reflectors. He produced identification at the officer’s request, and the officer ran a warrant check on him that took about a minute.
During that brief period, the officer questioned defendant and determined he was on searchable probation. The officer asked for permission to search, and defendant acquiesced. The Brown court concluded that since the questioning and the request for consent did not extend the length of the detention beyond the one minute required for the warrant check, the detention was not unconstitutionally prolonged.
The effect of these cases on defendant’s case leads us to conclude his period of detention was not unduly prolonged. The overall length of defendant’s detention was justified based on the series of events which developed during the detention. Thus, any consent defendant gave during this period was not rendered invalid.
Defendant conveniently ignores the lower court’s finding of fact that the search was not unduly prolonged, and valid consent was given. Here, the magistrate found Schmaltz’s version of the events to be both reliable and substantiated by the video tape. Based on his findings, the magistrate was led to conclude that the 20-minute detention was not prolonged based on the series of “interconnecting” events, which occurred within “minutes” of one another during the period of detention.
Investigative activities beyond the original purpose of a traffic stop are permissible as long as they do not prolong the stop beyond the time that it would otherwise take. Schmaltz’s conduct in broadening the investigatory scope of the initial routine traffic stop was amply justified by the circumstances which developed during the detention.
D. Defendant Knowingly and Voluntarily Gave Consent to Search
Lastly, we note in passing that defendant makes the meritless argument he did not give Officer Schmaltz consent to search his person or his vehicle.
As previously discussed, our role in reviewing the trial court’s determination of this issue is limited. We defer to the trial court’s factual findings, upholding them if they are supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891.)
Voluntariness of consent is a question of fact to be determined in light of all the circumstances. (People v. James (1977) 19 Cal.3d 99, 106.) Here, substantial evidence supports the trial court’s determination that defendant gave Schmaltz permission to search his vehicle and his person on two occasions. Schmaltz twice asked defendant for consent to search his person and his vehicle. The first time Schmaltz made his request defendant replied “yeah” in English, and accompanied his verbal response by a sweeping motion with the open palm of his hand, described as “inviting.” The second time Schmaltz asked for consent to search defendant “shook his head ‘yes,’” and made the same sweeping hand motion. Moreover, Schmaltz who had the opportunity to observe defendant, and who was deemed to be a credible witness, said defendant understood English and was able to respond appropriately in the English language.
In sum, we thus conclude the motion to suppress was properly denied below. Defendant’s claims fail.
III
Disposition
The judgment is affirmed.