Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF231004, Joseph A. Kalashian, Judge.
Phillip J. Cline, District Attorney, Don H. Gallian and Shani D. Jenkins, Assistant District Attorneys, Barbara J. Greaver and John F. Sliney, Deputy District Attorneys, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
The People appeal the trial court’s denial of their Penal Code section 871.5 motion to compel the superior court to reinstate the complaint against defendant Julie Marie Perez, which was dismissed pursuant to section 1538.5. The People maintain that the trial court erred in suppressing the evidence seized from defendant’s vehicle. As we shall explain below, we agree with the People and reverse.
All further statutory references are to the Penal Code unless otherwise stated.
Factual And Procedural Background
The facts are taken from the suppression hearing conducted on April 20, 2010.
On August 7, 2009, police officer Jarrett Robertson conducted a traffic stop after he observed defendant driving a vehicle at 35 miles per hour in a 25-mile-per-hour zone. Robertson obtained defendant’s license and registration and found them valid. Without expressly telling defendant that he was only giving her a warning and that she was free to go, Robertson asked defendant if he could search her vehicle. She said he could, and Robertson subsequently located numerous syringes and bindles of methamphetamine packaged for sale.
On December 18, 2009, the People filed a complaint charging defendant with felony transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), felony possession of methamphetamine for sale (id., § 11378), and misdemeanor unlawful possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140). Defendant entered a plea of not guilty to all counts.
On March 12, 2010, defendant filed a motion to suppress evidence pursuant to section 1538.5. During the preliminary hearing on April 20, 2010, the magistrate granted defendant’s motion and, as a result, discharged defendant.
On April 30, 2010, the People filed a motion pursuant to section 871.5 to reinstate the complaint. The trial court thereafter denied the People’s motion.
Motion To Reinstate The Complaint
On appeal, the People contend that the trial court erred in denying its motion to reinstate the complaint. The standard of review on appeal from an order denying a motion to reinstate a criminal complaint pursuant to section 871.5 is to disregard the ruling and to directly examine the section 1538.5 ruling to determine if the dismissal of the complaint was erroneous as a matter of law. (People v. Massey (2000) 79 Cal.App.4th 204, 210.) We therefore examine the decision to grant defendant’s motion to suppress evidence.
Motion To Suppress
A. Standard of Review
The principles governing our review of the trial court’s ruling on a motion to suppress evidence in a criminal proceeding are well settled:
“In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominately one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. [Citations.]” (People v. Williams (1988) 45 Cal.3d 1268, 1301, abrogated on other grounds as stated in People v. Guiuan (1998) 18 Cal.4th 558, 569.)
B. Evidence and Ruling
Defendant brought her motion under section 1538.5, seeking suppression of the syringes and methamphetamine on grounds that the evidence was fruit of an illegal search and seizure.
At the suppression hearing, Officer Robertson testified that he was on duty when he spotted defendant traveling at approximately 35 miles per hour in a 25-mile-per-hour residential neighborhood. Robertson activated the overhead lights on his patrol car and conducted a traffic stop of the vehicle in which defendant was the sole occupant.
Officer Robertson told defendant why he had stopped her and asked for her license and registration, which she supplied. Robertson returned to his patrol car and contacted police dispatch to check the status of defendant’s license. While he did so, an assisting officer arrived on the scene and stood off to the side, watching Robertson. After five to seven minutes, Robertson determined that defendant’s license was valid and returned her license and registration. When he did so, he asked if he could search her vehicle. Robertson did not cite defendant for speeding, nor did he tell her she was free to leave. Defendant gave Robertson permission to search the vehicle.
Officer Robertson asked defendant to step out of the vehicle, which she did. He then searched the interior of the vehicle for a couple of minutes, but found nothing. He then asked defendant if he could search the trunk. Since defendant’s purse was on the trunk of the car, Robertson asked if he could search the purse as well. Defendant said he could. Robertson removed the keys from the ignition and opened the trunk. Under the spare tire cover, Robertson found a bag of 10 to 15 syringes, a black film canister containing three bindles of methamphetamine, and a white pill bottle containing eight additional bindles of methamphetamine.
Officer Robertson then took defendant into custody and Mirandized her. Defendant told Robertson she was the only one who drove the vehicle, that she purchased the methamphetamine, and that she and her husband “break it up” and sell the methamphetamine. An additional bindle was later found inside defendant’s bra during booking.
Miranda v. Arizona (1966) 348 U.S. 436.
Officer Robertson did not recall when during the process he turned off the overhead lights on the patrol vehicle, although he usually left them activated for the duration of the stop for safety reasons.
Following argument by the parties, the trial court found that the initial detention was not, in and of itself, illegal. But the court determined that defendant would not have known, under the circumstances, that she was free to leave after her registration and license were returned to her. The court granted defendant’s motion, stating:
“[I]f the officer had said, you know, ‘I’m going to give you a warning this time, I’m going to give you a break. By the way, could I search your car?’ That’s a situation more closely attune to a situation that a civilian is then put on notice and thinking I don’t have to consent to this, I can go. If he doesn’t say anything other than, ‘I’m stopping you for speeding, ’ just because he doesn’t have his book out to write up a ticket, … I think that’s a submission to authority when he says, ‘Can I now search your car?’ I think a reasonable person in that situation would feel they don’t have any choice.”
C. Applicable Law and Analysis
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.) 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; see 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.)
At the hearing on the suppression motion, defendant did not argue that the initial traffic stop itself was unlawful, but rather that it was unduly prolonged and unreasonable. A detention for a traffic violation cannot be prolonged beyond the time necessary to address the violation. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.) The amount of time that is reasonable for such a detention will depend on the circumstances of each case. (Ibid.)
We disagree with the magistrate’s reasoning that, when Officer Robertson decided not to cite defendant for speeding, any further request to search illegally prolonged the stop. Simply asking if an officer may search the vehicle does not unreasonably prolong the detention. As explained by the United States Supreme Court in Arizona v. Johnson (2009) 555 U.S. 323 [129 S.Ct. 781], an officer is not limited to asking questions directly related to the purpose of the traffic stop:
“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.]” (Id. at p. __ [129 S.Ct. at p. 788].)
In People v. Gallardo, supra, 130 Cal.App.4th 234, an officer stopped the defendant for driving with a defective taillight. The officer inspected the defendant’s license and registration and then asked if there was anything illegal in the vehicle. The defendant said there was not, and the officer asked permission to search the vehicle. (Id. at pp. 236-237.) The defendant gave permission. During the search, the officer found drugs and drug paraphernalia. The officer said approximately two minutes elapsed from the initial contact with the defendant. (Id. at p. 237.) The court concluded the detention was not unreasonably prolonged. (Id. at p. 238.)
Similarly, in People v. Brown (1998) 62 Cal.App.4th 493, an officer stopped the defendant for riding a bicycle without a light or reflectors. The officer ran a warrant check, which took about a minute. During the minute, in response to the officer’s inquiries, the defendant stated that he was on searchable probation and denied he had anything illegal in his fanny pack. The officer asked for and got the defendant’s permission to search the fanny pack. The officer found methamphetamine in the pack. (Id. at pp. 495-496.) In deciding that the traffic stop was not unreasonably prolonged, this court stated, “One minute of generalized questioning during a routine traffic stop is not unreasonable.” (Id. at p. 499.)
Gallardo and Brown are on point. Defendant’s reliance in her suppression motion on People v. McGaughran (1979) 25 Cal.3d 577 is misplaced. There, an officer stopped the defendant for driving the wrong way on a one-way street. The officer inspected the driver’s license and registration. No citation was issued. (Id. at p. 581.) Thereafter the officer detained the defendant for 10 minutes while he checked for outstanding warrants. Our Supreme Court held the detention to check for outstanding warrants was unreasonable. (McGaughran, supra, at pp. 584, 587.)
“All that was ‘reasonably necessary’ to deal with the offense … 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.” (Id. at p. 587.)
We also reject the magistrate’s reasoning that, because defendant was not told she was free to go, her consent to search her car was not voluntarily made. 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 (1996) 44 Cal.App.4th 220, 237.) But a search that is the result of a mere submission to authority is not voluntary. (Florida v. Royer (1983) 460 U.S. 491, 497.)
“‘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.)
At the hearing on the suppression motion, Officer Robertson testified that defendant consented to the search of the vehicle. At the time, his gun was not drawn and he did not yell at her. At no time during the search did defendant retract her consent. There were no facts presented that Robertson engaged in any coercive or intimidating conduct to acquire defendant’s consent. (People v. Schoennauer (1980) 103 Cal.App.3d 398, 409 [“Circumstances which give rise to an illegal search based upon purported consent center around coercive, intimidating conduct by the police”].)
Instead, the magistrate based his finding that defendant’s consent was not voluntary on the fact that Robertson never told defendant she was free to go before asking for her consent to search. But this argument was made and rejected in Ohio v. Robinette (1996) 519 U.S. 33, 39-40, in which the Supreme Court held that it would be “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Instead, the voluntariness of consent by a driver to a search of his or her vehicle is properly decided by considering all of the circumstances surrounding the request. (Id. at p. 40.)
Officer Robertson testified that, after he stopped defendant and requested her license and registration, he returned to his patrol car to run the items “through the system.” He estimated that it took “five to six minutes from the time of the request to the actual response.” When he found her license to be valid, he returned to her vehicle, gave her back her items, and, within a “matter of seconds” asked if he could search the vehicle. Defendant gave Robertson permission to do so. The request to search in this case was voluntarily made and did not unduly prolong the detention or extend the period justified by the valid traffic stop.
DISPOSITION
The trial court’s orders suppressing the evidence and denying the People’s motion under section 871.5 are reversed. The court is directed to reinstate the felony complaint against defendant. The court is further directed to resume the preliminary hearing at the point it was previously terminated by the dismissal of the charges. (§ 871.5, subd. (e); People v. Channing (2000) 81 Cal.App.4th 985, 994; People v. Childs (1991) 226 Cal.App.3d 1397, 1408.)