Opinion
G043584 Super. Ct. No. 09CF2559
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR MANUEL SERRANO, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
After his motion to suppress evidence was denied, defendant Hector Manuel Serrano pleaded guilty to unlawfully transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and admitted a weight enhancement allegation that the amount exceeded four kilograms (Health & Saf. § 11370.4, subd. (a)(2)). The trial court sentenced him to eight years in prison, consisting of three years for the offense and five consecutive years for the enhancement.
Defendant contends the court erred in denying a motion to suppress evidence found in his car because the warrantless search violated the Fourth Amendment. We disagree and affirm the judgment.
FACTS
We summarize the evidence presented at the suppression hearing in the light most favorable to the prosecution and the validity of the trial court's ruling. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10, fn. 7.)
Early one morning, Carlos Marzocca, a California Highway Patrol (CHP) officer assigned to the K-9 unit, entered the northbound 5 Freeway and saw defendant's vehicle approaching with only one headlight on. When they reached a location where he could make a safe stop, Marzocca activated his lights and defendant complied with directions to exit the freeway and pull over. Marzocca approached, told defendant why he had been stopped, and asked for his driver's license, vehicle registration, and proof of insurance. Defendant provided only the first two. As defendant was looking for an insurance card, Marzocca had a casual conversation with him.
Marzocca asked defendant "where he was going and coming from." Defendant answered he was driving to Upland from Mexicali. The route concerned Marzocca because it "did not make sense" to go "all the way west towards the 5 [Freeway] to go north and then go back east to Upland again" when the I-15 Freeway was more direct. Defendant stated he took the 5 Freeway because he liked it.
Defendant "seemed pretty nervous" and "uneasy about answering questions," and "his hands were visually shaking." Additionally, Marzocca observed two cell phones in the car, which he thought was unusual and uncommon although he has seen narcotics traffickers with multiple cell phones.
Although drivers have become nervous in his presence when pulled over, Marzocca looks for certain things based on his experience with drug runners from Mexico. In this case, Marzocca became suspicious when defendant gave inconsistent statements. Defendant first told him he was going to Upland to shop for some Volkswagen parts. But later he said he was picking up parts at a friend's house because he did not have a credit card and that his friend had bought the parts for him. When questioned about his lack of a credit card, defendant "said, 'no, I don't have one,' but then . . . opened up his wallet and . . . showed [Marzocca] a credit card." At this point, defendant still had not produced proof of insurance.
Marzocca directed defendant to get out of the vehicle and waited for backup. Among other things, Marzocca wanted "to monitor [defendant's] signs of nervousness." Defendant appeared "to be getting more nervous," with his hands "again shaking physically" and "his body demeanor . . . twitchy and nervous." He had a hard time looking directly at Marzocca when spoken to. Marzocca believed defendant was engaged in drug trafficking based on his multiple cell phones, inconsistent answers, nervousness, and circuitous route of travel.
Within 10 to 15 minutes of the initial traffic stop, a backup unit arrived and Marzocca walked his narcotics dog around the outside of defendant's vehicle. The dog alerted to the open windows on both sides of the vehicle and when let inside, alerted to the areas of the center dashboard and below the rear window. Based on the alerts, Marzocca searched the vehicle. He observed abnormal "tampering and scratches on bolts that held the seats down in the rear area" and located a hidden compartment under the rear window. He also noticed "tampering with the dashboard." Based on everything that had occurred, Marzocca believed the vehicle contained narcotics. Defendant never produced proof of insurance.
Because he did not have the tools to dismantle the dashboard and it was unsafe to do so at the scene, Marzocca had the vehicle towed to the local CHP office. There, Marzocca dismantled the front dashboard area and found 28 bricks wrapped in tape that tested positive for cocaine. Marzocca did not issue a traffic citation because defendant was placed under arrest for possession of illegal narcotics.
In denying defendant's motion to suppress, the trial court found "the time from the stop of the vehicle until the decision was made to retrieve the canine from the car was 10 to 15 minutes." The court agreed with defendant that being pulled over "make[s] some people nervous, and nervousness alone does not justify a search of the vehicle." But it concluded the detention was lawful based on Marzocca's specialized training in the area combined with his other observations.
DISCUSSION
1. Unreasonably Prolonged Traffic Stop
Defendant does not dispute the validity of the initial traffic stop. Rather he argues his detention until backup arrived was unreasonably prolonged and not supported by the evidence. According to him, "[o]nce Marzocca verified [defendant's] identity and the validity of his driver's license, he had to give him a ticket or a warning and release him." We disagree.
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) To resolve whether evidence must be excluded because of a Fourth Amendment violation, "we look exclusively to whether its suppression is required by the United States Constitution. [Citations.]" (Id. at p. 363.)
Where, as here, a vehicle has been lawfully stopped for a traffic violation, a routine 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 [103 S.Ct. 1319, 75 L.Ed.2d 229].) "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 . . . 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.]" (Arizona v. Johnson (2009) 555 U.S. 323, ____ [129 S.Ct. 781, 788, 172 L.Ed.2d 694.)
An officer may detain the driver "for the period of time necessary to discharge the duties related to the traffic stop" (People v. Brown (1998) 62 Cal.App.4th 493, 496-497), ask questions not directly related to the purpose of the traffic stop as long as relevant time parameters are not exceeded (People v. Gallardo (2005) 130 Cal.App.4th 234, 239), and without articulable justification, order the driver to exit the vehicle (Knowles v. Iowa (1998) 525 U.S. 113, 117-118 [119 S.Ct. 484, 142 L.Ed.2d 492]) or use a drug-detection dog to sniff a vehicle during a legitimate traffic stop (Illinois v. Caballes (2005) 543 U.S. 405, 407 [125 S.Ct. 834, 160 L.Ed.2d 842]).
Moreover, "[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.]" (People v. Russell (2000) 81 Cal.App.4th 96, 102.) "There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]" (Ibid., citing United States v. Sharpe (1985) 470 U.S. 675, 686-688 [105 S.Ct. 1568, 84 L.Ed.2d 605 [20-minute investigative detention of suspected drug trafficker did not violate Fourth Amendment].)
Defendant relies primarily on two cases. In People v. McGaughran (1979) 25 Cal.3d 577, the Supreme Court held it was unconstitutional to prolong a detention to conduct a warrant check after having obtained all information necessary to perform the duties attendant to the traffic stop. (Id. at p. 587.) Similarly, in Williams v. Superior Court (1985) 168 Cal.App.3d 349, the officer had obtained all the information he needed to perform his citation duties but despite having seen nothing suspicious, prolonged the detention to determine whether the defendants were involved in a recent armed robbery. (Id. at pp. 360-362.) Both cases "indicate that investigative activities beyond the original purpose of a traffic stop, including warrants, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.]" (People v. Brown (1998) 62 Cal.App.4th 493, 498.)
Here, in contrast to McGaughran and Williams, defendant failed to give Marzocca all of the documents he requested. Although defendant provided his driver's license and vehicle registration, he never produced proof of insurance. While defendant was looking for that, the traffic stop was continuing and Marzocca permissibly conversed with him regarding matters unrelated to the reason for initially pulling him over. Because defendant never produced proof of insurance, the traffic detention never technically terminated. But even if it had, matters raised during the conversation gave Marzocca reasonable suspicion to believe defendant was involved in criminal activity. Marzocca was thus justified in extending the detention briefly to permit the dog to sniff the vehicle. "If, during a traffic stop, an officer develops a reasonable, articulable suspicion that a vehicle is carrying contraband, he has 'justification for a greater intrusion unrelated to the traffic offense.' [Citation.] We assess the factors on which an officer based his claim of reasonable suspicion as a totality and in light of the officer's experience. [Citation.]" (UnitedStates v. Bloomfield (8th Cir. 1994) 40 F.3d 910, 918, fn. omitted.)
Marzocca relied on several factors. Among other things, defendant was extremely nervous throughout the traffic detention and when ordered out of the car he had a difficult time looking directly at Marzocca. Defendant is correct nervousness is not sufficient by itself to justify prolonging a detention, as it "could understandably result from extended police questioning because of a 'traffic violation.'" (People v. Lawler (1973) 9 Cal.3d 156, 162, fn. omitted.) Nevertheless, nothing in Lawler precludes it from being a factor that may be taken into account.
Marzocca also noted defendant's inconsistent statements regarding the purpose of his trip to Upland and his lack of a credit card. Citing the prosecution's statement of anticipated facts in opposition to his motion to suppress, defendant argues his credit "card was in fact expired" and "[t]he prosecution and the officer . . . incorrectly assum[ed] that the card expired" at the end of October rather than the beginning. According to defendant, "this type of misunderstanding based on purely subjective suspicion and disbelief is precisely why courts have ruled that disbelief of a witness 'does not create affirmative evidence to the contrary of that which is discarded"' and thus "even if the officer[] concluded that the witness was lying, it did not give reasonable grounds to suspect criminal activity." But the prosecutor's unsworn statement of anticipated facts is not evidence (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578) and defendant's failure to point to any actual evidence the credit card expired on the first day of the month as opposed to the last forfeits the issue (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743). Even if he had cited such evidence, it would show he kept changing his story each time he responded, and his inconsistent statements are factors that may support a suspicion of wrongdoing. (See Florida v. Rodriguez (1984) 469 U.S. 1, 6 [105 S.Ct. 308, 83 L.Ed.2d 165] [two defendants incorrectly identifying themselves contributed to officers' reasonable suspicion].)
Marzocca further cited defendant's possession of two cell phones and circuitous route of travel. (See United States v. Arvizu (2002) 534 U.S. 266, 277 [122 S.Ct. 744, 151 L.Ed.2d 740] [questionable route of travel may be considered in determining reasonable suspicion].) Although each of these factors could have had an innocent explanation, it is well recognized that a series of acts which may appear innocent when viewed separately, may justify further investigation when considered together. (Id. at pp. 277-278.) "'[I]nnocent behavior will frequently provide the basis for a showing of [reasonable suspicion]'"; "'the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of noncriminal acts.'" (United States v. Sokolow (1989) 490 U.S. 1, 10 [109 S.Ct. 1581, 104 L.Ed.2d 1].)
Thus, although the traffic detention never technically terminated due to defendant's failure to provide proof of insurance, even if it had ended it was objectively and constitutionally reasonable for Marzocca to prolong the detention and allow the dog to sniff the vehicle. Cognizant that the circumstances of each traffic stop are unique and that the reasonableness of each detention must be judged on its particular circumstances, we conclude the extraordinary degree of defendant's nervousness, together with his travel route, cell phones, and inconsistent statements were sufficient, in light of Marzocca's training and experience, to provide him with a reasonable suspicion warranting the brief investigative detention. These indicators supported a rational suspicion of criminal conduct, not just a mere hunch. The trial court correctly found the detention was reasonable and properly denied defendant's motion to suppress.
Given our conclusion, it is unnecessary to address defendant's claims the vehicle search cannot be justified as being incident to an arrest and it was unlawful to seize his vehicle to conduct an investigative search. As for defendant's assertion Marzocca may have formed the belief defendant was engaged in criminal activity aside from a traffic violation before he pulled him over, making his "credibility doubtful," such issues were for the trial court (In re Arturo D. (2002) 27 Cal.4th 60, 77), and may not be reevaluated by this court (People v. Scott (2011) ____ Cal.4th ____, ____ [2011 WL 3503547, p. 22]).
2. Lack of Exigent Circumstances
Defendant contends the exigent circumstances that usually justify the automobile exception to the warrant requirement prior to a search did not exist because "the search was neither immediate nor at the scene," and once Marzocca "decided to seize and tow the vehicle to a secure location for the purpose of dismantling portions of the interior, each an[d] every legitimate basis for justifying a warrantless search was eradicated." But defendant's failure to raise this argument in the trial court forfeits his right to present this issue on appeal. (People v. Williams (1999) 20 Cal.4th 119, 136.)
Even if not forfeited, the argument lacks merit. When the dog alerted to the presence of drugs in the car, it gave Marzocca probable cause to search the vehicle. (Estes v. Rowland (1993) 14 Cal.App.4th 508, 529 [alert by narcotics-detecting dog provides probable cause for search]; People v. Salih (1985) 173 Cal.App.3d 1009, 1015 [once dog alerted, which indicated presence of drugs, police had probable cause to search].) That probable cause authorized Marzocca to examine the vehicle either "on the spot when it was stopped" or at the police station. (Chambers v. Maroney (1970) 399 U.S. 42, 52 & fn. 10 [90 S.Ct. 1975, 26 L.Ed.2d 419] [search of car at station house "not unreasonable" where nighttime search in dark parking lot "was impractical and perhaps not safe for the officers"]; see also People v. Laursen (1972) 8 Cal.3d 192, 202 [transporting vehicle to garage for search not unreasonable where police lacked proper tools upon discovering vehicle].)
Here, after his dog alerted to the odor of narcotics, Marzocca found a hidden compartment in the back of defendant's vehicle. He also saw indications the dashboard had been tampered with. But because he did not have the tools to dismantle it and believed it was unsafe to do so at the scene, he had the vehicle towed to the CHP office to continue the search. The search was lawful.
Defendant maintains that notwithstanding the probable cause to search, "there were no exigent circumstances that justified the search of [his] vehicle." But the automobile exception to the Fourth Amendment's warrant requirement permits a search based on probable cause to believe the vehicle contains contraband or evidence of a crime, even though a warrant has not been obtained and no exigent circumstances preclude obtaining a search warrant. (Maryland v. Dyson (1999) 527 U.S. 465, 466-467 [119 S.Ct. 2013, 144 L.Ed.2d 442]; California v. Acevedo (1991) 500 U.S. 565, 569-571, 579-580 [111 S.Ct. 1982, 114 L.Ed.2d 619].)
3. Applicability of People v. Diaz
We requested supplemental briefing on the applicability of the recent California Supreme Court decision in People v. Diaz (2011) 51 Cal.4th 84, in which the defendant argued a search of his cell phone was not a lawful search incident to arrest because it occurred at the police station. Under the search incident to arrest exception to the warrant requirement, arresting officers may "'conduct a prompt, warrantless "search of the arrestee's person and the area 'within his immediate control' . . . ." [Citations.]'" (Id. at p. 90.) Diaz held that because "the cell phone 'was an item [of personal property] on [defendant's] person at the time of his arrest and during the administrative processing at the police station,'" it "was 'immediately associated with [defendant's] person' [citation], and . . . the warrantless search of the cell phone therefore was valid." (Id. at p. 93.)
The Attorney General argues the case is inapplicable because the search of defendant's vehicle "at the police station was not justified as a search incident to [defendant's] arrest." We agree. For the same reason, we reject defendant's contention that Arizona v. Gant (2009) 556 U.S. 332, ____ [129 S.Ct 1710, 1716, 173 L.Ed.2d 485] [search incident to arrest], which Diaz distinguished, controls.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.