In re Jose R

Filed 3/27/06 In re Jose R. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Jose R. appeals from an order denying his motion to suppress under Welfare and Institutions Code section 700.1.^[1] He contends that a gun and narcotics discovered by officers during a consent search should have been suppressed because the consent was obtained during an unduly prolonged traffic detention. We affirm.

BACKGROUND

On May 15, 2005, Officer Magana of the Lompoc Police Department noticed Jose riding his bicycle on the sidewalk, a violation of a local ordinance. He notified radio dispatch and ordered Jose to stop. Police records show that Magana placed the call to dispatch at 4:57 p.m.

Magana approached Jose and asked him to identify himself. Jose gave his name and told Magana that he had spoken to him several weeks earlier when he was the victim of a shooting. Magana asked Jose about his injuries and they had a brief conversation on that subject. He then asked Jose whether he was carrying any weapons or contraband and Jose said no. Worried that Jose might be carrying a weapon as protection in response to the earlier shooting, Magana asked if he could search him. Jose agreed and Magana patted down his clothing. Magana then asked if he could search the backpack that Jose was carrying and Jose gave his consent. A handgun was wrapped in a bandana inside the backpack.

After finding the gun, Magana arrested Jose, handcuffed him and placed him in the patrol car. He radioed dispatch again within one to three minutes of placing Jose in the patrol car and told them that Jose was in his custody. Records show that this call to dispatch was made at 5:04 p.m., seven minutes after the initial stop.

During a search of Jose incident to his arrest, Magana found a small amount of methamphetamine and a pipe typical of the kind used when smoking methamphetamine. Jose appeared to be under the influence of a narcotic and tested positive after he was taken into custody. A petition was filed alleging that Jose should be declared a ward of the court under section 602 because he had committed the offenses of weapon possession by a minor (Pen. Code, § 12101, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a), possession of drug paraphernalia (Health & Saf. Code, § 11364) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).

Jose filed a motion to suppress evidence on the theory that the gun and other incriminating items were discovered during an unlawfully prolonged detention. The court denied the motion and Jose appealed that order. Subsequently, Jose admitted the allegations of the petition and was placed on probation.

DISCUSSION

Appealability

Jose filed his notice of appeal before a jurisdictional or dispositional order was entered. Section 800 authorizes an appeal only when there has been a final judgment. Although the appeal was premature, we take judicial notice of the superior court file, which shows that Jose was subsequently declared a person under section 602 and placed on probation. Rule 30.1(b) of the California Rules of Court authorizes us to treat a premature appeal as having been taken from the rendition of judgment and we will do so in this case.

We also note that while Jose's whereabouts were unknown when the appeal was first pending, he has since been located and has submitted himself to the authority of the juvenile court. The People agree that he is entitled to pursue this appeal and that it is not subject to dismissal based on his former status.

Legality of Detention

Jose argues that his consent to search was invalid because it was procured during an unduly prolonged detention. The facts in this case are undisputed and we exercise our independent judgment to determine whether the officer acted reasonably under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

The parties agree that Officer Magana was entitled to detain Jose and cite him for riding a bicycle on a sidewalk. Jose contends that Magana exceeded this lawful purpose when he asked Jose about weapons and sought permission to search rather than immediately issuing the citation.

"Under Terry v. Ohio (1968) 392 U.S. 1, 19 [], the judicial inquiry into the reasonableness of a detention is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Detention, not questioning, is the evil at which Terry's second prong is aimed." (People v. Brown (1998) 62 Cal.App.4th 493, 496.)

An officer who lawfully stops a motorist for a traffic violation may detain that person for the period of time necessary to discharge the duties relating to the traffic stop. (People v. Brown, supra, 62 Cal.App.4th at pp. 496-497.) Investigative activities beyond the original purpose of the stop are permissible when they do not prolong the stop beyond the time it would otherwise take. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238; Brown, at p. 498.)

In this case, Officer Magana properly detained appellant for a traffic violation and was entitled to ask him for identification. Appellant mentioned their prior contact and the shooting that had injured him a few weeks earlier, which led to a brief conversation on that subject. Magana asked for consent to search, which was promptly given. The time between the initial detention and the discovery of the gun during the search was no more than four to six minutes, and it is unlikely that the traffic stop and citation could have been completed in less time. Magana testified that it typically took him ten minutes to write a citation.

Jose argues that the short duration of the detention is not dispositive because the critical question is whether Magana used it as a vehicle for investigating unrelated offenses. He relies primarily on Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358, in which the court noted that the rule limiting the reasonableness of a detention to the time it would take to issue a citation "does not mean that the officer may detain and interrogate the traffic offender as to possible unrelated offenses for the time it would otherwise take to fully perform his citation duties." The Williams court concluded it was unreasonable for officers to extend a traffic stop to question the defendants on unrelated matters when they already had all the information necessary to issue a traffic citation.

To the extent the quoted language in Williams is in conflict with the holdings in Gallardo and Brown, we follow the latter two cases as more soundly reasoned. Although a traffic stop does not warrant a fishing expedition for evidence of unrelated offenses, nothing in the Fourth Amendment prevents an officer from requesting permission to search when the search would not materially extend the duration of the traffic detention. Officer Magana did not act unreasonably when, after being reminded of an earlier contact with Jose, he spoke to him briefly about that contact and requested permission to search him for his own protection.

Because we conclude the search was not unduly prolonged, we do not separately address Jose's contention that the facts uncovered during the detention did not give rise to probable cause that appellant had committed a violation other than the traffic infraction.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Steven D. Belasco, Temporary Judge^*

Superior Court County of Santa Barbara

______________________________

James S. Egar, Public Defender; Raimundo Montes de Oca, Lori R. Pedego Deputy Public Defenders for Defendant and Appellant.

Thomas W. Sneddon, Jr., District Attorney; Gerald McC. Franklin, Senior Deputy District Attorney for Plaintiff and Respondent.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^* (Pursuant to Cal. Const., art. VI § 21.)