P. v. Deleon

Filed 4/2/07 P. v. Deleon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029563

Plaintiff and Respondent, (Monterey County

Superior Court

v. No. SS050096A)

CARLOS MANUEL DELEON,

Defendant and Appellant.

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Defendants motion to suppress and his motion to set aside the information were denied, and he pleaded no contest to a single count of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)). He was granted Proposition 36 probation. On appeal, he challenges the denial of his motions. Defendant claims that his consent to search his person was the product of an unconstitutionally prolonged detention. We find merit in his contention and reverse.

I. Factual Background

At 12:22 a.m. on April 10, 2005, Monterey County deputy sheriff Charles West initiated a traffic stop on defendants vehicle because the vehicles license plate was obstructed by a trailer hitch. West had seen defendant earlier at a gas station greeting the girlfriend of Juan Garza, whom West believed was a drug dealer. West intended to simply give [defendant] a warning about the license plate obstruction.

After stopping defendant, West informed defendant of the reason for the stop, and defendant acknowledged his awareness of the problem. West asked defendant for his license and identification, and defendant provided West with these items. West contact[ed] dispatch and ran for a status warrant check, an information check. The purpose of the check was to find out if defendants license was suspended and whether there were any warrants or wants for defendant. While West was awaiting the results of his checks, he asked defendant if he would step out and speak to me.

Defendant got out of the car, and West initiated a conversation with defendant about what I had observed at the Broadway Shell. During this conversation, West was notified by dispatch that defendants license was valid. At this point, the detention had lasted about two minutes. West then further questioned [defendant] about the incident at the Broadway Shell. West asked defendant did he know that the person that he was contacting was a known associate of a drug dealer or user. Defendant said he knew Juan Garza but was only friends with Garzas girlfriend.

At this point, about five to ten minutes into the detention, West asked defendant for permission to search his vehicle for weapons and/or drugs. Defendant gave consent. West searched defendants vehicle and found nothing. He then asked defendant if he had any weapons or drugs on his person. Defendant said he did not. West asked for permission to search defendants person, and defendant granted permission. West found a small bindle in his right coin pocket. The bindle contained .3 grams of methamphetamine.

II. Procedural Background

Defendant was arrested and charged by complaint with transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)). He filed a motion to suppress the evidence as the product of a prolonged detention. The magistrate found that defendant had given a free and willing consent and denied the motion at the conclusion of the preliminary examination.

An information was filed charging defendant with transportation of methamphetamine. Defendant moved to set aside the information under Penal Code section 995 on the ground that his suppression motion had been erroneously denied. No additional evidence was presented at the hearing on this motion. The court found the search valid. [B]ased on the fact that a very short period of time transpired between, essentially, the termination of what the officer had set out to do which was the traffic stop, and the request for . . . consensual search, I find that there was no violation . . . .[1] Defendants Penal Code section 995 motion was denied.

Defendant pleaded no contest and was granted Proposition 36 probation. Defendant filed a timely notice of appeal challenging the denial of his motions.

III. Analysis

Defendant contends that his consent was invalid because it was the fruit of an unconstitutionally prolonged detention.

[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. [Citation.] A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. (Illinois v. Caballes (2005) 543 U.S. 405, 407.)

In People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran), the issue was whether a ten-minute prolongation of a detention in order for the officer to perform a warrant check was an unconstitutionally prolonged detention. (McGaughran, at p. 582 and fn. 2.) [T]he law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop. If a warrant check can be completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights. (McGaughran, at p. 584.) All that was reasonably necessary to deal with the offense, however, was for Officer Thomas to examine defendants 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 . . . . (McGaughran, at p. 587.) The California Supreme Court held that the detention was unconstitutionally prolonged.[2]

In Williams v. Superior Court (1985) 168 Cal.App.3d 349 (Williams), a vehicle was pulled over for a traffic violation. The police officer was suspicious of the men in the car, and he engaged them in conversation unrelated to the traffic violation for five to ten minutes before seeking consent to search the car. (Williams, at pp. 355-356.) Consent was given, and drugs and weapons were found in the car. (Williams, at pp. 356-357.) The Court of Appeal held that the consent was invalid because it was the fruit of an unconstitutionally prolonged detention. (Williams, at pp. 359, 362.)

McGaughran and Williams support defendants contention. The prosecution bore the burden of proving that defendants consent was not the invalid product of an unconstitutionally prolonged detention. (People v. James (1977) 19 Cal.3d 99, 106.) Under McGaughran, a warrant check does not unconstitutionally prolong a detention if it is completed within the period of time necessary to discharge the duties that [the officer] incurs by virtue of the traffic stop. (Italics added.) The prosecution produced no evidence that the warrant check West conducted occurred during the period of time necessary for West to issue a warning to defendant about the license plate obstruction. In fact, West testified that he had completed his discussion of the equipment violation with defendant before the warrant check was completed. And, even after the warrant check was completed, West continued his questioning of defendant for several more minutes before requesting defendants consent to search. Clearly the prosecution failed to bear its burden of proving that the consent was not the product of an unconstitutionally prolonged detention.

Wests detention of defendant for five to ten minutes, while engaging him in unrelated conversation, running a warrant check and continuing to engage him in conversation after the check had been completed, was unconstitutionally prolonged and therefore defendants consent to search was invalid.

None of the cases relied upon by the Attorney General convinces us otherwise.

In People v. Brown (1998) 62 Cal.App.4th 493 (Brown), Brown was stopped for riding his bicycle without a light or reflectors. (Brown, at p. 495.) Brown produced identification at the officers request, and the officer ran a warrant check that took about one minute. (Brown, at p. 495.) During that one minute, the officer questioned Brown. Brown said he was on searchable probation, and he denied that he had guns or anything illegal in his fanny pack. (Brown, at p. 495.) The officer asked for permission to search, and it was granted. He found methamphetamine in Browns fanny pack. (Brown, at pp. 495-496.) Brown conceded that the officer properly ran the warrant check, but he claimed that the officer acted improperly in questioning him on unrelated matters and in seeking consent to search while the warrant check was occurring. (Brown, at p. 498.) 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 court held that the detention was not unconstitutionally prolonged. (Brown, at pp. 499-500.)

Brown is obviously distinguishable. Here, defendant does not concede that West properly ran a warrant check, and West continued questioning defendant and requested consent to search after the warrant check had already been completed. Thus, the questioning and the request for consent here did prolong the detention.

Nothing in People v. Gomez (2004) 117 Cal.App.4th 531 provides any support for the Attorney Generals argument.[3] The Court of Appeal in Gomez found that a two-hour detention for a seatbelt violation was prolonged to the point that it amounted to a de facto arrest, but it held that the extension of the detention was justified by probable cause. (Gomez, at pp. 537-538.) Here, there is no claim that probable cause justified Wests prolongation of his detention of defendant.

The Attorney General also relies on People v. Gallardo (2005) 130 Cal.App.4th 234 (Gallardo). Gallardos vehicle was stopped for a broken taillight. (Gallardo, at p. 236.) [Deputy] Froome told defendant he had stopped him because of the taillight and inspected the defendants license and registration. [] Froome then asked defendant if there was anything illegal in the car, like weapons or drugs. Defendant said there was not, and the deputy asked for permission to search. Defendant agreed and stepped out of the car. According to Froome, a very short period of time, approximately two minutes, had elapsed from his initial contact with defendant. (Gallardo, at pp. 236-237.) Drugs were found in the vehicle. (Gallardo, at p. 237.)

The Court of Appeal only briefly discussed Gallardos contention that the consent was the product of an unduly prolonged detention. The court noted that only a very few minutes had elapsed between the deputys initial contact with the defendant and the defendants consent to search, and it concluded [w]e cannot characterize this as unduly prolonged under any reasonable definition of the term . . . . (Gallardo, at p. 239.) Here, there is no evidence that defendants detention was unreasonably prolonged by the consensual search, and therefore the length of the detention cannot be the basis for suppressing the fruits of the search. (Gallardo, at p. 238.)

We find Gallardos conclusory discussion of this issue unhelpful. Here, unlike in Gallardo, West expeditiously performed his duties associated with the equipment violation, completed an unnecessary warrant check and continued to question to defendant on unrelated matters, and then, after a detention of five to ten minutes, West finally requested permission to search. If these facts do not distinguish Gallardo from the case before us, then Gallardo conflicts with the holdings in McGaughran and Williams. We are, of course, bound to follow McGaughran. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The Attorney Generals final contention is that the detention was transformed into a consensual encounter by the conversation between West and defendant. A traffic stop may become a consensual encounter if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority. [Citation.] A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer. If the individual is free to leave at any time during the encounter, he or she is not seized under the Fourth Amendment. Whether an encounter is a detention or a consensual encounter depends on whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officers requests or otherwise terminate the encounter. [Citations.] A person is seized only when that person has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her way. (U.S. v. Hernandez (1996) 93 F.3d 1493, 1498.)

The prosecution, which bore the burden of proof below (People v. James, supra, 19 Cal.3d at p. 106), produced no evidence that West had returned defendants license to him or that defendant would have believed that he was free to leave at any point prior to Wests request for consent to search. Indeed, the magistrates explicit finding that the detention was not a consensual encounter is fatal to the Attorney Generals contention that the detention had become a consensual encounter and that a reasonable person in defendants place would have believed he was free to leave.

The magistrate should have granted defendants suppression motion, and the superior court should have granted defendants motion to set aside the information.

IV. Disposition

The superior courts probation order is reversed. The superior court is directed to vacate its order denying defendants Penal Code section 995 motion and to enter a new order granting that motion.

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Mihara, Acting P.J.

WE CONCUR:

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McAdams, J.

_____________________________

Duffy, J.

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[1] The prosecutor argued below that the search was necessarily valid as a search incident to arrest because the officer could have arrested defendant for the license plate obstruction violation. The court did not accept this theory, and the Attorney General does not pursue it on appeal. (See Knowles v. Iowa (1998) 525 U.S. 113, 114 [search not justified when stop is to issue citation].)

[2] Three justices concurred in the lead opinion. One justice wrote separately to suggest that a warrant check was not permissible even if it occurred during the time that the detention otherwise would consume. Another justice concurred solely under the California Constitution. (People v. McGaughran, supra, 25 Cal.3d at pp. 591-595.) Two justices dissented on the ground that the ten-minute delay for the warrant check was not unreasonable under the circumstances. (McGaughran, at pp. 595-596.)

[3] The Attorney General does not rely on the alternative holding in Gomez. (See footnote 1.)