P. v. Diaz

Filed 6/26/07 P. v. Diaz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed.

David Arredondo for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.

After the trial court denied her mPilla Yes I will try otions to suppress, defendant pled no contest to a charge of possession of cocaine for sale (count 1 ‑‑ Health & Saf. Code,  11351)^[1]and admitted an allegation that the cocaine weighed in excess of one kilogram ( 11370.4, subd. (a)(1)). On appeal, she contends the cocaine should have been suppressed because: (1) the arresting officer did not have a reasonable and articulable suspicion of criminal behavior to justify the initial traffic stop; (2) defendants consent to search the vehicle was coerced; and (3) the search of defendants vehicle exceeded the scope of any consent she may have given. We disagree with defendant and affirm the judgment below.

I. FACTS AND PROCEDURAL HISTORY

While traveling northbound on Interstate 15 on March 23, 2006, Detective William Freund noticed defendants vehicle traveling in the No. 2 lane at a slower rate than the flow of traffic. He observed several cars come up behind her, slow down, and wait for traffic to clear so they could pass around her. One car had to brake as it came up behind her. Nothing in the roadway indicated a necessity to slow down. Freund positioned his patrol car behind defendants car in order to gauge her rate of speed. She was traveling at 64 miles per hour, six miles less than the posted speed limit of 70 miles per hour. He decided to initiate a traffic stop for a violation of Vehicle Code section 22400 (minimum speed law). He also noticed the vehicle had a string of rosary beads hanging from the rearview mirror, which he believed constituted a violation of Vehicle Code section 26708, subdivision (a)(2) (obstructed view).

Freund turned on his overhead lights and defendant pulled over to the right shoulder. As soon as Freund pulled in behind her, defendant drove her vehicle back out onto the highway. Freund moved back onto the highway behind defendant with his overhead lights still on. Defendant then pulled over to the right side of the highway; however, as soon as Freund pulled in behind her, she again moved back onto the highway. Dispatch then notified Freund that no record existed for the Illinois license plate on defendants vehicle. Freund moved once more onto the highway behind defendants vehicle. As defendants vehicle pulled over for the third time, Freund pulled alongside her vehicle, rolled his window down, and verbally informed her that she must pull over to the side of the road and stop. Defendant finally yielded, coming to a complete stop on the shoulder.

Freund removed his weapon from its holster and had it pointed at the ground along his leg as he exited his patrol vehicle and approached defendants vehicle. He drew his weapon out of concern defendant might be involved in criminal activity due to her failure to yield and the vehicles lack of a proper license. Freund walked along the passenger side of defendants vehicle and made contact with defendant, who was driving, and the passenger. He also noticed an infant in a restraint seat in the back. He identified himself, asked defendant why she had not immediately pulled over, and requested her license and registration. Freund reholstered his weapon within a few seconds of making his initial contact with defendant.

Defendant handed Freund an Illinois drivers license and stated that while the vehicle was hers, she did not know where the registration was. She told him she had driven out to Los Angeles from Chicago to pick up her sister and had been in the area for a week. He told her he was going to cite her for impeding traffic and having an obstructed view and asked her to exit the vehicle. Defendant walked with Freund back to his car where he wrote the citation. Dispatch then informed him that the Illinois drivers license was suspended and there was no record of the vehicle identification number (VIN). Nonetheless, Freund finished writing the citation, gave her the license back, handed her the citation, and told her she was free to go.

As defendant walked back to her car, Freund inquired if he could pose a few more questions. Defendant replied affirmatively and Freund asked her several questions regarding whether she possessed any marijuana, weapons, or heroin. Defendant answered no to each of his questions; however, when he asked her if she had any cocaine, she replied no, no. The latter response caught Freunds attention because it was atypical of her prior responses. Defendant then asked Freund if he would like to search the vehicle. He confirmed her permission by asking if he could search the car, to which she replied, yes.

He opened the back hatch of defendants vehicle and discovered a piece of carry-on luggage with an airport tag, including defendants name and an arrival date in Los Angeles of three days earlier. He also found a purse and asked her if it was hers and whether he could search it. She said he could; inside he found a picture of Jesus Malverde, the patron saint of narco traffickers. Freund noticed there were no other luggage pieces, no toiletries, and no diapers or other baby things, which he found unusual in that two women and an infant who were ostensibly traveling across country would normally require such things. He found a request for title for the vehicle written in pencil, but the license number did not match the vehicles license plate and dispatch informed him there was no record of that license number either. Freund also noticed the plastic molding on the bumper and the floor carpeting in the back were loose and that the bottom had been sprayed over with paint. All the aforementioned facts appeared to Freund as indicia of narcotics trafficking. He informed defendant he was having the vehicle towed because her license was suspended and he suspected her of drug trafficking.

The vehicle was towed to Barstow City Tow, where a deputy conducted a K-9 search. The dog gave indications there were narcotics somewhere in the rear of the vehicle. Deputies removed the loose carpeting and smelled a strong odor of silicone. They removed the air conditioner compressor and the tire jack located beneath the carpet and discovered a hidden compartment with 14 kilo-style wrapped packages containing a white powdery substance. Freund took a random sample of four packages, which field tested positive for cocaine.

The People charged defendant with possession of cocaine for sale (count 1 ‑‑  11351), including a special allegation that its weight exceeded 10 kilograms ( 11370.4, subd. (a)(3)), transportation of a controlled substance (count 2 ‑‑  11352, subd. (a)), and false compartment activity (count 3 ‑‑  11366.8, subd. (a)). After denying both defendants motions to suppress the cocaine, the court took defendants plea, dismissed the remaining charges and sentenced defendant to an aggregate prison term of five years.

II. DICUSSION

A. Freund Had a Reasonable, Articulable Suspicion of Criminal Behavior Such That His Traffic Stop of Defendant Was Proper

In a hearing on a motion to suppress evidence, the trial court judges the credibility of witnesses, resolves conflicts in the testimony, weighs the evidence, and draws those factual inferences that he or she may be called upon to make. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) On appeal, all presumptions are in favor of the trial courts findings, express or implied, and those findings must be upheld if supported by substantial evidence. (Ibid.) However, because the reasonableness of a search within the confines of the Constitution is a question of law, we measure the facts, as found by the trier, against the constitutional standard of reasonableness. [Citation.] On that issue, . . . the appellate court exercises its independent judgment. (Id. at p. 597; see Ornelas v. United States (1996) 517 U.S. 690, 699 [116 S.Ct. 1657, 134 L.Ed.2d 911] [de novo review of determinations of reasonable suspicion and probable cause].)

Although the Fourth Amendment proscribes unreasonable searches and seizures, it is well settled that an officer may lawfully stop a motorist to investigate and issue an appropriate citation when he observes Vehicle Code violations. (People v. McGaughran (1979) 25 Cal.3d 577, 582; People v. Superior Court(Simon) (1972) 7 Cal.3d 186, 200; People v. Franklin (1985) 171 Cal.App.3d 627, 633.) Vehicle Code section 22400, subdivision (a), provides: No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.

Defendant contends that Freunds enforcement of a traffic stop for impeding traffic was impermissible because she was driving at a legal rate of speed; thus, all evidence subsequently secured should have been suppressed. Defendant supports her conclusion on two bases: (1) As applied in this instance, the minimum speed law makes illegal the legal conduct of one individual by virtue of the potentially illegal conduct of another, and (2) the case of Monreal v. Tobin (1998) 61 Cal.App.4th 1337, proscribes enforcement of Vehicle Code section 22400, subdivision (a), where the cited individual is driving at a legal rate of speed.

We believe defendants argument ignores the totality of facts surrounding the stop. As earlier indicated, Freund turned on his overhead lights and defendant pulled over to the right shoulder. As soon as Freund pulled in behind her, defendant drove her vehicle back out onto the highway. Freund moved back onto the highway behind defendant with his overhead lights still on. Defendant then pulled over to the right side of the highway; however, as soon as Freund pulled in behind her, she again moved back onto the highway. Dispatch then notified Freund that no record existed for the Illinois license plate on defendants vehicle. Freund moved once more onto the highway behind defendants vehicle. As defendants vehicle pulled over for the third time, Freund pulled alongside her vehicle, rolled his window down, and verbally informed her that she must pull over to the side of the road and stop. Defendant finally yielded, coming to a complete stop on the shoulder.

A [t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of the Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806, 809-810 [116 S.Ct. 1769, 135 L.Ed.2d 89].) The word seizure . . . does not remotely apply, however, to the prospect of a policeman yelling Stop, in the name of the law! at a fleeing form that continues to flee. That is no seizure. . . . An arrest requires either physical force, . . . or, where that is absent, submission to the assertion of authority. . . . an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. (California v. Hodari D. (1991) 499 U.S. 621, 626 [111 S.Ct. 1547, 113 L.Ed.2d 690]; see People v. Brendlin (2006) 38 Cal.4th 1107, 1114-1115.)

In People v. Green (1994) 25 Cal.App.4th 1107, deputy sheriffs began following a vehicle after it left a residence from which drug sales were suspected. (Id. at p. 1109.) The officers activated their lights. (Ibid.) The driver moved toward the curb, as if to pull over. (Ibid.) The driver then accelerated in an attempt to elude the deputies. (Ibid.) After the pursued vehicle crashed, defendant threw a handgun and brown paper bag containing cocaine underneath the car. (Id. at pp. 1109-1110.) In addressing the issue of the relationship between the deputy sheriffs initial activation of his lights and the ultimate seizure of the contraband, the court, in quoting from California v. Hodari D., supra, stated, We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. . . . (Green, supra, at pp. 1110-1111, quoting California v. Hodari D., supra, 499 U.S. at p. 627.)

Here, Freund testified that he initiated the stop because he observed the vehicle going 64 miles per hour and that it was obstructing the flow of traffic. Following his testimony relative to the vehicle continually refusing to stop and his receipt of knowledge that there was no record of the vehicles license plate, he testified that, based on the combination of factors, he had concern that there could be criminal activity involved.

Under these facts, the seizure did not occur until defendant ultimately stopped her vehicle and submitted to the assertion of authority by Freund. By this point, Freund believed the vehicle was traveling too slow for the conditions. He additionally had knowledge that the license plate was not registered and that the driver was refusing to yield to his direction. Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officers actions in light of the facts and circumstances confronting him at the time, and not on the officers actual state of mind at the time the challenged action was taken. [Citations.] (People v. Miranda (1993) 17 Cal.App.4th 917, 923-924.) Probable cause existed for the ultimate stop of defendant.

Defendant claims that Monreal v. Tobin, supra, 61 Cal.App.4th 1337 compels the determination that her rate of travel in the instant case was legal. The case is simply not applicable. There, the court held that a vehicle driver, traveling at the posted speed limit, did not owe a legal duty to plaintiffs decedents in that their deaths were not reasonably foreseeable from Monreals failure to pull his vehicle into a slower lane. Monreals vehicle was struck from behind by a vehicle traveling 25 miles per hour over the speed limit. The case does not stand for the proposition that a driver cannot impede the flow of other traffic traveling within the posted speed limit. Regardless, other factors existed here to justify the present stop.

B. Defendants Consent to the Search of Her Vehicle Was Not Coerced

The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. [Citation.] Thus, [the United States Supreme Court has] long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. [Citation.] (Florida v. Jimeno (1991) 500 U.S. 248, 250-251 [111 S.Ct. 1801, 114 L.Ed.2d 297]; accord, People v. Jenkins (2000) 22 Cal.4th 900, 971, 974.) However, if under all the circumstances, it appears that the consent was not voluntarily given ‑‑ that it was coerced by threats or force, or granted only in submission to a claim of lawful authority ‑‑ then the consent is invalid and the search unreasonable. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 233 [93 S.Ct. 2041, 36 L.Ed.2d 854].) A warrantless search based on consent must be supported by substantial evidence that the consent was voluntarily given. (People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033.)

Defendant contends the circumstances surrounding her consent to Freunds search of her vehicle demonstrate that it was granted under duress. She maintains that Freunds draw of his weapon, the lights and siren on the patrol car, the officers uniform, and her shaking hands, all demonstrate that she was coerced into consenting to the search by the color of authority projected by Freund. We disagree.

First, defendant gave Freund permission to search her vehicle some 20 minutes after he had reholstered his weapon. Likewise, Freund never pointed the weapon at defendant, but merely drew it and kept it pointed at the ground. Moreover, as the trial court noted, defendant adduced no evidence below that she even noticed Freund draw his weapon. Thus, the instant case is distinct from that of People v. Challoner (1982) 136 Cal.App.3d 779, where the court found the consent to search coerced when given contemporaneous to the officers drawing of his weapon. (Id. at p. 782.)

Second, defendants suggestion that her consent to the search was coerced by the color of authority projected by the sirens, lights, officers uniform, and holstered weapon is total conjecture. Defendant presented no evidence below that she felt coerced. Moreover, she cites no authority for the proposition that an officers paraphernalia of office alone is sufficient to induce coerced consent. Furthermore, it is noteworthy that were this notion to become law, nearly all consensual searches by uniformed officers, no matter the circumstances, would be proscribed as coerced. Likewise, defendants suggestion that her shaking hands indicated apprehension and fear is not the only sustainable inference one might make of such conduct. Indeed, as the trial court found, it is also suggestive of a consciousness of guilt.

Finally, defendant herself unilaterally offered Freund permission to search her vehicle without any request to do so. Just to confirm her authorization, Freund asked her if he could search her car. She replied that he could. Moreover, when Freund discovered a purse in the car, he asked defendant if it was hers and whether he could look inside it. She responded that it was her purse and authorized Freund to look through it. Thus, substantial evidence supports the determination that the initial search of defendants vehicle was consensual and not the result of coercion.

C. Freund Had Probable Cause to Tow and Search Defendants Vehicle

Generally, the scope of a warrantless search is defined by its expressed object. (United States v. Ross (1982) 456 U.S. 798, 824 [102 S.Ct. 2157, 72 L.Ed.2d 572].) A consensual search may not legally exceed the scope of the consent supporting it. (Walter v. United States (1980) 447 U.S. 649, 656- 657 [100 S.Ct. 2395, 65 L.Ed.2d 410].) Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. (United States v. Sierra-Hernandez (9th Cir. 1978) 581 F.2d 760, 764, cert. den. (1978) 439 U.S. 936 [99 S.Ct. 333, 58 L.Ed.2d 333].) The touchstone of the Fourth Amendment is reasonableness. (Florida v. Jimeno, supra, 500 U.S. at p. 250.) The standard for measuring the scope of a suspects consent under the Fourth Amendment is that of objective reasonablenesswhat would the typical reasonable person have understood by the exchange between the officer and the suspect? (Id. at p. 251.)

Defendant contends the tow of her vehicle and its subsequent dismantlement by officers was not within the scope of the consent she originally granted Freund. We agree. Here, defendant granted Freund permission to search her car when they were both located on the shoulder of the highway. Nothing in that consent suggested Freund would be permitted to remove the vehicle elsewhere nor disassemble it. Likewise, Freund never requested her permission in doing so. Nor should defendant be required to specifically object to the extension of the scope of the search. (People v. Cantor (2007) 149 Cal.App.4th 961, 966.) Thus, it was unreasonable to believe defendant had acquiesced to the tow and disassembly of her vehicle and the trial court erred in concluding that the resultant search was consensual. Nonetheless, at the time the vehicle was towed, Freund had sufficient facts to justify not only impounding the vehicle but also doing a more extensive search. It is undisputed that neither defendant nor her passenger were legally licensed to drive the vehicle. Likewise, the vehicle did not have proper registration and there were no records of either the license plate number or VIN. Thus, it was proper for the officer to have the vehicle towed. (People v. Benites (1992) 9 Cal.App.4th 309, 326 [impoundment proper where neither driver nor passenger had valid drivers license]; People v. Burch (1986) 188 Cal.App.3d 172, 180 [impoundment proper where cars registration tag was expired and drivers license was suspended]; People v. Green (1996) 46 Cal.App.4th 367, 373 [impoundment proper where registration expired and driver lacked a drivers license].)

Moreover, so long as police have probable cause to conduct a warrantless search of a vehicle, they may also impound the vehicle to effect a delayed warrantless search. (Chambers v. Maroney (1970) 399 U.S. 42, 51-52 [90 S.Ct. 1975, 26 L.Ed.2d 419]; People v. Minjares (1979) 24 Cal.3d 410, 417, 419, 423.) Ordinarily, even when officers have probable cause to conduct a search, they must obtain a warrant unless there are exigent circumstances that make it impractical to do so. (Groh v. Ramirez (2004) 540 U.S. 551, 558 [124 S.Ct. 1284, 157 L.Ed.2d 1068].) However, there is an exception to this requirement for searches of vehicles. . . . [T]he automobile exception has no separate exigency requirement. (Maryland v. Dyson (1999) 527 U.S. 465, 466 [119 S.Ct. 2013, 144 L.Ed.2d 442].) Thus, if there is probable cause to believe contraband is located in a vehicle, police may conduct a warrantless search of the vehicle without exigent circumstances. Further, the justification to conduct such a warrantless search does not vanish once the car has been immobilized[.] (People v. Panah (2005) 35 Cal.4th 395, 469.)

Here, Freund had sufficient facts to constitute probable cause to not only tow the vehicle, but also to search it for drugs, including the removal of the carpet and molding covering the secret compartment. Already suspicious were the circumstances under which Freund found himself immediately before the vehicle was towed. Defendant had failed to yield immediately to his traffic stop, she did not have a valid drivers license, records indicated that neither the license plate number nor VIN existed, and her story that she had driven to Los Angeles a week ago was contradicted by the tag on her luggage which showed she had flown in three days earlier. When searching her purse, Freund found a picture of the patron saint of narco traffickers. Although defendant claimed to be driving to Chicago with her sister and the infant, there were no suitcases in the car, no toiletries, and no baby items. Freund noticed that the carpeting and a portion of the bumper had been removed and painted over. These factors in and of themselves provided a sufficient basis to search. Finally, at the tow yard, the K-9 alerted that there were controlled substances in the rear of the vehicle in the same location that the carpet and bumper had been removed. (United States v. Place (1983) 462 U.S. 696, 707 [103 S.Ct. 2637, 77 L.Ed.2d 110] [canine sniff is not a search subject to probable cause requirements]; Illinois v. Caballes (2005) 543 U.S. 405, 409 [125 S.Ct. 834, 160 L.Ed.2d 842].) Thus, Freund had sufficient facts before him to assert probable cause in permitting him to disassemble the rear area of the vehicle to search for drugs. (California v. Acevedo (1991) 500 U.S. 565, 579-580 [111 S.Ct. 1982, 114 L.Ed.2d 619] [police may search containers within automobile when they have probable cause to believe contraband is contained therein].)

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Health and Safety Code unless otherwise indicated.