P. v. Garcia

Filed 7/11/06 P. v. Garcia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

After the trial court denied his motion to suppress evidence brought under Penal Code section 1538.5, appellant pleaded guilty to possession of a billy club and admitted a gang enhancement. (Pen. Code, §§ 12020, subd. (a)(1), 186.22, subd. (b)(1)(A).) He contends that the trial court erred in denying his motion to suppress. We agree.

Background

San Jose Police Officer James Menard testified at the motion to suppress that one February evening in 2005, he was near Story Road and McGinness responding to assist with a non-injury traffic accident when he received a broadcast that the situation was under control. Around the same time, he saw three people, including appellant, dressed in blue clothing running toward a car in the parking lot of a market. Appellant was wearing grey pants and a blue t-shirt under a grey sweatshirt. He was also wearing "Nike Gortex shoes, which are fairly standard gang attire, and the shoelaces were blue." The three got into the car and drove away. Officer Menard was concerned that the three had been involved in criminal activity because they were wearing the color blue which the officer associated with the Sureno street gang.[1] He had no specific report of any criminal activity that he was investigating. Officer Menard followed the car. Officer Menard testified, "I paced the vehicle at 50 miles per hour in a 35 zone. The vehicle continued southbound through a left-turn only sign. And the vehicle also, when it made another left turn, was traveling in the wrong lane of the direction of travel. It was traveling northbound in southbound lanes."

Officer Menard stopped the car, ordered appellant out, and pat searched him. Appellant was polite and respectful. Four passengers were in the car, the other two men and two women. About five minutes into the stop, Officer Menard's back up officers arrived. Officer Menard noticed that appellant had a small cut on his hand and asked appellant about it. Appellant said, "It's nothing." Officer Menard told appellant that he had seen him and the two male passengers running toward the car from the market and that he "knew that something had happened." Appellant still did not give Officer Menard "any more information on the subject of the cut or whether he had been involved in anything else." Officer Menard then told appellant, that "if he didn't want to tell [the officer] what happened to his finger, [the officer] could cite him for the excessive speed and failure to obey the left-turn sign and driving in the wrong lane when he made the final turn[.]" He also told appellant that he could impound appellant's car for reckless driving. Officer Menard testified that he made these statements to appellant to "give him some incentive" to tell him what had happened to his finger. Officer Menard had not yet asked appellant for identification and had not made any determination that he was going to cite appellant for any particular traffic violation. He testified, "I was conducting an investigation." Appellant told Officer Menard that he had been "jumped by some Nortenos." Officer Menard asked appellant who owned the car and appellant explained that he owned it and that his mother had cosigned for it. Officer Menard verified this by checking the temporary dealer information taped to the windshield. When asked how long all this had taken him since the beginning of the car stop, Officer Menard answered, "Ten, fifteen minutes? Five minutes?" About 20 to 25 minutes into the car stop, the four other occupants of the car, two men and two women, were removed from the car, pat searched, and placed on the curb.

Officer Menard asked appellant for identification. Appellant produced his driver's license and Officer Menard asked him if he was on probation or parole. Appellant answered that he was on probation, and, in response to the officer's question, said that he had a search clause. Officer Menard relayed appellant's information to dispatch and asked them to determine appellant's probation orders. For "a long period of time" the dispatcher was unable to verify any information concerning probation or search conditions. Officer Menard decided to search the car before he received confirmation.[2]

Officer Menard searched the car and, in the trunk, found two baseball bats, one of which had a lanyard attached and had the number 13 on it with blue marker. Officer Menard arrested appellant for possession of the bats. Fifty-one minutes after the initial stop, Officer Menard radioed to dispatch that he had arrested appellant. Officer Menard testified that it was possible that the arrest had taken place 10 minutes before that call. Appellant was not cited for the traffic violations.

The trial court issued a written order denying appellant's motion to suppress. The trial court said that the car stop "was not unduly prolonged. Officer Menard had probable cause to stop Defendant and to question him to investigate violations of the Vehicle Code that had just been observed by the officer. When Defendant informed Officer Menard that he was on searchable probation, the subsequent search of Defendant's automobile was proper (In re Jeremy G. (1998) 65 Cal.App.4th 553)."

The Prolonged Detention

Appellant contends, "The detention of Mr. Garcia was illegal because it exceeded the scope of the detention for traffic violations and unduly prolonged the detention." Appellant relies on People v. McGaughran (1979) 25 Cal.3d 577 and Williams v. Superior Court (1985) 168 Cal.App.3d 349. Respondent states, "Appellant is incorrect for two reasons. First, McGaughran does not apply to a traffic stop made on the basis of probable cause. Second, [O]fficer Menard was permissibly investigating appellant's suspicious behavior during the detention."[3]

In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings where supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) But we exercise independent judgment to determine whether, on these facts, the search and seizure was reasonable under the Fourth Amendment of the United States Constitution. (Id. at p. 597.)

In McGaughran, a police officer stopped a car going the wrong way on a one-way street. The officer obtained and examined the driver's licenses of the defendant and his passenger. Instead of promptly releasing the men with a citation or warning as was customary, the officer detained them for an additional period while he initiated a warrant check. When the check showed arrest warrants for both men, the officer searched them incident to their arrests and found evidence eventually used to convict the defendant of burglary. The Supreme Court held an officer cannot prolong a detention based on a traffic violation for the purpose of running a warrant check. (People v. McGaughran, supra, 25 Cal.3d at p. 586.) Rather, "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." (Id. at p. 584.) Nevertheless, "[i]f 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." (Ibid.)

In Williams, a police officer, suspecting that the defendant was involved in recent robberies, stopped the defendant's car after he committed a traffic violation. The officer promptly obtained all the information needed to prepare a citation, but he never commenced writing it. Instead, he began to investigate extraneous matters. The court held that the officer had unnecessarily extended the traffic detention to investigate the unrelated matters. (Williams v. Superior Court, supra, 168 Cal.App.3d 349, 359.) The Williams court said that there is no "general outside time limit" at which a detention will be found to be prolonged. (Id. at p. 358.) The circumstances of each traffic detention are unique and the reasonableness of each detention period must be judged on its particular circumstances. (Ibid.) "The clear intent of McGaughran is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not 'reasonably necessary' to completion of the officer's traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses." (Ibid.)

Appellant asserts, "The present case differs factually from McGaughran and Williams only in the fact that the unreasonable delay preceded rather than followed inquiry relevant to the traffic stop." Respondent argues that McGaughran "no longer reflects the law." Respondent, citing Atwater v. City of Lago Vista (2001) 532 U.S. 318 [valid arrest for seatbelt violation] and People v. McKay (2002) 27 Cal.4th 601 [valid arrest for riding bicycle against flow of traffic], contends that because probable cause supported Officer Menard's conclusion that traffic violations had occurred, the Fourth Amendment would not have precluded him from making a full custodial arrest, and therefore any lesser-degree of detention preceding appellant's actual arrest, even if prolonged, passes constitutional muster as well. Alternatively, respondent argues that even if McGaughran remains good law, "the officer was justified in detaining appellant for investigation of the reasons for his precipitous flight."

We disagree with respondent as to McGaughran's status. McGaughran continues to be cited by our Supreme Court for the proposition that an officer may temporarily detain an offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1141.) Atwater and McKay apply when an officer has decided to make a custodial arrest for a traffic violation and proceeds to search incident to that arrest. We decline respondent's implicit invitation to read these cases as supporting the notion that any officer making any traffic stop can detain for any length of time and search any person or car whether or not the person is placed under custodial arrest.

Citing Illinois v. Wardlow (2002) 528 U.S. 119, respondent argues that "the officer was justified in detaining appellant" to investigate having seen "three persons dressed in the color of a street gang run from a market, enter a car, and speed away, committing several traffic violations[.] . . . A cut on appellant's hand provided an additional suspicious circumstance." In Wardlow, the court held the defendant's unprovoked flight upon noticing arriving police officers was a factor justifying his detention. Here, the officer had no information as to why appellant was running to his car and appellant "yielded quickly" to Officer Menard's red light and was polite and respectful during their contact. The circumstances here do not add up to a reasonable, articulable, suspicion of criminal activity necessary to support a detention.

Here, as the trial court said, "Officer Menard had probable cause to stop Defendant and to question him to investigate violations of the Vehicle Code that had just been observed by the officer." The officer could have asked appellant about his observations before stopping the car or the cut on appellant's finger while he wrote a traffic citation for these observed Vehicle Code violations. Questioning during a routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. (People v. Brown (1998) 62 Cal.App.4th 493, 499.) However, "[T]his rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place." (Id. at p. 499.) The length of the detention here far exceeded what was reasonably related to the detention's lawful purpose.

Disposition

The judgment is reversed.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] The reporter's transcript reads, "These are individuals dressed in a blue clothing scenario that I know has a large amount of gang activity. They were running towards a vehicle, so my concern was they're possibly involved in some type of criminal activity."

[2] Although Officer Menard testified that he eventually received confirmation from dispatch, no records were produced at the motion to suppress to confirm that appellant was on probation or that he had a search clause.

[3] Although the trial court relied on In re Jeremy G., supra, 65 Cal.App.4th 553, that case did not involve a detention or a claim that a detention was unlawfully prolonged and neither party even cites that case here. In Jeremy G., the court concluded that evidence was admissible that was obtained by an officer who conducted a search after being told by a minor wearing a home detention bracelet that he was "searchable" for weapons. (Id. at pp. 555-556.) The court found it to be immaterial the minor was in error, explaining: "The question here is not whether the minor had a searchable condition attached to his release; rather the question is whether [the officer] was reasonable in relying on the minor's statement that he had such a condition. [¶] [The officer's] reliance on the minor's statement that he was searchable for weapons was reasonable." (Id. at p. 556.) The court emphasized that the minor was 16 years old, and nothing in the record indicated that he showed immaturity or a lack of normal intelligence. (Ibid.) Accordingly, police "could reasonably believe the minor was aware of his legal circumstances and would not make a statement against his interest unless it was true." (Ibid.)