P. v. Garcia and Deloa

Filed 10/12/06 P. v. Garcia and Deloa CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeals from a judgment of the Superior Court of Orange County, Gregg L. Prickett and Kelly W. MacEachern, Judges. Affirmed.

Michael Ian Garey and Martha Allerton for Defendant and Appellant Francisco Ruvalcaba Garcia.

John David Blair-Loy, under appointment by the Court of Appeal, for Defendant and Appellant Miguel Deloa.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

Appellants Francisco Ruvalcaba Garcia and Miguel Deloa pleaded guilty to transporting methamphetamine that was found in their vehicle during a traffic stop. They contend the stop was unduly prolonged and the officers exceeded the scope of their consent, but we disagree and affirm their convictions.

* * *

Late one afternoon, Anaheim Police Officer Clifton Morris was on patrol when he noticed a Chevrolet Tahoe with a defective headlight and no front license plate. Morris activated his overhead lights and pulled it over. As it was coming to a stop, the front passenger, Deloa, was “look[ing] behind” and “twisting, shifting [and] leaning” in his seat. However, by the time Morris exited his car and approached the Tahoe, Deloa had settled down and was looking forward. Morris therefore turned his attention to the driver, Ruvalcaba.[1]

Morris asked Ruvalcaba for his driver’s license, which he provided. He then asked to see the vehicle’s registration papers, which Deloa promptly retrieved from the glove compartment. Morris asked Ruvalcaba who owned the vehicle, and he said his friend Jaime. When Morris told him Jaime’s name did not appear on the registration papers, Ruvalcaba said the vehicle was registered to Alejandro Allegre, which was correct.

Morris questioned Ruvalcaba about how long he had the vehicle, where the owner was, and how he could contact him. Ruvalcaba answered the questions “abruptly,” according to Morris. He did not give expansive responses, but rather answered “kind of minimal[ly].” He also appeared to be very nervous. He claimed he had permission to drive the vehicle and gave Morris a telephone number where he could reach Jaime. However, Morris did not call the number.

Instead, he went back to his police car and started running a records check. He did not receive any information that concerned him about appellants or the vehicle. However, “the computer was still working” when he decided to reapproach appellants. He asked Ruvalcaba if he could look through the vehicle to see if there was anything that “shouldn’t be in there.” Ruvalcaba replied, “[S]ure, go ahead.” Morris then asked Ruvalcaba to exit the vehicle and sit on the curb. A backup officer who arrived during the stop asked the same of Deloa. Appellants complied.

Morris “looked briefly through the Tahoe for everything in plain sight.” On the passenger-side floorboard, he found a spoon that had some residue on it. Morris couldn’t tell what the residue was, but it did not appear to be a controlled substance. Ruvalcaba said it was something his kids had eaten, and Morris was satisfied with that explanation; he did not believe further investigation of the spoon was necessary. He did want to investigate the vehicle further, though. Knowing a K-9 officer was only a few blocks away, Morris called him to the scene. This was about five to seven minutes into the stop.

A few minutes later, officer Jesse Romero arrived in a police car that was marked as a K-9 unit. Morris briefed him on the situation, saying Ruvalcaba had given permission to search the Tahoe. Morris also told Romero he wanted him to search the vehicle for narcotics with his police dog, Luke. Romero then approached Ruvalcaba and informed him he was going to search the vehicle. Ruvalcaba did not object; the only thing he said was that it was his friend’s car.

With that, Romero retrieved Luke from his police car and led him into appellants’ vehicle. Luke alerted in the area between the front passenger seat and backrest, where Romero found 58 grams of methamphetamine. At that point, appellants were arrested. Romero estimated this was about five to seven minutes after he arrived, meaning the entire detention -- from stop to arrest -- lasted about 15 minutes. Morris never did cite Ruvalcaba for the Vehicle Code violations. He put that off in light of the other circumstances that transpired during the stop.[2]

At the conclusion of the preliminary hearing, appellants moved to suppress the methamphetamine on the basis the officers exceeded the scope of a lawful detention by seeking Ruvalcaba’s consent to search, and they exceeded the scope of his consent by bringing in the police dog to search the vehicle. The prosecution countered that the officers’ actions were constitutional under People v. Gomez (2004) 117 Cal.App.4th 531 because the officers had probable cause to arrest Ruvalcaba for the vehicle code violations. The prosecution also contended the dog search was within the scope of Ruvalcaba’s consent to search. The court found the prosecution’s arguments persuasive. It also determined that, under the circumstances presented, the stop was not unduly prolonged or excessive. It therefore denied appellants’ motion to suppress.

Appellants renewed their arguments in superior court, first by way of a motion to dismiss. (See Pen. Code, § 995.) In response, the prosecution argued appellants’ detention was not unduly prolonged, and even if it were, the drug seizure was still reasonable under Gomez. The court denied appellants’ motion without specifying the basis for its decision.

Appellants took a third cut at the ball by filing a motion to suppress under Penal Code section 1538.5, subdivision (i). As before, appellants and the prosecution addressed the scope of the stop, the applicability of Gomez and the issue of consent. And as before, the court denied the motion without explanation.

With that, appellants pleaded guilty to transporting a controlled substance and were placed on probation.

I

Appellants contend the officers “outstripped the lawful scope of a routine traffic stop, in violation of the Fourth Amendment, by conducting a fishing expedition into unrelated criminal activity without independent reasonable suspicion.” But this was not a “routine traffic stop.” Given the circumstances that unfolded during the course of the stop, we believe the officers acted reasonably and in no way violated appellants’ Fourth Amendment rights.

Before addressing the merits, we take up a procedural issue that was first raised by appellants at oral argument. They argued the People waived their right to argue the lawfulness of the stop under traditional Fourth Amendment principles because in the proceedings below, they relied exclusively on the Gomez decision. The Attorney General suspected they might be right about this, but they were not.[3]

The record shows the issue of whether the stop was unduly prolonged was on the table from the very beginning in this case. That’s the issue that was litigated at the preliminary hearing, and that was appellants’ main argument in support of their effort to suppress the drugs; it was precisely what defense counsel cross-examined the officers about. Although the prosecutor did not address this issue in his remarks to the court, the judge made it a point to find the stop was not unduly prolonged or excessive. And in the superior court proceedings, the prosecution repeatedly took this position in its motion papers and arguments to the court. That was, in fact, the prosecution’s principal argument.

Under these circumstances, appellants’ waiver argument is not well taken. Because the scope of the stop was a central question for both the parties and the court below, there can be no injustice in reviewing that issue on appeal.[4]

On the merits, although Ruvalcaba makes some rumblings about Morris’ motive for stopping him, he admits the stop was lawful, based on the Vehicle Code violations. (See Whren v. United States (1996) 517 U.S. 806, 810 [“as a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”].) Appellants’ chief complaint is that the stop was overly intrusive in terms of time and manner. Indeed, a traffic stop “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.)

Nevertheless, the police are not required to be single-minded during a traffic stop, focusing exclusively on the ticket issue and ignoring other circumstances that present themselves. If the facts raise legitimate questions about the vehicle or its occupants, the police may reasonably expand the scope of the stop to investigate the situation. (See, e.g., People v. Webster (1991) 54 Cal.3d 411, 430-431 [stop lawfully extended to ascertain owner of vehicle]; People v. Castenda (1995) 35 Cal.App.4th 1222, 1228 [stop lawfully extended to investigate whether passenger was being truthful about car’s ownership]; People v. Valencia (1993) 20 Cal.App.4th 906, 918-919 [same].)

In assessing police conduct during a stop, we must also bear in mind that officers are not required to use the least intrusive means to investigate their suspicions. (People v. Bell (1996) 43 Cal.App.4th 754, 761, fn. 1.) “‘The question is not simply whether some alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.’ [Citation]” (Ibid.) Moreover, the constitutionality of a traffic stop is not to be governed by rigid time tables. “There is no hard and fast limit as to the amount of time that is reasonable [for a traffic stop], rather, it depends on the circumstances of each case. [Citation.]” (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.) At bottom, the touchstone of our analysis is reasonableness; if the officers’ actions were reasonable in light of all the circumstances presented, no Fourth Amendment violation will be found. (Florida v. Jimeno (1991) 500 U.S. 248, 250.)

Appellants do not dispute Morris was entitled to obtain Ruvalcaba’s driver’s license and the vehicle registration and question Ruvalcaba about his possession of the vehicle. (See People v. McGaughran (1979) 25 Cal.3d 577, 584.) Nor do they explicitly challenge Morris’ decision to run a records check. Morris made that decision a mere few minutes into the stop, and by that time it was clear Ruvalcaba was not the owner of the Tahoe. Ruvalcaba had also given conflicting answers about who was the owner, and both he and Deloa had displayed signs of heightened nervousness. Under these circumstances, Morris had every right to return to his vehicle and attempt to obtain more information about appellants and their vehicle by way of a computer check. (Ibid.) This did not infringe appellants’ Fourth Amendment rights because it did not “add to the delay already lawfully experienced by [them] as a result of [the traffic] violation . . . .” (Ibid.)

The more pressing question is whether Morris acted reasonably in seeking Ruvalcaba’s consent to search, looking through the vehicle and orchestrating the dog search. On the consent issue, the law is clear that merely asking for consent to search does not implicate the Fourth Amendment. (Florida v. Bostick (1991) 501 U.S. 429, 435.) With that in mind, courts have allowed officers to seek a driver’s consent to search during the course of a traffic stop. (See, e.g., People v. Gallardo, supra, 130 Cal.App.4th at pp. 238-239; People v. Brown (1998) 62 Cal.App.4th 493, 498-500.) However, “any consent obtained will not be valid if the request came at a time following when the traffic stop had or should have run its course . . . .” (4 LaFave, Search & Seizure (4th ed. 2004) Routine Traffic Stops, § 9.3(e), p. 396.)

Recognizing this limitation, appellants assert Morris’ request to search was improper because it came after he completed the record check, i.e., at a time when the stop should have ended. But the facts do not support the underlying premise of this argument. Granted, Morris testified that he did not receive any information about appellants or the vehicle that concerned him. However, it appears the computer check was still proceeding when he decided to seek Ruvalcaba’s consent to search. Morris testified he “started running” the records check when he returned to his vehicle; he never said he completed the check or exhausted all of his informational resources. As a matter of fact, he said “the computer was still working” when he left his car and walked back up to appellants’ vehicle. Although the trial court did not make any specific findings on this factual issue, Morris’ testimony constitutes substantial evidence to support the trial court’s implied determination that the computer check was not finished when he obtained Ruvalcaba’s consent to search. (See generally People v. Glaser (1995) 11 Cal.4th 354, 362 [in reviewing ruling on suppression motion we defer to the trial court’s findings, express or implied, that are supported by substantial evidence].)

That being the case, we reject appellants’ claim the stop was unduly prolonged because Morris sought consent to search after the computer check was complete. The facts simply do not support this claim. (Compare Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358-359 [officer unlawfully extended traffic stop by seeking consent to search after computer check had verified driver’s claims regarding ownership of vehicle].)

Having lawfully obtained Ruvalcaba’s consent to search, Morris was free to extend the stop to look through the vehicle, which is precisely what he did. This did not unduly prolong the stop because the search resulted from Ruvalcaba’s exercise of free will, not from any sort of coercive police action. Consent searches are a well-established exception to the requirements of both a warrant and probable cause. (People v. Woods (1999) 21 Cal.4th 668, 674.) It was therefore reasonable for Morris to search the Tahoe once Ruvalcaba gave him permission to do so. (Florida v. Jimeno, supra, 500 U.S. at pp. 250-251; United States v. McWeeney (9th Cir. 2006) 454 F.3d 1030, 1034-1035 [consent to “look” in vehicle permitted officers to search trunk and any other area of vehicle where object of search could be located].)

II

Nonetheless, appellants complain that by bringing in Luke and leading him through their vehicle, the officers exceeded the scope of Ruvalcaba’s consent and thereby exceeded the parameters of a lawful stop. Again, we disagree.

“‘A consensual search may not legally exceed the scope of the consent supporting it. [Citation.]’ [Citation.] ‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ [Citation.]” (People v. Bell, supra, 43 Cal.App.4th at p. 769.)

In Bell, the court found the defendant’s consent to search during a traffic stop allowed the police to search his vehicle with a drug-sniffing dog, even though no mention was made of the dog. The court found the defendant’s consent implicitly encompassed the canine search because the search “did not invade any legitimate expectation of privacy. Although the dog’s sense of smell was keener than that of the human police officer, all it could reveal to police was the presence of hidden contraband.” (People v. Bell, supra, 43 Cal.App.4th at p. 770.) In other words, the dog’s sniff was not a search under the Fourth Amendment and therefore no additional justification was needed to carry it out. (Ibid.; see also United States v. Perez (9th Cir. 1994) 37 F.3d 510, 516 [“using a narcotics dog to carry out a consensual search of an automobile is perhaps the least intrusive means of searching because it involves no unnecessary opening or forcing of closed containers or sealed areas of the car unless the dog alerts”].)

Under this reasoning, appellants cannot rightfully complain about the dog search that occurred in this case. Because it did not implicate their privacy rights above and beyond the initial search, it did not create a new level of concern for Fourth Amendment purposes. (See generally Illinois v. Caballes, supra, 543 U.S. at p. 407 [upholding use of drug-sniffing dog during traffic stop on this basis].)

As a separate justification for upholding the dog search in Bell, the court relied on the fact the defendant there did not object to the use of a dog to search his vehicle. The court stated, “Officer David’s patrol car was clearly marked ‘K-9.’ Thus, defendant had reason to know Officer David had a dog with him, and hence to expect that the search would be carried out with the assistance of a dog.” (People v. Bell, supra, 43 Cal.App.4th at p. 771.)

Likewise here, Officer Romero’s car was clearly marked as a K-9 unit. And at the suppression hearing, Romero testified that Ruvalcaba “saw me pull up, he saw my police car, [and] he saw the police dog . . . .” Yet when Romero told him he was going to search his vehicle, Ruvalcaba registered no objection whatsoever. The only thing he said was that it was not his vehicle. Ruvalcaba’s passive attitude toward the dog search supports the conclusion the search was objectively reasonable. Indeed, his “‘[f]ailure to object to the continuation of [the] vehicle search after giving general consent to search “is properly considered as an indication that the search was within the scope of [his] initial consent.”’” (United States v. Perez, supra, 37 F.3d at p. 516; compare United States v. McWeeney, supra, 454 F.3d at pp. 1036-1037 [defendant who had been asked to stand with his back to his vehicle may have been trying to delimit or withdraw his consent to search the vehicle by turning around and looking back at the searching officer].)

Appellants liken this case to Shamaeizadeh v. Cunigan (6th Cir. 2003) 338 F.3d 535, but that is not an apt comparison. The problem there was that the police had authority to search the defendant’s residence for one reason -- to look for a burglary suspect -- but when that search was over, they searched the residence twice more for another reason -- to look for drugs. The court found that in so doing, the police exceeded the scope of the consent that was given. (Id. at pp. 547-548.)

Here, in contrast, the police did not change their focus during the course of the stop. With Ruvalcaba’s permission, Morris initially searched the Tahoe for “anything that shouldn’t be in there,” i.e., for anything illegal. Then Luke was brought in to do the very same thing. The difference between the two searches was in terms of effectiveness, not scope or purpose. Therefore, we uphold the dog search as being within the scope of Ruvalcaba’s consent to search. (People v. Bell, supra, 43 Cal.App.4th at pp. 768-770; United States v. Perez, supra, 37 F.3d at pp. 515-516.)

Because the dog search was within the scope of Ruvalcaba’s consent, and because Ruvalcaba’s consent was lawfully obtained, the police were entitled to seize the methamphetamine that Luke alerted on in appellants’ vehicle. The circumstances fully warranted the officers’ actions, and we cannot say the stop -- which only lasted about 15 minutes -- was overly intrusive in terms of time or manner. The stop was, in sum, reasonable in all respects and thus constitutional under traditional Fourth Amendment principles.^[5]

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

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[1] Ruvalcaba’s full name -- Francisco Ruvalcaba Garcia -- is arranged and hyphenated a variety of ways throughout the record. (See People v. Perez (1994) 30 Cal.App.4th 900, 903, fn. 2.) We will refer to him as Ruvalcaba because that is the name he used in signing his guilty plea.

[2] Appellants claim Morris put off writing a citation for the sole purpose of conducting a narcotics investigation, but what came out at the suppression hearing was that he held off the citation to “complete this other inquiry that [he was] making.” He did not specify whether this “other inquiry” was related to narcotics or something else, such as ascertaining ownership of the vehicle or finding out if appellants had any outstanding warrants. Interpretation of that ambiguity was in the hands of the trial court, and, as we shall explain, we find nothing to indicate it was resolved incorrectly.

[3] It’s hardly surprising the Attorney General was a bit off the mark in addressing the waiver issue at oral argument. After all, that was the first time appellants bothered to bring it up. As we pointed out at oral argument, however, the Attorney General’s remarks on the subject did not amount to an outright concession on the issue.

[4] People v. Sims (1993) 5 Cal.4th 405 presented an analogous situation in that the prosecution there failed to invoke the public safety exception in opposing defendant’s Miranda motion in the trial court. (Id. at p. 450, fn. 9.) However, the evidence supporting this theory was fully developed at the motion hearing, the defense was able to cross-examine the interrogating officer about the facts surrounding this theory and there did not appear to be any further evidence that could have been introduced to defeat the theory. (Ibid.) Therefore, the Supreme Court allowed the Attorney General to argue the public safety exception on appeal. (Ibid.) Likewise here, the evidence regarding the issue of whether the stop was unduly prolonged was fully developed at the motion hearing, all the pertinent testimony was subject to appellants’ cross-examination, and there does not appear to be any additional evidence that could have been adduced on this issue (at least appellants have failed to suggest any such evidence). Accordingly, we find Sims persuasive authority for our decision to allow the Attorney General to argue the stop in question was not unduly prolonged under traditional Fourth Amendment principles.

[5] In light of this disposition, we need not decide whether the officers’ action were lawful under the rationale of People v. Gomez, supra, 117 Cal.App.4th 531.