P. v. Hernandez

Filed 7/3/07 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Frank A. Hoover, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

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Following the denial of his motion to suppress evidence, defendant Jose Omar Hernandez pled no contest to one count of transporting methamphetamine (Health & Saf. Code, 11379, subd. (a)) and was sentenced to three years probation. On appeal, defendant contends (1) the trial court erred in denying his motion to suppress, and (2) the trial court imposed unconstitutionally overbroad probation terms. We conclude that the trial court did not err in denying the suppression motion, but that the probation terms and conditions of the judgment must be modified. In all other respects, the judgment is affirmed.

FACTS^[1]

Kern County Sheriff Deputy Robert Stevenson made a traffic stop of a car which defendant was driving after defendant improperly stopped in the roadway to let out a passenger and because defendant had a plastic cover over his license plate. As the deputy approached defendants car, he observed defendant reaching and shoving his hands towards the passenger seat. This caused the deputy to suspect defendant was trying to conceal a weapon or contraband from him by stuffing it in the seat cover. When he reached defendants car, he asked defendant what he was doing. Defendant said that he was not doing anything.

Deputy Stevenson requested defendants drivers license and registration, which defendant provided. The deputy then asked defendant if he had anything illegal in the car, such as weapons or drugs. Defendant said he did not. Deputy Stevenson then asked if he could search defendant and his car. Defendant agreed and stepped out of the car. Deputy Stevenson testified that less than five minutes passed from the time he made the traffic stop to the time defendant agreed to be searched.

After defendant agreed to be searched, Deputy Stevenson searched defendant for ten seconds and then began to search the car. About five minutes into the vehicle search, the deputy found a tan pouch under the drivers seat. The tan pouch contained four baggies of suspected methamphetamine and one baggie of suspected marijuana. The deputy then searched the rest of defendants car. The entire vehicle search lasted 30 to 40 minutes.

In response to questioning by the trial court, Deputy Stevenson testified that if he had simply issued defendant a traffic citation after stopping him, the transaction would have lasted five to ten minutes.

DISCUSSION

I. Suppression motion

The parties agree that Deputy Stevenson was entitled to detain defendant for a traffic violation. Defendant contends, as he did below, that Deputy Stevenson unduly prolonged the detention when he asked defendant whether he had anything illegal in the car and sought permission to search rather than issue a traffic citation after defendant produced his license and registration. Thus, defendant argues, his consent to search was vitiated and the trial court erroneously denied his suppression motion. We disagree.

In reviewing a motion to suppress, we defer to the lower courts findings of fact supported by substantial evidence, but exercise independent judgment in determining whether the detention was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.) (People v. Gallardo (2005) 130 Cal.App.4th234, 237 (Gallardo).)

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 officers 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 Terrys second prong is aimed. [Citation.] (People v. Brown (1998) 62 Cal.App.4th 493, 496 (Brown).)

While a police officer may stop a motorist for a traffic violation, the detention cannot be prolonged beyond the time period necessary to address the violation. (People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran).) There is no hard-and-fast limit as to the amount of time that is reasonable; rather, it depends on the circumstances of each case. (Williams v. Superior Court (1985) 168 Cal.App.3d349, 358 (Williams).)

While we agree with defendant that traffic stops must be reasonable in duration and not prolonged beyond the time necessary to address the traffic violation, there is no indication here that the detention was unreasonably prolonged. Investigative activities beyond the original purpose of the stop, including a request for consent to search, are permissible when they do not prolong the stop beyond the time it would otherwise take. (Gallardo, supra, 130 Cal.App.4th at pp. 238-239; Brown, supra, 62 Cal.App.4th at p. 498.) After making a valid traffic stop and observing unexplained movements by defendant, Deputy Stevenson requested defendants identification and briefly asked him whether he had anything illegal in the car and requested permission to search. Defendants consent was promptly given. Less than five minutes elapsed between the deputys initial contact with defendant and defendants consent to search, and it is unlikely that the traffic stop and a citation could have been completed in less time. Deputy Stevenson testified that it would have taken him five to ten minutes to write a citation. In the circumstances of this case, the trial court properly concluded the request to search did not unreasonably prolong the detention.^[2]

II. Probation conditions

Defendant contends that two of his probation terms are unconstitutionally overbroad. The terms he challenges were stated by the trial court at sentencing as follows: You are to not associate or be with any person who is engaged in the illegal use, possession or control of [controlled] substances nor be in, around or about any place where any such controlled substance is illegally sold, supplied, stored or is present.^[3] Defendant argues that these terms should be modified to prohibit him from associating with any persons known by him to be engaged in illegal drug use or possession, and from visiting any places known by him to be places where controlled substances are illegally sold or present. The People respond that defendant has waived his challenge because he failed to object when the probation drug terms were imposed. The People also argue that the probation terms are not unconstitutional because the element of defendants knowledge is implicit in the terms.

The waiver issue has now been resolved by our Supreme Courts recent decision in In re Sheena K. (2007) 40 Cal.4th 875. Defendant did not waive his claim that the probation terms are unconstitutionally overbroad by failing to raise that objection below. (Id. at p. 889.) Such a challenge presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition. [Citations.] (Id. at p. 888.)

A probation term or condition requiring a defendant to avoid certain types of people, such as drug users or gang members, is unconstitutionally overbroad if it does not include a knowledge element. (See In re Justin S. (2001) 93 Cal.App.4th 811, 816 [unconstitutionally overbroad condition with no knowledge element; condition modified to include persons known to the probationer]; People v. Lopez (1998) 66 Cal.App.4th 615, 624, fn. 5, 628-629 [same; modified to include any person known to defendant and any item of gang clothing known to be such by defendant]; People v. Garcia (1993) 19 Cal.App.4th 97, 103 [same; modified to include knowledge by defendant].)

Because the parties agree that knowledge is a required element of the probation terms but disagree on whether that requirement clearly is included in the probation conditions as stated on the record, we will simply order a modification so that both clearly include the defendants knowledge. If, as the People concede, the requirement should be included, modifying the judgment to expressly reflect the limitation can only have a beneficial effect. As we stated in People v. Garcia, supra, 19 Cal.App.4th at page 102: [T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.

DISPOSITION

The probation terms and conditions of the judgment are modified to provide that defendant is not to associate or be with any person known by him to be engaged in the illegal use, possession or control of any controlled substance, nor be in, around or about any place known by him to be a place where any controlled substance is illegally sold, supplied, stored or is present. As so modified, the judgment is affirmed.

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^* Before Dawson, Acting P.J., Hill, J. and Kane, J.

^[1] The facts are gleaned from the transcript of the hearing on defendants suppression motion.

^[2] The cases relied on by defendant are distinguishable: the officers prolonged the detentions in order to request consent to search. (People v. Lingo (1970) 3 Cal.App.3d 661, 664; McGaughran, supra, 25 Cal.3d at p. 586; Williams, supra, 168 Cal.App.3d at pp. 355-358; People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, 5; see also Gallardo, supra, 130 Cal.App.4th at p. 239 [distinguishing those cases]; Brown, supra, 62 Cal.App.4th at pp. 498-499 [distinguishing Williams].)

^[3] The minute order reflects a slightly different version of the challenged terms: Defendant to not associate or be with any person known by him/her to be engaged in the illegal use, possession or control of any controlled substance, nor be in, around or about any place where any controlled substance is illegally sold, supplied, stored or is present. (Italics added, uppercase omitted.)