Filed 1/5/18 P. v. Ulloa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR ULLOA,

Defendant and Appellant.

F074239

(Super. Ct. No. BF163638A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz and John S. Somers, Judges.††
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After his Penal Code section 1538.5 motion to suppress evidence was denied, appellant Oscar Ulloa pled no contest to one count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted the associated enhancement based upon the weight exceeding one kilogram (Health & Saf. Code, § 11370.4, subd. (b)(1)). Ulloa appeals, contending the trial court erred in denying his motion to suppress. We agree and reverse.
FACTUAL AND PROCEDURAL SUMMARY
On March 22, 2016, at 9:15 p.m., Kern County Deputy Sheriff Jeffrey Kelly was on duty when he observed a Mercedes exceeding the posted speed limit and traveling 80 miles per hour in a zone posted for 65 or 70 miles per hour. Kelly had with him his canine partner, Luke. Kelly ran the license plate of the Mercedes through the computer in his vehicle, which indicated the registration was current; however, the tags on the Mercedes were not current.
Kelly initiated a traffic stop of the Mercedes based upon the driver speeding and the state of the tags on the vehicle. Ulloa was the sole occupant of the Mercedes. Ulloa told Kelly he was traveling to Bakersfield from Chula Vista to visit his grandmother for three to four days. Kelly saw no luggage or change of clothes in the Mercedes and thought it suspicious; Ulloa claimed he had clothes in the trunk, but declined to allow Kelly to look in the trunk.
Kelly thought Ulloa “seemed to be rather nervous” throughout this conversation; Ulloa was traveling from an area near the border; and would not allow Kelly to look in the trunk and verify he had clothing or luggage. Based upon experience, Kelly thought Ulloa might be in possession of narcotics.
After obtaining Ulloa’s license and registration, Kelly returned to his vehicle to run a records check. Ulloa’s license had a Chula Vista address. As Kelly was returning to his vehicle, California Highway Patrol Officer Brian Paxson and his canine partner pulled up to assist. Kelly was able to verify that the license was valid, Ulloa had no outstanding warrants, and he was not on probation or supervision status. Kelly returned to the Mercedes and asked Ulloa if there were any drugs or weapons in the car; Ulloa responded there were not.
Kelly asked Ulloa if he could search the vehicle, and Ulloa asked why he wanted to conduct a search. Ulloa’s response caused Kelly to become more suspicious. Kelly told Ulloa he had a drug detection canine with him and was going to conduct a sniff test of the Mercedes. Ulloa stated he did not want his vehicle searched; Kelly explained there was an exemption for open-air canine searches outside the vehicle.
Ulloa complied and exited the Mercedes. For safety purposes, Paxson conducted a pat-down search for weapons. Paxson did not find any weapons, but removed Ulloa’s cell phone from his pocket. Paxson stayed with Ulloa while Kelly conducted the sniff test with his canine, Luke. Luke is trained to sniff out marijuana, cocaine, cocaine base, methamphetamine, and heroin. Luke alerted at the seam of both rear doors.
After Luke alerted, Kelly told Ulloa and Paxson that he believed illegal narcotics were in the Mercedes and he intended to search it. After five to 10 minutes of searching inside the vehicle, Kelly had not found anything and asked Paxson to check and see if anything was missed. Paxson looked and located releases that allowed the back seats to be lifted from their base. Underneath were seven black packages; the packaging was consistent with the manner in which illegal narcotics were packaged.
Kelly placed Ulloa under arrest. A dispatcher called as a witness by the defense testified that a DMV records request was made by Kelly at 9:17 p.m.; an inquiry under Ulloa’s name was made at 9:22 p.m.; and Kelly reported he had Ulloa in custody and requested a unit for transport at 9:52 p.m.
On April 13, 2016, Ulloa was charged in count 1with transportation for sale of methamphetamine between noncontiguous counties, in count 2 with transportation of methamphetamine, in count 3 with possession of methamphetamine for sale, and in count 4 with driving over the posted speed limit of 70 miles per hour. As to counts 1 through 3, it was alleged that Ulloa possessed more than one kilogram of methamphetamine. As to count 3 only, it also was alleged Ulloa possessed for sale 28.5 grams or more of methamphetamine.
Apparently, a warrant authorizing a search of Ulloa’s phone was obtained after his arrest. On June 1, 2016, Ulloa filed a motion to suppress all evidence obtained as a result of the “unlawful and warrantless detention and searches.” He argued the search warrant for the cell phone was “fruit of the poison[ous] tree” and any evidence from the cell phone should be suppressed as well.
On June 15, 2016, the trial court set aside count 4 of the information. On June 27, 2016, after briefing and arguments from the parties, the trial court denied the motion to suppress.
On July 22, 2016, pursuant to a negotiated plea, Ulloa pled no contest to count 2 and admitted the enhancement of possessing more than one kilogram of methamphetamine. In exchange for his plea, Ulloa was to receive a stipulated sentence of five years; the low term of two years for the substantive offense and an additional three years for the enhancement. At sentencing, Ulloa was ordered to serve two years in custody and three years of mandatory supervision thereafter.
On August 17, 2016, Ulloa filed a notice of appeal based on the denial of his motion to suppress.
DISCUSSION
Ulloa contends the trial court erred in denying his motion to suppress because there were no facts to support his continued detention, the canine sniff of his Mercedes, or the seizure of his cell phone and search of the phone pursuant to a warrant. We agree the denial of his motion to suppress was error.
Standard of Review
In reviewing a section 1538.5 ruling, this court must uphold any factual findings, express or implied, that are supported by substantial evidence. An appellate court independently must assess, as a question of law, whether the challenged search or seizure conforms to the constitutional standard of reasonableness. Questions regarding the suppression of evidence are controlled by federal constitutional law. (People v. Brown (2015) 61 Cal.4th 968, 975 (Brown); People v. Leyba (1981) 29 Cal.3d 591, 596–598.) Any challenge to a disputed search or seizure must be evaluated solely under the Fourth Amendment, not state law. (People v. Carter (2005) 36 Cal.4th 1114, 1141.)
Suppression Hearing
At the suppression hearing, Kelly testified that he stopped the Mercedes because it was exceeding the speed limit and the tags on the vehicle were not current. Kelly testified he was suspicious because Ulloa seemed nervous, was traveling from a city near the Mexican border, and claimed he was traveling to Bakersfield for several days but had no visible luggage and declined to allow Kelly to look in the trunk. Based on his experience, Kelly thought Ulloa might have illegal narcotics. Kelly returned to his police vehicle and conducted the tasks routine in a traffic stop, including that he verified Ulloa’s driver’s license and vehicle registration, that he had no outstanding warrants, and was not on parole or other supervision status. After completing these tasks, Kelly returned to Ulloa’s vehicle and asked him if there were any weapons or drugs in the car and Ulloa said there were not. At about the time Kelly returned to Ulloa’s vehicle, Paxson arrived to assist.
At this point, Kelly notified Ulloa he was going to have a drug-sniffing canine walk around the Mercedes. Kelly had worked with his canine, Luke, for five years. Kelly made one lap around the Mercedes with Luke, and Luke alerted at both the rear passenger and rear driver’s side doors.
Kelly estimated he searched inside the Mercedes for “ten minutes maybe” or “a little bit longer.” Kelly testified he searched inside the trunk, but did not recall seeing any clothing. When Kelly did not locate any narcotics, he asked Paxson to look and see if he had missed something.
Paxson testified that he conducted a “preliminary frisk” of Ulloa for safety reasons. He did not specifically recall removing Ulloa’s cell phone from a pocket, but opined that he must have done so if the phone was placed on the patrol vehicle.
Paxson was able to see Kelly as he deployed his canine around part of the Mercedes, but did not see the alerts. Kelly then came back to where Paxson was, placed Luke in his patrol vehicle, and told Paxson he was going to search the Mercedes for narcotics. Kelly then searched the Mercedes, after which he came back and told Paxson he had not found anything.
Paxson then searched the Mercedes, including the trunk, where he found a large speaker box and several items of clothing laying or “strewn” therein. Ultimately, Paxson removed the rear seat cushions and discovered seven packages he believed to be narcotics.
The dispatcher testified that the first records check, of the vehicle license, by Kelly occurred at 9:17 and 41 seconds p.m. Approximately 35 minutes after the records check, Kelly radioed for transport for a person in custody.
Defense counsel argued that the canine sniff had nothing to do with the traffic stop and there was no indication Kelly ever wrote a ticket for the speeding violation. Defense counsel opined, “something’s going on ahead of time that Paxson knows Kelly is going to be there with the vehicle.” Defense counsel also argued, “almost everybody is nervous during a police stop.” Kelly had a number of “accusatory questions,” but denying consent to search the Mercedes cannot serve as reasonable suspicion to prolong a detention, or probable cause to search the vehicle. Defense counsel opined that the detention was unduly prolonged and suppression of evidence is “compelled.”
The People argued that Kelly had a reasonable suspicion to do a canine sniff test and that he got “an immediate response” from the canine. Once the dog alerted, that gave probable cause to conduct a search and the search could be “thorough.” The People acknowledged that the check of Ulloa’s driver’s license and registration had been completed before the canine sniff, but opined that “you don’t have to have probable cause to extend a detention,” you only “have to have objectively reasonable suspicion.”
The People opined that the late hour (9:00 p.m.), Ulloa traveling a long distance with no apparent clothing or luggage, coming from an area where there was “drug trafficking,” and Ulloa’s “extreme nervousness” all combined to create reasonable suspicion.
In ruling, the trial court stated “nervousness alone is not enough” and the “lack of clothing in the car or lack of suitcases” inside the car “probably doesn’t mean much.” The trial court found, however, that the time of day, the answers Ulloa was giving, and his nervousness “taken together, in this Court’s estimation, would be an independent, individualized suspicion.” The trial court concluded that “under the totality of the circumstances,” Kelly’s actions were justified. The trial court denied the motion to suppress.
Analysis
In Rodriguez v. United States (2015) ___ U.S. ___ [135 S.Ct. 1609] (Rodriguez), the United States Supreme Court held that absent reasonable suspicion, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” (Id. at p. ___ [135 S.Ct. at p. 1612].) Observing that “a routine traffic stop is ‘more analogous to a so-called “Terry stop”[ ] … than to a formal arrest,’” the court explained that the permissible duration of the stop is “determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, [citation] and attend to related safety concerns, [citation].” (Rodriguez, supra, at p. ___ [135 S.Ct. at p. 1614].)
Therefore, the “[a]uthority for the seizure … ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” and the high court makes clear that “a traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket.” (Rodriguez, supra, ___ U.S. at p. ___ [135 S.Ct. at pp. 1614–1615].) The mission includes making reasonable inquiries such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance” (id. at p. ___ [135 S.Ct. at p. 1615]), all of which inquiries serve the objective of the traffic code to “ensur[e] that vehicles on the road are operated safely and responsibly” (ibid.).
In contrast, a canine sniff is “a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing’” and “[l]acking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.” (Rodriguez, supra, ___ U.S. at p. ___ [135 S.Ct. at p. 1615].)
In Rodriguez, an officer stopped the defendant for driving on the shoulder of a highway, in violation of Nebraska law. The officer checked the defendant’s driver’s license as well as the passenger’s and attended to everything relating to the traffic stop, including the issuance of a written warning. (Rodriguez, supra, ___ U.S. at p. ___ [135 S.Ct. at pp. 1612–1613].) The officer then requested permission to walk his K-9 officer around the defendant’s vehicle. The defendant refused permission. (Id. at p. ___ [135 S.Ct. at p. 1613].) The officer detained the defendant until a second officer arrived, and the canine alerted to the presence of drugs, all of which took only approximately seven to eight minutes. (Ibid.)
The defendant was charged with possession with intent to distribute 50 grams or more of methamphetamine in federal district court and moved to suppress the evidence seized from the vehicle on grounds that the traffic stop was unlawfully prolonged. The district court denied the motion and the Eighth Circuit Court of Appeals affirmed. Although the district court found that, “apart from ‘information given by the dog,’” the officer only had a “‘rather large hunch’” and “no reasonable suspicion supported the detention” (Rodriguez, supra, ___ U.S. at p. ___ [135 S.Ct. at p. 1613). It also found that the seven or eight minute delay “‘was not of constitutional significance.’” The Eighth Circuit agreed, ruling that the delay “constituted an acceptable ‘de minimis intrusion on Rodriguez’s personal liberty.’” (Id. at p. ___ [135 S.Ct. at p. 1614].) The United States Supreme Court reversed for the reasons described above, observing that “[t]he critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, …, [citation], but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop,’ [citation].” (Rodriguez, supra,. at p. ___ [135 S.Ct. at p. 1616].)
In accordance with Rodriguez, first, even if the traffic stop was pretextual as defense counsel argued, the traffic stop is valid under California law. A “pretextual” stop occurs when the police employ a stop for an observed traffic violation as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking. (See United States v. Trigg (7th Cir. 1989) 878 F.2d 1037, 1039.) Even if Kelly had a subjective motivation at the time he stopped Ulloa’s vehicle, that subjective motivation does not invalidate the stop when the objective facts justify the stop. (People v. Uribe (1993) 12 Cal.App.4th 1432, 1436.) Here, the stop was objectively reasonable because Kelly observed Ulloa traveling in a car with expired tags and exceeding the posted speed limit. Under the view prevailing in the federal and California courts, a pretextual stop and investigation are not improper if the officer legally was authorized to make the stop, regardless of the officer’s subjective intent to generate evidence of an unrelated offense. (People v. Valencia (1993) 20 Cal.App.4th 906, 914–918 (Valencia); People v. Miranda (1993) 17 Cal.App.4th 917, 924–925 (Miranda).)
Second, Kelly’s initial questions fell within the confines of allowable questioning as approved by the United States Supreme Court: Ulloa’s travels and a request for permission to search. In the context of a traffic stop, Kelly could inform Ulloa why he was stopped, run a warrants check, verify registration information, and ask permission to search. (People v. Grant (1990) 217 Cal.App.3d 1451, 1458 (Grant) [stop at minimum may be the time required by the officer to write out the citation and obtain the offender’s promise to appear, as well as ask for driver’s license and the registration card of the vehicle]; Valencia, supra, 20 Cal.App.4th at p. 918 [once having properly stopped a vehicle, an officer may ask for and examine the license of the driver and may remove the driver from the car in order to do so]; People v. Brown (1998) 62 Cal.App.4th 493, 497–500 [during routine traffic stop, officer may run warrant check and ask permission to search while awaiting results of such check]; People v. Stoffle (1991) 1 Cal.App.4th 1671, 1679 [a short detention to run warrant check pursuant to standard police procedure while officer checked the driver’s license and the car registration was proper]; see United States v. Shabazz (5th Cir. 1993) 993 F.2d 431, 435–437 [car stopped for speeding; officers could question driver about his travels]; People v. Bell (1996) 43 Cal.App.4th 754, 768 [unintrusive and nonaccusatory questions about where driver was coming from and what he had been doing are permissible].)
Here, however, Kelly conducted the canine sniff after he had completed the activities related to the traffic stop. As discussed above, the United States Supreme Court, in Rodriguez, supra, ___ U.S. ___ [135 S.Ct. 1609], held that canine sniffs were “not fairly characterized as part of the officer’s traffic mission” and may not prolong a traffic detention absent an independent “individualized suspicion” of criminal activity. (Id. at pp. ___ [135 S.Ct. at pp. 1614–1616.) In Williams v. Superior Court (1985) 168 Cal.App.3d 349, the appellate court held that an “unnecessary extension of the traffic detention to investigate extraneous matters” may not take place without an independent, reasonable suspicion that the driver has committed other offenses. (Id. at pp. 358–359.) In Rodriguez, the high court invalidated a vehicle search for drugs that prolonged the traffic stop only seven to eight minutes, a time period that the appellate court determined to be de minimis. Here, the traffic stop was prolonged for at least 30 minutes not only for Kelly to conduct a search, but for Paxson to conduct another search when Kelly came up empty-handed. “Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed” so that a traffic stop becomes “‘unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket.” (Rodriguez, supra, at pp. ___ [135 S.Ct. at p. 1615].) The canine sniff prolonged Ulloa’s detention beyond that necessary to complete the purpose of the traffic stop, and we conclude the detention was unduly prolonged. Under these circumstances, the lawfulness of the searches of Ulloa’s vehicle depends upon whether substantial evidence supports a finding that there was reasonable suspicion to conduct them.
The reasonable suspicion necessary to justify a detention is dependent upon the totality of the circumstances and the level of suspicion required is less than that needed for probable cause. (Brown, supra, 61 Cal.4th at p. 981; see Grant, supra, 217 Cal.App.3d at p. 1459 [not “‘routine’” stop once additional observations made to support suspicion of additional criminal activity; officer could lawfully do more than write out a citation].) Reasonable suspicion, however, may not be based on curiosity, rumor, or hunch. (In re Tony C. (1978) 21 Cal.3d 888, 893.) Rather, there must be “specific and articulable facts” (ibid.) in the record to support a conclusion that reasonable suspicion exists.
Kelly testified Ulloa “seemed to be rather nervous” and was traveling from Chula Vista to Bakersfield for several days, but had no visible luggage inside his vehicle and declined to allow Kelly to look in the trunk. The more Kelly “thought about his level of nervousness and lack of clothing for a long visit,” based on his experience, Kelly thought Ulloa might have illegal narcotics.
The trial court correctly noted that general nervousness and lack of luggage in the vehicle’s interior could not support a reasonable suspicion. Generally, nervousness when stopped by a police officer “does not furnish a reasonable basis for a detention.” (People v. Loewen (1983) 35 Cal.3d 117, 125.) Lack of luggage in the interior of a car is not a basis for a reasonable suspicion. (People v. Valenzuela (1994) 28 Cal.App.4th 817, 831–832, 834.)
The prosecutor’s other proffered reasons are similarly insufficient. There is nothing about travel from Chula Vista to Bakersfield that is inherently suspicious, even though Kelly noted Chula Vista was near the border. (See People v. Medina (2003) 110 Cal.App.4th 171, 174–178 [traffic stop in high gang location late at night insufficient to justify detention].) Literally millions of people live in the greater San Diego area, near the border, and many presumably engage in travel. The traffic stop occurred on March 22, 2016, a Tuesday, around 9:15 p.m., which is not an unusual time for travel, especially if one commences travel at the end of the workday. (See People v. Roth (1990) 219 Cal.App.3d 211, 215 [mere presence at deserted shopping center in early morning hours not enough for reasonable suspicion].) Refusal to consent to a search is not a basis for a reasonable suspicion. (See People v. Perrusquia (2007) 150 Cal.App.4th 228, 231–234 [refusal to consent to patdown search in high crime area is not a basis for reasonable suspicion].)
Kelly simply did not testify to specific facts that would give rise to an independently supported reasonable suspicion. The record evidence establishes only that Kelly had a hunch Ulloa was engaged in criminal activity and a hunch is an inadequate basis for a detention. (People v. Wells (2006) 38 Cal.4th 1078, 1083.) Additional questioning of Kelly or Paxson may have elicited further specific facts that would have provided a basis for reasonable suspicion. For example, there are no specific, articulable facts in the record concerning Ulloa’s alleged nervousness and whether he exhibited unusual, extreme or increasing nervousness in his mannerisms or other actions that were unusual for a traffic stop; Kelly simply offered his conclusion that Ulloa “seemed to be rather nervous.” Furthermore, there was no testimony from Kelly and no other evidence establishing that the area patrolled by Kelly was a drug-trafficking corridor; the only such reference is a comment from the judicial officer to this effect. The time of night (9:15 p.m.) does not, by itself, establish that it was so late as to be suspicious. The fact that no clothes were in the interior of the vehicle not only is insufficient, but Paxson found clothing, albeit disorganized, in the trunk of Ulloa’s vehicle. Multiple factors may give rise to a reasonable suspicion, but specific, articulable facts that would give rise to a reasonable suspicion are not contained in the record before us. (See Illinois v. Wardlow (2000) 528 U.S. 119, 123–124; Crofoot v. Superior Court (1981) 121 Cal.App.3d 717, 724.)
We acknowledge that the officers’ hunch was correct but, under governing legal principles, the record here is simply inadequate to support their actions. Because we conclude Kelly did not have objectively reasonable suspicion to prolong the traffic stop for a canine sniff, the evidence subsequently obtained from the canine sniff and the search of the cell phone was obtained illegally. (See Arizona v. Johnson (2009) 555 U.S. 323, 326–327; People v. Souza (1994) 9 Cal.4th 224, 229.) Accordingly, we will reverse the trial court’s order denying the motion to suppress.
DISPOSITION
The motion to suppress is granted and the judgment is reversed.