P.v . Carbajal

Filed 1/31/07  P.v . Carbajal CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEAL from a judgment of the Superior Court of Los Angeles County.  

Leslie Brown, Judge.  Affirmed.

            Peter N. Priamos for Defendant and Appellant.

            Bill Lockyer, Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

_______________

            Appellant Oscar Carbajal pled guilty, following the denial of his motion to suppress evidence, to one count of possession of a controlled substance in violation of Health and Safety Code section 11378.  The trial court sentenced appellant to the low term of 16 months in state prison.

            Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to suppress evidence.  We affirm the judgment of conviction.

Facts

            On January 4, 2006, at about 12:30 a.m., Burbank Police Department Officer Edmundo Zepeda was on patrol in his marked police car.  He drove past the Golden Pitcher, a bar known in Burbank for narcotics transactions, and saw a car with tinted windows parked in front of the bar.  The tint prevented Officer Zepeda from seeing inside the front compartment of the car.  Officer Zepeda drove up the street and parked in a parking lot where he could observe the Golden Pitcher.

            Officer Zepeda waited to see other cars approach and leave the bar.  He was not necessarily waiting to see the owner of the car with tinted windows.  Two males soon exited the bar, got into the car with tinted windows and drove away.  Officer Zepeda followed and activated his overhead emergency lights.  The car did not pull over.  It accelerated to 50 miles per hour, in excess of the speed limit on that road.  The car did pull over, about twenty seconds later.

            Officer Zepeda approached the driver's side of the car and asked appellant, who was the driver, for his driver's license.  The officer asked appellant why he took so long to pull over, and appellant replied that he believed that the officer was trying to pull over another car.

            Officer Geier, who had arrived to assist Officer Zepeda, took the driver's licenses of appellant and his passenger and went to check them on the patrol car computer.  Officer Zepeda asked appellant to step out of the car. He then asked appellant if he could search him.  Appellant did not reply verbally.  He turned around, placed his hand on top of his head and spread his feet apart.  Officer Zepeda searched appellant and found nothing.  He then asked appellant for permission to search the car.  Appellant replied, " Sure."   Officer Zepeda searched the car and found a clear plastic baggie containing what appeared to be methamphetamine in a door pocket.  At this point, about two to three minutes had passed since Officer Zepeda first approached the car.

            A few minutes later, Officer Geier searched the car and found a second and larger baggie of methamphetamine.  Appellant was arrested and his car impounded.

Discussion

            Appellant contends that the initial stop was done on an illegal pretext and exceeded the permissible scope of a traffic stop and his consent to search was not voluntary.  He concludes that the trial court erred in denying his motion to suppress the evidence found in that search.  We see no error.

            In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence.  In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.  (People v. Glaser (1995) 11 Cal.4th  354, 362.)  In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court's reasoning.  (People v. Zichwic (2001) 94 Cal.App.4th 944, 950-951.)

            a.  Initial stop

            Appellant contends that Officer Zepeda did not articulate any facts to suggest that he had a reasonable suspicion that the windows in appellant's car were tinted illegally.  We do not agree.

            Officer Zepeda specifically testified that he could not see inside the front passenger compartment due to window tinting.  This fact is sufficient to create a reasonable suspicion that the windows were illegally tinted.  (People v. Hanes (1997) 60 Cal.App.4th Supp. 6 [tinting which prevented officer from seeing occupants of front seats of car created a reasonable suspicion that tinting violated the Vehicle Code]; see also U.S.  v. Wallace (9th Cir. 2000) 213 F. 3d 1216, 1220 [the 70 percent light transmittance required by section 26707 provides clear, unobstructed view of the driver's compartment of vehicle.)

            Appellant relies on People v. Butler (1988) 202 Cal.App.3d 602.  That reliance is misplaced.  In that case the officer made no statements which suggested that the tint was illegal.  He " simply admitted that he 'didn't like the idea of the tinted windows.'"   (Id. at p.  605.)  Thus, the Court of Appeal found that that statement did not establish that the officer had a reasonable suspicion that the windows were illegally tinted.  Since Officer Zepeda had a reasonable suspicion that appellant's car had illegally tinted windows in violation of the Vehicle Code, his stop of appellant was legally permitted and not illegally pretextual.  (People v. Gallardo (2005) 130 Cal App.4th 234, 238; compare People v. Valenzuela (1999) 74 Cal. App. 4th 1202 [pretextual stop of taxicab for administrative inspection rather than Vehicle Code or criminal violation was improper.)

            Appellant also contends that the stop was pretextual because if Office Zepeda had a reasonable suspicion that his car windows were illegally tinted, he could and should have written a citation for the tinted windows while his car was parked or when appellant left the bar and approached the car, rather than waiting until appellant drove away and initiating a traffic stop.  Appellant has cited no authority to support his contention.

            Generally, the arrest of a driver for a fine-only offense is constitutionally permissible, assuming that the officer has probable cause to believe the defendant violated a traffic law.  (People v. McKay (2002) 27 Cal.4th 601, 605, 618; see Atwater v. City of Lago Vista (2001) 532 U.S. 318.)  We are not aware of any authority which holds that the constitutional validity of a traffic stop depends upon whether the officer failed to write a citation while the offending vehicle was parked.

            b.  Scope of stop

            Appellant contends that even if the initial stop were permissible, the length of time and manner of the detention exceeded the permissible scope of a traffic stop under California and federal law. 

            " There is no fixed time limit for establishing the constitutionality of an investigatory detention.  Rather, such a detention will be deemed unconstitutional 'when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible.  [Citation.]'"   (People v. Gomez (2004) 117 Cal.App.4th 531, 537-538.)  The issue " is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]"   (People  v. Russell (2000) 81 Cal.App.4th 96, 102.)

            Here, Officer Zepeda testified that it took two to three minutes from the time he approached the vehicle until he found the first bag of methamphetamine.  This length of detention is not an unusually prolonged stop under the Fourth Amendment.  (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1142 [10 minute detention permissible]; People  v. Gallardo (2005) 130 Cal.App.4th 234, 238 [detention was not unreasonably prolonged where " only a very few minutes" elapsed between initial contact and search].)

            Further, Officer Zepeda testified that he asked appellant to get out of the car because he appeared nervous and because " I didn't smell any type of a smell from their breath basically or from the vehicle, which would tell me, you know, if they went to the bar, if they were drinking or not."   Ascertaining whether a driver had been drinking is certainly reasonably necessary to the completion of the traffic stop.  Thus, much of the time of the brief detention was directly related to the traffic stop itself.  The additional time to request appellant's consent to search was minimal.[1]

            Alternatively, " the traffic violation provides sufficient probable cause for an arrest, pursuant to Atwater v. City of Lago Vista (2001) 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549.  Thus, 'Atwater foreclose[s] a defendant from challenging a custodial arrest on Fourth Amendment grounds following a valid traffic stop.' [Citation.] Even if defendant was detained so long that the stop became a de facto arrest, the initial traffic stop provided probable cause, and defendant's consent is still valid."   (People v. Gallardo, supra, 130 Cal.App.4th at p. 239, fn. 1.) 

            c.  Consent to search

            Appellant contends that his consent to the searches was not freely and voluntarily given because a refusal would have been futile under the circumstances.

            Voluntariness is a question of fact to be determined from all the circumstances.  (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249.)  " Where the circumstances indicate that a suspect consents because he believes resistance to be futile, or if any suggestion is made to the suspect that 'it would be unwise or fruitless to resist,' the search cannot stand. [Citation.]"   (People v. Valenzuela (1994) 28 Cal.App.4th 817, 832-833.)

            Appellant contends that his consent was not voluntary because he had already been detained late at night on " a relatively deserted road" on a " questionable" traffic violation, and Officer Zepeda had a second officer assisting him from a second car.  There is nothing questionable about the traffic violation.  The windows were illegally tinted.  Further, there is no evidence that San Fernando Road, a heavily traveled road, was relatively deserted.[2]  Even assuming that the road was deserted, we see nothing in these circumstances to suggest that appellant's consent was not voluntary.  There is no evidence that Officer Zepeda in any way suggested that to resist a search would be unwise or fruitless.  (See People v. Schoennauer (1980) 103 Cal.App.3d 398, 402, 409 [consent was voluntary where suspects were contacted at 11:40 p.m., while seated in their car, by two police officers, asked to exit the car and interviewed individually by police officers].)  Further, our Supreme Court has found valid a consent to search given by a defendant under more extreme circumstances:  at night, while the defendant was under arrest, in handcuffs and surrounded by three armed police officers.  (People v. James (1977) 19 Cal.3d 99, 107-113.)

Disposition

            The judgment is affirmed.

            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                                                                    ARMSTRONG, J.

We concur:

                        TURNER, P. J.

                        MOSK, J.

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[1]           To the extent that appellant contends that Officer Zepeda needed reasonable suspicion or probable cause to request consent to a search, appellant is mistaken.  (People v. Gallardo, supra, 130 Cal.App.4th at pp. 238-239.)

[2]           Appellant claimed that he did not stop when he saw Officer's Zepeda's lights because he believed that the officer was pulling over another car.