P. v. Ruben

Filed 10/17/07 P. v. Ruben CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEALS from judgments of the Superior Court of Los Angeles County.

James B. Pierce, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant Alton Ruben.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Denna James.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Appellants Denna James (James) and Alton Ruben (Ruben) were charged with possession for sale of cocaine base (Health & Saf. Code,  11351.5) and transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)). The information alleged that Ruben sustained a prior conviction for attempted carjacking (Pen. Code, 664;  215, subd. (a)),[1]a serious felony under the Three Strikes Law ( 1170.12, subds. (a) through (d); 667, subds. (b) through (i)). It was also alleged that both Ruben and James sustained convictions for which they served four separate prison terms within the meaning of section 667.5, subdivision (b). After the trial court denied a defense motion to suppress evidence obtained during the search of a vehicle operated by Ruben, the information was amended to include a count alleging that Ruben and James possessed a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). The first two counts were dismissed and Ruben and James entered pleas of no contest to the third count for possession of a controlled substance. On appeal, they contend that the motion to suppress should have been granted. As we discuss below, this contention lacks merit. We affirm the judgments.

Facts

The search; the arrests of Ruben and James

On July 26, 2005, Officer Michael Soldin and Officer Michael Torres of the Long Beach Police Department pulled over a Ford Tempo (vehicle) driven by Ruben because one of its taillights was not in working order. James was in the front passenger seat.

Ruben informed the officers that the vehicle belonged to his mother and he had consent to drive it. The engine was running, but there was no key in the ignition. When Ruben was asked to turn off the vehicle, he used a broken key he produced from under his lap.[2]Because of the ignition and key, and because the name on Rubens drivers license did not match the name on the registration, the officers suspected that the vehicle was stolen.[3]They searched Ruben and the vehicle and found what they believed to be rock cocaine. Ruben was arrested. Pursuant to an outstanding warrant, James was also arrested.[4] When James was searched in jail, the jailer found controlled substances on her person.

The motions to suppress

Ruben filed a motion to suppress and argued: The vehicle he was driving should never have been searched. His mother was the owner, and he had her consent to drive it, so he had a reasonable expectation of privacy. The applicable precedent is People v. Rios (1975) 52 Cal.App.3d Supp. 6 (Rios). In Rios, the officer had a reasonable suspicion that the vehicle was stolen because the driver could not produce a drivers license, the registration, or the vehicles key. In contrast, Ruben did produce those items. It is true that the key in his possession was broken, but he gave the officers an explanation for that. Therefore, he satisfied any suspicion the officers may have had regarding his permission to drive the vehicle. The ensuing search was a violation of his Fourth Amendment rights. Furthermore, in his supporting declaration, Ruben averred that he explained that the key had broken off a short while ago and [he] hadnt had the money to repair it as yet.

James also filed a motion to suppress.

At the hearing, Officer Soldin was called and testified as follows. On July 26, 2005, at approximately 1:51 a.m., he and Officer Torres were patrolling in the area east of Pacific Coast Highway and Pasadena Avenue in the City of Long Beach. They saw the vehicle drive into an area where drugs are sold. When the vehicle reappeared, the officers followed it. They saw that the vehicle had a taillight out, so they initiated a traffic stop.

When Officer Soldin approached the car, he noticed that there was no key in the ignition. Officer Torres asked Ruben to turn the car off, so he reached under his lap, produced a quarter inch long key, and used it to turn off the ignition. Officer Torres then asked Ruben for his drivers license, registration and insurance. Ruben provided his drivers license and the registration, and he may or may not have provided an insurance card.

Ruben claimed that the vehicle belonged to his mother. But his last name did not match the last name on the registration. Based on that, and the size of the key, the officers thought that the vehicle might be stolen. They decided to have Ruben and James exit the vehicle in order to search for any other paperwork or any other clues leading to the ownership of the vehicle.

Officer Torres asked Ruben to get out of the vehicle. This occurred two to five minutes after the stop. Ruben initially refused. He said he did not have to get out. Then he asked, Why do you want me out of the car? Officer Torres had to ask two more times before Ruben complied. The officers conducted a pat down search. About a minute to a minute and a half later, Officer Soldin asked James to exit. While Officer Soldin stayed with Ruben and James, Officer Torres went to the vehicle to search for paperwork. He opened the drivers door and retrieved something from the side of the seat. He showed it to Officer Soldin, and they concluded it was rock cocaine.

At that point, Officer Soldin testified he put Jamess name into the system and found that there was a warrant for her arrest. After both Ruben and James were under arrest, the officers decided to have the vehicle towed. They conducted an inventory search. Officer Soldin found what appeared to be rock cocaine in a plastic baggie on the floorboard in front of the passenger seat, and a methamphetamine pipe between the seats. He also found a package of cigarettes on the dashboard in front of the passenger side. One of the cigarettes was stained brown, as though it had been dipped in a controlled substance. Officer Soldin looked in the glove compartment and found a letter and some receipts that bore names that matched the name of the registered owner.

Ruben was searched in the field; a substance that appeared to be rock cocaine was found in his pocket.

During cross-examination by Jamess attorney, Officer Soldin testified that he saw the broken taillight before Ruben drove into the known drug area. When asked why he did not stop the vehicle right away, Officer Soldin stated: Because my belief was they were going to go buy drugs, and . . . Id rather have them with drugs in their possession than not. According to Officer Soldin, he initially left Ruben and James in the vehicle and checked Rubens documentation on the multiple digital terminal in the police car. A check of the license plate established that the owner was the person listed on the registration, Emma Jordan (Jordan). When asked about having James exit the vehicle, Officer Soldin stated: We were doing a search of the vehicle, and we dont do a search with anyone in the vehicle. We have them all step out for officer safety issues. According to Officer Soldin, he wanted to search the vehicle for drugs.

Next, Rubens attorney asked questions. In particular, she asked if the vehicle had been reported stolen. Officer Soldin answered, It was not.

The trial court asked how long it was between when the vehicle was stopped and Ruben and James were arrested. Officer Soldin said it was [n]o more than ten minutes, probably closer to five.

In its tentative ruling on the record, the trial court stated: I think the officer not only was honest, I believe he was being fairly well instructed in regards to having probable cause and so forth. In other words, he couldnt go to the next step on this continuum unless he had it. But I think he did have it here. I think even your daughter could be asked out and maybe even subjected to a 10, 15 minute delay because the names dont match up if she didnt have a key that went in there properly. . . .  Theres scratches on the ignition, something odd about it. I think that gives them the right to check it out. Doesnt mean they have a right to arrest and subject to a full search. But do they have a right to check out that car and see if itsYeah, thats my moms. Thats her name here, heres the address, and it should match everything thats in the glove box. Can they check that out? Sure. They can. So I dont have any problem with that. I think he went step by step.

The hearing was continued to another day. Officer Soldin was recalled. On direct examination, he was asked about a traffic citation Officer Torres issued to Ruben on July 20, 2005, due to the broken taillight. When the July 26, 2005 stop was initiated, Officer Soldin did not recall the July 20, 2005 stop. But at some point during the July 26, 2005 stop, Officer Soldin remembered that he had previously pulled over Ruben and the vehicle. Officer Soldin did not notice anything amiss with the ignition on July 20, 2005.

On cross-examination by Jamess attorney, Officer Soldin was asked if he realized the vehicle was not stolen once he recognized Ruben. Officer Soldin answered in the negative and explained the following: [I]f I stopped a car, the registered owner is not the driver and theres no other evidence, I cite them, let them go because theres a very good chance that the car is probably borrowed. [] Now, if I have an individual who has a car that has an ignition key that is damaged or not working and he is a register[ed] owner of the car, Ill let him go because its registered to him. Now, if the car is not registered to him and the key is broken, that is why I pulled [Ruben] out of the car because I believed at that point . . . I . . . had to do . . . an investigation for a stolen car. The first [stop] I didnt have that.

When asked whether remembering Ruben from the first stop alleviated any suspicion, Officer Soldin replied: Actually, no. . . .  Ive let stolen cars go without knowing it was stolen. This one I didnt know the ignition key was busted, so when I saw it was busted on the second stop, Im going to do a further investigation. The key, he said, was the difference.

During cross-examination by Rubens attorney, Officer Soldin was asked if he compared the address on Rubens drivers license to the address on the registration.[5] Officer Soldin testified: I dont think I did. And that might have been a mistake on my part. I didnt look at the address on it. Next, he was asked whether matching addresses would be evidence to support [Rubens] claim that it was his mothers car, and it was not stolen? Officer Soldin stated: Yes. That is possible. He did not ask for Rubens home address, and he did not recall whether Officer Torres asked. By the time the officers looked at the address, they had already found narcotics in the vehicle.

On re-direct, Officer Soldin explained that Ruben mentioned the fix-it ticket of July 20, 2005, only after he was out of the vehicle and Officer Torres was approaching the vehicle to conduct a search. It was then that Officer Soldin recalled having stopped Ruben on a prior occasion.

After extended argument, and after the trial court took a break to read Rios, the motions to suppress were denied. The trial court explained its ruling thusly: It seems to me you stop a car for any reason, broken windshield or taillight or whatever, and the guy has some type of device that is not the proper key for that ignition, that that is probable cause to conduct a further investigation . . . as to whether or not that vehicle is stolen or not. Thats what Im saying. [] So they pulled him out, and they conduct that investigation. Now, the issue . . . is then the credibility. And frankly, I found this officer incredibly blunt and incredibly, to me, believable on those issues. He was candid last week. He said I waited. I targeted the car. I waited until he goes in. I waited until he came out. If he did not have the broken key, I would have cited him and let him go. . . .  And hes going step-by-step in his mind. I have probable cause only to make a citation. And if the key wasnt there, if I had heard evidence that the key wasnt the way he described it, then I would have some real issues with him. But theres no dispute the key was that way, and I think it is probable cause for him to bring [Ruben] out and to conduct the rest of the investigation.

The plea bargain and sentencing

After the motion to suppress was denied, the People amended the information and added count 3, which was for possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) (count 3). Additionally, the People agreed to drop counts 1 and 2 and all other allegations if Ruben and James agreed to plead no contest to count 3, and if Ruben admitted a previous strike. Ruben and James agreed to these terms and entered pleas of no contest to count 3. Ruben also admitted that he had a previous strike.

Ruben was sentenced to the mid-term of two years for possession of a controlled substance, and an additional two years pursuant to section 1170.12, subdivisions (a) through (d). James was sentenced to the upper term of three years for possession of a controlled substance. They each received 296 days of custody credit, which included 98 days of conduct credit.

Ruben and James filed this timely appeal.

Standard of Review

In reviewing the denial of a motion to suppress, we review the trial courts factual findings under the substantial evidence rule, and then we independently examine whether the search and seizure was permissible under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Discussion

Ruben and James contend that we must reverse their convictions because the trial courts finding that the officers had grounds to search the vehicle was not supported by substantial evidence. In particular, they contend: (1) even though the officers could have detained Ruben and James for a reasonable time to investigate whether Ruben had permission to drive the vehicle, they did not actually investigate that suspicion; (2) the broken key did not give the officers probable cause to search the vehicle. These contentions lack merit.

1. The applicable law.

Once the purpose of a valid but otherwise ordinary traffic stop is completed, the detention must end unless there are specific, identifiable facts that generate a reasonable suspicion of additional wrongdoing. (U.S. v. Estrada (5th Cir. 2006) 459 F.3d 627, 631; People v. Russell (2000) 81 Cal.App.4th 96, 105 [an officer can continue to detain a person during an investigatory stop when the officers suspicions are heightened by the investigation]; U.S. v. Garrido (6th Cir. 2006) 467 F.3d 971, 981.) When an officer suspects wrongdoing and investigates, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officers suspicion in a short period of time. [Citation.] (Florida v. Royer (1983) 460 U.S. 491, 500.)

2. The search of the vehicle.

Whether we affirm or reverse depends upon the reasonableness of the officers suspicion of car theft, and of the propriety of their method of investigation to dispel that suspicion. Upon review, we conclude that the officers acted in a reasonable manner and conducted a lawful search.

a. Reasonableness of the suspicion.

The officers had a particularized and objective basis for believing the vehicle was stolen: the names on the registration and Rubens drivers license did not match, the ignition was running without a key when the officers first observed it, and Ruben used a broken key to turn the vehicle off.

When he was pulled over, Ruben claimed that he was driving his mothers vehicle, and that the key had broken a short time ago but he did not have the money to fix it. However, an officer is not required to accept the word of a person suspected of a crime. Significantly, Officer Soldin did not check the addresses on the registration and Rubens drivers license. As a result, Officer Soldin was not aware that the addresses matched. Also, there is no evidence that Ruben informed Officer Soldin that he and his mother shared an address, and that this could be verified by a quick comparison of the registration and his drivers license. And even if Ruben had, the key still suggested nefarious activity. It was possible that he stole the vehicle from Jordan. That the vehicle was not reported stolen since July 20, 2005, did not eliminate the suspicion that the vehicle had been stolen.

b. Propriety of the method of investigation.

Once the officers had a reasonable suspicion that the vehicle was stolen, they were obligated to employ the most efficient and least intrusive method reasonably available to verify the vehicles status. In our view, searching the vehicle for paperwork and clues to ownership qualified. Even though the officers knew that Jordan was the registered owner, as verified by both a license plate check and the registration, they still did not know whether Ruben was a car thief. When they searched the vehicle, the officers may well have discovered bills or other documents bearing Rubens name, which would have suggested that he was a regular user of the vehicle, and that he was operating it with the owners permission. Given that possibility, the officers course of conduct was reasonable under the circumstances.

We dismiss Ruben and Jamess suggestion that the Fourth Amendment required alternative methods of investigation. Opening the vehicle door to look for paperwork was no more or less intrusive than interrogating him about the key, his relationship to Jordan, and proof of his relationship to Jordan. We note that asking questions of a person suspected of a crime has dubious value. And, here, it could have extended the detention past the short five to 10 minutes that it actually lasted. Finally, comparing the address on the registration to the address on Rubens drivers license would not have proved that he did not steal from Jordan.

We note that if a vehicle is properly detained, an officer may ask for and examine the license of the driver and the registration for the vehicle, and may remove the driver from the car in order to do these things. [Citations.] If the driver cannot produce his or her license, or satisfactory proof of identity, or the registration, then the officer may expand the scope of the detention, depending on the circumstances. [Citations.] (People v. Valencia (1993) 20 Cal.App.4th 906, 918.) And if the driver fails to produce proof of identity or ownership, then an officer may conduct a limited search of the areas inside the vehicle where relevant documentation may reasonably be found. (In re Arturo D. (2000) 27 Cal.4th 60, 78.)

In our view, the broken key gave the officers just as much authority to conduct a document search as a drivers failure to produce satisfactory proof of identity or ownership. Consistent with Officer Soldins testimony, the trial court properly and reasonably found that a broken key placed him on immediate alert that something might be amiss. As we previously set forth, the courts must allow law enforcement officers to draw upon their experience and training to make inferences and deductions from the available information.

Last, Ruben and James complain that the officers searched the vehicle for drugs rather than proof of ownership. But the trial court impliedly found that they searched the vehicle to investigate its status. Officer Soldin said as much in his testimony, which was substantial evidence.

All other issues are moot.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, Acting P. J.

DOI TODD

_______________________________, J.

CHAVEZ

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Analysis and review provided by La Mesa Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The record is inconsistent regarding the state of the key. Ruben alleged in an affidavit, [t]he key had broken off a short while ago and I hadnt the money to repair it as yet. He also claimed the key was broken in his motion to suppress. At one point in his testimony, Officer Soldin maintained the key was not broken, but later on he said it was busted. Subsequently, Officer Soldin described the difference between the first stop for the taillight infraction and the second stop. In an effort to distinguish the first stop from the second stop he stated, [t]his one, I didnt know the ignition key was busted, so when I saw it was busted on the second stop, Im going to do a further investigation. While the record is not clear on the exact state of the key, the trial court accepted that the key was broken, or at least that its appearance was highly anomalous. Because the parties do not dispute on appeal whether the key was broken, for the purposes of this opinion we will accept that it was broken.

[3] The record is not clear on whether Ruben produced a drivers license or a temporary drivers. Officer Soldin stated that Ruben gave Officer Torres his drivers license. In Rubens declaration, he declared that his drivers license was temporary and he was waiting for a new one to arrive in the mail. For purposes of this opinion, we presume it was a drivers license.

[4] The police report states that when asked her name and date of birth, James gave her daughters name, Rhonda Harris (Harris), and Harriss birthday. Officer Soldin ran a warrant check on Harris and discovered a warrant for her arrest. James was arrested pursuant to the warrant for Harris. During the booking, James finally confessed that she had given Officer Soldin a fake name. She also admitted her real name was Denna James. None of the parties briefs mention that James gave the police officers a fake name.

[5] On appeal, the People aver that the addresses on the registration and Rubens drivers license matched. We take this as a factual admission. [While] briefs and argument are outside the record, they are reliable indications of a partys position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party. [Citation.] (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1019, fn. 3.)