Filed 1/16/18 P. v. Muradanes CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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In this People’s appeal, the trial court denied a motion to reinstate a complaint charging defendant Phillip Leo Muradanes with various firearms offenses based on his possession of a loaded handgun and ammunition during a traffic stop. (Pen. Code, §§ 29900, 25850, 29800, 30305.)[1] The complaint was dismissed after the magistrate granted defendant’s motion to suppress evidence of the handgun and ammunition based on his conclusion the traffic stop was not supported by reasonable suspicion defendant was engaged in unlawful activity.

The People argue the trial court erred in denying the motion to reinstate the complaint because the totality of the circumstances surrounding the traffic stop provided the officer with an objectively reasonable basis to suspect defendant was driving under the influence of alcohol or another impairing substance. We agree and remand the matter to the trial court with directions to grant the motion to reinstate the complaint.

FACTS

Following a traffic stop, defendant consented to a search of his car. A loaded .22-caliber handgun and magazine containing ammunition of that caliber was found under the front passenger’s seat. Defendant’s motion to suppress this evidence was based on the theory that the officer who pulled him over did not possess an objectively reasonable basis to suspect he was driving under the influence of an impairing substance or engaging in other unlawful conduct.

The facts surrounding the traffic stop were adduced during the combined preliminary hearing/hearing on the suppression motion. On February 16, 2015, at around 8:00 p.m., Yolo County Sheriff’s Deputy Charles Hoyt was driving southbound on Interstate Highway 5 (I-5) in the number two lane near the town of Dunnigan. He approached defendant’s car, a 1984 Honda two-door hatchback, also traveling southbound in the same lane. The Honda was traveling at about 60 miles per hour, 10 miles per hour below the posted speed limit, and “drifted within its lane” between the line dividing the number one and number two lanes and the shoulder of the freeway. The deputy estimated the amount of drift to be “two to three feet roughly.” As the deputy explained, one of the times the Honda approached the line dividing the lanes, “it started to cross” that line, clarifying the car was “right as close -- right as close as you can” get to the line. At that point, having observed defendant’s driving pattern for “a couple of miles,” the deputy initiated a traffic stop. Our review of the in-car dash camera video that was played during the hearing, confirms the Honda was very close to crossing over into the other lane when the deputy initiated the traffic stop. This was the fourth time defendant’s car had drifted towards the lane divider line.

Based on Deputy Hoyt’s experience patrolling I-5, he found it to be unusual that defendant was driving 10 miles per hour below the speed limit, particularly since there was no vehicle in front of him, the weather was fair, and there was no debris in the roadway. He testified that his training and experience investigating cases of driving under the influence (DUI) indicated to him that “often it’s a sign of individuals who are . . . trying not to draw any attention to themselves.” The deputy also explained, “not maintaining a steady straight course of travel” is “a common sign of an impaired driver,” adding: “When I see a vehicle with that pattern and then starting to cross over onto that line, to me it raises a level of concern for the motorist itself. Not only does it have a potential of being an impaired driver, because that’s the routine driving pattern I’ve seen on individuals I’ve conducted stops and subsequently arrested for DUI. [¶] Additionally, if this is a motorist who is falling asleep or having a medical condition, I don’t know if someone is passing out and their vehicle is starting to drift over to the other lane or there is some sort of [mechanical] issue with that vehicle.”

After entertaining argument, the magistrate granted the suppression motion. While he found Deputy Hoyt’s testimony to be “candid,” “honest,” and “forthright,” the magistrate concluded based on his review of the dash camera video that the amount of drifting in the lane exhibited in the video, coupled with the fact defendant was driving 10 miles per hour below the speed limit, did not rise to the level of reasonable suspicion required to justify a traffic stop, adding: “Boy, if that’s enough to pull somebody over, it’s a miracle I don’t get pulled over every day of the week, every time an officer is behind me.”

DISCUSSION

I

Standard of Review

“On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior court’s ruling and directly examine the magistrate’s ruling to determine if the dismissal of the complaint was erroneous as a matter of law. To the extent the magistrate’s decision rests upon factual findings, ‘[w]e, like the superior court, must draw every legitimate inference in favor of the magistrate’s ruling and cannot substitute our judgment, on the credibility or weight of the evidence, for that of the magistrate.’ [Citation.]” (People v. Massey (2000) 79 Cal.App.4th 204, 210.) However, because the magistrate’s decision was based on his determination the traffic stop at issue in this case violated the Fourth Amendment, after drawing all reasonable inferences in favor of this determination, where supported by substantial evidence, we review de novo the ultimate question of the legality of the traffic stop. (People v. White (2003) 107 Cal.App.4th 636, 641.) In so doing, “we are governed by federal constitutional law.” (Id. at p. 642.)

II

Analysis

“Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess ‘reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ [Citations.] Such reasonable suspicion ‘requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.’ [Citation.]” (U.S. v. Twilley (9th Cir.2000) 222 F.3d 1092, 1095.)

“ ‘Under this standard, an officer may stop and briefly detain a suspect for questioning for a limited investigation even if the circumstances fall short of probable cause to arrest.’ [Citation.] The standard of reasonable suspicion is ‘less demanding than probable cause “not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” ’ [Citation.] At the same time, however, ‘no stop or detention is permissible when the circumstances are not reasonably “consistent with criminal activity” and the investigation is therefore based on mere curiosity, rumor, or hunch.’ [Citation.]” (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484 (Arburn).)

“More than one California court has found that ‘weaving’ within a lane provides sufficient cause to conduct an investigatory stop.” (Arburn, supra, 151 Cal.App.4th at p. 1485.) For example, in People v. Perez (1985) 175 Cal.App.3d Supp. 8 (Perez), the Appellate Department of the San Diego Superior Court held “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” (Id. at p. 11.) There, the weaving was “two feet in each direction” and continued for “about three quarters of a mile.” (Id. at p. 10.) Reversing the municipal court’s ruling the traffic stop was not supported by reasonable suspicion, the court determined such weaving was pronounced enough and continued for a substantial enough distance to justify the stop. (Id. at p. 11.) The court further noted “that an officer is also justified in stopping a vehicle in such instance to investigate the cause of such weaving as the weaving is also indicative of possible equipment violations (i.e., faulty wheel alignment, problem in the steering mechanism or defect in the tires). The officer had the right to determine exactly what was causing the vehicle to weave.” (Id. at p. 12.)

Similarly, in People v. Bracken (2000) 83 Cal.App.4th Supp. 1 (Bracken), relying on Perez, supra, 175 Cal.App.3d Supp. 8, the Appellate Division of the Los Angeles Superior Court held a traffic stop was justified by the fact that the defendant’s “vehicle was weaving within its own lane for a distance of approximately one-half mile” (Bracken at p. 3), explaining: “The officer in this case was an expert in the area of [DUI] cases. He observed [the defendant’s] vehicle weave within its lane for a considerable distance. These facts are sufficient to establish reasonable suspicion.” (Id. at p. 4; see also People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 14 [claim of unlawful detention “wholly without merit” where the defendant “was observed driving 20 miles per hour in a 40-mile-per-hour zone, weaving abruptly from one side of his lane to the other”].)

Relying on the foregoing authorities, in Arburn, supra, 151 Cal.App.4th 1480, our colleagues at the Sixth Appellate District held a traffic stop was justified by the vehicle’s weaving within its lane and almost hitting a curb (id. at pp. 1482-1483), explaining: “Arburn’s weaving and near miss of the curb created an immediate concern for public safety and raised a reasonable suspicion that he was driving under the influence. [The officer] had the right and the duty to determine exactly what was causing Arburn’s car to weave and whether he could continue driving without presenting a safety risk.” (Id. at p. 1486.) Noting the record lacked evidence establishing the officer’s expertise in the area of DUI recognition, the court stated: “Weaving within a lane is a widely recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer. It is, we posit, even within the ability of most fellow drivers.” (Id. at p. 1485.) Also acknowledging a lack of evidence regarding the distance over which the car was weaving, the court explained: “ ‘Weaving’ for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop.” (Id. at pp. 1485-1486.) Finally, the court rejected the argument there was an innocent explanation for the weaving, explaining: “ ‘Even if the circumstances are as consistent with lawful activity as with criminal activity, the officer may still rightfully inquire into such circumstances in the proper discharge of the officer’s duties.’ [Citations.]” (Id. at p. 1486.)

Here, Deputy Hoyt possessed specialized training and experience in recognizing driving patterns of impaired drivers and was found by the magistrate to be an expert in DUI investigations. He described the movement of defendant’s car across the lane as “drifting” rather than “weaving,” a characterization specifically credited by the magistrate during his ruling on the suppression motion. Nevertheless, we conclude four separate drifts across the lane, the last of which nearly crossed the lane divider line, adequately supplied the deputy with a particularized and objective basis for suspecting defendant was driving while under the influence of alcohol or another impairing substance. Indeed, having reviewed the dash camera video ourselves, we conclude the drifting involved here was at least as pronounced as the weaving described in Perez, supra, 175 Cal.App.3d Supp. 8, Bracken supra, 83 Cal.App.4th Supp. 1, and Arburn, supra, 151 Cal.App.4th Supp. 1480. And based on Deputy Hoyt’s testimony, it went on for a greater distance than the weaving at issue in those cases.[2]

We must therefore reverse the trial court’s order denying the motion to reinstate the criminal complaint against defendant.

DISPOSITION

The order denying the People’s motion to reinstate the criminal complaint against defendant is reversed. The matter is remanded to the trial court with directions to grant said motion.

/s/

HOCH, J.

We concur:

/s/

MAURO, Acting P. J.

/s/

NICHOLSON, J.*