Filed 10/23/18 In re A.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Pamela King and Geanene M. Yriarte,† Judges. Affirmed.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant A.M. (minor) admitted as true the allegation in a Welfare and Institutions Code[1] section 602 petition that he was a minor in possession of a firearm. (Pen. Code, § 29610.) A juvenile court found that he came within Welfare and Institutions Code section 602, adjudged him a ward of the court, and placed him on probation in his parents’ custody.

On appeal, minor contends that the juvenile court erred in denying his section 700.1 motion to suppress evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Minor filed a motion to suppress evidence under section 700.1. He moved to suppress the evidence of his gun and statements, claiming that they were the fruits of an illegally-prolonged seizure. Specifically, he argued that the traffic stop was unlawful because it was prolonged beyond the time reasonably required to complete the traffic citation.

The court held a hearing on the suppression motion, and the prosecution called the police officer who conducted the traffic stop as a witness. The officer testified that on the night of August 20, 2017, he conducted a traffic stop after observing that a car ran a stop sign and its rear lights were not working. The car had five occupants, including minor.[2] The officer asked the occupants to put their hands where he could see them, for officer safety reasons. He was on patrol alone, it was dark, and he did not have a clear, unobstructed view into the car. Everyone complied. However, after initialing complying, minor lowered his hands down to his waist, and the officer had to tell him to put his hands back up on the headrest. The fact that minor dropped his hands made the officer think he could be concealing or trying to grab a weapon. The officer also noticed that the driver, who was minor’s brother, had the letters “BP” tattooed on his wrist. The tattoo signified to the officer that minor’s brother was an associate of a dangerous street gang in Baldwin Park. It also caused the officer to think they were all possibly gang members. The officer proceeded to ask the driver for his license, and to ask if he was on probation or parole. He said he was not. The officer then asked the driver where he was from, and he said he was from Rancho Cucamonga. The officer did not believe him in light of his Baldwin Park tattoo. Furthermore, the officer knew that criminals tended to lie to the police to conceal crimes. The officer asked everyone for their names and identification. Minor did not have identification on him, so he gave the officer his name, date of birth, and city of residence. Following protocol, the officer provided minor’s information, as well as that of the other occupants, to his dispatcher to check for wants, warrants, and criminal history.

The officer waited for an additional police unit to arrive, for officer safety reasons. While he was waiting, he looked in the car to see if there was anything dangerous or illegal. He also asked the driver if there was anything illegal in the car.

Once the backup officer arrived, the officer asked everyone in the car if there was anything in the car he should know about, and they said no. He also asked the driver to exit the vehicle in order to have him sit on the curb while he wrote the ticket. The driver had baggy clothes on, so the officer patted him down for weapons. As he was patting him down, the officer asked the driver if he could search his car, and the driver said yes. Thus, the officer asked everyone to exit the car, so he could search it. The driver and left rear passenger exited the car, and he asked if they had anything illegal on them and had them sit on the curb, unhandcuffed. The officer then walked over to the right rear passenger, minor, and asked if he had anything illegal on him. Minor immediately lowered his hands down toward his knees and said yes. The officer instructed him to put his hands back on the headrest. As minor complied, he told the officer he had a firearm. The officer pointed his gun at minor, told him to step out of the car, and had him put his hands on the back of his head. The officer reached into the right side of minor’s waistband and pulled out a gun. The gun was loaded, with one round inside the chamber and two rounds in the magazine. The officer handcuffed minor and arrested him. Minor stated that the gun was his, and the others did not know he had it.

The officer testified that approximately nine and one-half minutes elapsed from the time he initiated the traffic stop to the time he found minor’s gun. At the time he found minor’s firearm, the officer had not yet received the information back from dispatch about the wants and warrants or issued the citation for the vehicle code violation. The officer ultimately issued the driver a citation for running the stop sign and gave him a warning on the lights, after minor was arrested.

The court denied the suppression motion, finding that the officer was credible, and the information presented during the hearing was sufficient to show he acted lawfully.

ANALYSIS

The Court Properly Denied the Motion to Suppress

Minor argues that the court erred in denying his suppression motion, since the detention exceeded its permissible scope. He concedes the initial stop was valid but contends that “the officer conducted an investigation and obtained consent to search after completing all duties incident to the traffic stop.” He argues the officer “converted a valid stop into an illegal seizure unsupported by independent reasonable suspicion.” We disagree and conclude that the court properly denied the motion.

A. Standard of Review

“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. 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. [Citations.]’ [Citations.]” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1130.)

B. Relevant Law

“An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.] Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (People v. Russell (2000) 81 Cal.App.4th 96, 101-102 (Russell).)

“Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. [Citations.] While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking.” (People v. Brown (1998) 62 Cal.App.4th 493, 499 (Brown).) “[T]his rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place.” (Ibid.)

C. Minor’s Gun and Statements Are Not Fruits of an Illegal Detention

Minor argues that the police officer impermissibly prolonged the traffic stop beyond that necessary to issue the traffic citation. He contends the officer had no legitimate reason to believe that the driver was engaged in any criminal activity other than the traffic infractions. However, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, [citation], and attend to related safety concerns.” (Rodriguez v. United States (2015) 135 S.Ct. 1609, 1614.) “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’ [Citation.] Typically such inquiries involve 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. 1615.) Here, the officer simply asked the driver and occupants questions, which is permissible. (Brown, supra, 62 Cal.App.4th at p. 499.)

Furthermore, the officer’s observations clearly supported an additional period of detention for the purpose of allowing him to confirm or dispel his suspicions. (Russell, supra, 81 Cal.App.4th at pp. 101-102; see People v. Suennen (1980) 114 Cal.App.3d 192, 201 [People v. McGaughran (1979) 25 Cal.3d 577 “disapproves of warrant checks which exceed the time necessary to complete traffic citation duties, but it casts no doubt upon the propriety of a detention which is prolonged to investigate a rational suspicion of criminal activity.”].) The officer observed the driver’s apparent gang tattoo, which caused him to suspect the occupants were all possibly gang members. He also suspected the driver was lying about where he lived. He further observed minor lower his hands down to his waist, which indicated minor could be concealing or trying to grab a weapon. In view of these circumstances, it was reasonable for the officer to ask his dispatcher to check whether the driver and his passengers had outstanding wants or warrants, and to seek to determine if they had anything illegal in the car or on them.

Moreover, minor disclosed the presence of his gun before the traffic stop was completed. While the officer was waiting to receive information back on the warrants, he asked the driver to exit the vehicle to have him sit on the curb. The officer asked the driver if he could search his car, and the driver consented. To conduct the search of the car, the officer needed everyone to exit the car. In the interest of safety, he asked if they had anything illegal on them. In response, minor voluntarily informed the officer that he had a gun on him and said it belonged to him. The officer arrested minor. He subsequently issued the driver a citation for running the stop sign. The traffic stop was not illegally prolonged.

In view of all the circumstances, the traffic stop was reasonable under the Fourth Amendment. Accordingly, the court properly denied the motion to suppress.[3]

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

CODRINGTON

J.

FIELDS

J.