P. v. Felix

Filed 3/20/07 P. v. Felix CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Following the denial of her motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Janet Dawn Felix entered a plea of no contest to one count of transporting methamphetamine (Health & Saf. Code,  11379, subd. (a)). In accordance with a negotiated disposition, other charges (possessing a controlled substance (Health & Saf. Code,  11377)), forging a drivers license (Pen. Code,  470a), possessing a forged drivers license (Pen. Code,  470b), and being under the influence of a controlled substance (Health & Saf. Code,  11550)) were dismissed. Imposition of sentence was suspended, and defendant was admitted to probation for three years. The sole issue presented on this timely appeal is whether defendants suppression motion was erroneously denied. We conclude that it was not, and we affirm.

BACKGROUND

Defendants motion sought an order suppressing the evidence produced by El Cerrito Police Officer David Wentworth . . . on the grounds that the original detention of Defendant was without probable cause and that the evidence produced is the fruit of that poisonous tree. Defendant claimed the detention was tainted by the pretextual traffic violation stop made by Officer Wentworth.

Officer Wentworth provided the only testimony at the suppression hearing. He testified on direct examination that on April 11, 2004, he was on duty in his patrol vehicle. At approximately 12:45 p.m., he was driving northbound on Key Boulevard when he observed a red Mustang that [l]eft the east curb line and entered traffic without using its signal, which was a violation of Vehicle Code 22107. There were other cars on the road. Wentworth [a]ctivated emergency equipment, lights and sirens and conducted a vehicle enforcement stop on the vehicle. Defendant was driving the Mustang. Also in the car was Robert Avelar, who was known to Wentworth from contacts in the city.

Wentworth further testified that he asked defendant to get out of the car, which she did. When Wentworth was standing next to defendant he, noticed she was shaking excessively and her eyes were bloodshot and watery. Wentworth, who had made about 30 investigations for driving while intoxicated, believed that defendant might be under the influence of a controlled substance. Wentworth had defendant perform several field sobriety tests and, as defendant was doing so, he observed that her tongue was coated with a white filmy substance and her thumb was charred and cracked, black and appeared to be burned. To Wentworth these were signs of recent ingestion of controlled substances, and he believed that defendant was currently under the influence. Wentworth also concluded from one of the field tests that defendant might be under the influence of a controlled substance, particularly a central nervous stimulant. He also observed that defendants hands were clammy and her muscles [rigid], and her speech was rapid, incoherent. Muscle rigidity is another indicator of a person under the influence.

Wentworth asked defendant if she had any controlled substances in the car or on her person. She replied, No to both questions. With her consent, Wentworth searched defendant but found nothing. Wentworth then placed defendant under arrest for being under the influence. Wentworth then searched a brown leather purse on her seat that I saw her holding earlier that I removed from the vehicle. Inside the purse he found a gold cylindrical object. Inside it Wentworth discovered Ziploc baggies with an off‑white crystalline substance inside.

On cross-examination, Officer Wentworth testified that Most often he will stop any vehicle that leaves the curb without signaling. And after admitting that very close by was the house of suspected drug dealers Robert and David Avelar, Wentworth testified that you ordinarily stop anybody you can whos committing a violation . . . at or near that residence, to see what you can find out about whos coming and going. Earlier that day Wentworth had stopped Robert Avelar, who was riding a bicycle, and searched him completely.

Wentworth further testified that the Mustang was parked for about 10 minutes before he saw it pull away from the curb. In fact, Wentworth was watching the car, and had an unobstructed view of the left rear signal light of the vehicle when it pulled away. While no person or vehicle was endangered by the way defendants vehicle moved onto the roadway, there were other vehicles in the vicinity. Wentworth stated he did not stop defendants car for the purpose of searching it.

On redirect, Wentworth testified that Key Boulevard has one lane in each direction. There was medium traffic on Key Boulevard at the time he stopped defendants car.

In argument on the suppression motion, defendants counsel began by submitting that Wentworth did not have probable cause to arrest defendant for driving under the influence. Counsel then continued:

But in addition to that, the original stop is illegal because [Vehicle Code section] 22107 requires that a signal be required by that chapter that another vehicle would be affected by the movement of the car.

Reading it [section 22107] directly: No person shall turn a vehicle from a direct course or move right or left upon a roadwayI dont think it appliesuntil such movement can be made with reasonable safetyno evidence that it wasnt made with reasonable safetyand then only after the giving of an appropriate signal in the manner provided in this chapter, in the event that any other vehicle was affected by the movement. No evidence that any other vehicle was. As a matter of fact, the officer stated no vehicles were affected by it.

Therefore, the original stop is an illegal one technically, although I praise the officer for doing his job as best he could. It doesnt match up here.

The prosecutor responded as follows: We believe that vehicle stop was lawful. A case United States versus Masol [sic: United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127] in which a defendant was a passenger in a vehicle pulled over by a police officer on the alleged failure to use a turn signal. It was an Arizona statute.

That statute is a mirror image of the California statute. The Court issued a test to determine whether or not a Vehicle Code violation [is shown]: 1) must be in traffic and 2) some possibility that traffic on the roadway [was] affected by the movement.

It is clear that there was traffic on Key Boulevard at the time . . . Officer Wentworth pulled Ms. Felix over and there was a possibility that when Ms. Felix entered the roadway, she affected the movement of traffic on that roadway.

The test is, therefore, satisfied and Officer Wentworth had reasonable suspicion to stop a car for a Vehicle Code violation.

The trial court then ruled:

Well, it seems to me its an interesting issue. The third prong to me was significant. Of course, I interpret the pulling into the lane as a moving right or left. Clearly, the reasonable safety issue is one thing, but says only after giving the appropriate signal. And the third prong that I agree with what you said, determine whether other vehicles were effected [sic] by the movement. I suppose that the Officer established medium traffic, although he was not very specific about that. Thats a factual situation.

In the Wren versus United States case [sic: Whren v. United States (1996) 517 U.S. 806], as long as there is an objective Vehicle Code violation, the officer may pull her over, in spite of any pretext that might be there. The idea of pretext, the subjective intent of the officer, is irrelevant.

Lastly, I think he established training, education and experience to form the opinion that she was using drugs or alcohol and lawfully arrested her. [] Did you want to say something else?

[DEFENSE COUNSEL]: No. Judge, that case doesnt say an objective traffic stop can be made without all of its ingredients. One of the ingredients is whether traffic was affected by the movement. There is no evidence that it may be affected. You dont have to signal.

THE COURT: I share your view of the interpretation of the third prong of 22107. I just disagree with you on the facts. The facts established possible affecting of traffic. [] . . . [] The information in front of me, there is a reasonable likelihood she was affecting traffic. Two-lane, one way north, one way south I assume. If there [are] cars on the roadway and a car pulls out, its going to be a reasonable possibility that she is affecting traffic. [] . . . [] The motion is denied.

DISCUSSION

Defendant no longer asserts that Officer Wentworth lacked probable cause to arrest her for driving under the influence. However, she renews her argument that the officer lacked reasonable suspicion to detain her for a violation of the Vehicle Code. Specifically, defendant argues was no evidence adduced at the suppression hearing showing that traffic was affected when she pulled into Key Boulevard; that without such evidence there was no violation of section 22107; and thus there was no power to detain. Defendant also maintains that section 22107 is inapplicable, and the legality of her entry onto Key Boulevard must be measured by Vehicle Code section 22106. We are not persuaded.

Defendants fundamental argument is that Officer Wentworth could not detain defendant unless he positively, and accurately, knew she had violated Vehicle Code section 22107. This approach is contrary to the entire manner in which courts evaluate whether a detention is proper under the Fourth Amendment.

A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)

In making determinations of reasonable suspicion to justify a detention, reviewing courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. [Citations.] . . . [T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard. [Citation.] (United States v. Arvizu (2002) 534 U.S. 266, 273-274.)

It should be obvious from the language usedmay be involved, suspecting legal wrongdoingthat not every situation will be cut-and-dried. Uncertainty is accepted without disabling the power of law enforcement to act. Officers are allowed a measure of flexibility to conduct detentions in order to dispel uncertainty. A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. (United States v. Arvisu, supra, 534 U.S. 266, 277; see Illinois v. Wardlow (2000) 528 U.S. 119, 126 [law governing detentions accepts the risk that officers may stop innocent people.].) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . . (In re Tony C. (1978) 21 Cal.3d 888, 894.)

In keeping with this approach, courts have long accepted that proof positive of a Vehicle Code violation is not required before a detention may be validly commenced. A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place . . . . (People v. Superior Court (1972) 7 Cal.3d 186, 200, italics added.) [A] police officer can legally stop a motorist . . . if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926, italics added.) A traffic stop is justified at its inception if based on at least reasonablesuspicion that the driver has violated the Vehicle Code or some other law. (People v. Bell (1996) 43 Cal.App.4th 754, 761, italics added.) A law enforcement officer may legally stop a motorist if the facts and circumstances known to the officer support a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Hardacre (2004) 116 Cal.App.4th 1292, 1300, italics added.) The circumstances recounted by Officer Wentworth provided a rational and reasonable suspicion that defendant may have pulled onto Key Boulevard in violation of Vehicle Code section 22107.

It is undisputed that defendant moved into the lane without signaling. And that defendants action affected other vehicles can be accepted as an implied factual finding made by the trial court.

As the court noted, Wentworth testified that there was a medium amount of traffic on the two-lane road. Moreover, Wentworth did not testify that defendants Mustang merely entered the lane, but that it entered traffic without using its signal. (Italics added) It was a reasonable inference, well within the trial courts powers as the trier of fact, to accept, as it did, that the entry of defendants vehicle affected other vehicles. (See Butigan v. Yellow Cab. Co. (1958) 49 Cal.2d 652, 656 [whether predecessor version of Veh. Code,  22107 violated is question of fact]; Mack v. Valley Motor Lines, Inc. (1961) 191 Cal.App.2d 38, 43-44 [whether predecessor to Veh. Code,  22106 & 22107 violated is question of fact].)

Of course, once Officer Wentworth effected the stop, and became aware of evidence prompting the suspicion that defendant was guilty of the far more serious offense of operating a motor vehicle while under the influence of a controlled substance, he was entitled, if not obligated, to allow that suspicion to supersede concern about a mere infraction violation of the Vehicle Code.

Because the detention was valid, it follows that the arrest was valid. With a valid arrest, Wentworth had a right to conduct a search incident to that arrest of the vehicles interior and the handbag. Defendant conceded as much at the suppression hearing.

In her brief defendant maintains her argument that her detention was pretextualthat Officer Wentworth was in effect camped out on the Avelars home, determined to stop any and every person entering or leaving that address, and that he watched defendants car for ten minutes before it started moving. However, as the trial court recognized in its ruling, whether an officer makes a stop based on unexpressed, perhaps even not wholly legitimate, reasons is but another way of inquiring about the officers subjective motive, which is legally irrelevant. It is what the officer is able to articulate for objective evaluation that is judicially examined. (E.g., Devenpeck v. Alford (2004) 543 U.S. 146, 153; Arkansas v. Sullivan (2001) 532 U.S. 769, 771-772; Whren v. UnitedStates, supra, 517 U.S. 806, 812-813.)

Lastly, we note that defendants statutory argument is not properly raised for the first time on appeal. (E.g., People v. Williams (1999) 20 Cal.4th 119, 130-131, 136.)

DISPOSITION

There was no error in the denial of defendants motion to suppress, and the order of probation is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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