P. v. Gitzen

Filed 8/20/08 P. v. Gitzen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Francis David Gitzen, the defendant herein, pleaded guilty to felony drunk driving under Vehicle Code section 23152, subdivision (a), following the trial courts denial of his motion to suppress evidence (Pen. Code,  1538.5). The trial court placed defendant on probation and ordered him to serve a year in jail. Defendant contends on appeal that the judgment must be reversed because his conviction was obtained in violation of the Fourth Amendment to the United States Constitution. We disagree and will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

The facts are taken from testimony adduced at the hearing on defendants motion to suppress evidence. On the night of June 6, 2007, a Santa Cruz County Sheriffs Department deputy observed a tan Chevrolet automobile in front of his patrol car. The deputy noticed that the Chevrolet had an out-of-date 2006 registration sticker on the license plate.^[1] The deputy radioed his communications center, asking for information about the status and validity of the registration. He also activated his overhead lights, causing the vehicle to stop.

While waiting for the communications centers reply, the deputy emerged from his patrol car but stood alongside it and did not approach defendants car. At this point a dispatcher told the deputy that the current registration had expired but that there was a pending master file, which, as established by testimony at the suppression hearing, could mean a number of things, including, but not necessarily, that the car was being legally operated although the registration process was incomplete. Defendant had affixed the temporary operating permit, showing the number 6, to the inside of his cars rear window in accordance with applicable requirements. The number on the temporary operating permit signified that the permit, if valid, was valid until June 30.

The deputy lacked any information, either before or immediately after the stop, that the vehicle was properly being operated. Before the stop, and with regard to seeing the temporary operating permit, the deputy could not recall during the hearing whether he noticed the permit that night. It was possible that he simply did not see it, although his vehicle was equipped with spotlights to enable the viewing of the scene. (The trial court would later rule that the deputys testimony established that he had not seen it.) The deputy had 16 months experience on the force and when he stopped defendant did not know that pending master file status could mean the vehicle was being legally operated.

The deputy walked past the rear window and made contact with defendant, who was seated behind the wheel. He informed him that he had detained him because he suspected that his registration was invalid. At this point, the communications center radioed that there were misdemeanor warrants and a civil warrant for the cars registered owner. The deputy told defendant to emerge from his car and, when defendant identified himself, the deputy knew that he was the wanted man. In talking with defendant during this encounter, the deputy had noticed an odor of alcohol. He arrested defendant.

Defendant had paid the cars registration fees but the Department of Motor Vehicles had issued him a temporary operating permit rather than a permanent 2008 license plate registration sticker because he had yet to obtain smog certification for the Chevrolet, which a third party had recently given him. Defendant testified at the suppression hearing that because of transfer of ownership it [had] to be smogged.

At the suppression hearing, counsel argued that defendant was operating his vehicle in compliance with the registration laws and that stopping him violated the Fourth Amendment ab initio. Nevertheless, the trial court denied the motion.

Explaining its ruling, the trial court stated: As [a Department of Motor Vehicles employee] testified, having the [registration] sticker on the back of the car is one of the two things you have to do to be legal. The other thing you have to have in your possession [is] proof that it was actually issued to you[^[2]] . . . . [At a]ll traffic stops . . . the first thing [a law enforcement officer] does is ask for some identification of the driver. [] Unfortunately for [defendant], he took his time . . . and in the time he might have identified himself and pulled out his information and saying, oh, I have a temporary permit, . . . by that time, according to dispatch tapes of the testimony in the case, [the deputy] had information [that there were] three warrants outstanding for [defendant,] who shortly was determined to be the person driving the car. [] . . . [T]he fact that [the deputy] didnt notice . . . the temporary operating permit [is explained by the fact that] they are not a reflective material, and . . . at night you might well not notice it. [] But in any event, the burden is on [defendant] in essence to identify[] himself and say I have a temporary permit and heres the papers to prove it. . . . And . . . [the deputy] knew there were three warrants outstanding for [him]. [] So the stop was proper . . . . The information available to [the deputy], that the cars registration had elapsed . . . entitled [him] to stop the car [and] find out about that. And even if hed seen the notice of the temporary permit he would have been entitled to ask for proof it was valid, given the fact he had information that the registration had actually expired provided by dispatch and his visual observation that the sticker was out of date on the license plate. [] So the motion is denied.

[Defense counsel]: I would say the stop occurred before he got that information back from dispatch.

THE COURT: The motion is denied.^[3]

DISCUSSION

As noted, defendant moved to suppress evidence under Penal Code section 1538.5, which allows a defendant to meet the initial burden of raising the issue of an unreasonable warrantless search or seizure by simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion. [Citation.] After the defendant sufficiently raises the issue, it is the prosecutions burden to justify a warrantless search or seizure. [Citation.] A defendant then must present any arguments as to why that justification is inadequate. (People v. Smith (2002) 95 Cal.App.4th 283, 296.) In sum, the burden of proving the justification for the warrantless search or seizure lies . . . with the prosecution. (People v. Johnson (2006) 38 Cal.4th 717, 723.)

In ruling on a motion to suppress [ 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the courts resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.] (People v. Hoyos (2007) 41 Cal.4th 872, 891.)

On independent review of the ultimate questionthe validity of the states action under the Fourth Amendment to the United States Constitutionwe conclude that the trial court ruled correctly in denying defendants motion to suppress.^[4]

Expired registration stickers on a vehicles rear license plate can alert law enforcement offers to a violation of Vehicle Code 4000, subdivision (a)(1), which requires the vehicle be currently registered; Vehicle Code section 4601, subdivision (a), which requires the vehicles registration be renewed annually prior to the expiration of the registration year; and Vehicle Code section 5204, subdivision (a), which requires current registration tabs to be displayed on the rear license plate. (People v. Saunders (2006) 38 Cal.4th 1129, 1135.)

Conversely, a vehicle is being operated legally despite an expired registration sticker on the rear license plate if a valid temporary operating permit is correctly displayed. Other provisions of this code notwithstanding, the department in its discretion may issue a temporary permit to operate a vehicle when a payment of fees has been accepted in an amount to be determined by, and paid to the department, by the owner or other person in lawful possession of such vehicle. The permit shall be subject to such terms and conditions and shall be valid for such period of time as the department shall deem appropriate under the circumstances. (Veh. Code,  4156.) Notwithstanding any provision of subdivision (a) of Section 5204 to the contrary, when an application for the registration of a vehicle has been made as required in Sections 4152.5 and 4602, the vehicle may be operated on the highways until the new indicia of current registration have been received from the department, upon condition that there be displayed on the vehicle the license plates and validating devices, if any, issued to the vehicle for the previous registration year. (Id.,  4606.) The requirement that the rear license plate display current registration stickers, one for the month, and one for the year (id.,  5204, subd. (a)), does not apply when proper application for registration has been made pursuant to Section 4602 and the new indicia of current registration have not been received from the department. (Id., subd. (c).)

The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver even though the purpose of the stop is limited and the resulting detention quite brief.  (Brendlin v. California (2007) __ U.S. __, __ [127 S.Ct. 2400, 2406].)  [P]ersons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. [Citation.] However, when there is articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, the vehicle may be stopped and the driver detained in order to check his or her drivers license and the vehicles registration. (People v. Saunders, supra, 38 Cal.4th at p. 1135.) The question, then, is not whether [the] vehicle was in fact in full compliance with the law at the time of the stop, but whether [the deputy] had  articulable suspicion  it was not. (Id. at p. 1136.)

The reasonableness standard articulated in Saunders stems from basic precepts of Fourth Amendment law. When a mistake of fact in conducting a search and seizure is reasonable, there is no Fourth Amendment violation (Illinois v. Rodriguez (1990) 497 U.S. 177, 179, 182, 183-186), because by its own terms the Fourth Amendment demands of the state not perfection, but reasonableness, in these circumstances[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated. As relevant here, to satisfy the reasonableness requirement of the Fourth Amendment, what is generally demanded of . . . determinations . . . made by . . . the police officer conducting a search or seizure under one of the exceptions to the warrant requirement . . . is not that they . . . be correct, but that they . . . be reasonable. (Rodriguez, at p. 185.)

The test for a Fourth Amendment violation is primarily an objective one. The validity of a search does not turn on the actual motivations of individual officers. [Citation.] But whether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted. [A]lmost without exception in evaluating alleged violations of the Fourth Amendment the Court has first undertaken an objective assessment of an officers actions in light of the facts and circumstances then known to him.  (People v. Sanders (2003) 31 Cal.4th 318, 334.)

The trial court found that the deputy was unable to see the temporary operating permit. Because that finding is supported by substantial evidence, we are bound by it. (People v. Hoyos, supra, 41 Cal.4th at p. 891.) And on the ultimate question, the court below correctly found the deputys actions reasonable and, accordingly, not an infringement of defendants Fourth Amendment rights.

The case presents these facts: It was nighttime and the temporary operating permit sticker evidently was not particularly visible, because the trial court found that the deputy did not see it.^[5] By contrast, the expired permanent registration sticker was visible and was not just one, but two years out of date. The deputy had to make a quick decision whether to stop the car or let it proceed. If he let it proceed, it could not be guaranteed that he could locate it later. Even if the deputy had learned the car had a pending master file before executing the stop, the evidence in the record establishes only that such a status meant that the registration was being evaluated, not that the car was necessarily being legally operated. Under the circumstances, the prosecution met its burden to justify the deputys action and defendant failed to show in response that the justification was inadequate. (People v. Smith, supra, 95 Cal.App.4th at p. 296.) In sum, [w]hen judged in accordance with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act, [citation], the [action was] reasonable and valid under the Fourth Amendment. (Hill v. California (1971) 401 U.S. 797, 804-805.)

The trial court, accepting testimony at the suppression hearing that the operator must also carry evidence of the temporary operating permits validity inside the vehicle, found in essence that suspicion of unlawful operation continues to exist until it is dispelled by the operators providing supporting documentation and an officer is entitled to approach the operator to ask for it. Because we find that that the ruling was correct on other legal grounds, we need not address this observation by the court.

DISPOSITION

The judgment is affirmed.^[6]

Duffy, J.

WE CONCUR:

Mihara, Acting P.J.

McAdams, J.

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^[1]It later emerged during court proceedings that its registration had expired on May 12, 2007. Thus the vehicle should have been displaying a 2007 registration sticker, which would also have been out of date at the time of the stop but by only one year, not two. The record does not explain why the vehicle did not display a 2007 registration sticker. Because vehicle registration stickers show the month of expiration as well as the year, it may be that the deputy assumed that the registration was two years out of date, but the record does not contain any evidence on this point.

^[2]The Department of Motor Vehicles employee had testified at the suppression hearing along these lines. In addition, the operation supervisor at the Santa Cruz emergency communications center testified that a pending master file status could mean that the vehicle was being legally operated, but that [w]hether its legal or not would depend on the paperwork that that person would have in their car. The clerks transcript shows that the text of the temporary operating permit issued to defendant stated: Fees to register this vehicle or vessel have been paid to the State of California, Department of Motor Vehicles. This Permit must be supported by either: [] 1. A Department receipt. The receipt number and the receipt number shown on this permit must agree. [] OR [] 2. A letter issued by the Department confirming the issuance of this Permit.

^[3]Counsel was correct about the chronology of events. The deputy stopped defendants vehicle after seeing its expired permanent registration sticker. Moments after doing so the deputy advised a dispatcher about the stop. Hence he effected the stop before receiving any information about the vehicle or defendant from the communications center.

^[4]California law follows Fourth Amendment standards. (People v. Robles (2000) 23 Cal.4th 789, 794.)

^[5]We agree with the People that in this respect the facts of this case differ from those of People v. Nabong (2004) 115 Cal.App.4th Supp. 1, in which a law enforcement officer saw an expired permanent registration sticker accompanied by a facially valid temporary operating permit on the defendants vehicle and elected to stop the vehicle because in the officers experience many such permits, though facially valid, had been fraudulently affixed by vehicle operators. (Id. at p. 3.)

^[6]We recognize that ours may not be the last word. Our Supreme Court has not yet decided whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit. (People v. Saunders, supra, 38 Cal.4th at p. 1135.) The Supreme Court will hear argument in September in People v. Brendlin (S123133) following remand by the United States Supreme Court in Brendlin v. California, supra, __ U.S. __ [127 S.Ct. 2400].) One of the issues to be considered is whether a vehicle may be stopped on reasonable suspicion it was being operated unlawfully when it exhibited both an expired license plate registration tag and what appeared to be a current temporary registration permit. The court has also granted review in People v. Dean (2007) 158 Cal.App.4th 377, review granted April 9, 2008, S160418, which presents circumstances similar to those of this case. In addition, the court is in the process of reviewing cases with different factsi.e., in which appellate courts considered, on Fourth Amendment grounds, judgments against a criminal defendant and a juvenile offender who were, in each case, in a vehicle with a temporary operating permit but no permanent license plates. (People v. Hernandez (2006) 146 Cal.App.4th 773, review granted on the Supreme Courts own motion Mar. 21, 2007 (S150038); In re Raymond C. (2006) 145 Cal.App.4th 1320, review granted Mar. 21, 2007 (S149728).)