P. v. Craver

Filed 7/31/07 P. v. Craver CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

After the trial court denied his motion to suppress evidence under Penal Code section 1538.5, appellant David Michael Craver pleaded guilty to a misdemeanor charge of methamphetamine possession and was placed on probation. In this appeal, he argues the suppression motion should have been granted because his detention was unlawful and because the police lacked probable cause to arrest him or search his vehicle. We affirm.

BACKGROUND

Around 10:30 p.m. on the night of October 17, 2005, Sonoma County Deputy Sheriff Troy Newton was driving patrol. He wore a uniform and drove a marked patrol car. When Newton stopped at a red light on Stony Point Road, he noticed a car that had stopped behind him in the next lane. The driver did not pull alongside Newton but remained back far behind the limit line. Deputy Newton looked over and saw Craver, whom he recognized from previous contacts, sitting in the drivers seat. Craver avoided eye contact with the officer and appeared anxious or nervous. He made an immediate right turn into the parking lot of a shopping center in what Newton perceived as an effort to avoid contact. Craver drove through the lot, and Newton observed him stop briefly. Newton waited in the parking lot, keeping the vehicle in view, and called dispatch for a records check on Craver. He was advised that Cravers drivers license had been suspended or revoked except for use in the course of his employment. As Newton watched, Craver made a right turn back onto Stony Point Road but did not use his turn signal. Newton then conducted a traffic stop. When he approached the vehicle, Newton noticed that Craver was really agitated and made many furtive movements with his hands reaching into the cars center console. Craver was noncompliant and began yelling at the officer. As Newton made contact with Craver at the driver-side door, he noticed a strong odor of burnt marijuana coming from inside. Although Craver claimed he had a prescription for medical marijuana, Newton called for back-up to execute an arrest. [A]fter putting on quite a scene for quite some time, Craver eventually exited his car and was taken into custody. The police found marijuana and a scale in the center console and glove box of Cravers vehicle and a paper bindle containing 0.12 grams of methamphetamine on the front passenger seat.

Craver was charged with felony possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) and misdemeanor driving on a suspended or revoked license (Veh. Code,  14601.1, subd. (a)). He pleaded not guilty and moved to suppress the drug evidence seized. After a hearing, the trial court denied the motion. The court explained: First of all, its a pretext stop. I think clearly thats justified, and the law allows that if there is a Vehicle Code violation. There was one here. But in addition, I think theres a reasonable suspicion he was not driving to and from work given the fact he pulled into a shopping center and not into a gas station.

On September 8, 2006, pursuant to a negotiated plea, the prosecution reduced the methamphetamine charge to a misdemeanor and dismissed the charge of driving on a suspended or revoked license, and Craver pleaded guilty to misdemeanor possession of methamphetamine. The court suspended imposition of sentence and placed Craver on probation for two years, with 30 days to be served in county jail. This appeal followed.

DISCUSSION

Craver argues his suppression motion should have been granted because Deputy Newton lacked reasonable suspicion to support the initial detention and also lacked probable cause to support the subsequent arrest and vehicle search. The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

I. The Detention Was Lawful

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.) As the United States Supreme Court has explained, the reasonable suspicion necessary to support an investigative detention is obviously less demanding than that for probable cause and may be shown by considerably less than proof of wrongdoing by a preponderance of the evidence. (United States v. Sokolow (1989) 490 U.S. 1, 7.) Deputy Newtons testimony at the hearing on the suppression motion established two independent bases supporting the detention.

First, the officer had reason to believe Craver was driving in violation of the restriction on his license, which permitted driving only in the course of employment. It was fairly late at night, and Cravers behavior (e.g., avoiding eye contact, stopping his car far back from the limit line) suggested he was nervous and hoping to evade contact with the police. Moreover, as the trial court observed, Cravers late night stop in the shopping center was also inconsistent with the license restriction limiting his driving to employment-related purposes. Under the totality of the circumstances, these facts were sufficient to give Deputy Newton a reasonable suspicion that Craver was driving in violation of his license restriction. Although Craver posits several possible innocent explanations for his behaviorsuch as late working hours, or the need to purchase some item for work or stop to take a phone call from his employer[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. (United States v. Arvizu (2002) 534 U.S. 266, 277; see also In re Tony C. (1978) 21 Cal.3d 888, 894 [The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct].) Considering the lateness of the hour and Cravers evasive behavior, Deputy Newton was justified in conducting a vehicle stop to determine if Craver had violated the Vehicle Code by driving in violation of his license restriction. (See People v. Hardacre (2004) 116 Cal.App.4th 1292, 1300 [stop is lawful if facts and circumstances give rise to a reasonable suspicion motorist has violated Vehicle Code or some other law.)

Second, Deputy Newton testified that he witnessed Craver commit a Vehicle Code violation in his presence, i.e., Craver executed a right turn without using his turn signal. Vehicle Code section 22107 states: No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal . . . in the event any other vehicle may be affected by the movement. Although he did not raise the argument below, Craver now claims he did not violate Vehicle Code section 22107 because there was no evidence that he was driving in an unsafe manner or that his right turn affected any other vehicle. Assuming this argument is not waived (see People v. Williams (1999) 20 Cal.4th 119, 130-131 [defendant must raise precise grounds for suppression of evidence in trial court and cannot save arguments for appeal]), it fails on the merits. In People v. Miranda (1993) 17 Cal.App.4th 917, 930, the defendant also challenged his stop for a Vehicle Code section 22107 violation on the ground that the officer did not testify his turn was unsafe or that there was any other traffic around. The court explained the failure to signal a turn where another vehicle may be affected by the movement is prima facie unsafe. (People v. Miranda, supra, 17 Cal.App.4th at p. 930.) Furthermore, a signal is required even if the officers car is the only vehicle that may be so affected by the motorists turn. (Ibid.) As in Miranda, Deputy Newton testified his car was directly behind Cravers when Craver executed the right turn, and the primary benefit of the signal requirement is for the vehicles to the rear of the signalling vehicle. (Stephens v. Hatfield (1963) 214 Cal.App.2d 140, 144.) (People v. Miranda, supra, 17 Cal.App.4th at p. 930.) Accordingly, Deputy Newton was legally authorized to stop Craver for this traffic violation. (Ibid.)[1]

II. Probable Cause Supported the Arrest and Vehicle Search

Craver also argues Newton lacked probable cause to arrest him or search his vehicle. This argument is not supported by the record.

Probable cause supporting an arrest is defined as facts and circumstances sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense. [Citation.] (Gerstein v. Pugh (1975) 420 U.S. 103, 111-112.) Similarly, [p]robable cause to search is a fair probability that contraband or evidence of a crime will be found in a particular place (Illinois v. Gates (1983) 462 U.S. 213, 238) and, while by nature a fluid concept incapable of  finely-tuned standards,  is said to exist where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found (Ornelas v. United States [(1996)] 517 U.S. [690,] 696). (People v. Hunter (2005) 133 Cal.App.4th 371, 378.) Whether probable cause exists depends on a consideration of the totality of the circumstances leading up to the challenged arrest or search. (Illinois v. Gates, supra, 462 U.S. at p. 238.)

Deputy Newton testified that he smelled an extremely strong odor of marijuana from inside the vehicle when he approached Cravers car. On cross-examination, he clarified that the odor was of burnt, not fresh marijuana. Odors may constitute probable cause if the magistrate finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance. [Citations.] (People v. Benjamin (1999) 77 Cal.App.4th 264, 273.) Newton had worked as a law enforcement officer for approximately 13 years, and he testified he had smelled marijuana before. The smell of burnt marijuana emanating from the car, combined with Cravers belligerent behavior, gave Newton probable cause to arrest Craver on suspicion of driving under the influence of marijuana or possession of marijuana. (See People v. Superior Court (1971) 20 Cal.App.3d 384, 387-388 [smell of burnt marijuana and presence along highway of discarded marijuana cigarettes gave police probable cause to arrest vehicles occupants]; People v. Nichols (1969) 1 Cal.App.3d 173, 175 [officer who smelled marijuana smoke coming from inside a house had probable cause to arrest the occupant for possession of marijuana].) The strong smell of marijuana also gave the officer probable cause to search Cravers vehicle for additional contraband. (See People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059 [burnt marijuana smell and defendants presentation of a bag of marijuana justified further search of vehicle]; see also People v. Cook (1975) 13 Cal.3d 663, 668 [a strong aroma of fresh marijuana established probable cause for search of vehicle]; People v. Benjamin, supra, 77 Cal.App.4th at p. 273 [same].)

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] It does not matter that this reason for the stop may have been pretextual. The law is settled that the subjective motivation of an arresting officer is irrelevant in determining the propriety of a traffic stop. (People v. Miranda, supra, 17 Cal.App.4th at p. 925; see also Whren v. United States (1996) 517 U.S. 806, 813.)