P. v. Deal

Filed 12/10/08 P. v. Deal CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.

Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On February 14, 2008, after his motion to suppress was denied, appellant, Michael William Deal, pled no contest to being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)). On that same date, the court sentenced him to time served and placed him on probation for three years. On appeal, Deal contends the court abused its discretion when it denied his motion to suppress. We will affirm.

FACTS

On November 30, 2007, Deal was arrested after he was detained in his truck for a traffic violation and an ensuing search uncovered firearms in his vehicle.

At his preliminary hearing on December 27, 2007, Deal moved to suppress the evidence seized from his truck. During the hearing, Merced Police Officer Jeff Gonzales testified that on November 30, 2007, at approximately 7:40 p.m. he was on patrol when he saw the truck driven by Deal with a side brake light [not] working properly. After Deal stopped his truck, Gonzales approached Deal on the drivers side and Gonzaless field training officer approached him on the passengers side. Gonzales informed Deal that one of his brake lights was out and asked to see his license, registration, and proof of insurance. Gonzales also asked Deal if he was on probation or parole and Deal replied he thought he was on probation for making terrorist threats. Gonzales next asked Deal if he had any drugs, guns, knives or other weapons in the truck, which was a standard question Gonzales asked under these circumstances. Deal replied he had two .22 caliber rifles and a shotgun in his truck.

Gonzales had Deal step out of the truck and stand by his field training officer. Gonzales asked Deal for his consent to search Deals truck and Deal said it was okay. Before conducting the search, Gonzales ran Deals license through dispatch and was informed that it was clear and that Deal did not have any warrants. Dispatch also confirmed, albeit erroneously, that Deal was on probation.^[1] Gonzales searched the car and found two .22 rifles, a shotgun, and a pellet gun. Deal was then arrested.

Deal testified that after he was pulled over by Gonzales, Gonzales told him his drivers side tail light was out. After asking for his license, Gonzales asked Deal if he was on probation and Deal replied that he was on felony probation. Gonzales asked him to get out of the truck immediately after Deal replied he was on probation. A few minutes later, Gonzales asked Deal whether he had firearms in the truck and Deal replied that he did and that they were unloaded. Gonzales then asked for permission to search the truck and Deal agreed.

The prosecutor argued that the search was justified based on Deals consent. Further, Deals admission that he was on felony probation and that he had guns in the truck gave Officer Gonzales probable cause to search the truck. The court denied the motion to suppress finding that there was probable cause to stop the car for a Vehicle Code violation and that the detention was no longer than necessary to investigate whether Deal was committing the offense of being a felon in possession of a firearm.

On January 18, 2008, Deal filed a motion to dismiss (Pen. Code, 995) alleging his consent to search was vitiated because it was the product of a prolonged detention and thus the magistrate erred in denying his suppression motion. The motion was submitted on the preliminary hearing transcript.

On February 13, 2008, the court denied Deals motion.

DISCUSSION

Deal concedes his initial detention was lawful but contends that Officer Gonzaless questions regarding his possession of contraband and his legal status unduly prolonged his detention. Thus, according to Deal, the court erred in denying his motion to suppress because the prolonged detention vitiated his consent to search his truck. We will reject these contentions.

Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrates express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.] [Citation.] We affirm the trial courts ruling if correct under any legal theory. [Citation.] (People v. Hua (2008) 158 Cal.App.4th 1027, 1033, italics added.)

Questioning during[a] 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. (... Florida v. Bostick (1991) 501 U.S. 429, 435, 439-440, 111 S.Ct. 2382, 2386, 2389, 115 L.Ed.2d 389 [Police may approach a person in a public place and ask potentially incriminating questions and request permission to search without implicating the Fourth Amendment, so long as a reasonable person would understand he or she could refuse to cooperate.].) While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.] (People v. Brown (1998) 62 Cal.App.4th 493, 499, italics added.)

Moreover, while a police officer may stop a motorist for a traffic violation, the detention cannot be prolonged beyond the time period necessary to address the violation. [Citation.] There is no hard-and-fast limit as to the amount of time that is reasonable; rather, it depends on the circumstances of each case. [Citation.] (People v. Gallardo (2005) 130 Cal.App.4th 234, 238 (Gallardo).)

In Gallardo, a sheriff deputy stopped the defendant in his vehicle because the vehicle had a broken rear light. The deputy inspected the defendants license and registration and then asked the defendant if he had anything illegal in his car. The defendant said he did not and the deputy asked for permission to search. The defendant agreed and stepped out of the car. A search of the car uncovered two small plastic bags containing methamphetamine, a glass methamphetamine pipe, and two cut straws. (People v. Gallardo, supra, 130 Cal.App.4th at pp. 236-237.)

In upholding the search, the Gallardo court stated,

[W]e agree with defendants claim that traffic stops must be reasonable in duration and not prolonged beyond the time necessary to address the traffic violation. There is no indication here, however, that the detention was unreasonably prolonged, as only a very few minutes had elapsed between the deputys initial contact with defendant and defendants consent to search. [I]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.] [Citation.] Here, there is no evidence that defendants detention was unreasonably prolonged by the consensual search, and therefore the length of the detention cannot be the basis for suppressing the fruits of the search. (People v. Gallardo, supra, 130 Cal.App.4th at p. 238, italics added.)

To the extent Deal contends Officer Gonzales could not lawfully ask him about his possession of contraband or his parole or probation status during the traffic stop, we reject this contention in accord with Brown and Gallardo.

[Moreover,] [t]here is probable cause to arrest when the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.] The standard of probable cause to arrest is the probability of criminal activity, not a prima facie showing. [Citation.] (People v. Lewis (1980) 109 Cal.App.3d 599, 608.)

Here, Deals admissions that he was on felony probation and in possession of several firearms provided Officer Gonzales with probable cause to arrest him for being a felon in possession of a firearm. Further, Gonzales was entitled to search the truck compartment where he found the firearms incident to arresting Deal. (People v. Pea (1999) 74 Cal.App.4th 1078, 1084-1085.) This is true even if the search preceded the arrest. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240 [The fact that a defendant is not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest].)

In addition, we conclude that Deals consent to search his truck was not vitiated by a prolonged detention. Deals admissions justified Gonzaless detention of him while he investigated whether Deal was a felon in possession of firearms. Further, the only evidence of the length of the detention came from Deals testimony that a few minutes elapsed between the time Gonzales asked Deal to get out of the car and the time Deal gave him permission to search his truck. Since this was a short amount of time and Deals admissions justified Gonzales expanding the scope of his investigation, the detention was not prolonged and did not vitiate Deals consent to search his truck. The court did not err when it denied Deals motion to suppress.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.

^[1] The prosecutor submitted into evidence a CLETS criminal record summary for Deal that showed he had a prior felony conviction and that he was no longer on probation.