P. v. Garcia

Filed 3/12/08 P. v. Garcia CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gary Daigh and John J. Cheroske, Judges. Affirmed.

Law Offices of Robert P. Ramirez and Robert P. Ramirez for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Following the denial of his motion to suppress illegally seized evidence, Eduardo Garcia pleaded no contest to one count of possession of methamphetamine for sale. On appeal, Garcia contends the evidence seized during a warrantless search of his person and his car was the fruit of an illegal detention and should have been suppressed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Garcia was charged by information with one count of possession for sale of methamphetamine (Health & Saf. Code, 11378). He entered a plea of not guilty and filed a motion to suppress evidence. (Pen. Code, 1538.5.)

Los Angeles Sheriffs Deputy Fernando Sarti testified he was on patrol by himself in the City of Lynwood when he saw Garcia driving his car. Deputy Sarti ran the license plate and learned the cars registration had expired. When Garcia failed to stop his car at the limit line for a red light, Deputy Sarti initiated a traffic stop based on both Vehicle Code violations.

Deputy Sarti approached the car and asked Garcia, who was alone, for his drivers license. Garcia produced a valid drivers license. Deputy Sarti asked if Garcia had any dope or guns on his person or in the car. Garcia replied he had some weed that Deputy Sarti understood to be marijuana. Deputy Sarti testified a couple of minutes had elapsed from when he approached the car to when Garcia admitted being in possession of marijuana. After recovering the marijuana from Garcias front pocket, Deputy Sarti asked if there was any additional dope in the car. Garcia answered there probably was, and Deputy Sarti searched the car, finding an envelope protruding from the side of the glove compartment. The envelope contained methamphetamine. Deputy Sarti did not inform Garcia of the traffic violations or issue him a citation. In response to the trial courts question, Deputy Sarti testified he had not completed his traffic stop investigation before Garcia made the statements about the narcotics.

At the close of the hearing, Garcia moved to suppress the evidence seized on the grounds he was illegally detained and arrested. After acknowledging the traffic stop was lawful, defense counsel argued Deputy Sarti was not entitled to ask whether Garcia had had any dope in his possession, a question unrelated to the purpose of the stop and unsupported by reasonable suspicion. The trial court denied the suppression motion, finding the officer acted reasonably in asking the question.

After denial of his motion to suppress, Garcia pleaded no contest to possession of methamphetamine for sale. Pursuant to the plea agreement, he was sentenced to the middle term of two years in state prison, execution of sentence was stayed and Garcia was placed on three years of formal probation on condition he serve 20 days in county jail, with credit for time served, and perform 60 days of work for the California Department of Transportation.

DISCUSSION

1. Standard of Review

In reviewing the denial of a motion to suppress, the appellate court defers to the trial courts express or implied factual findings when supported by substantial evidence (People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

2. The Post-Stop Detention Was Lawful

Garcia does not dispute he was lawfully stopped for traffic infractions. Nor does he contest Deputy Sartis right to detain him to obtain his drivers license for the purpose of issuing a citation or a warning. However, Garcia asserts Deputy Sarti unnecessarily prolonged the investigation by using the time reasonably necessary to conduct his duties to ask [Garcia] an incriminating question unrelated to the initial purpose of the stop. Specifically, Garcia argues he should have been given a warning or cited and released rather detained further for a fishing expedition into whether he possessed drugs or weapons.^[1]

A traffic stop may last as long as is reasonably necessary for the officer to perform the duties required by the stop. (People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran); People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Investigative activities beyond the original purpose of a traffic stop are permissible so long as they do not prolong the stop beyond the time it would otherwise take. (People v. Bell (1996) 43 Cal.App.4th 754, 767.) The circumstances of each traffic detention are unique and the reasonableness of each detention period must be judged on its particular circumstances. (Williams v.Superior Court (1985) 168 Cal.App.3d 349, 358 (Williams).)

On the record before us, there was no unnecessary extension of the traffic detention. Garcias reliance on McGaughran and Williams in arguing to the contrary is unavailing. In McGaughran the officer had initially detained the defendant three or four minutes to advise him of the traffic violation. The officer did not issue a traffic citation and never intended to do so. It was his policy to simply issue a warning. However, rather than issue a warning the officer detained the defendant while he undertook a ten-minute warrant check. (McGaughran, supra, 25 Cal.3d at pp. 585-586.) In Williams the officers had obtained all the information necessary to perform the traffic-stop duties, but they prolonged the detention to investigate unrelated criminal conduct. (Williams, supra, 168 Cal.App.3d at p. 361.)

Here, by contrast, it is undisputed Deputy Sarti asked Garcia about possessing drugs or weapons within two minutes of the initial contact. As Garcia acknowledges in his opening brief, Before asking about drugs or weapons, Deputy Sarti did not attempt to ask questions about the registration, did not warn [Garcia] about the infractions committed, nor did he give [Garcia] a citation for the traffic violations. In other words, as Deputy Sarti testified, he had only started performing the traffic-stop tasks when he posed the question to Garcia.

Equally unpersuasive is Garcias claim Deputy Sarti exceeded constitutional limitations by asking a question unconnected to the reason for the stop. The notion that police questioning on a subject unrelated to the purpose of the stop is itself a Fourth Amendment violation has been considered and rejected. (People v. Bell, supra, 43 Cal.App.4th at pp. 767-768; United States v. Shabazz (5th Cir. 1993) 993 F.2d 431, 436.) The nature of the questioning might be relevant but only as evidence of prolongation, to show the justification for the original detention no longer supports its continuation. (People v. Gallardo (2005) 130 Cal.App.4th 234, 239; People v. Bell, supra, 43 Cal.App.4th at p. 768, citing United States v. Shabazz, supra, 993 F.2d at p. 436.)

Finally, it was Garcia not Deputy Sarti, who broadened the scope of the detention beyond its original purpose by admitting he possessed marijuana on his person and probably in his car. And, there is no assertion by Garcia that either admission was coerced.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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^[1] In his written motion, defense counsel contested both the duration and scope of the detention as unconstitutional. However at the suppression hearing, in response to the trial courts request for clarification, defense counsel indicated only the scope and not the duration of the detention was the focus of the motion. On appeal, the same counsel appears to be challenging the duration of the detention as well as its scope. Nonetheless, rather than consider the defense as having previously conceded the detention here was not unduly prolonged, we shall examine the reasonableness of its duration and scope.