P. v. Lopez

Filed 7/10/08 P. v. Lopez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

After denial of her motion to suppress evidence pursuant to Penal Code section 1538.5, Leticia Lopez (defendant) pleaded no contest to the crime of possession for sale of a controlled substance in violation of Health and Safety Code section 11378.

In accordance with defendants plea agreement, imposition of sentence was suspended and defendant was placed on formal probation for a period of three years.

Defendant appeals on the ground that the trial court erroneously denied her motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

At the hearing on the motion to suppress, Officer Robert Masucci, a police officer for the city of Glendale, testified that on May 17, 2006, he initiated a traffic stop of a vehicle that made a left turn without showing a left turn signal.[1] Defendant was the front seat passenger in the vehicle. When the driver told Officer Masucci that he did not have a valid license or identification, Officer Masucci handcuffed him and placed him in the police car. Officer Masucci did not recall asking defendant to stay in the car.

Officer Masucci returned to the car where defendant was seated and asked her if she had a drivers license. She replied that she did. Officer Masucci wanted to see defendants drivers license so that she could drive the car away, since the driver had said the car could be released to her. Defendant said she did not know if she could drive because she was not feeling well. Defendant opened her purse, and Officer Masucci saw a lighted, digital gram scale inside. Because the scale lit up, Officer Masuccis attention was drawn to it. Officer Masucci had worked narcotics cases in the past and had seen this type of scale before. In his experience, the scales are used to weigh, package, and measure narcotics.

Defendant handed Officer Masucci her drivers license. Officer Masucci had defendant step out of the car, and he called for a backup unit to detain defendant. He told defendant he had seen the scale in her purse, and he asked her what it was for. Defendant merely shrugged her shoulders and did not reply. Officer Masucci asked defendant if she had anything illegal in her purse or in the car, and she indicated she did not. Officer Masucci asked defendant if he could search her purse and she said, Yeah. Go ahead. Officer Masucci told defendant to leave her purse in the car.

After backup arrived Officer Masucci asked defendant to stand with his assisting unit towards the back of the passenger vehicle. He searched the car and defendants purse. He withdrew the scale from the purse and opened an oversized sunglass case. Inside the case he found three bags of a substance that he believed to be methamphetamine. The case also contained small, empty Ziploc baggies.

On cross-examination, Officer Masucci testified that less than two minutes elapsed from the time he stopped the car until he placed the driver in his patrol car. Less than a minute later, he saw the scale in defendants purse and asked her to step out of the car. Backup arrived three to four minutes later. Officer Masucci testified that he did not see any drugs or anything else inside the vehicle before asking defendant to get out of the vehicle. He called for backup because he did not want to turn his back on defendant while he searched the car. Defendant was not handcuffed and was not in custody. She was merely being detained. Officer Masucci found the narcotics and baggies within 60 to 90 seconds after backup arrived, and he then had defendant arrested.

At the close of evidence the prosecution argued that defendant gave permission to search after the officer noticed something and asked defendant if he could search. Officer Masucci then found the narcotics.

Defense counsel argued that the case of People v. Spicer (1984) 157 Cal.App.3d 213 (Spicer), a copy of which had been given to the trial court, was on point. The trial court stated that the Spicer case was quite old and asked counsel to address the prosecutors argument.

Defense counsel argued that the initial detention--which occurred when Officer Masucci asked defendant to step out of the vehicle--was unlawful. After that, anything that occurred, including the obtaining of defendants consent, was unlawful. The mere fact that defendant gave consent to search during the pendency of an illegal or unlawful detention vitiated the consent. The trial court clarified that defendants argument was that Officer Masucci unlawfully detained defendant by asking her to get out of the car.

The trial court stated, The officer has every right to make query regarding the safekeeping of the vehicle which is exactly what he did. He walked over and asked your client if she had a drivers license and if she could drive the car. Had your client unequivocally said yes and provided a drivers license, I think at that point, had nothing else occurred, the officer would have permitted her to take the car and be on her way, less of a headache for the officer. But at this point once he makes contact with her and he observes the scale in the purse--

The trial court ruled that the officer acted appropriately under the circumstances. The officer had reason to ask defendant to step out of the vehicle momentarily once the driver of the vehicle was arrested. In any event, the officer observed a scale when he went to speak with defendant, which raised a suspicion. The search was conducted almost immediately after a brief detention that was appropriate based on the circumstances. The court also believed the officer obtained lawful consent to search.

DISCUSSION

I. Defendants Argument

Defendants argument is founded on the notion that her Fourth Amendment rights were violated when she was asked to produce her drivers license. Defendant claims that, as in Spicer, the police officer had no reasonable basis to suspect defendant of a crime, and he had no reason to insist that she prove she could drive the car in which she was a mere passenger. (See Spicer, supra, 157 Cal.App.3d at p. 220.) Defendant did not consent to driving the car at any point and actually stated that she could not drive because she did not feel well. Just as in Spicer, the circumstances in this case were pregnant with coercion. (Ibid.) Once defendant said she did not wish to drive, the officer had no further reason to question or search her, and the intrusion should have ended at that time. Because it did not, the motion to suppress should have been granted.

II. Relevant Authority

On appellate review of a trial courts ruling on a motion to suppress evidence, the appellate body must accept the trial courts resolution of disputed facts and its assessment of the credibility of witnesses if supported by substantial evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.) The trial court has the power to decide what the officer actually perceived, or knew, or believed, and what action he took in response. (People v. Leyba (1981) 29 Cal.3d 591, 596.) The appellate court independently measures the facts found by the trier against the constitutional standard of reasonableness. (Id. at p. 597; People v. Lawler, supra, at p. 160.)

[T]he temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on some objective manifestation that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.] (People v. Souza (1994) 9 Cal.4th 224, 230.) Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause . . . . [Citation.] (People v. Dolly (2007) 40 Cal.4th 458, 463.)

III. Analysis

A. Respondents Claim of Forfeiture

Respondent points out that at the hearing on the motion to suppress, defendant did not argue, as she does now, that Officer Masucci did not have the right to ask her for her drivers license. Respondent contends this argument was therefore waived.

It is true that the defense position at the hearing was that an unlawful detention occurred at the moment Officer Masucci asked defendant to leave the car. Defendants written motion also argued that she was detained when she was asked to step out of the car. We note, however, that approximately one month before the hearing, defendant filed a request that the trial court take judicial notice of the Spicer case, in which the court held that a detention occurred when a police officer asked the passenger in a car stopped for a traffic violation if she had a drivers license. (Spicer, supra, 157 Cal.App.3d at p. 218.) At the hearing in this case, defense counsel began his argument by stating that Spicer was on point. The trial court did not address Spicer and requested counsel to respond to the prosecutors argument. Under these circumstances, we are reluctant to conclude that defendant forfeited her current argument on appeal.

B. Motion to Suppress Properly Denied

As noted, the parties stipulated that the traffic stop of the vehicle was lawful. After the stop, Officer Masucci discovered that the driver had no drivers license or identification, and he arrested the driver. According to Officer Masucci, the driver said that he wanted the car released to defendant. Officer Masucci properly attempted to ascertain whether defendant had a drivers license before releasing the car to her. Although defendant said she did not know if she could drive because she was not feeling well, the testimony indicates that she simultaneously opened her purse to retrieve her drivers license.

We conclude there was nothing unlawful about Officer Masuccis conduct. Even in Spicer, relied upon by defendant as the basis for her entire argument, the court stated that if the officer in that case had informed Ms. Spicer that he wanted to see her license because the car might be turned over to her, the probability of his conduct appearing to be coercive would have been substantially diminished. (Spicer, supra, 157 Cal.App.3d at p. 220.) The police officer in Spicer asked the defendant, a passenger in a car whose driver was detained, to produce a drivers license. As the defendant began looking in her purse, the officer stood outside the car and illuminated the defendants purse with his flashlight. As the defendant searched inside her purse, the officer saw what appeared to be the butt of a handgun inside the purse. At that point, the defendant was made to cease looking inside her purse and get out of the car. The officer recovered a loaded .38-caliber revolver from the purse. (Id. at p. 216.) Although finding the officers action coercive, Spicer acknowledged that officers have an obligation to investigate the drivers license status of the passenger to whom the car is to be released. (Id. at p. 221.)

Defendants claim is identical to that ofthe appellant in People v. Grant (1990) 217 Cal.App.3d 1451 (Grant), i.e., that consent to search that enabled the development of the probable cause was obtained during an illegal seizure of the appellants person. . . . Specifically, the seizure became unreasonable to appellant when [the police officer] asked appellant to produce identification. (Id. at p. 1456.) Grant held that it was reasonable for the officer to request identification from a passenger in connection with a lawful traffic stop under the circumstances of that case. (Id. at p. 1457.) These circumstances included the fact that the driver of the car said he had lost his drivers license, and he could not satisfactorily identify himself. (Id. at pp. 1455-1456, 1459.) The officer then sought identification from the defendant so as to have a witness to corroborate who had been driving the car and to determine whether the vehicle could be lawfully turned over to defendant, the passenger. (Id. at p. 1459.) Grant distinguished Spicer because the intrusion in Spicer was occasioned by a demand that the defendant search for and produce a document, and, while the defendant searched, the officer looked into her purse with the help of a flashlight. (Grant, at p. 1461.) This intrusion was unnecessary to effectuate the purpose of the stop. (Ibid.)

Citing Florida v. Royer (1983) 460 U.S. 491, 497, the Grant court noted that law enforcement officers do not violate the Fourth Amendment in approaching an individual on the street and asking if he is willing to identify himself. (Grant, supra, 217 Cal.App.3d at p. 1461.) Once the privacy of a car has been intruded upon by a lawful traffic stop, we find no reason to expand the rights of passengers in a vehicle beyond those afforded travelers in airports [citations]; employees in garment factories [citation]; or fisherman on public streets [citation]. (Id. at pp. 1461-1462; see also People v. Cartwright (1999) 72 Cal.App.4th 1362, 1370 [a mere request for identification does not transmogrify a contact into a Fourth Amendment seizure].) The Grant court held that the defendants consent to search was not rendered invalid or involuntary by the officers prior request for identification, and the motion to suppress was properly denied. (Grant, supra, at p. 1462.)

Likewise, in the more recent case of People v. Vibanco (2007) 151 Cal.App.4th 1 (Vibanco), the court determined that asking a passenger of a lawfully stopped vehicle for identification did not constitute a detention. In Vibanco the Attorney General conceded that the defendant was detained when police officers ordered him back into the car when he attempted to get out. (Id. at pp. 5-8.) After the Vibanco court determined that the detention was lawful (id. at pp. 8-12), it also concluded that the request for the defendants identification, which was made as he attempted to exit the vehicle, did not constitute a seizure. (Id. at pp. 6, 14.) The Vibanco court noted that, in the ordinary course of events, a police officer may ask a person for identification without implicating the Fourth Amendment. (Id. at p. 13.) The rule stating that police do not need to have reasonable suspicion in order to request identification applies to a passenger who has been detained during a lawful car stop. (Id. at p. 14.) When a passenger is lawfully detained, the request for identification does not constitute an additional seizure when the request does not prolong the detention. (Ibid.)

In the instant case, the fact that defendant indicated she might not want to drive did not alter the officers ability to lawfully request identification during a lawful traffic stop. Officer Masucci then saw the scale in plain view as defendant opened her purse. This provided the officer with reasonable suspicion that criminal activity was afoot, and he lawfully detained defendant at that point. (People v. Souza, supra, 9 Cal.4th at
p. 230.) Defendant gave Officer Masucci consent to search her purse. There was no prolonged detention, since less than three minutes elapsed between the initial traffic stop and the moment Officer Masucci saw the scale. The trial court, in denying the motion to suppress, impliedly found Officer Masuccis testimony to be credible in describing the events leading up to defendants consent, and it specifically found true the testimony regarding the consent itself. (See, e.g., People v. James (1977) 19 Cal.3d 99, 107 [denial of motion to suppress indicates trial court found the officers testimony to be true and the consent to be voluntary].) Defendants motion to suppress was properly denied.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

CHAVEZ

We concur:

___________________________, Acting P. J.

DOI TODD

___________________________, J.

ASHMANN-GERST

[1] The parties stipulated that there was probable cause to stop the vehicle.