P. .v Griffith

Filed 12/15/08 P. .v Griffith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Carlos P. Baker, Jr., Judge. (Retired judge of the former Justice Ct. for the Corcoran Jud. Dist. of Kings County, assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant DaVictor Griffith guilty of two counts of transportation of marijuana (Health & Saf. Code,  11360, subd. (a), counts 1 and 4) and two counts of possession of marijuana for sale (Health & Saf. Code,  11359, counts 2 and 3). The jury also found true the allegations that defendant had committed the offenses in counts 1 and 2 while released on bail or his own recognizance (Pen. Code,  12022.1), and had served a prior prison term (Pen. Code,  667.5, subd. (b)). The trial court sentenced defendant to a total term of six years in state prison.

On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence. We disagree and affirm.

FACTUAL BACKGROUND

The following statement of facts is derived from the hearing on the motion to suppress: Officer Scott Murray testified that on the night of February 14, 2004, he and Officer Jason King were driving in an area where it was known that drugs were sold. They observed a vehicle that was speeding and had expired registration tags, so they performed a traffic stop. Officer Murray approached the drivers side of the vehicle and made contact with defendant, who was the driver. As Officer Murray began asking defendant for his identification, he could smell a strong odor of marijuana emitting from the vehicle. The officer asked defendant if there was any marijuana in the vehicle, and defendant said no. Officer Murray asked if defendant had anything on him, and defendant said he did not. Officer Murray then asked defendant if he could check him, and defendant consented. The officer removed defendant from the vehicle and began to search him. He gripped defendants hands in his left hand and patted him down with his right hand. Officer Murray testified that Officer King asked defendant if he could search the vehicle, and defendant said he could. Once Officer King received consent to search the vehicle and Officer Murray searched defendants person, Officer Murray placed defendant at the curb while Officer King searched the vehicle.

Officer King similarly testified that when he initially approached defendants vehicle, he could smell a strong odor of marijuana. He asked defendant if there was marijuana in the vehicle, and defendant said no. Officer King testified that he asked defendant for permission to search the vehicle, and defendant said no. However, on cross-examination, when defense counsel stated: When you asked for permission, [defendant] actually said, no, you cannot search my car? Officer King replied, Thats incorrect, sir. Officer King later testified that he obtained defendants consent at some point, but he could not recall if it was before defendant was pulled out of the vehicle or after.

Officer King searched defendants vehicle and found approximately 185 grams of marijuana with packaging.

Defendants girlfriend, Helen Taylor, testified at the suppression hearing as well. She said that defendant had just left her house when he was pulled over by the police. She was standing on the sidewalk about five houses down the block when defendant was pulled over. She said they handcuffed defendant right away and were teasing him. She also said they did not ask defendant for consent to search his vehicle. Taylor further testified that she had been in defendants vehicle earlier that night but did not smell any marijuana in the vehicle.

Defendant testified at the hearing that after the officers stopped his vehicle, Officer King approached the vehicle and noticed a bag in the front seat. Officer King made a comment about the bag, went to talk to the other officer, then returned and asked defendant if he was currently on bail for possession of marijuana. Defendant said he was, so the officer asked him how much drugs was he going to find in the bag. Defendant denied having any drugs, and the officer asked him to step out of the vehicle. Defendant testified that the officers did not ask him for consent to search his vehicle. Defendant also testified that when he was driving his vehicle that night, he did not notice any smell of marijuana. He further stated: Theres no way there could have been any kind of smell of marijuana. No.

The court denied the motion to suppress without explanation.

ANALYSIS

The Trial Court Properly Denied the Motion to Suppress

Defendant argues that the trial court erred in denying the motion to suppress. He contends that he never gave his consent to search the vehicle, or, in the alternative, that his consent was not freely given. He also argues there was no probable cause to search his vehicle, and that the search performed by Officer King exceeded the scope of the detention for a traffic stop. He adds the claim that the detention was an improperly extended encounter based on the pretext of a traffic violation. We conclude that all of his contentions are meritless.

A. Standard of Review

In reviewing the denial of a motion to suppress evidence, [w]e 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.)

Furthermore, [t]he question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, the power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial courts findingswhether express or impliedmust be upheld if supported by substantial evidence. [Citations.] (People v. James (1977) 19 Cal.3d 99, 107.)

B. Defendant Consented to the Search

Defendant argues that the search of his vehicle was unlawful because the facts do not allow for a simple conclusion that consent was given for the search. Contrary to defendants claim, both Officer Murray and Officer King testified that defendant gave his permission to search the vehicle. Although Officer King initially testified that defendant said he could not search his vehicle, Officer King subsequently testified that defendant gave his consent. Officer Murray unequivocally testified that defendant consented to the search. Even though defendant and his girlfriend testified to the contrary, the court apparently believed the testimonies of the officers. We do not resolve conflicts in the testimony, as it is the exclusive province of the trial judge to determine the credibility of the witnesses. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Thus, we defer to the courts finding of consent.

Defendant further argues that if he did consent, his consent was clearly not the product of his free will but rather his submission to the officers express physical and oral assertions of authority. There is no indication that defendants consent was not voluntary. Furthermore, the court heard the evidence and apparently determined that it was voluntary. (People v. James, supra, 19 Cal.3d at p. 107.) On the record before us, we conclude that the officers testimony constituted sufficient evidence that the search of the vehicle was made with defendants consent.

In sum, defendant voluntarily consented to the search of his vehicle. Thus, the court properly denied the motion to suppress.

C. The Officers Had Probable Cause to Search the Vehicle

Even if defendant did not consent to the search of the vehicle, the police had probable cause to search since they detected the strong odor of marijuana emanating from the vehicle. Hornbook law states that the Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause. [Citations.] The scope of such a warrantless search is defined by the nature of the items being sought: If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the

object of the search. [Citation.] (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059.)

Under the facts of this case, Officer King had probable cause to search defendants vehicle for marijuana after the officers smelled the odor of marijuana coming from it. (People v. Strasburg, supra, 148 Cal.App.4th at p. 1059.) Officer King testified as to his experience and familiarity with the smell of marijuana. Furthermore, probable cause to believe the vehicle contained contraband was established without infringing on any of defendants constitutional rights. Therefore, Officer King would have been remiss in his duties had he not searched the vehicle.

Defendants contention that the officers improperly expanded the investigation outside the scope of the traffic violations observed is simply meritless. Although the officers initially conducted a traffic stop of defendants vehicle, they only searched the vehicle because they smelled the marijuana.

Defendant also argues that the detention was an improperly extended encounter based on the pretext of a traffic violation. In other words, he asserts that the officers stopped defendant on a traffic violation in order to interrogate him about narcotics or about any other possible offense. (People v. Lingo (1970) 3 Cal.App.3d 661, 664.) This contention is untenable. Officer Murray observed defendant speeding, and observed his expired registration tags. He said he pulled defendant over because of these violations. Officer Murray also testified he was not aware defendant had any type of prior cases pending against him prior to the stop. Thus, there was absolutely no evidence that the officers pulled defendant over in order to interrogate him about his marijuana. Rather, as previously discussed, the officers smelled the marijuana coming from the vehicle and, accordingly, proceeded to investigate.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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