PEOPLE v. TODD

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Curtis Ray TODD, Defendant and Appellant.

No. F020729.

Decided: November 29, 1994

Gordon S. Brownell (court-appointed), San Francisco, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Maureen A. Daly and Anthony L. Dicce, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

After his suppression motion was denied, appellant Curtis Ray Todd entered a plea of nolo contendere to one count of possession of methamphetamine (Health & Saf.Code, § 11378).   Appellant appeals, claiming his suppression motion was erroneously denied.   In particular, appellant claims the search was a pretextual search.

FACTS 1

On July 1, 1993, at 5:10 p.m. Bakersfield Police Officer Scott Tunnicliffe saw a vehicle which he had previously identified as possibly being involved in the distribution of methamphetamine.   Officer Tunnicliffe noticed that the vehicle did not have a front license plate.   He stopped the truck for the Vehicle Code violation.

Appellant was driving the truck;  there were no passengers.   Officer Tunnicliffe asked appellant for his driver's license.   Appellant said he did not have one.   Officer Tunnicliffe asked appellant for the car registration;  appellant did not have that either.   Officer Tunnicliffe asked appellant to get out of his truck.   Appellant complied and for his own protection Officer Tunnicliffe conducted a patdown search for weapons.   Officer Tunnicliffe felt an object that felt like a wallet in appellant's pocket.   Officer Tunnicliffe removed the object;  it was a wallet.   It contained an expired driver's license for appellant.

Officer Tunnicliffe began a computer check of appellant to see if he had a valid license and also to see if he had any wants or warrants for his arrest.   Officer Tunnicliffe was going to cite appellant for driving without a valid license and was going to tow the vehicle.   While the computer check was being done, Officer Tunnicliffe asked appellant if he could search the vehicle;  appellant consented.

Before Officer Tunnicliffe began the search, Brenda Jo Hardin arrived at the scene and claimed ownership of the truck.   Officer Tunnicliffe searched the truck and found methamphetamine on the seat of the truck.

Officer Tunnicliffe admitted that he wanted to identify appellant as the person involved in a control buy in 1992 and was looking for a Vehicle Code violation so he could stop appellant and the vehicle.   Officer Tunnicliffe did not recall if he looked for the vehicle registration when he searched the truck.

DISCUSSION

I.

 Appellant asserts that the initial stop and subsequent detention and search of his vehicle constituted an illegal pretextual search and seizure.   Before analyzing the particular search here, it is necessary to first determine the law to be applied.

There is a split of authority in the federal circuit courts as to what constitutes an unlawful pretextual stop.   Neither the United States Supreme Court nor the California Supreme Court has taken a position on the issue.   The Sixth District Court of Appeal in People v. Miranda (1993) 17 Cal.App.4th 917, 21 Cal.Rptr.2d 785 adopted the majority federal viewpoint.2

Both the majority and minority federal tests are objective tests.3  The majority of the federal circuit courts have held that “the inquiry focuses on whether the officer was legally authorized to make an arrest and conduct a search.   If, in the abstract, the officer does no more than he or she is legally permitted to do, regardless of the subjective intent with which it was done, the arrest and search are objectively reasonable and constitutionally proper.  [Citations.]”  (People v. Miranda, supra, 17 Cal.App.4th at pp. 924–925, 21 Cal.Rptr.2d 785.)   The minority viewpoint in the federal courts is the reasonable-officer test.   This test questions whether a reasonable officer would have made the arrest in the absence of an invalid purpose.   This test “asks courts to determine whether the arresting officer's conduct deviated from the usual practice of a ‘reasonable officer.’   To do this in a given case, the court must inquire into how police normally treat the particular Vehicle Code violation on which the stop was based.   This ‘usual practice’ is then elevated to a standard of procedure which the ‘reasonable officer’ would have followed.”  (People v. Miranda, supra, 17 Cal.App.4th at p. 928, 21 Cal.Rptr.2d 785.)

We conclude the detailed analysis contained in People v. Miranda correctly determines that the majority test is the better of the two tests.   It provides consistency and predictability and maintains the rules and procedures every officer must follow to justify a traffic stop.

Applying the majority federal test to this case, it is clear that defendant violated a provision of the Vehicle Code and therefore Officer Tunnicliffe was reasonably justified in making a traffic stop, regardless of Officer Tunnicliffe's particular state of mind.  “A police officer may legally stop a motorist he suspects of violating the Vehicle Code for the purpose of issuing a citation.”  (People v. Grant (1990) 217 Cal.App.3d 1451, 1458, 266 Cal.Rptr. 587.)

II.

Appellant asserts that even if the initial stop is determined to be proper, the nature of the detention that followed the stop requires that the evidence be suppressed.   In particular, appellant contends Officer Tunnicliffe illegally conducted a patdown search and that Tunnicliffe had no reasonable basis to ask for consent to search or to search the truck, particularly since Hardin, the registered owner, was present.   Appellant argues there was no basis for lengthening the detention here.   Appellant contends the consent to search was invalid because it flowed unlawfully from the unlawfully prolonged detention.

 Vehicle Code section 4462 requires a driver to present vehicle registration upon demand by a peace officer.

“Once having properly detained a vehicle, an officer may ask for and examine the license of the driver and the registration for the vehicle, and may remove the driver from the car in order to do these things.  [Citations.]  If the driver cannot produce his or her license, or satisfactory proof of identity, or the registration, then the officer may expand the scope of the detention, depending on the circumstances.  [Citations.]”  (People v. Valencia, supra, 20 Cal.App.4th at p. 918, 24 Cal.Rptr.2d 883.)

Appellant was asked for his driver's license.   He said he did not have one with him.   Appellant was asked for the car registration.   He said he did not have it.   Appellant was asked to look for the registration.   He did look and said he could not find it.   Appellant was then asked to exit the vehicle.   At that time Officer Tunnicliffe had not only a violation of Vehicle Code section 5200 (driving a vehicle without proper license plates), but also had reason to believe appellant was in violation of Vehicle Code section 12500 (driving without a valid license).   In addition, at that time appellant could be subject to arrest and being taken into custody under Vehicle Code section 40302 for the failure to present a driver's license or other satisfactory evidence of identification.   Thus Officer Tunnicliffe had several objectively reasonable reasons to expand the scope of the detention.   Officer Tunnicliffe could properly order appellant out of the truck at this time.  (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108–111, 98 S.Ct. 330, 332–333, 54 L.Ed.2d 331.)

 When appellant got out of the truck, Officer Tunnicliffe conducted a pat search.   Officer Tunnicliffe stated he did this for officer safety, yet he articulated no objective reasons why he feared for his safety.   “[S]ince minor traffic offenses do not reasonably suggest the presence of weapons, an officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon.”  (People v. Miranda, supra, 17 Cal.App.4th at p. 927, 21 Cal.Rptr.2d 785.)

Officer Tunnicliffe did not articulate any objective circumstances to support a patdown search of appellant.   The stop was made in daylight hours, appellant was not driving erratically nor did he display any unusual behavior when Officer Tunnicliffe spoke to him.   Although Officer Tunnicliffe knew appellant from a controlled buy which occurred almost a year before the stop, Officer Tunnicliffe had no information that appellant was armed or dangerous.4  The evidence does not support a finding that Officer Tunnicliffe had a right to conduct a patdown search of appellant.5

Although the patdown search of appellant was illegal, the search did not produce anything suppressible.6  The patdown search did not take a long period of time and although it prolonged the detention momentarily, it did not influence the subsequent search, as appellant asserts.

 When appellant was removed from the truck, he was not able to leave.   Pursuant to Vehicle Code section 40302, appellant had to present some form of suitable identification and if he could not, Officer Tunnicliffe could arrest him and take him before a magistrate.   Because at this time Officer Tunnicliffe had the right to take appellant into custody, he had the right to detain him for a warrant check.  (People v. McGraughran (1979) 25 Cal.3d 577, 583, 159 Cal.Rptr. 191, 601 P.2d 207.)   At the time of the patdown search, appellant had not produced any form of identification.   Also, Officer Tunnicliffe had to determine if appellant was a licensed driver, for if he was not, Officer Tunnicliffe could not release the truck to him.   In addition, Officer Tunnicliffe had not seen a vehicle registration, which he requested to see and had the right to see.   Thus, the circumstances at the time appellant was removed from the truck provided good reasons for Officer Tunnicliffe to expand the scope of the stop and make it incrementally more intrusive.

 Appellant asserts that there was no reasonable basis for Officer Tunnicliffe to request his consent to search nor was there any legitimate law enforcement purpose achieved by searching the truck.   Appellant relies in part on the fact that Hardin, who claimed to be the registered owner of the truck, was present when the search was actually conducted.

 Although Hardin arrived on the scene after appellant consented to the search but before the search commenced, Officer Tunnicliffe testified he did not know if at that point he knew Hardin was the registered owner.   In any event, even if Hardin claimed to be the registered owner, Officer Tunnicliffe still had the right to view the registration documents.   At the time Officer Tunnicliffe conducted the search, he had a driver (appellant) with an invalid license, who could therefore not drive the car away, and a passerby who claimed to be the registered owner of the vehicle.   Appellant claimed he could not find the registration.   Officer Tunnicliffe had a duty to inspect the registration to ascertain the owner of the vehicle so he could make a determination whether to release or impound the vehicle.   Within constitutional limits, the statute authorizing an officer to inspect vehicle registration also authorizes the officer to enter a stopped vehicle and conduct a warrantless search for the required documents.  (People v. Webster (1991) 54 Cal.3d 411, 430, 285 Cal.Rptr. 31, 814 P.2d 1273.)   When Officer Tunnicliffe entered the vehicle, he found the brown bag sitting on top of the seat;  the bag contained methamphetamine.

Officer Tunnicliffe testified that he did not search for the car registration first.   He did not remember if the truck had a glove box, and he did not remember if he searched for the registration at all.   Thus it appears Officer Tunnicliffe was looking for something other than that authorized by the search.   This brings to a head the question of the application of the federal majority test, whether if the police do no more than they are legally authorized to do will a defendant's claim that the stop was nevertheless a pretext to conduct an otherwise justifiable search fail?   Although it is reasonable to infer that Officer Tunnicliffe's motives were to link appellant to drug trafficking, the above discussion illustrates that, with the exception of the patdown search, Officer Tunnicliffe was legally authorized to do everything that he did.   The patdown search did not illegally prolong the detention of defendant.  (Compare People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, 280 Cal.Rptr. 80.)   Officer Tunnicliffe had ample legal justification to prolong the detention of defendant beyond the time after the patdown search.   Because the actions of Officer Tunnicliffe which led to the discovery of the methamphetamine were legally authorized, Officer Tunnicliffe's subjective intentions for his activities are not relevant.

The motion to suppress was properly denied.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   A suppression motion was made at the preliminary hearing and renewed in superior court.   The rulings were made based on the testimony from the preliminary hearing.   All the facts are from the preliminary hearing.

2.   In People v. Uribe (1993) 12 Cal.App.4th 1432, 16 Cal.Rptr.2d 127, the Fourth District, Division 1, recited the majority and minority tests but did not adopt one or the other.   In People v. Valencia (1993) 20 Cal.App.4th 906, 917, 24 Cal.Rptr.2d 883, the Fourth District, Division 2, joined the viewpoint expressed in Miranda.   This court has not taken a position and appellant argues that this court should adopt the federal minority position.

3.   Appellant does not challenge whether the test in California retains a subjective component.   Because appellant has not challenged the utilization of the objective federal tests in California, we do not discuss the issue.

4.   Respondent does not address this portion of appellant's argument.

5.   Although it is well established that a police officer faces great risk when approaching a person seated in an automobile (Michigan v. Long (1983) 463 U.S. 1032, 1047–1048, 103 S.Ct. 3469, 3479–3480, 77 L.Ed.2d 1201), the courts still adhere to the rule that there must be objective circumstances to reasonably believe the driver is armed and/or dangerous in order to conduct a patdown search for weapons.

6.   Although it could be argued (but it was not) that the search produced defendant's invalid driver's license which could have resulted in prosecution for violating Vehicle Code section 12500, defendant's driving without a valid license would have inevitably been discovered during the check to see if he had a valid license.   Such a check was necessary to see if the truck could have been driven away by defendant.

HARRIS, Associate Justice.

VARTABEDIAN, Acting P.J., and THAXTER, J., concur.

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