PEOPLE of the State of California, Plaintiff and Appellant, v. Ruben SAMANIEGO, Defendant and Respondent.
Defendant was charged with possession of heroin for sale in violation of Health and Safety Code section 11351. The trial court granted defendant's motion under Penal Code section 1538.5. The People appeal. (Pen.Code, § 1238, subd. (a)(7).)
A motion to suppress was heard and denied at the preliminary hearing. The motion, together with a Penal Code section 995 motion, was renewed after the preliminary hearing, and was based on the facts elicited at that hearing. The motions were heard on February 26, 1993, and the Penal Code section 1538.5 motion was granted and the Penal Code section 995 motion was denied.
At the preliminary hearing, Indio police officer Titone testified that he was on routine patrol on August 12, 1992, when he saw a vehicle with dark tinted windows. He made a traffic stop, intending to cite the driver for the forward window tint, which he considered a violation of the Vehicle Code.
Defendant was the driver of the vehicle. He had a driver's license, but no registration papers. Defendant explained that he had purchased the car at a car auction the previous day. Defendant also showed the officer a card indicating that defendant was on a methadone program.
The officer noticed a pager, a cellular telephone, and a large amount of cash on the front passenger seat. Officer Tira then arrived and told officer Titone that he had received information from an anonymous informant that defendant was in the business of selling drugs.1 Officer Tira took defendant out of the car because he would not sit still and follow the officer's directions. Officer Titone then asked defendant if he was selling drugs. Defendant said no and volunteered consent to search the car.
Officer Tira searched the car and, while doing so, the pager went off. Officer Tira went to a nearby pay phone, called the number, and reported that a female was trying to buy heroin.2 Officer Tira set up a meeting with the female. Defendant was then arrested “for our investigation of possession for sales based on the items that we have found on the car and the phone call that was made.” 3 At that time, the officers suspected defendant was possessing heroin for sale, but they had not found any heroin.4 The arrest occurred 20 minutes after the initial stop. No narcotics were found in the car.5
Defendant was then placed in the back seat of the patrol car and the search of defendant's car continued. A scale was found in the trunk of the car. Officer Titone then transported defendant to the station. After removing defendant from the police car, the officer removed the back seat and found a small metal Tylenol box. The box contained eight foil packages of heroin.
STANDARD OF REVIEW
“In reviewing defendant's motion to suppress, we are bound by the trial court's factual findings, whether express or implied, if they are supported by substantial evidence. However, we review questions of law independently to determine whether the challenged seizure meets constitutional standards of reasonableness.” (People v. Boissard (1992) 5 Cal.App.4th 972, 977, 8 Cal.Rptr.2d 738.)
In our view, this case illustrates the different standards applicable to the decisions to stop, detain, and arrest defendant.
1. The Stop.
The People argue that the officer properly stopped defendant's vehicle upon observing an apparent Vehicle Code violation, dark window tint on the driver's and passenger's side windows.
The issue thus presented is whether an officer can stop and cite a vehicle with tinted windows.6 Tinted windows can be a violation of Vehicle Code 26708, subdivision (a), which proscribes driving with material on the windshield or side or rear windows which obstructs or reduces the driver's clear view through the windshield or side windows. However, Vehicle Code section 26708, subdivision (b)(4) provides that the section does not apply to side windows to the rear of the driver and Vehicle Code section 26708, subdivision (b)(8) provides that the section does not apply to a rear window if the vehicle is equipped with dual side mirrors.
Tinted windows can also be charged as a violation of Vehicle Code section 26101, which, in effect, adopts references to the federal 70 percent light transmittance standard under Vehicle Code sections 26103 and 26104.
In Klarfeld v. State of California (1983) 142 Cal.App.3d 541, 191 Cal.Rptr. 330, the court upheld the constitutionality of Vehicle Code sections 26708 and 26708.5. The opinion discusses the administrative interpretation of the various standards and concludes that “[i]t is clear that transparent coating may not be applied to a windshield or the front windows to the sides of the driver. However, it can be applied to the side windows which are to the rear of the driver, and to the rear window, if the vehicle is equipped with mirrors as required by section 26708, subdivision (b)(8).” (Id., at p. 550, 191 Cal.Rptr. 330.)
In People v. Fink (1985) 168 Cal.App.3d Supp. 15, 215 Cal.Rptr. 236 (overruled in People v. Geierman (1990) 226 Cal.App.3d Supp. 1, 277 Cal.Rptr. 507) the Appellate Department of the San Bernardino Superior Court considered the case of an Arizona resident driving a vehicle that conformed to Arizona window tinting standards who was cited in California for violation of Vehicle Code section 26708, subdivision (a). The court found that the statute was an unconstitutional burden on interstate commerce. However, the same court reached a different conclusion in People v. Hutchinson (1989) 211 Cal.App.3d Supp. 9, 260 Cal.Rptr. 178, holding that Vehicle Code section 26101 is constitutional. (Id., at pp. 14–15, 260 Cal.Rptr. 178.) The following year, the same court overruled Fink in People v. Geierman, supra, 226 Cal.App.3d Supp. 1, 277 Cal.Rptr. 507.
In People v. Niebauer (1989) 214 Cal.App.3d 1278, 263 Cal.Rptr. 287, our colleagues in San Diego confined Fink to its facts and declined to find that Vehicle Code section 26708 is unconstitutional as applied to a California resident. The court said: “We also accept the view expressed in those cases that the statutory scheme read as a whole requires all vehicle glass, whether factory installed, or after-market replacement glass, to comply with the federal standards for light transmittance and that glass transmitting less than 70 percent of the light is only permitted on certain windows not required for driver visibility. We further conclude that any material applied to an already factory-produced tinted window meeting the federal standard reduces the light transmittance to less than 70 percent.” 7 (Id., at pp. 1290–1291, 263 Cal.Rptr. 287.)
In discussing the sufficiency of evidence of violation, the court said: “[A] commonsense approach to the enforcement of this statute was envisioned by the Legislature. If an officer forms an opinion in a commonsense examination of a vehicle that there is a film placed upon the vehicle's windows in an unauthorized place or that light is obstructed in the fashion contemplated by the statute, such evidence will be sufficient to support conviction under section 26708(a) if the trial court believes the officer; no further evidence or scientific testimony need be presented.” (People v. Niebauer, supra, 214 Cal.App.3d 1278, 1292, 263 Cal.Rptr. 287.)
Defendant relies on People v. Butler (1988) 202 Cal.App.3d 602, 248 Cal.Rptr. 887. In Butler, an officer stopped a car driving suspiciously. He noticed that the side and rear windows were darkened and testified that he intended to tell the occupants to remove the window tinting. (Id., at pp. 604–605, 248 Cal.Rptr. 887.) He stated that the window tinting was an obvious Vehicle Code violation. (Id., at p. 605, 248 Cal.Rptr. 887.) The court noted that there were no facts in the record to support a conclusion that the officer had a reasonable suspicion that the windows were made of illegally tinted, rather than legally tinted, safety glass. It therefore stated: “We disagree with the People's suggestion that seeing someone lawfully driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon the type of speculation which may not properly support an investigative stop.” (Id., at p. 607, 248 Cal.Rptr. 887.) Accordingly, the motion to suppress should have been granted.
From Butler, defendant argues that the officer here had no factual basis for his conclusion that the window tinting was illegal, and there was therefore no basis for the stop. However, as Niebauer makes clear, the officer's opinion that the tinting violates Vehicle Code section 26708, subdivision (a) is sufficient to sustain a conviction. Stripped of its covering, defendant's argument amounts to a contention that an officer can never stop a car for tinted windows. Although Butler can be read to support that contention, we cannot agree with the proposition.
We think that Niebauer states the proper standard: if the officer sees a vehicle with window tinting film on the front side windows, the officer may stop the car and cite the driver for a violation of Vehicle Code section 26708, subdivision (a). Accordingly, the stop of defendant's vehicle was lawful for the purpose of writing a citation for a violation of that section.
2. The Detention.
Once the officer stopped defendant's car to write a traffic citation, he was authorized to detain defendant until he completed investigation of the violation and writing the citation.
The People argue that the 20–minute detention here was lawful. Defendant contends that it was not.
Both parties cite People v. McGaughran (1979) 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207 and Williams v. Superior Court (1985) 168 Cal.App.3d 349, 213 Cal.Rptr. 919. In McGaughran, our Supreme Court found that a motion to suppress evidence obtained after a traffic stop should have been granted. It discussed the detention which is permissible for citation offenses, including the steps which may be taken by the officer in investigating the offense. Relevant here, the court found that, upon demand by the officer, the driver must present his driver's license and registration papers. The court concluded that “the law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop.” (Id., 25 Cal.3d at p. 584, 159 Cal.Rptr. 191, 601 P.2d 207.)
Williams points out that an investigative detention up to the time of a consent to search must be justified either on grounds that the detention period was reasonably necessary for completion of the officer's duties relative to the traffic citation or that, after the stop, the officers had sufficient cause to conduct an investigative detention on the independent suspicion that they were armed robbers described in a police broadcasts. (Williams v. Superior Court, supra, 168 Cal.App.3d 349, 357, 213 Cal.Rptr. 919.) The court held that the prosecution failed to meet its burden of proof on either of these grounds.
Here, defendant produced his license, but did not produce registration papers. This failure justified the officer in investigating further, including a license check to ascertain if the vehicle was stolen.
In People v. Dasilva (1989) 207 Cal.App.3d 43, 254 Cal.Rptr. 563, the defendant, who had been stopped for a defective taillight, gave the officer a false name, did not produce a driver's license or a vehicle registration for the car and falsely stated that a friend had loaned him the car. The reviewing court held that the 20– to 25–minute detention was not unduly prolonged. During that period, the officer diligently tried to verify the information given by defendant. The court held: “There is no rigid time limitation imposed on a detention. The court must determine the purpose of the stop as well as the time reasonably needed to effectuate the purpose. [Citation.] The question is whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly while the subject was detained.” (Id., at p. 50, 254 Cal.Rptr. 563.) We find the brief (20–minute) detention here was justifiable in order for the officer to complete his duties with regard to the traffic violation.
In addition, the detention here turned into an investigation of narcotics violations because the officer saw, in plain view, paraphernalia associated with drug dealing on the front passenger seat of the car. When asked whether he was dealing drugs, defendant denied it and told the officer to search the car. The officer did so, but did not find any narcotics. However, we agree with the prosecution that the items found supported a reasonable suspicion that defendant was involved in criminal activity, thus justifying further investigation. (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.) Thus we find here that the prosecution sustained its burden of proof under either theory, and the 20–minute investigative detention was proper.
3. The Search.
After the officers' suspicions were aroused by signs of narcotic sales activity, the officers asked defendant if he was selling drugs. The officers testified that defendant replied negatively and consented to the search of his car without even being asked for permission to search.
Defendant contends that the search was involuntary, and that the search and seizure of the pager was illegal. He argues: “The consent to search is a response obviously motivated by the desire to respond to the accusatory remarks of the officers. Given the totality of the circumstances, it was reasonable for the [defendant] to believe that he was being detained and would not be free to leave until he did something which would convince the officers that he was not a drug dealer. As such, the consent, in the totality, cannot be viewed as being voluntary.”
The prosecution argues that the question of whether the consent was voluntary is a factual question that was determined adversely to defendant by the trial court. Finding defendant's argument speculative, we agree with the prosecution. The trial court accepted the officer's testimony, and we see no reason why that decision should not be followed.
A more complex issue is presented by seizure of the pager and the returning of an incoming call. The parties cite People v. Bullock (1990) 226 Cal.App.3d 380, 277 Cal.Rptr. 63. In that case, a pager kept signalling incoming messages while defendant was being booked. The officer retrieved the numbers, wrote them down, and returned the calls. The court held that the officer's activation of the pager display was a warrantless search justified by probable cause and exigent circumstances, i.e., the necessity to obtain the information before it became stale or was obliterated by successive incoming messages. (Id., at p. 383, 277 Cal.Rptr. 63.)
The same is true here. While the officer was searching the car pursuant to defendant's voluntary consent, the pager went off. While defendant did not give specific consent to search the pager, i.e., to retrieve the telephone number from the pager, the officer, who already had reasonable cause to believe that defendant was using the pager to contact drug purchasers, was justified by exigent circumstances in retrieving the telephone number from the pager.
As in Bullock, the officer here called the number on the pager and found a person who was seeking to buy drugs: “When reasonable cause exists to suspect that the callers might be seeking to acquire drugs, an officer reasonably could believe that their need to buy drugs was acute and that they might turn to other sources if their calls were not promptly returned. Thus, any delay in returning the calls could result in the loss of evidence of illegal drug activity.” (People v. Bullock, supra, 226 Cal.App.3d 380, 388, 277 Cal.Rptr. 63.) The same exigent circumstances were present here.
4. The Arrest.
After detaining defendant for 20 minutes, the officers arrested him for possessing drugs for sale. No drugs had been found at that time, and the trial court granted the motion to suppress on this ground. The issue thus presented is whether there was probable cause to arrest defendant for possession of drugs for sale at the time of arrest.
The People contend that the trial court erred, and that it was not necessary to find drugs before defendant was arrested. The contention is that there was a objectively reasonable basis for the officer's actions, and that the arrest was therefore justified.
Penal Code section 836, subdivision (a)(3) provides that an officer may arrest a person without a warrant when “The officer has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.”
“Probable cause to arrest exists when facts known to the arresting officers would lead a man of ordinary care and prudence to believe or to entertain a strong suspicion that the person to be arrested has committed a crime. [Citations.] Each case must be decided on its individual facts, but it is at least clear that the arresting officers must possess more than a mere hunch. They must be able to point to specific and articulable facts which warranted their suspicion that an offense had been committed and that defendant committed it.” (People v. Hernandez (1988) 47 Cal.3d 315, 341, 253 Cal.Rptr. 199, 763 P.2d 1289.)
“[T]he principal difference between a Terry [Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889] detention and an arrest is the distinction between ‘suspicion that [a person] may be connected with criminal activity’ [citation], and ‘probable cause to believe that the suspect has committed a crime․’ [Citation.] ․ [I]t is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” ' ” (People v. Gorrostieta (1993) 19 Cal.App.4th 71, 82–83, 23 Cal.Rptr.2d 92.) “There is no discernible distinction between probable cause to believe a person is carrying narcotics and probable cause to arrest for carrying narcotics as far as the consequence here is concerned. Neither requires certainty the person is in fact carrying narcotics to support either the search or an arrest. The only requirement is the probability of the specific criminal activity giving rise to the search or the arrest. In simple terms, if you have probable cause to believe a suspect has illegal narcotics in his pocket, you necessarily have an honest and strong suspicion the person searched is guilty of a crime.” (Id., at p. 84, 23 Cal.Rptr.2d 92.)
The question here thus becomes whether the officers had probable cause to believe that defendant was in the midst of selling drugs when he was detained. If so, was it proper for the officers to believe that defendant was carrying narcotics on his person at that time?
In our view, the totality of the circumstances, based on specific and articulable facts, justified an arrest here. We emphasize that defendant here was arrested because there was probable cause to believe that he was carrying drugs to sell at the time of his arrest, not merely because he looked and/or acted like a drug dealer.
As discussed above, defendant's detention was justified. During that detention, the car was searched based on defendant's consent. During the search, the pager went off. The officer called the indicated number and talked to a person who desired to buy drugs. The conversation made it clear to the officer that the person calling wanted to buy drugs from the defendant and that sales transactions were being arranged at the time of the traffic stop. This conversation led the officer to conclude that defendant was using the pager to arrange illegal sales transactions at the time he was stopped.
Bullock supports this conclusion: “Similarly, the callers' requests for drugs constituted circumstantial evidence of the illegal use to which defendant's pager was being put. Indeed, this was the correctly stated purpose for which the court admitted the evidence. Defendant's possession of a pager used for the placing of orders for delivery of cocaine was circumstantial evidence tending [to] show that he was in the business of selling cocaine.” (People v. Bullock, supra, 226 Cal.App.3d 380, 390, 277 Cal.Rptr. 63.)
Similarly, in this case, the request of the customer tends to show that defendant was then selling drugs.8 The request also supports the inference that defendant, as the seller, had drugs available for sale at that time in his car or on his person. A search of the car having proved fruitless, the officers concluded that the defendant was carrying drugs on his person and arrested him.
We disagree with the trial court's suggestion that drugs had to be found before defendant could be arrested. As the prosecution points out, many arrests are made for possession of a controlled substance subject to laboratory verification that the substance is in fact a controlled substance. If the substance is found not to be a controlled substance, the prosecution is dropped pursuant to the charging discretion of the district attorney. In our view, while the finding of drugs is normally a predicate to arrest, it is not an absolute requirement. An analogy would be an arrest for murder when no body has been found. In either case, the arrest is proper, even though the evidence may be insufficient to convict defendant of the crime.
Having found probable cause to arrest, we need not discuss the further contentions of the parties. Nor do we need to discuss the charging discretion of the district attorney (Gov.Code, §§ 26500, 26501) or the question of whether there was sufficient evidence to convict defendant of the crime charged.
The order of the trial court dismissing the subject action after granting defendant's motion pursuant to Penal Code section 1538.5 is reversed.
HOLLENHORST, Associate Justice.
RAMIREZ, P.J., and McKINSTER, J., concur.