PEOPLE v. WEEKLY

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Tony Ray WEEKLY, Defendant and Appellant.

No. H013260.

Decided: August 22, 1995

Jonathan D. SoglinBy Appointment of the Sixth Dist. Appellate Program, Oakland, for defendant/appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., for plaintiff/respondent.

Statement of the Case

Defendant Tony Ray Weekly appeals from a judgment entered after he pleaded guilty to possession of methamphetamine and admitted three prior prison term enhancements.   He claims the trial court erred in denying his motion to suppress evidence obtained as a result of an allegedly unlawful detention and search.   We disagree and affirm the judgment.

Facts

At about 3 p.m., on June 3, 1994, Officer Brian Hyland of the San Jose Police Department stopped a car driven by defendant.   Prior to then, Hyland had obtained information about a person suspected of seven bank robberies in the area.   The robber was described as a White male, in his 30's, 5′5″ to 5′9″ tall, 150 to 170 pounds, with a mustache and dark curly hair.   The robber had worn a dark baseball cap, dark sunglasses with black plastic frames, and a long-sleeved black T-shirt with a “ ‘Born to be Smooth’ ” logo written on the back.   He also drove a pickup truck.   Before the stop, Hyland heard of another robbery that day in a different location but committed with a similar modus operandi.   The robber was reported to be armed.

Hyland testified that he stopped defendant's car for two reasons.   First, although the vehicle was not a pickup truck, the driver appeared to match the description of the robbery suspect, in that he was White, had dark hair and a large mustache, appeared to be in his 30's, and wore black plastic-rimmed sunglasses with dark lenses and a black long-sleeved T-shirt.   Second, the car did not have a front license plate properly displayed.   Indeed, he saw no front license plate at all.

After the stop, Hyland noticed that the driver's facial features were similar to the suspected robber's and his T-shirt had the robber's logo on it.   Hyland asked defendant about his front license plate, but at the hearing on the motion to suppress could not recall defendant's response.1  Hyland, who was qualified as an expert in recognizing symptoms of methamphetamine use, also observed that defendant appeared to be under the influence of a stimulant:  his forehead was sweating, he rubbed his face and neck, spoke rapidly, and licked his lips.   To investigate whether defendant was under the influence, speak to him outside the presence of the passenger, and separate him from any weapons that might have been in the car, Hyland asked defendant to exit the vehicle.   He told defendant to lift his sunglasses and observed defendant's pupils were dilated.   Hyland immediately arrested him for being under the influence of methamphetamine.   He also thought he had the bank robber.

Thereafter, Hyland searched defendant and found a baggie filled with a brown powdery substance, which he believed to be methamphetamine.   Robbery detectives later arrived at the scene and determined that defendant was not the bank robber.

Susanne Bernstein, a passenger in the car and defendant's fiancee, testified that the front license plate was on the dashboard of the car, as shown in some photographs introduced by the defense.   She opined that anyone in front of the vehicle would have seen it.   She testified that when defendant got out of the car, Hyland said, “You can't be him, you're too tall.”

I. Denial of Motion to Suppress

Defendant contends the court erred in denying his motion to suppress the evidence obtained during the search incident to his arrest.   He claims he was the victim of an unlawful detention and/or an unlawful search.

A. Propriety of the Traffic Stop

Defendant claims that Officer Hyland used the traffic stop for not having a front license plate as a pretext to conduct an unrelated investigation into the recent bank robberies, crimes for which there was no reasonable basis to detain him.   This claim lacks merit.

 In People v. Miranda (1993) 17 Cal.App.4th 917, 21 Cal.Rptr.2d 785, this court held that the propriety of a traffic stop depends solely on whether in the abstract, the officer did no more than he or she was legally permitted to do, regardless of the subjective motivation with which it was done.  (Id. at pp. 925–926, 928, 21 Cal.Rptr.2d 785.)

 The record here reveals that Officer Hyland stopped defendant for two reasons, one of which was that he did not see a front license plate properly displayed on defendant's car.   Since Vehicle Code sections 5200 and 5201 require, among other things, that front plates be securely fastened and clearly visible, Hyland was legally permitted to stop defendant for this apparent traffic infraction.  (People v. Nebbitt (1960) 183 Cal.App.2d 452, 457, 7 Cal.Rptr. 8.)   On this ground alone the traffic stop was proper and reasonable.

B. Propriety of Hyland's Observations

 Defendant contends that Officer Hyland conducted an unreasonable and unlawful search when he told defendant to lift his sunglasses.2  This claim also lacks merit.

 “[W]herever an individual may harbor a reasonable expectation of privacy, [citation], he is entitled to be free from unreasonable government intrusion.”  (Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 [internal quotation marks omitted].)   However, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”  (Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576.)

 Given these basic principles, the United States Supreme Court has held that one does not have a reasonable expectation of privacy in one's voice, handwriting, or fingerprints.  (United States v. Dionisio (1973) 410 U.S. 1, 14, 93 S.Ct. 764, 771–72, 35 L.Ed.2d 67;  United States v. Mara (1973) 410 U.S. 19, 21–22, 93 S.Ct. 774, 776, 35 L.Ed.2d 99;  Hayes v. Florida (1985) 470 U.S. 811, 816–817, 105 S.Ct. 1643, 84 L.Ed.2d 705;  cf. also, United States v. Richardson (6th Cir.1968) 388 F.2d 842, 845 [ultraviolet examination of hands not a search] 3 ;  United States v. Holland (E.D.Pa.1974) 378 F.Supp. 144 [dental exam not a search];  State v. Aldridge (1983) 172 W.Va. 218, 304 S.E.2d 671 [removal of glove not a search].)   Thus, compelling one to give voice or handwriting exemplars or fingerprints is not a search within the meaning of the Fourth Amendment.

As the court in United States v. Dionisio, supra, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, explained with respect to one's voice, “The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public.   Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear.   No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”  (Id. at p. 14, 93 S.Ct. at p. 771, emphasis added.)

 Given this reasoning and authority, we conclude that defendant's eyes were not subject to Fourth Amendment protection because he had no reasonable expectation of privacy concerning their appearance.  (Cf. People v. Benedict (1969) 2 Cal.App.3d 400, 82 Cal.Rptr. 759 [illumination of driver's face with flashlight not a search].)   Nor is the fact that he happened to be wearing sunglasses at the time sufficient by itself to establish a reasonable expectation of privacy.   Indeed, in response to Officer Hyland's direction, defendant said the sun hurt his eyes.   This comment suggests defendant wore glasses to protect his eyes from the sun rather than to prevent others from seeing them.

We find no material basis to distinguish one's eyes from any other facial characteristics commonly and generally exposed to the public but which at various times may be protected from the elements by hats, ear muffs, ski masks, scarves, veils, etc.4  Nor do we find a meaningful basis to distinguish facial characteristics, including the appearance of one's eyes, from one's voice, handwriting, or fingerprints.  (See generally, 1 LaFave, Search and Seizure (2d ed. 1987) § 2.6(a), pp. 460–463.)

 Consequently, we further conclude that since compelling one to give fingerprints or samples of one's voice or handwriting does not constitute a search within the meaning of the Fourth Amendment neither did telling defendant to lift his sunglasses.

Alternatively, we conclude that even if doing so implicated defendant's Fourth Amendment rights, the intrusion was reasonably justified.

 Under the Fourth Amendment, the propriety of a police officer's conduct depends on whether it was reasonable under the circumstances.  (See Terry v. Ohio, supra, 392 U.S. at p. 19, 88 S.Ct. at p. 1878;  Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329, 241 Cal.Rptr. 42, 743 P.2d 1299.)   “[T]here can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.”   (Camara v. Municipal Court (1967) 387 U.S. 523, 534–535, 536–537, 87 S.Ct. 1727, 1734, 1735, 18 L.Ed.2d 930.)   More specifically, the test balances the degree to which the government conduct serves public interest against the degree to which it interferes with an individual's liberty and security.   (Brown v. Texas (1979) 443 U.S. 47, 50–51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357;  Pennsylvania v. Mimms (1977) 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331;  Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1338, 241 Cal.Rptr. 42, 743 P.2d 1299.)

 In general, where an officer's “observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, [he or she] may detain that person briefly[ ] in order to investigate the circumstances that provoke that suspicion.”   (Berkemer v. McCarty (1984) 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, internal quotation marks omitted.)

 Here, Officer Hyland, an expert in recognizing signs of drug intoxication, observed symptoms that reasonably supported a suspicion that defendant was under the influence, a crime.  (See Pen.Code, § 647, subd. (f) [being under the influence in a public place];  Veh.Code, § 23152 [driving under the influence].)   Defendant had already been properly detained and required to get out of his car.   The additional minor intrusion of having him lift his sunglasses to confirm or dispel the officer's suspicion was reasonably justified as further investigation of the circumstances.  (Cf. People v. Snider (1978) 76 Cal.App.3d 560, 142 Cal.Rptr. 900 [using flashlight to illuminate driver's eyes at night justified by suspicion of narcotics use];  People v. Ochoa (1970) 9 Cal.App.3d 500, 88 Cal.Rptr. 399 [shading defendant's eyes to examine pupilary reaction justified by initial observation that they were constricted];  cf. also People v. Loudermilk (1987) 195 Cal.App.3d 996, 241 Cal.Rptr. 208 [removal and search inside defendant's wallet justified by suspicion of criminal activity and false claim of no identification].)

Moreover, we also find that having defendant lift his glasses was independently justified by a legitimate concern for public safety.

 For example, asking a driver to get out of a vehicle and frisking him or her for weapons clearly implicates Fourth Amendment rights in that such conduct interferes with one's liberty and security.   However, it is settled that the incremental intrusion resulting from having the driver get out of the vehicle after a valid traffic stop is outweighed by legitimate concerns for officer safety.  (Pennsylvania v. Mimms, supra, 434 U.S. at pp. 109–111, 98 S.Ct. at pp. 332–333.)   It is equally settled that where the officer has reason to believe a detainee is armed and dangerous, the more substantial intrusion resulting from a public pat search for weapons is outweighed by the same safety concerns.  (Terry v. Ohio, supra, 392 U.S. at pp. 21–22, 88 S.Ct. at p. 1880.)

 Similarly, where an officer reasonably believes a vehicle is in a dangerously unsafe condition or the location of a stop poses a risk of danger, the intrusion upon the driver resulting from appropriate inspection and testing of the vehicle or its relocation to a safer place is outweighed by concern for the safety of others and property.  (See People v. McGaughran (1979) 25 Cal.3d 577, 584, 159 Cal.Rptr. 191, 601 P.2d 207.)

 Here, the risk of danger in allowing defendant to continue driving if he were under the influence and a legitimate concern for his safety and that of others outweigh the de minimis intrusion of having him lift his sunglasses to expose his eyes.  (Cf. Ingersoll v. Palmer, supra, 43 Cal.3d at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299.)

In our view the risk of harm in this case was no less substantial than that from a detainee whom an officer reasonably believes may be armed and dangerous.   Indeed, we consider an intoxicated driver to be, in effect, armed and dangerous.   Moreover, asking a suspected detainee to lift sunglasses is far less intrusive and far less of an affront to the detainee's dignity than a public pat search for weapons.

Finally, in Ingersoll, the court held that stopping cars at vehicular sobriety checkpoints does not violate the Fourth Amendment.   The court explained that although the initial stop is not based on any individualized suspicion of criminal activity, the intrusion is similar to an airport screening search and justified (or outweighed) by the legitimate purpose of promoting public safety.  (Ingersoll v. Palmer, supra, 43 Cal.3d at pp. 1329–1330, 1338–1341, 241 Cal.Rptr. 42, 743 P.2d 1299.)   In discussing the guidelines for such checkpoints, the court stated that a driver “should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes.”  (Id. at p. 1346, 241 Cal.Rptr. 42, 743 P.2d 1299.)   This language implies that incident to making such observations, an officer may have the driver lift his or her sunglasses, especially if there are other signs of intoxication.5

In sum, we conclude that having defendant lift his sunglasses did not violate his Fourth Amendment protection against unreasonable searches.

Disposition

The judgment is affirmed.

FOOTNOTES

1.   Defendant introduced evidence at the suppression hearing that the license plate was on the dashboard.

2.   The People claim that defendant waived this issue by failing to raise it below.  (See, e.g., People v. Privitera (1979) 23 Cal.3d 697, 710, 153 Cal.Rptr. 431, 591 P.2d 919.)   Defendant claims he may raise the issue now because the facts are undisputed—Officer Hyland told defendant to lift his sunglasses—and thus the issue presents a pure question of law.   In the alternative, he claims that if he waived the issue, then trial counsel rendered ineffective assistance in failing to raise it below.   We find the facts sufficiently developed to permit resolution of the issue as a matter of law.   Moreover, we would inevitably have to discuss the merits of the issue in order to determine whether trial counsel's failure to raise the issue below could have been a reasonable tactical choice.  (See People v. Haskett (1990) 52 Cal.3d 210, 248, 276 Cal.Rptr. 80, 801 P.2d 323;  People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

3.   Other courts have held that ultraviolet examination of hands is a search.  (United States v. Kenaan (1st Cir.1974) 496 F.2d 181, 182;  People v. Santistevan (Colo.1986) 715 P.2d 792, 795.)   However, we find their reasoning unpersuasive.

4.   We do not suggest that one can never have a reasonable expectation concerning one's facial characteristics.   For example, persons with disfiguring scars or deformities may take specific pains to conceal their faces from the public at all times to avoid embarrassment and humiliation.   In a proper case, evidence of such efforts could conceivably establish a reasonable expectation of privacy in the areas covered.  (Cf., e.g., U.S. v. Depew (9th Cir.1993) 8 F.3d 1424 [although a driveway may generally imply an invitation to enter, defendant had taken steps to ensure privacy and negate implied invitation].)

5.   The People argue that since an officer has a legitimate interest in identifying a driver stopped for a traffic violation, the officer may require a driver to remove sunglasses to verify that the driver is the person whose picture appears on the driver's license.   Although we tend to agree, there is no evidence here that having defendant remove his glasses was necessary to satisfy Officer Hyland concerning his identity.   Moreover, Hyland did not testify that he asked defendant to remove his glasses to identify him.

WUNDERLICH, Associate Justice.

BAMATTRE–MANOUKIAN, Acting P.J., and MIHARA, J., concur.