PEOPLE v. DE LA CRUZ

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jessie DE LA CRUZ et al., Defendants and Appellants.

Cr. No. 4199.

Decided: March 16, 1984

Kenneth I. Schwartz, Bakersfield (court-appointed), Frank Offen, Oakland (court-appointed), Quin Denvir, State Public Defender (court-appointed), Mark E. Cutler, Chief Asst. State Public Defender, and Gayle Guynup, Deputy State Public Defender, Sacramento, for defendants-appellants. George Deukmejian, Former Atty. Gen., and John K. Van de Kamp, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Nancy Sweet and David DeAlba, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Three appellants, Jessie De La Cruz, Leonard Rodriguez Ruiz and Domingo Thomas Rodriguez, were jointly charged with burglary (Pen.Code, § 459).   A pretrial Penal Code section 1538.5 motion to suppress was denied.   They pled guilty.   The sole issues in this appeal relate to (1) whether appellants were illegally detained after the vehicle in which they were riding was legally stopped by the police for Vehicle Code violations;  and (2) whether the trunk of the vehicle was legally searched following their arrest for burglary.

FACTS

On August 3, 1978, Sergeant Landers (Landers) of the Tulare County Sheriff's office was on antiburglary patrol.   A residential burglary had been reported at 11:15 a.m. at a home four to five miles from the place where he observed a green 1960 Cadillac with an expired registration tag traveling on the highway.   It was a rural area.   Landers stopped the vehicle, primarily because it was unregistered and, secondarily, because of a broken taillight lens.   The stop was at 11:36 a.m.

Appellant Leonard Ruiz (Ruiz) was the driver, and he produced a valid Texas driver's license with a Texas address.   The vehicle registration had expired in August 1977.   The car was registered to Albert Rodriguez, who Ruiz said was his brother;  Ruiz explained that there was a “name change or something.”

Ruiz presented to the officer a citation for an unregistered vehicle that had been issued by the Visalia Police Department in July 1978 and made out to Leonard Ruiz.

Ruiz told Landers that the names of the two passengers in the car were Dominguez Rodriguez, sitting in the front, and “Draggy” in the back.   Landers showed Ruiz the broken taillight lens.

Landers asked the passengers their names.   The one in the front said his name was Rodriguez, and the one in the back seat said his name was Jessie De La Cruz and that he had never gone by or been called “Draggy.”   The passengers said they lived in Tulare County and they told Landers their addresses.

Landers went to his patrol car to run a warrant check on all three of the individuals, to request a check for a stolen vehicle and to request a check on the registration.   He was suspicious the car may have been stolen.   The check was made at about 11:41, approximately five minutes after the stop.

Landers requested the warrant check because of the totality of the circumstances;  he had stopped a driver with a Texas driver's license and a Texas address driving a car that he did not own which had an expired California registration.   The driver had not satisfied the prior citation for driving an unregistered vehicle;  there was the discrepancy in names which led Landers to believe they might be trying to conceal their identities or switch names, and there was the possibility that the car was stolen.

During the warrant check Detective McKinney (McKinney), who overheard Landers' radio warrant check, contacted Landers at approximately 11:42, about six minutes after the stop.   McKinney informed Landers that all three of the individuals had been involved in burglaries and narcotics traffic.   McKinney also said there had been a burglary reported in the vicinity, approximately four to five miles from the scene of the stop.   He said that an officer was responding to a burglary near the area of the stop and the detained individuals could be responsible for the burglary.   McKinney also told Landers that there possibly was a warrant out for Leonard Ruiz in New Mexico.

Before the results of the warrant check came in, Landers filled out field identity cards on the three individuals.   Part of the reason Landers detained the people before writing the ticket was to fill out field identity cards which would put the individuals in a particular place and vehicle for other investigative purposes or agencies.1  Landers then wrote a traffic citation.

The warrant check came back negative.

After Landers talked to McKinney, Landers called Sergeant Bryant (Bryant) for backup.

At 11:46, 10 minutes after the stop, Landers called the highway patrol to see if the vehicle could be impounded for registration fees.

Landers testified the only reason he detained the occupants after he wrote the citation was that he was waiting for the highway patrol to arrive in regard to impounding the vehicle for fees due.   The highway patrol arrived between 12 and 12:05 p.m.   In the meantime, however, Bryant and Deputy Kliewer were conducting an investigation of the burglary with view to tying it to the persons in the car Landers had stopped.

At 11:30 or 11:35 Bryant overheard on the radio that there was a possible burglary in the vicinity.   Bryant had Deputy Kliewer (Kliewer) go to the scene of the burglary.   Bryant then heard Landers call in the warrant check at about 11:41.

Bryant arrived at the scene of the car stop at 11:48, approximately 12 minutes after the stop, and he and Landers examined the tires on the vehicle in anticipation that someone at the burglary scene would find tire tracks there.   They observed that the left front tire had eight grooves and appeared to be relatively new, whereas the other tires had four grooves;  also, the rear tires were more worn than those on the front.

Bryant and Landers checked the tires on the car at Kliewer's request.   A few minutes later Kliewer called and said the description of the tires that had been given apparently fit and Kliewer would be enroute to the vehicle stop to make his own comparison of the tire tracks and tennis shoe footprints he had observed at the scene with the tires on the car and tennis shoes found in the car.

Kliewer arrived at the car stop at approximately 12:05.   Kliewer looked at the tires and a pair of tennis shoes that was on the left rear floorboard of the car.   After a comparison, he concluded that the tires of the vehicle were the same or very similar to the ones at the scene of the crime and the shoe print was similar to the appearance of the print of the tennis shoes found on the floorboard.   Kliewer thereupon placed the suspects under arrest for suspicion of burglary.   The arrests were between 12:15 and 12:20 p.m.

The highway patrol officer, who had arrived at the scene between 12:00 and 12:05, said that the highway patrol would impound the car for unpaid registration fees, but Landers said the sheriff's department was going to impound the car since appellants had been arrested for the burglary.

A tow truck arrived at approximately 1:10.   After the vehicle was towed to the storage garage, the trunk was opened at the officer's direction.   Inside the trunk were some of the stolen items taken in the burglary.

DISCUSSION

THE DETENTION

None of the appellants contest the legality of the initial traffic stop.   However, “It is now beyond question that ‘just as a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope (Terry v. Ohio, 392 U.S. 1, 18 [88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, 903] ), so may an investigatory detention exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.’  [Citations.]”  (People v. McGaughran (1979) 25 Cal.3d 577, 586, 159 Cal.Rptr. 191, 601 P.2d 207.)   Here the initial stop occurred at approximately 11:36 a.m.   Appellants were detained between that time and the time of their arrest, at between 12:15 to 12:20 p.m., a period of approximately 40 minutes.

 The 10-minute period between the time of the stop and the call to the highway patrol would seem entirely reasonable in length.   During this period the officer was going about the performance of his duties relating to the stop.   The circumstances that while the car was being driven by a person with a Texas driver's license, the vehicle had been registered to a person not in the car and the California registration had expired, justified the stolen vehicle and vehicle registration radio checks.   The warrant check was made within this period.   Moreover, it was reasonable for the officers to show the driver the broken taillight lens and to ascertain the names and addresses of the passengers.   We conclude that the 10-minute period to complete these activities and to write the citation was entirely reasonable.   In People v. McGaughran, supra, 25 Cal.3d 577, 584, 159 Cal.Rptr. 191, 601 P.2d 207, the court set forth the guiding principle.

“[T]he 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.   If a warrant check can be completed within that same period, no reason appears to hold it improper:  because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.”  (Fn. omitted.)

We conclude that under McGaughran the time appellants were detained prior to the call to the California Highway Patrol was within the time allowed for the officer to perform the functions of the stop.

 The warrant check revealed that there were no outstanding arrest warrants and that the vehicle was not stolen.   The combination of other circumstances then known to the deputies was that there had been a burglary in the area, an expired registration, a vehicle that had been registered to someone other than its occupants, a driver with a valid Texas driver's license, a passenger who denied being known by the name the driver had given him, and a radio call indicating the detainees were known burglars.   These circumstances do not meet the requirements of articulable facts, “that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to ․ detain is involved in that activity.”  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   Thus, the detention beyond that required for the officer to conduct his investigation relating to the stop, including the warrant and stolen vehicle check, while the officers conducted an exploratory investigation directed toward discovery of information to tie appellants to a specific burglary, exceeded constitutional limitations.  (People v. Grace (1973) 32 Cal.App.3d 447, 452–453, 108 Cal.Rptr. 66;  Willett v. Superior Court (1969) 2 Cal.App.3d 555, 559, 83 Cal.Rptr. 22.)   The transformation of a traffic stop into a full-scale investigation was impermissible.

The trial court, however, based its order denying the motion to suppress upon the ground that the lengthy detention was justified “for the purpose of effecting an impounding of the unregistered vehicle.” 2

We hold that the judge was on sound ground.   Appellant Ruiz had received one citation for driving without a current registration, to which he paid no heed.   He was driving the same vehicle on this occasion.   Under Vehicle Code section 9800 a registration fee from the date it becomes due becomes a lien upon the vehicle for which it is due.  (See 28 Ops.Cal.Atty.Gen. 366, 369 (1956).)   Pursuant to Vehicle Code section 9801, the California Highway Patrol is charged with the responsibility of assisting the Department of Motor Vehicles with the seizure and impoundment of such a vehicle, which under that section may be sold for the delinquent fees and penalties after due notice.

 Sergeant Landers testified at the hearing that after the negative warrant and stolen car checks, he detained the vehicle solely awaiting the California Highway Patrol for the above purpose.   The trial court found that was Sergeant Landers' intent, and this court is bound by that determination.  (People v. Rios (1976) 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293;  People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

 In our view, the officers also had the right to detain the driver of the vehicle until the California Highway Patrol arrived.   It was only then that the deputy sheriff would know for sure whether or not the California Highway Patrol would seize and impound the vehicle for unpaid registration fees.3  In the event the California Highway Patrol would not have seized and impounded the vehicle, the driver should be there to take charge of the vehicle.   He was the driver of the car and responsible for it.

As to the two occupants, De La Cruz and Rodriguez, the trial court could conclude that they were advised of their right to leave and voluntarily stayed.4  Landers testified that after 11:48 a.m. (when Bryant arrived), Landers told Ruiz that the two occupants were free to leave.   Landers told Ruiz this when Ruiz was sitting in the car with the two passengers after Landers had taken Ruiz out to look at the broken taillight lens.   The only reason Landers detained Ruiz was because he was the driver and to wait and see if the highway patrol would impound the car.   Landers further testified that even after 12:05 p.m. he felt the two passengers were free to go.

THE TRUNK SEARCH

 Probable cause to search a vehicle exists “when an officer is aware of facts that would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.”  (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 571, 128 Cal.Rptr. 641, 547 P.2d 417.)

Appellant Rodriguez concedes that the officers had probable cause to search the trunk for items taken in the burglary.   While appellants Ruiz and De La Cruz do not expressly concede there was probable cause, they do not argue that probable cause did not exist.   All parties center upon the argument that since the vehicle was impounded at the time of the search, there were no exigent circumstances justifying the search without a warrant.

 Turning first to the issue of whether there was probable cause to believe the trunk of the vehicle in which appellants were riding contained stolen articles, we observe that the proper function of this court is to determine whether there is substantial evidence to support the trial court's finding, whether express or implied.  (People v. Superior Court (Keithley), supra, 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

 The facts here clearly give rise to probable cause “to believe and conscientiously ․ entertain a strong suspicion” that there were stolen goods from the burglary in the trunk.   Loot from burglaries is commonly carried in the trunk of a vehicle.

The vehicle was stopped in a rural area approximately four or five miles from where a household burglary had occurred about twenty minutes before the stop.   The detaining officer was told by a radio message that the persons stopped had engaged in burglaries and narcotics activities.   Added to these and other suspicious circumstances heretofore iterated is the identification of the tire tracks at the scene as matching the tire treads on the car and the tennis shoe prints at the scene appearing similar to those of the tennis shoes found on the rear floorboard of the car.   These tire treads and tennis shoe prints tied the stopped vehicle to the burglary.   Since experience dictates that items taken in a burglary are customarily found in the trunk of the thief's vehicle, the officers had probable cause to search the trunk of this vehicle.  (See People v. Stafford (1973) 29 Cal.App.3d 940, 946–947, 106 Cal.Rptr. 72;  People v. Medina (1972) 26 Cal.App.3d 809, 816–817, 103 Cal.Rptr. 337.)

Many California cases in the past have held that a warrantless search of an automobile is permissible as long as it can be determined that, in addition to probable cause, exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative.  (People v. Johnson (1981) 30 Cal.3d 444, 450, 179 Cal.Rptr. 209, 637 P.2d 676;  People v. Dumas (1973) 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 512 P.2d 1208;  Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417;  People v. Cook (1975) 13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 532 P.2d 148.)

However, two recent California Supreme Court cases (People v. Chavers (1983) 33 Cal.3d 462, 189 Cal.Rptr. 169, 658 P.2d 96 and People v. Superior Court (Valdez) (1983) 35 Cal.3d 11, 196 Cal.Rptr. 359, 671 P.2d 863) and one United States Supreme Court case (Michigan v. Thomas (1982) 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750) have clarified the standards authorizing a warrantless search of a vehicle compartment, including the trunk.

In sum, Chavers held that a warrantless automobile search of a vehicle compartment, including the trunk, based upon probable cause is justified so long as exigent circumstances exist and that “sufficient exigency generally exists whenever probable cause is first discovered at the time the police stop a vehicle and thus have not had a prior opportunity to obtain a warrant.”  (People v. Chavers, supra, 33 Cal.3d at pp. 467–468, 189 Cal.Rptr. 169, 658 P.2d 96.)   The Chavers case concluded that, “Accordingly, we hold that probable cause to believe that a lawfully stopped automobile contains contraband justifies an immediate warrantless search of the automobile despite the absence of any additional exigent circumstances.”  (Id., at p. 469, 189 Cal.Rptr. 169, 658 P.2d 96.)   The court agreed with the United States Supreme Court in United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, that the scope and character of such a search would be “limited by the reason for the search and the kind of object believed to be concealed.   Probable cause to search for a stolen television set, for example, would not justify a search of the glove compartment;  probable cause to search for identification would extend to the glove compartment, but would not permit cutting open the car's seat cushions.”  (Id., 33 Cal.3d at p. 470, 189 Cal.Rptr. 169, 658 P.2d 96.)

Chavers involved a vehicle which had been lawfully stopped on the roadway by the police.   In Valdez, however, the vehicle searched was found parked in a remote area on abandoned property, alongside a stolen pickup truck which, by the items missing from the pickup, was obviously being stripped.   The existence of the stolen truck was reported by a passerby who had been to the property to gather firewood.   The officers went to the scene to investigate the pickup.   Upon approaching, they saw a vehicle parked alongside the pickup.   The defendant, Valdez, was one of the two men present.   The officers entered the trunk without permission and located many of the stolen items from the pickup.

The trial court ruled the trunk search was illegal because there were no exigent circumstances.   On petition by the People, the Supreme Court disagreed, holding the trunk search valid.

The Valdez court observed:

“Our analysis in Chavers indicates, however, that the trial court's conclusion was based on a misapprehension of the nature of the ‘exigency’ required to justify a warrantless search.   Under the governing authorities, (1) the ready mobility of automobiles, (2) the lesser expectation of privacy in their contents, (3) the significant administrative expense, delay and risk of loss of contents entailed in requiring the police either to secure all automobiles at the scene or to tow all suspected vehicles to a securely maintained depot, and (4) the need for clear guidelines by which police may guide and regulate their conduct, have led to the adoption of a general rule permitting the police to conduct an immediate, on-the-scene warrantless search of an automobile under such circumstances.  [Citations.]”  (People v. Superior Court (Valdez), supra, 35 Cal.3d at p. 16, 196 Cal.Rptr. 359, 671 P.2d 863.)

It is apparent that, unlike Chavers, the police in Valdez had not stopped the searched vehicle on the highway.   There indeed were no exigent circumstances as the police could have secured the vehicle while a search warrant was obtained.   Indeed, the dissent of the Chief Justice was solely on the ground that the Constitution does not permit warrantless automobile searches “in the total absence of exigent circumstances.”  (People v. Superior Court (Valdez), supra, 35 Cal.3d at p. 17, 196 Cal.Rptr. 359, 671 P.2d 863.)

In the third case, Michigan v. Thomas, supra, the vehicle had been stopped for a traffic violation.   The 14-year-old driver was issued a citation for driving without a license, and the adult occupant and owner of the car was arrested for possession of open intoxicants in a motor vehicle.   A tow truck was called.   While awaiting the tow truck, the officers conducted a valid search of the glove compartment and found two bags of marijuana.   The police thereupon searched under the seat, under the dashboard, and inside the locked trunk.   A pistol was discovered.   The pistol was the object sought to be suppressed.

The Supreme Court of Michigan invalidated the search on the ground that because both the car and its occupants were already in police custody, there were no “exigent circumstances” justifying the warrantless search for contraband.   The United States Supreme Court reversed, holding that when a vehicle “has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even if it has been impounded and is in police custody.”  (Michigan v. Thomas (1982) 458 U.S. 259, 102 S.Ct. 3079, 3081, 73 L.Ed.2d 750.)   The court disagreed with the defendant that “absence of ‘exigent circumstances' precluded a warrantless search.”  (Ibid.)

 It appears clear to us that both the United States and California Supreme Courts have, for all practical purposes, eliminated any exigency requirement in automobile search cases, at least where probable cause to search is discovered at or about the time of the search.   We conclude, therefore, that notwithstanding the fact that the vehicle in the instant case was impounded and under police custody the warrantless search of the trunk was not illegal.   Accordingly, the motion to suppress was properly denied.

SENTENCING ISSUES

 Appellants Ruiz and De La Cruz raise certain sentencing issues.   Ruiz was sentenced to the middle term of two years for the burglary.   He argues that the trial court committed error in not stating reasons for his middle term sentence.   The point has no merit.  (People v. Arceo (1979) 95 Cal.App.3d 117, 120–121, 157 Cal.Rptr. 10.)

 Appellant De La Cruz argues he was entitled to good time/work time credits for presentence custody.   Though his point has merit (People v. Sage (1980) 26 Cal.3d 498, 502–503, 165 Cal.Rptr. 280, 611 P.2d 874), no effective relief at this late date can be granted.   De La Cruz was sentenced on February 6, 1979, to three years in prison.   His prison term has long since been fully served.

The judgments are affirmed.

FOOTNOTES

1.   When asked about the “articulable” facts he had when he decided to write the field interrogation cards, Landers testified that McKinney had advised him that McKinney was familiar with all three subjects and he, Landers, was aware that a burglary had just been reported.

2.   The trial court in its ruling stated in relevant part:  “It seems to the court that a citizen who drives or rides in an unregistered vehicle shouldn't complain about there being an undue intrusion upon his privacy when he has his trip interrupted by a police officer seeking to enforce the vehicle registration laws.   I do find that Sergeant Landers detained the driver of the vehicle, and necessarily the passengers since they were out on the roadway for the purpose as he expressed in the testimony with this trial and the preliminary hearing, for the purpose of effecting an impounding of the unregistered vehicle.”

3.   The testimony indicated that upon arrival at the scene the California Highway Patrol said that they would seize and impound the vehicle for the delinquent fees.

4.   Staying at the scene instead of leaving is understandable in light of the location of the vehicle at the stop on a freeway in a rural area in which hitchhiking and pedestrian traffic is prohibited.   In addition, leaving would have exposed the passengers to substantial danger from the traffic.

GEO. A. BROWN, Presiding Justice.

PAULINE DAVIS HANSON and ANDREEN, JJ., concur.