THE PEOPLE v. CARLOS ROGELIO RUACHO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Carlos Rogelio Ruacho appeals from the judgment entered upon his conviction by negotiated plea of no contest to possession for sale of methamphetamine (Health & Saf.Code, § 11378), after denial of his motions to suppress evidence made at the preliminary hearing pursuant to Penal Code section 1538.5 ¹ and subsequently in the trial court pursuant to section 995.   The trial court suspended imposition of sentence and placed appellant on three years formal probation on the condition, among others, that he serve 365 days in county jail.   Appellant contends that the trial court erroneously denied his motion to suppress evidence because (1) there was no probable cause for the initial traffic stop, (2) questioning during the stop was unreasonably prolonged, exceeding the scope of the stop, (3) the patdown search was not supported by a reasonable belief that appellant was armed and dangerous, and (4) the officer illegally searched the contents of appellant's zippered pouch without reasonable belief that it contained a weapon.

We reverse.

PROCEDURAL BACKGROUND

The district attorney filed an information alleging one count of possession of methamphetamine for sale, one count of sale of a controlled substance (Health & Saf.Code, § 11379, subd. (a)) and two counts of forgery (§§ 476, 470, subd. (a)).  Appellant's motion to suppress evidence was heard concurrently with the preliminary hearing.   After testimony and argument, the magistrate denied the motion, and appellant was held to answer.

Appellant later filed a section 995 motion in the trial court challenging the magistrate's ruling on the motion to suppress evidence.   The trial court denied the motion, dismissed all counts at the prosecutor's request, except the possession for sale of methamphetamine count, and allowed an amended information to be filed and appellant to withdraw his not guilty plea and plead no contest to the remaining count.   Appellant was placed on three years formal probation.

THE SUPPRESSION HEARINGS2

The evidence

The prosecution's evidence

On March 5, 2010, at approximately 8:45 p.m., Pomona police officer Jaime Martinez, of the gang violence suppression unit, and his partner were in a patrol car, driving through the back parking lot of the Lemon Tree Motel (Motel), on Gillette Road, in Pomona, a narcotics and gang activity area.   In the past, Officer Martinez had made “several hundred arrests” at the Motel.   He did not see anyone in the lot so he exited.   As he did so, he saw a grey, 2005 GMC Sierra pickup truck (Sierra) 50 feet away, being driven by appellant, exiting the Motel by a driveway to the right of the driveway from which the officers were exiting.   The officers saw appellant pull into the gas station directly next to the Motel, without using his turn signal.   Appellant had only traveled seven or eight feet between the Motel and the gas station.   The officers entered the gas station after appellant and, as appellant pulled next to the gas pumps, made a traffic stop because of his failure to use his turn signal in violation of Vehicle Code section 22108.

Appellant got out of the truck and “confronted” the officers.   Officer Martinez ordered him back into the truck, and he complied.   Officer Martinez and his partner approached the truck with guns drawn and told appellant that he was pulled over for failing to use his turn signal.   Appellant claimed that he did use his signal and that the stop was illegal.   Officer Martinez ordered him to place his keys on the dashboard and his hands on the steering wheel.   Appellant complied.

Officer Martinez did not ask for appellant's driver's license and did not have his ticket book with him.   Instead, he asked appellant five or six questions that took only a “couple of minutes” to see if appellant had done anything illegal.   He asked where appellant was from and what his business was at the Motel.   Appellant responded that he was moving from Arizona but did not give a straight answer.   He said he was visiting a friend, but when asked his friend's name, he could not identify him.   Appellant also said he did not know the name of the passenger in his car.   He was “extremely nervous” and sweaty, though it was cold outside, and was not paying attention to the questions.   At one point, he removed his keys from the dashboard and started the vehicle.   Based upon the totality of the circumstances, Officer Martinez believed there was something illegal on appellant's person or inside the car.

Officer Martinez removed appellant from the car and patted him down to make certain he had no weapons.   The officer felt large “wads of cash” in all of appellant's pockets.   On a cursory search of appellant's left breast pocket, he felt a hard case that he believed could be some type of holster.   For officer safety, he removed the three to four inches square, zippered case to make certain it did not contain a weapon.   Believing that it could contain a weapon and unable to know for certain without opening it, the officer opened the pouch which contained two baggies containing a substance later determined to be methamphetamine.   In appellant's other pockets, Officer Martinez found $6,000–$7,000 of cash.   Officer Martinez opined that the methamphetamine was possessed for sale based upon the packaging and the amount of cash recovered.   Appellant was arrested.

The defense's evidence

Pablo Russo (Russo) was the passenger in appellant's car at the time of the traffic stop.   His version of the incident was not dissimilar to that of Officer Martinez.   But Russo testified that Officer Martinez's partner asked him if he was smoking marijuana, and Russo said that he did not smoke marijuana.   The officer also asked if there was any marijuana or weapons in the car, to which Russo replied that there was not.   The officer then ordered Russo out of the car, told him to put up his hands, handcuffed him and searched him and the wallet he removed from Russo's pocket.   The officers then searched the truck.

Appellant presented the expert testimony of private investigator, Mark Benavides (Benavides), a former police officer.   Benavides testified that he measured the distance between the driveway from which the patrol car exited the Motel and the driveway appellant exited as between 244 and 306 feet.   Vehicle Code section 22107 states that one need not use a turn signal if no vehicle will be affected by the movement.   In Benavides's opinion, appellant's pulling briefly into the roadway and then immediately into the gas station could not have affected a vehicle 200–300 feet behind him.

The magistrate's ruling

The magistrate found that the police were in a position to see whether appellant used or did not use his turn signal, that their opinion as to whether he was guilty of a turn signal violation was irrelevant and that there was probable cause for the stop because the officer reasonably believed that the turn signal was not being used.   The magistrate concluded that whether Vehicle Code sections 22107 or 22108 applied was a judicial determination.   He further found that the “officer had reasonable grounds to initiate the stop, and everything else was observations from the stop.”   He denied the motion.

The trial court's ruling

Appellant made a section 995 motion in the trial court to review the magistrate's suppression ruling.   The trial court concluded that the magistrate's ruling was not unreasonable because the unsignaled turn was made in a commercial and residential area, there was an open business at the gas station, many people resided in the Motel, and the officers were sufficiently close to observe the turn.   It was not objectively unreasonable for the officers to contact and detain the driver briefly.   There was probable cause to pat down appellant because he was nervous and made incredulous statements.   The search of the pouch was also justified because the officer testified that it was hard and “a holster of some kind.”

DISCUSSION

I. Contentions

Appellant contends that his Fourth Amendment rights were violated when the police performed a traffic stop without probable cause, exceeded the scope of the temporary detention, performed a warrantless patdown of appellant's person without reason to believe he was armed and dangerous and conducted a warrantless entry into appellant's zippered pouch without reasonable belief it contained a weapon.   We agree with appellant.

II. Standard of review

On appeal, we do not review the findings of the trial court since it acts as a reviewing, not a factfinding court.  “Rather, ‘the appellate court disregards the findings of the trial court and reviews the determination of the magistrate who ruled on the motion to suppress.’ ”  (People v. Snead (1991) 1 Cal.App.4th 380, 384.)

“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence.   We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.  [Citation.]”  (People v. Miranda (1993) 17 Cal.App.4th 917, 922 (Miranda );  see also People v. Jenkins (2000) 22 Cal.4th 900, 969.)

III. Legality of traffic stop

A traffic stop constitutes a detention under the Fourth Amendment.  (Whren v. U.S. (1996) 517 U.S. 806, 809–810 (Whren ).)  “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”  (Whren, supra, at p. 810.)   A police officer has the right to stop and detain a driver who has committed a traffic infraction “only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.”  (Miranda, supra, 17 Cal.App.4th at p. 926;  People v. Superior Court (Simon ) (1972) 7 Cal.3d 186, 200 (Simon ).)

There can be no violation of Vehicle Code section 22108 for turning without using a turn signal unless there is a reasonable possibility that other cars could be affected by it.  (Veh.Code, §§ 22107 & 22108;  People v. Carmona (2011) 195 Cal.App.4th 1385, 1391, 1394 (Carmona ).)   Actual impact or effect is not required by the statute, as it is the potential effect that triggers the signal requirement.  (People v. Logsdon (2008) 164 Cal.App.4th 741, 745 (Logsdon );  Carmona, supra, at p. 1390.)

Officer Martinez did not ask appellant for his driver's license nor did the officer have his ticket book with him.   In fact, when asked if he knew what code section appellant violated, he replied, “I believe it's 22108 in the V.C. is the turn-signal violation.   I'm not a traffic officer․”  It appears that the officer, a gang violence officer, had no intention of giving appellant a traffic ticket but was simply using the claimed traffic violation as an excuse to stop appellant's vehicle in order to investigate potential criminal activity.   However, the subjective motivation of the police officer in effecting a traffic stop is irrelevant.  (Miranda, supra, 17 Cal.App.4th at pp.   924–925;  Maryland v. Macon (1985) 472 U.S. 463, 470–471 [“Whether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,’ [citation] and not on the officer's actual state of mind at the time the challenged action was taken”];  (Whren, supra, 517 U.S. at p. 813[“[T]he constitutional reasonableness of traffic stops” does not “depend[ ] on the actual motivations of the individual officers involved”].)

We conclude, however, that there was no evidence that the officers had reasonable grounds to initiate the traffic stop because there was no evidence they had a reasonable suspicion that a traffic violation had occurred.   The People introduced no evidence that another vehicle might be affected by appellant's unsignaled turn.   There was no evidence that there were any other vehicles in the vicinity, other than the patrol car.   While an effect on the patrol car alone might meet the statutory requirement that “any other vehicle may be affected” (Veh.Code, § 22107;  Logsdon, supra, 164 Cal.App.4th at p. 744), there was no evidence that the patrol car here, in the total circumstances presented, could have been affected by the unsignaled turn.   It was traveling very slowly, was 250 to 300 feet away from appellant, and the evidence does not even make clear that it had turned from the Motel driveway onto the street before appellant's vehicle had turned into the gas station.

On the other hand, appellant introduced evidence that no other vehicle was potentially affected by the unsignaled turn.   His expert, Benavides, calculated that the police car and appellant's vehicle were between 244 and 306 feet apart when exiting the separate driveways of the Motel.   At that distance, he opined that appellant's traveling just seven or eight feet between the Motel driveway from which appellant exited and the driveway entering the gas station could not have affected the police vehicle, which the officers testified was driving very slowly.   Therefore, the officers had no probable cause to believe that a traffic violation had occurred.

The magistrate's ruling appears to have been based upon a misconception of the law.   The magistrate found sufficient basis for the stop simply because the officers were in a good position to see that appellant did not use his turn signal when turning into the gas station.   The magistrate made no finding or statements as to whether the road conditions were such as to provide the officers with a basis for concluding that there was a reasonable possibility that other vehicles would be affected by the unsignaled turn, an element necessary to finding a violation for failure to use a turn signal.   (Veh.Code, §§ 22107 & 22108;  Carmona, supra, 195 Cal.App.4th at pp. 1391, 1394.)

IV. Fruit of the poisonous tree

The magistrate found that everything after the traffic stop was the result of observations made as a consequence of that stop.   Thus, because we conclude that that stop violated appellant's right to be free from unwanted searches and seizures, all of the evidence after the stop should have been suppressed under the Fourth Amendment to the United States Constitution as “ ‘ “fruit of the poisonous tree.” ’ ”  (People v. Letner (2010) 50 Cal.4th 99, 211;  Wong Sun v. United States (1963) 371 U.S. 471.)

V. Duration of detention for traffic stop

Appellant argues that even if the traffic stop was proper, the detention was nonetheless unreasonably prolonged because the officer's questioning exceeded the scope of the stop.   We agree.

“[I]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take.”  (People v. Brown (1998) 62 Cal.App.4th 493, 498;  People v. Gallardo (2005) 130 Cal.App.4th 234, 238 (Gallardo );  see also People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran ) [warrant check permissible during traffic stop so long as it “can be completed within that same period” as necessary “to discharge the duties that he incurs by virtue of the traffic stop”];  Florida v. Royer (1983) 460 U.S. 491, 500 [“an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop”].)

But the detention cannot be prolonged beyond the time period necessary to address the violation.  (Gallardo, supra, 130 Cal.App.4th at p. 238.)   There is no hard and fast rule as to the amount of time that is reasonable.   (Ibid.) There is no set time limit for a permissible investigative stop.   (People v. Russell (2000) 81 Cal.App.4th 96, 102.)   It depends on the circumstances of each case.  (Gallardo, supra, at p. 238.)   Moreover, circumstances that develop during the stop can provide a reasonable suspicion to prolong the stop.  (People v. Russell, supra, at p. 102.)

Appellant was stopped for a minor traffic infraction.   Thus, under ordinary circumstances, the duration of the stop could be no longer than the time that it would reasonably take for the officer to perform his duties with respect to the reason for the stop, including, among other things, obtaining the driver's license, explaining to the driver the nature of the infraction, writing a ticket, and explaining to the driver what must be done with regard to the ticket.   A traffic stop that lasts longer than necessary to effectuate the purpose of the stop “amounts to a de facto arrest that must be supported by probable cause to be constitutionally valid.”  (People v. Gomez (2004) 117 Cal.App.4th 531, 538.)

But the officers did not handle this stop as an ordinary traffic stop.   They had no intention of ticketing, warning or otherwise addressing the traffic violation.   They approached appellant with guns drawn, not the customary manner in which officers effect a traffic stop, without a ticket book, without asking for appellant's license, registration or proof of insurance, and with no discussion of the traffic infraction.   Officer Martinez was not even a traffic officer, but rather a gang officer.   As previously stated, a traffic stop must last no longer than “necessary to effectuate the purpose of the stop.”   (Florida v. Royer, supra, 460 U.S. at p. 500.)   But where the officers do not even attempt to deal with the traffic violation and simply use it as a ruse to stop an individual to accomplish other investigative purposes for which there is no basis for the stop, as did Officer Martinez here, any delay in releasing the detention is longer than necessary.

Discussing the unlawful prolongation of a traffic stop, Williams v. Superior Court (1985) 168 Cal.App.3d 349 distinguished McGaughran, the leading case on this issue, stating:  “There a patrolling officer stopped a vehicle for a traffic violation for which the driver could not be taken into custody.   After concluding his duties relative to completion of the citation and obtaining written promise to appear from the driver, the officer further detained the driver and conducted a computer warrant check.   The officer suspected possible drug trafficking due to the driver's and passenger's out-of-county residences and a furtive move by the passenger when the officer had activated his red flashing light.   After ten minutes, the check revealed a burglary warrant on the driver and two traffic warrants on the passenger.   Arrests were effected and an item stolen from a recent local burglary was seized.   It was held that the prolongation of the traffic detention beyond the point when the duties ‘reasonably necessary’ to completion of the citation had been performed was unlawful and the seized evidence was suppressed as a product thereof․  [¶] ․ [¶] The holding of McGaughran does not mean that the officer may detain and interrogate the traffic offender as to possible unrelated offenses for the time it would otherwise take to fully perform his citation duties․  The import of McGaughran is not the setting of a general outside time limit for minor traffic offense detentions.   Implicit in the McGaughran analysis is a recognition that the circumstances of each traffic detention are unique and that the reasonableness of each detention period must be judged on its particular circumstances.   The clear intent of McGaughran is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not ‘reasonably necessary’ to completion of the officer's traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses.”  (Id. at p. 358, italics added.)

We conclude that because the questioning of appellant did not occur as the officers were actually conducting a traffic stop, as they never apparently intended to do so, the questioning of appellant and other conduct during the stop took more time than justified and was improper.

VI. Propriety of patdown for weapons

Appellant argues that the patdown search was not supported by a reasonable belief that appellant was armed and dangerous.   We agree.

A vehicle stop is analogous to a Terry stop because of its brevity and atmosphere.  (Berkemer v. McCarty (1984) 468 U.S. 420, 439.)   During an ordinary traffic stop, an officer may not conduct a full field search of a driver.   An officer can only conduct a patdown search for weapons in the course of a lawful detention for officer safety (People v. Thurman (1989) 209 Cal.App.3d 817, 821, 823;  Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry )), but only if the officer has a reasonable suspicion that the person may be armed and dangerous (Knowles v. Iowa (1998) 525 U.S. 113, 117–118;  Terry, supra, 392 U.S. at p. 24;  Ybarra v. Illinois (1979) 444 U.S. 85, 93–94;  Simon, supra, 7 Cal.3d at p. 206).   As stated in Simon:  “We ․ conclude that when a police officer observes a traffic violation and stops the motorist for the purpose of issuing a citation, a pat-down search for weapons as an incident to that arrest must be predicated on specific facts or circumstances giving the officer reasonable grounds to believe that a weapon is secreted on the motorist's person.”  (Simon, supra, at p. 206.)

But “[t]he officer need not be absolutely certain that the individual is armed;  the [crux of] the issue is whether a reasonably prudent [person] in the [totality of] the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.”  (Terry, supra, 392 U.S. at p. 27.)   During the traffic stop, an officer may “ ‘take such steps as [are] reasonably necessary to protect [his] personal safety and to maintain the status quo during the course of the stop.’ ”  (People v. Soun (1995) 34 Cal.App.4th 1499, 1519.)

A routine traffic stop, without more, does not justify a weapons frisk.   (Simon, supra, 7 Cal.3d at pp. 204, 208.)   There were no facts here which justified the patdown search of appellant.   Officer Martinez claimed that appellant appeared nervous.   Apart from the fact that the nervousness could well have been attributed to the two officers approaching appellant with guns drawn, nervousness and sweating are insufficient to justify a weapons search.   (People v. Dickey (1994) 21 Cal.App.4th 952, 956 [patdown unjustified by reasonable suspicion even where defendant nervous and sweating, had no identification and refused to allow officer to search vehicle].)   Simply because the area was a gang and narcotics crime area is also insufficient to justify patting down anyone stopped for a traffic violation.  (In re H.M. (2008) 167 Cal.App.4th 136, 145 [“To be sure, the mere fact a person is located in a high crime area when stopped by police does not, by itself, give rise to a reasonable suspicion that the individual is armed”].)   There was no indication that appellant made any furtive moves as if reaching for a gun, that the officers observed anything that could have possibly been a weapon, or that anything else reasonably justified the officers concern that there might be a weapon.

VII. Search of confiscated pouch

Finally, appellant contends that Officer Martinez illegally searched the contents of the pouch he removed from appellant's left breast pocket during the patdown search, because the officer did not have a reasonable belief that it contained a weapon.   While we might have agreed were we the trier of fact, our task is to see if there is evidence supporting the magistrate's ruling, accepting the magistrate's findings of historical facts and construing the evidence favorable to the magistrate's decision.  (Miranda, supra, 17 Cal.App.4th at p. 922.)   The magistrate here simply found the search of the pouch justified as an observation resulting from the stop.   We conclude that the stop was illegal and, even if legal, would not have justified the further intrusion by looking inside of the pouch.

When he searched appellant, Officer Martinez felt what he described as a “hard case,” which he believed could be used as a holster.   He removed the item, purportedly fearing for his and his partner's safety, in order to ensure that it did not contain a weapon.   When the object was removed, it was clear that it was not a holster requiring further inspection, but a small zippered pouch, approximately three by four inches in size.   It defies credulity to believe that Officer Martinez looked inside because he could not tell from its physical characteristics and from feeling it whether or not it contained a weapon.   Virtually any bag, container or pouch could conceivably contain a weapon such as a razor blade or pocket knife.   There was nothing exceptional in the evidence here to suggest that a weapon was contained inside.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN–GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Because appellant entered a plea of no contest, we take the facts from those presented to the magistrate at the preliminary/suppression hearing..  FN2. Because appellant entered a plea of no contest, we take the facts from those presented to the magistrate at the preliminary/suppression hearing.

FN3. Vehicle Code section 22108 provides:  “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.”.  FN3. Vehicle Code section 22108 provides:  “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.”

FN4. Vehicle Code section 22107 provides:  “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.”.  FN4. Vehicle Code section 22107 provides:  “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.”

_, P.J. BOREN _, J. DOI TODD