PEOPLE v. SOTO (1985)

Rodolfo Flores Soto appeals from the judgment entered following his plea of nolo contendere to possession of cocaine.  (Health & Saf.Code, § 11350.)   He contends that the cocaine found on his person was the fruit of his unlawful detention, the trial court should have granted his motion to suppress that evidence and he is entitled to 186 days of presentence credit.   We find no error and affirm the judgment.

I

FACTS

Viewing the evidence adduced at the motion to suppress according to the usual rule of appellate review (People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961),¹ on November 24, 1983, at 11:35 p.m., Oxnard Police Officer Glen Velo saw appellant standing outside a bar holding a paper bag which appeared to contain a liquor bottle.   Because of appellant's youthful appearance, Officer Velo suspected he was a minor in possession of an alcoholic beverage.   As the officer approached, appellant hid the bag inside his closed jacket and quickly turned away.   When asked what was in his jacket, appellant replied that he had nothing.   Officer Velo then unzipped appellant's jacket and removed the paper bag, which contained a bottle of liquor.

In response to Officer Velo's further questions, appellant said he obtained the liquor at a bar which the officer knew did not sell that type of liquor.   He produced a temporary driver's license which indicated that he was 25 years old.   Officer Velo promptly initiated a warrant check and, within 30 to 60 seconds, discovered appellant's warrant outstanding for violation of probation on a driving under the influence of alcohol conviction.  (Veh.Code, § 23152.)   A subsequent booking search of appellant disclosed two paper bindles of cocaine.

Appellant's motion to suppress evidence (Pen.Code, § 1538.5) and his motion for reconsideration were denied.²

Following appellant's plea of nolo contendere, the court placed him on probation conditional, inter alia, to his spending 60 days in county jail consecutive to any misdemeanor sentence he was serving.   The court did not award him presentence custody credit since the 60-day jail term was consecutive to the term appellant was already serving on the misdemeanor probation violations.³

II

DISCUSSIONA. The Detention

Appellant concedes that Officer Velo had reasonable cause to detain him in view of his youthful appearance and what appeared to be a liquor bottle in a paper bag.  (People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 524 P.2d 353;  cf. In re Tony C. (1978) 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   The crucial question is whether the length of detention exceeded permissible bounds.   Since the California Supreme Court held that Proposition 8 abrogated a defendant's right to object to and suppress evidence seized in violation of the California, but not the federal, Constitution (In re Lance W. (1985) 37 Cal.3d 873, 880, 210 Cal.Rptr. 631, 694 P.2d 744), we must ascertain whether Officer Velo's actions were permissible under the federal Constitution as interpreted by the United States Supreme Court.

Appellant contends that once he produced a “valid identification showing him to be 25 years of age, the reason for the initial detention ceased to exist.”   We disagree.   Appellant's argument is based upon the trial court's interpretation of Officer Velo's testimony from the preliminary hearing transcript that the officer was satisfied that the temporary driver's license was valid before he began the warrant check.⁴

 Although the superior court acts as fact-finder, it is the ultimate responsibility of this court to measure the facts as found by the trier of fact against constitutional standards.  (People v. Leyba, supra, 29 Cal.3d 591, 596, 174 Cal.Rptr. 867, 629 P.2d 961;  People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

The trial court ruled that in viewing the “total picture”, the officer acted reasonably and additional detention for 30 to 60 seconds did not render the activities of the officer illegal or impermissible.

Appellant's motion for reconsideration of that ruling was based upon People v. Aldridge (1984) 35 Cal.3d 473, 198 Cal.Rptr. 538, 674 P.2d 240, which held that a general sweep search in a parking lot where drug transactions frequently occurred and people were frequently armed was unlawful.   The trial court distinguished that case from the instant circumstance in which the officer did have reasonable cause to investigate and stated that “a very brief, if any, intrusion into the defendant's privacy of the 30-second or so detention after he was shown not to be a minor in possession is not such an intrusion as rises to the dignity of a needed constitutional protection.”

 The trial court reached the correct conclusion of law that the duration of detention for warrant check was constitutionally permissible.   An officer may conduct a warrant check during the period of temporary detention required for discharge of his duties incurred by virtue of the initial stop.   (People v. McGaughran (1979) 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207.)   This precept holds true whether the officer issues a citation or decides only to release the suspect with a warning.  (Id., at p. 584, 159 Cal.Rptr. 191, 601 P.2d 207.)  “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.”   (Ibid. fn. omitted.)   This period includes the time necessary for the officer to return to his vehicle to initiate the check by radio or computer.   (Id., pp. 584–585, fn. 6, 159 Cal.Rptr. 191, 601 P.2d 207.)

 An investigative detention must be temporary and last no longer than is necessary to effectuate the purposes of the stop.  (Florida v. Royer (1983) 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229;  United States v. Sharpe (1985) 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605.)   Nevertheless, in assessing the effect of the duration of detention, we must consider whether the police diligently pursue their investigation (United States v. Place (1983) 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110;  United States v. Sharpe, supra ) and balance the nature and quality of the intrusion on personal security against the importance of governmental interests alleged to justify the intrusion.   (United States v. Place, supra, at 703, 103 S.Ct. at 2642;  United States v. Hensley (1985) 469 U.S. ––––, –––– – ––––, 105 S.Ct. 675, 680–681, 83 L.Ed.2d 604, 611–612.)   Although at some point police procedures can “qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments” (Hayes v. Florida (1985) 470 U.S. ––––, ––––, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705, 710), that circumstance is not before us.

 The United States Supreme Court, in Terry v. Ohio (1968) 392 U.S. 1, 19–20, 88 S.Ct. 1868, 1878–1879, 20 L.Ed.2d 889, enunciated the dual inquiry in determining whether the search and seizure is “unreasonable”—whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.   Additionally, a police officer must be able to point to specific and articulable facts, which taken together with rational inferences therefrom, reasonably warrant the intrusion.   Moreover, those facts must be judged against an objective standard.  (Id., at p. 22, 88 S.Ct. at 1880.)   In evaluating alleged violations of the Fourth Amendment, the United States Supreme Court “almost without exception ․ has first undertaken an objective assessment of an officer's actions in light of the facts and circumstances then known to him.”  (Scott v. United States (1978) 436 U.S. 128, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168.)

 Thus, assuming the correctness of the trial court's factual resolution that Officer Velo was satisfied by the production of the temporary license appellant was over 21 years of age, under federal authorities, it is not the officer's subjective intent or motive that governs so long as the objective facts, when fully determined, afford probable cause.  “(T)he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken so long as the circumstances, viewed objectively, justify that action.”  (Emphasis added.)  (Scott v. United States, supra, 436 U.S. 128, 138, 98 S.Ct. at 1723.)

 Here, the suspicion raised by appellant's youthful appearance, his attempt to hide the bottle of liquor, and his ostensibly untruthful answers (all factors objectively reasonable to support the original detention and all subjectively entertained by Velo) would not vanish in the mind of an officer “of reasonable caution” ⁵ with the production of a temporary driver's license, a document easily faked or stolen.   Thus, we cannot say as a matter of law that the additional detention for 30 to 60 seconds was unreasonable or was constitutionally impermissible.   Moreover, “when the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.”  (United States v. Sharpe, supra, 470 U.S. ––––, ––––, 105 S.Ct. 1568, 1578, 84 L.Ed.2d 605, 618, concurring opinion of Marshall;  United States v. Place, supra.)

B. Custody Credits

 Appellant's contention that he should have been awarded presentence custody credit when the court imposed a term of 60 days in county jail as a condition of probation is unavailing.   Credit against presentence custody may be “given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”   Appellant was given proper credit on his misdemeanor sentences.  (§ 2900.5(b);  see In re Atiles (1983) 33 Cal.3d 805, 811, fn. 6, 191 Cal.Rptr. 452, 662 P.2d 910.)

 Since appellant has been released from custody, this court cannot give any effective relief and the issue appears moot.   Nevertheless appellant urges we decide the issue because he might violate a term of probation and be reincarcerated.   Even if Penal Code section 2900.5 would otherwise entitle him to presentence custody credit, the record is clear that appellant waived his right to raise the issue on appeal since one of the terms of his probation, which the trial court discussed distinctly on the record and which was expressly written in the terms and conditions of probation, was that appellant serve 60 days in county jail, with no credit, consecutive to any other sentence he was serving.   Appellant accepted the terms of probation without objection.  Penal Code section 2900.5 does not preclude waiver of provisions thereof.  (People v. Johnson (1978) 82 Cal.App.3d 183, 188, 147 Cal.Rptr. 55.)

The judgment is affirmed.

FOOTNOTES

1.   The parties submitted the matter on the preliminary hearing transcript.

2.   In denying the motion for reconsideration, the court stated in pertinent part:  “There's got to be some reasonable ground for the officer to detain, to conduct a field interrogation.   You can't just stop every citizen that wanders into a parking lot or every citizen that's driving on the highway.“However, I don't think that the Soto case presents that activity.   I don't think that Aldridge forbids an officer from looking into the suspicious activities of someone who gives the appearance of Mr. Soto, that is, a minor in possession of alcohol, and I don't think that it prohibits routine warrant checks.“If the officer has probable cause either to arrest or detain and in the course of the questioning and investigation also runs a warrant check, I don't think the fact that he routinely runs warrant checks renders the detention improper or illegal from the beginning.“And I will repeat what I said earlier, a very brief, if any, intrusion into the defendant's privacy of the 30-second or so detention after he was shown not to be a minor in possession is not such an intrusion as rises to the dignity of a needed constitutional protection.“There is nothing, in my estimation, in Aldridge that says it's improper for officers routinely to check for warrants on any person that they properly stop.   And of course, that's the key.   The stop, the initial investigation and detention must be proper.   The additional, then, routine checking of warrants does not render an appropriate stop illegal, and I don't think that Aldridge compels me to reach a contrary conclusion.”

3.   Included in Exhibit A of respondent's brief are copies of a remand slip and Ventura County Sheriff's Department “Booking and Property Record” which indicates appellant was released from custody on September 17, 1984.   As requested, we take judicial notice of these documents and the fact that appellant has been released from custody.  (Evid.Code §§ 452(h) and 459;  People v. Terry (1974) 38 Cal.App.3d 432, 439–440, 113 Cal.Rptr. 233.)

4.   We note that the magistrate, after hearing the live testimony, held that appellant's youthful appearance, his responses to questions and the temporary nature of the license failed to allay completely the officer's suspicions.

5.   See Terry v. Ohio, supra, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880.

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.