People v. Cruz CA4/2

Filed 8/24/15 P. v. Cruz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061411
v. (Super.Ct.No. FVA1300345)
ELISANDRO PEREZ CRUZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla S. Sabet,
Judge. Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Elisandro Perez Cruz was charged and convicted by a jury with one
count of felony possession of a controlled substance, in violation of Health and Safety
Code section 11350, subdivision (a). He was sentenced to three years probation and
appealed. On appeal, defendant argues (1) the officer’s initial stop of the vehicle was
unreasonable, (2) even if the initial stop and vehicle search were justified, the officer’s
prolonged detention of him and his person were not, and (3) he was prejudiced by Officer
Gonzalez’s violation of his Fourth Amendment rights.
BACKGROUND
On November 10, 2012, Officer Crystal Gonzalez was on patrol in the area of
Frisbee Park in Rialto. While entering the parking lot, she passed closely by a van that
was exiting. Driving around five miles per hour, with both her windows and the van’s
windows rolled down, she noticed the strong smell of marijuana coming from the van.
After pulling the van over, she asked the driver about the smell, and he replied that they
had “just finished smoking a blunt.” She obtained consent to search the vehicle for
illegal contraband and asked the driver and his three passengers to sit on the curb while
she conducted her search. At this point, nobody was free to leave. The vehicle search
lasted “five to ten minutes.” After finding no contraband or illegal substances in the
vehicle, Officer Gonzales then gained permission to search the defendant. Before
beginning her search, defendant informed her that he had cocaine in his front pocket. She
then recovered a small baggie of a white substance, and arrested defendant for possession
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of cocaine. Officer Gonzalez’s field test and the crime lab results of the testing of the
powder recovered from defendant were positive for cocaine.
Defendant was charged with possession of a controlled substance, in violation of
Health and Safety Code, section 11350, subdivision (a). On June 18, 2014, a hearing was
held on defense’s Penal Code section 1538.5 motion to suppress evidence seized during
defendant’s arrest. The judge heard the motion despite its untimeliness and denied it on
the merits. Jury trial then commenced on the same date. After a guilty verdict from the
jury, defendant was sentenced to three years probation. He appeals.
DISCUSSION
Defendant contends that denial of his motion to suppress under section 1538.5 was
improper because the initial stop was unreasonable and defendant was unlawfully
detained. We disagree.
The Fourth Amendment protects individuals against unreasonable searches and
seizures. A defendant may move to suppress evidence under Penal Code section 1538.5
on grounds that the search or seizure was unreasonable. (Pen. Code § 1538.5, subd.
(a)(1)(A).) To determine whether a denial of the motion was proper, we examine the
reasonableness of the initial stop, the detention of the passengers, and defendant’s
consent to be searched.
A) Standard of Review
At a hearing on a motion to suppress evidence, the trial court is vested with the
power to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the
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evidence, and draw factual findings. (People v. Sun (2007) 148 Cal. App. 4th 374, 381
quoting People v. Lawler (1973) 9 Cal. 3d 156, 160.) On appeal, all presumptions favor
the proper exercise of that power, and this court upholds the trial court’s express and
implied factual findings if they are supported by substantial evidence. (People v. Leyba
(1981) 29 Cal. 3d 591, 596-597 (Leyba).) When the facts bearing on the legality of a
detention are undisputed, there is no factual issue entitled to a substantial evidence
standard of review. (People v. Aldridge (1984) 35 Cal. 3d 473, 477.) Instead, we are
confronted with a question of law as to whether the search or seizure was reasonable
under the Fourth Amendment, under an independent standard of review. (Leyba, supra,
29 Cal.3d at p. 597; People v. Turner (2013) 219 Cal. App. 4th 151, 159.)
B) The Validity of the Traffic Stop
Circumstances short of probable cause to arrest may justify a police officer
stopping and briefly detaining for questioning or other limited manifestations. (Terry v.
Ohio (1968) 392 U.S. 1, 22 (Terry).) In order to justify an investigative stop an officer
must be able to point to “specific and articulable facts” leading him or her to believe that
either (1) some activity relating to a crime is occurring, and (2) the person he or she
intends to stop is involved in that activity. (In re Tony C. (1978) 21 Cal. 3d 888, 893.)
Additionally, it must be objectively reasonable for the officer to entertain such a
suspicion. (Ibid.) Ordinary traffic stops are treated as investigatory detentions for which
the officer must be able to articulate specific facts justifying the suspicion that a crime is
being committed. (People v. Suff (2014) 58 Cal. 4th 1013, 1054.)
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A police officer has probable cause to search a vehicle after smelling burnt
marijuana. (People v. Waxler (2014) 224 Cal. App. 4th 712, 721 (Waxler); see also,
People v. Strasburg (2007) 148 Cal. App. 4th 1052, 1059 (Strasburg).) In Waxler, the
court reasoned that the smell of marijuana would reasonably lead to the suspicion that the
vehicle contains contraband, and therefore a warrantless search is justifiable. (Waxler,
supra, at pp. 719-720; Strasburg, supra, at p. 1059.) If the smell of marijuana provides
probable cause to search, at minimum it constitutes reasonable suspicion to conduct an
investigative stop.
Here, the officer, who was in her patrol car with the driver’s side window open,
smelled marijuana emanating from the vehicle in which defendant was a passenger.
Notwithstanding the fact that possession of small quantities of marijuana is a minor
offense, nonmedical marijuana is still contraband, and may provide probable cause to
search a vehicle. (Waxler, supra, 224 Cal.App.4th at pp. 715-716.) Thus, the initial stop
was valid.
Defendant argues that Waxler and Strasburg do not control our decision because
in those cases the officers stopped the vehicles for other reasons, and the smell of
marijuana was detected when the drivers were contacted, giving the officers probable
cause to conduct a search. But here, stopping a vehicle based on the smell of marijuana
can be analogized to the plain view doctrine. It is well established that observing
evidence in “plain view from a position where an officer has a right to be is not
constitutionally prohibited.” (People v. Webster (1991) 54 Cal. 3d 411, 431.) If an object
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is in the plain view where an officer has a right to be, there can be no “search in the
constitutional sense.” (People v. Camacho (2000) 23 Cal. 4th 824, 831-832.) Here, the
officer was in a position where she had a right to be when she experienced the “plain
smell” of marijuana in the open air between the two vehicles as they passed. Because
there was no infringement on defendant’s liberty interests at the point where the officer
came into possession of facts justifying the stop, the traffic stop and detention of the
driver were lawful.
C) Detention of Passengers
Courts have found that during a traffic stop, the police officer detains “everyone in
the vehicle, the driver and his passengers.” (Arizona v. Johnson (2009) 555 U.S. 323,
326; accord Brendlin v. California (2007) 551 U.S. 249, 257.) The court in Brendlin
explained that it is reasonable for a passenger to understand that when a police officer has
stopped a vehicle, he is exercising control over it to the point that no one is free to leave.
The California Supreme Court also stated that an officer may order passengers out of the
vehicle without violating the Fourth Amendment. (People v. Hoyos (2007) 41 Cal. 4th
872, 892 [overruled on a different point in People v. Black (2014) 58 Cal. 4th 912, 919-
920].)
An officer’s authority to order passengers to exit a vehicle during a traffic stop
will be upheld so long as the initial stop was lawful. (People v. Vibanco (2007) 151
Cal. App. 4th 1, 10 (Vibanco), quoting People v. Saunders (2006) 38 Cal. 4th 1129, 1134.)
Thereafter, the officer was authorized to ask defendant for identification, or to perform
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other investigative activities beyond the original purpose of the traffic stop, so long as
they do not prolong the stop beyond the time it would otherwise take. (People v.
Gallardo (2005) 130 Cal. App. 4th 234, 238.)
Once a vehicle has been stopped, it is reasonable to request such things as
identification or other information from passengers as long as it is within the scope of the
initial stop. (See People v. Grant (1990) 217 Cal. App. 3d 1451, 1461.) The officer may
also talk to anyone he or she encounters while regularly performing his or her duties.
(Vibanco, supra, 151 Cal.App.4th at p. 13, citing People v. Castaneda (1995) 35
Cal. App. 4th 1222, 1227.) When drugs are involved, it may also be reasonable for an
officer to conduct a “limited pat down” of a passenger based on officer safety. (People v.
Collier (2008) 166 Cal. App. 4th 1374, 1378.)
However, even where “legitimate law enforcement interests justify” a search, it
must be “limited in scope” and last “no longer than necessary to effectuate the purpose of
the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500.) A search must be “strictly tied to
and justified by” the initial stop. (Ibid,. quoting Terry, supra, 392 U.S. at p. 19.)
Defendant argues that the detention was unduly prolonged at the time the officer
requested consent to pat him down, thereby vitiating his consent. We acknowledge that
an investigating stop exceeds constitutional bounds when extended beyond what is
reasonably necessary under the circumstances that made its initiation permissible.
(People v. McGaughran (1979) 25 Cal. 3d 577, 586.) A consent to search obtained during
an unduly prolonged detention is vitiated. (People v. Grace (1973) 32 Cal. App. 3d 447,
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454.) However, there is no set time limit for a permissible investigative stop and facts
coming to light during detention may provide justification to prolong it. (People v.
Russell (2000) 81 Cal. App. 4th 96, 102.)
Here, Gonzalez’s search of the vehicle lasted only five to ten minutes and was
only conducted for the purpose of searching for contraband after the driver admitted to
marijuana use. It was not unduly prolonged so defendant’s consent was valid.
D) Pat down search of Defendant
After determining that the stop and initial detention is valid, the next step in the
Fourth Amendment analysis is to determine the validity of the pat down search of
defendant. In the case at bar, defendant consented to his search. In general, if a
defendant freely consents to a search his constitutional rights are not violated. (People v.
Michael (1955) 45 Cal. 2d 751.) The prosecutor has the burden of proving that consent
was “freely and voluntarily given” and must show more than an “acquiescence . . . to
lawful authority.” (Bumper v. North Carolina (1968) 391 U.S. 543, 548-549.) The
voluntariness of defendant’s consent is based on the totality of facts. (Ohio v. Robinette
(1996) 519 U.S. 33.) For example, consent is not voluntary if made under compulsion.
(People v. McKelvy (1972) 23 Cal. App. 3d 1027, 1033-1034.) Also, if the search was part
of an illegal detention or without probable cause, the consent becomes ineffective.
(People v. Leib (1976) 16 Cal. 3d 869, 877; People v. Lawler (1973) 9 Cal. 3d 156.)
However, a defendant need not be aware of his right to refuse consent to a search in order
for his consent to be voluntary. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 234.)
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Here, there is nothing in the record to suggest that defendant’s consent to be
searched was not valid. He was not coerced, his detention was legal, and he was not
merely submitting to authority. Furthermore, defendant not only gave permission to be
searched, but freely and voluntarily revealed that he had contraband on his person.
Therefore, defendant’s search was valid.
Based on the above analysis, there is nothing to indicate that the initial stop was
unreasonable or that defendant was unlawfully detained and searched. Firstly, the initial
stop was reasonable based upon a reasonable suspicion of the presence of drugs in the
van. Secondly, the detention and search of the defendant was justified because he was a
passenger in the vehicle that was stopped. Thirdly, there is nothing in the record to
suggest that defendant’s consent to be searched was not valid.
DISPOSITION
For reasons stated above, the vehicle stop, defendant’s detention, and defendant’s
search were all valid. Therefore, his section 1538.5 motion to suppress was properly
denied. We affirm the trial court’s decision.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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