Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR128488
Kline, P.J.
Kenneth William Destefano appeals from a conviction of possession of a controlled substance entered upon his plea of no contest after his motion to suppress evidence was denied. He contends the motion should have been granted. We affirm.
STATEMENT OF THE CASE
On April 18, 2006, a criminal complaint was filed in Napa County Superior Court charging appellant with three felonies—possession for sale of a controlled substance (Health & Saf. Code, § 11378), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and one misdemeanor—being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
Appellant filed a motion to suppress evidence which was heard and denied at a preliminary hearing on June 16, 2006. Appellant was held to answer on the three felony charges.
An information was filed on June 21, 2006, charging appellant with the three felony offenses. Appellant filed a motion to suppress on August 25. The motion was heard and denied on September 12.
On September 20, appellant entered a plea of no contest to the charge of possession of a controlled substance and the other counts were dismissed on the prosecutor’s motion.
On October 17, the court suspended imposition of sentence and placed appellant on formal probation for three years, with conditions including that he serve 30 days in jail or on home detention.
On October 30, 2006, appellant filed a timely notice of appeal challenging the denial of the suppression motion.
STATEMENT OF FACTS
Napa County Deputy Sheriff Chet Schneider testified at the preliminary hearing that on April 14, 2006, at about 3:50 a.m., he was driving his patrol car in the trailer park at 2525 Flosden Road in American Canyon. He saw a vehicle approaching and, as it passed, noticed an object hanging from the rear view mirror. After making a U-turn and pulling behind the vehicle, he noticed a “paper license plate” on the rear. The latter “looked like a dealer plate, advertisement for a car dealership of some sort.” Schneider briefly followed the car and then pulled it over because he believed he had seen two violations of the Vehicle Code: he thought the object hanging from the mirror was obstructing the driver’s vision, and “[t]he Vehicle Code states you’re to have a properly attached license plate” on the rear. Schneider did not see anything on the car’s windshield as he passed it and did not notice anything there after the stop. The object hanging from the rear view mirror was a necklace, which Schneider testified swayed “a little bit” as the car moved. There was nothing attached to the necklace Schneider was aware that a couple of hours earlier other officers had arrested individuals for having a stolen vehicle and that vehicle had paper license plates. Schneider had been a law enforcement officer for a year and noted he was not a “traffic officer.” He testified that he was “vaguely familiar” with Vehicle Code violations and had “some understanding of how small items can obscure vision.”
Appellant’s car, which he had purchased a few months earlier, had a white paper affixed to the windshield which apparently turned out to be a current temporary operating permit. The magistrate did not question the validity of the permit, but the trial court noted that it was “all torn up, doesn’t look like a temporary registration sticker to me.” The car did not have a front license plate.
When Schneider made contact with appellant, the driver of the car, he realized he knew him and asked back up officer Sergeant Michael Hunter to take over the contact. Hunter testified that appellant was extremely nervous and fidgety and was perspiring although the weather was fairly cool. The ambient light from Hunter’s flashlight caused appellant’s pupils to flutter, an indication of possible drug use. Hunter asked appellant to step out of the car and as appellant did so, he turned his back to Hunter and attempted to toss a black object under the front seat. Hunter yelled to Schneider for assistance and ordered appellant out of the car, but appellant continued to brush the object as though to push it between the driver’s seat and center console. Schneider recovered the object, a dark container containing four bags of methamphetamine with a total weight of approximately seven grams.
Appellant was placed under arrest and consented to a search of himself and the car. Hunter found just under $1,000 in appellant’s pocket. In appellant’s jacket in the car, the officers found a small zipper pouch, an additional bag of methamphetamine weighing approximately 1.5 grams, a pipe, approximately 10 clean, unused ziplock bags, a small pair of scissors and keys appellant said were to his vehicle and his residence. Appellant identified these items as his. Appellant claimed ownership of pay/owe sheets located in the purse of one of the car’s passengers, which he said had been written at his direction. He also claimed ownership of a backpack found in the backseat and its contents, which included a digital scale with methamphetamine residue, a bottle of prescription medicine in appellant’s name, two glass smoking pipes with methamphetamine residue, and marijuana.
DISCUSSION
When, as here, a motion to suppress is submitted to the trial court on the preliminary hearing transcript alone, this court directly reviews the magistrate’s denial of the motion and defers to the factual findings of the magistrate if they are supported by substantial evidence. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223; People v. Ramsey (1988) 203 Cal.App.3d 671, 678-679.) We exercise our independent judgment in determining whether the search or seizure was reasonable on the facts found by the magistrate. (People v. Saunders (2006) 38 Cal.4th 1129, 1134 (Saunders); People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
“Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200; People v. Miranda (1993) 17 Cal.App.4th 917, 926; see also Terry v. Ohio (1968) 392 U.S. 1, 22; In re Tony C. (1978) 21 Cal.3d 888, 892-894.) . . . [¶] . . . [T]o be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.” ’ (In re Tony C., supra, 21 Cal.3d at p. 894.)” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.) “[W]hen there is articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, the vehicle may be stopped and the driver detained in order to check his or her driver’s license and the vehicle’s registration.” (Saunders, supra, 38 Cal.4th at p. 1135.)
Appellant contends the traffic stop in this case was unlawful because neither the object hanging from his rear view mirror nor the absence of a rear license plate on his car provided sufficient grounds for the stop.
I.
Vehicle Code section 26708, subdivision (a)(2), provides: “No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver’s clear view through the windshield or side windows.” “The statute does not flatly prohibit hanging any object on a rearview mirror.” (People v. White (2003) 107 Cal.App.4th 636, 642 (White).) In determining the propriety of Schneider’s stop based on the necklace he observed in appellant’s car, the question is whether it was objectively reasonable for the officer to believe the necklace obstructed or reduced appellant’s clear view through the windshield. (Ibid.)
In White, an officer stopped a car he observed driving with a tree-shaped air freshener hanging from the rearview mirror. The air freshener remained stationary as the officer followed the car. The officer did not testify that he believed the air freshener obstructed the driver’s view and did not suggest other “specific and articulable facts, like hesitant or erratic driving, that might suggest the driver’s clear view was impeded.” (White, supra, 107 Cal.App.4th at p. 642.) A civil engineer testified for the defense that the air freshener covered less than .05 percent of the surface of the windshield and, based on an experiment he had conducted, would not obstruct the vision of a six-foot tall driver, and the defendant testified that his vision was not obstructed by the air freshener. (Ibid.) White concluded it was not reasonable for the officer to believe the air freshener obstructed the driver’s view and, therefore, the traffic stop could not be justified on that basis.
White also rejected the officer’s second justification for the stop, that the car had a single Arizona license plate, because Arizona law requires only one license plate. (White, supra, 107 Cal.App.4th at pp. 643-644.)
Respondent contends White is distinguishable because in the present case, Deputy Schneider testified that he thought appellant’s view was obstructed by the necklace, a necklace is more likely to sway into the driver’s line of vision than the stationary air freshener in White, and the magistrate impliedly found the necklace constituted an obstruction.
The relevant question is not whether the necklace in fact obstructed appellant’s vision but whether it was reasonable for Schneider to believe it did so. By denying the suppression motion, the magistrate impliedly concluded that Schneider in fact thought the object he observed was obstructing appellant’s clear view. Schneider’s testimony, however, offered no specific and articulable facts to support his belief that the necklace constituted an obstruction. Schneider testified that the necklace did not have anything attached to it. The photograph offered into evidence at the preliminary hearing shows a thin beaded single-strand necklace without attached jewel or ornamental pendant of any sort. Schneider observed no erratic driving. Vehicle Code section 26708, subdivision (a)(2), prohibits only objects that obstruct or reduce the driver’s view. As even the trial court recognized, nothing in the record here supplies an objective basis for Schneider’s view that the necklace constituted an obstruction.
The magistrate did not clarify whether the motion to suppress was denied on the basis of the hanging necklace, the missing license plate, or both. The trial court expressly stated it was denying the motion based on Schneider’s observation of the missing license plate, but agreed with appellant that there was “absolutely no basis to stop the car because of what was hanging from the rear view mirror.”
II.
The second basis for the traffic stop in this case was Schneider’s observation of a “paper license plate” on the rear of appellant’s car. Appellant contends this was insufficient to justify the stop because his vehicle had a paper dealer advertisement plate in place of a rear license plate and a temporary operating permit (referred to at the hearing as a “suspension registration”) attached to the driver’s side of the windshield, a proper place to affix such a permit, suggesting the vehicle had recently been sold. Since it is legal for the purchaser of a new vehicle to drive the car without permanent plates if, while waiting for new plates to arrive from the Department of Motor Vehicles (DMV), he or she displays a temporary operating permit on the vehicle (Veh. Code, § 4456, subds. (a), (c)), appellant argues Schneider did not have reason to believe the car was not properly registered. Indeed, appellant argues that an officer can not reasonably stop a vehicle when a document that could be a current temporary operating permit is affixed to the vehicle in a place it is legally permitted to be, particularly where, as here, the vehicle bears a dealer plate suggesting it has recently been purchased.
Appellant relies upon People v. Nabong (2004) 115 Cal.App.4th Supp. 1 (Nabong). In that case, the defendant was stopped when a police officer noticed an expired registration tag on the license plate, a violation of Vehicle Code section 4000, subdivision (a). The officer also saw a temporary registration for the current month in the rear window. He nevertheless stopped the car without having police dispatch check the validity of the registration because, of the 30 to 40 vehicles with temporary registration stickers he had stopped, only about half had turned out to be valid. Nabong found the stop unlawful, as the defendant had complied with all regulations for operating his vehicle legally and the officer had no “particularized belief that appellant’s car was not validly registered.” (Id. at pp. 4-5.) The officer’s assumption, based upon his personal experience, that about half the time temporary registrations are not valid for the cars upon which they are placed, was not sufficient to create the reasonable suspicion necessary for a traffic stop. (Ibid.) “Otherwise, every motorist on the road who has attempted to comply with the Vehicle Code regarding registration matters would be subject to a stop without more.” (Ibid.)
In Saunders, supra, 38 Cal.4th 1129, our Supreme Court declined to resolve the question whether an officer may stop a vehicle that has an expired registration tab but displays a temporary operating permit, noting a split in other jurisdictions’ authority on this point. The court found it unnecessary to resolve this question because the officer who initiated the traffic stop had also observed the vehicle was missing a front license plate. (Saunders, at p. 1136.) Saunders noted that “the lack of a front license plate has long been recognized as a legitimate basis for a traffic stop.” Under Vehicle Code section 5200, a vehicle generally must have two license plates, one in the front and one in the rear. (See ibid.)
“Some courts hold that the Fourth Amendment bars an officer from effecting a traffic stop in these circumstances. (E.g., State v. Childs (1993) 242 Neb. 426 [495 N.W.2d 475, 481-482]; State v. Butler (Ct.App. 2000) 343 S.C. 198 [539 S.E.2d 414, 416-418].) In other cases, the court or the defendant has assumed that a traffic stop limited to the purpose of verifying the validity of the temporary permit is consistent with the Fourth Amendment. (E.g., U.S. v. McSwain (10th Cir. 1994) 29 F.3d 558, 561; State v. Diaz (Fla. 2003) 850 So.2d 435, 437.)” (Saunders, supra, 38 Cal.4th at pp. 1135-1136.)
Vehicle Code section 5200 provides that when DMV issues two license plates, they must be attached one to the front and one to the rear of the vehicle; if only one plate is issued, it must be attached to the rear of the vehicle.
There are circumstances when it is legal to drive without license plates, such as when the owner of a newly acquired vehicle is operating with a temporary registration while waiting for issuance of license plates and registration card from DMV. The Vehicle Code provides that a vehicle displaying a temporary operating permit may be operated without license plates and a registration card for a period up to six months from the date of sale. (Veh. Code, § 4456, subds. (a), (c).) The Saunders court made clear, however, that the critical question in that case was “not whether [the owner’s] vehicle was in fact in full compliance with the law at the time of the stop, but whether Officer Womack had ‘ “articulable suspicion” ’ it was not. [Citations.] The possibility of an innocent explanation for a missing front license plate does not preclude an officer from effecting a stop to investigate the ambiguity. [Citations.] Here, Officer Womack had no ready means, short of a traffic stop, of investigating whether the temporary operating permit applied only to the expired registration or extended as well to the missing license plate.” (Saunders, supra, 38 Cal.4that pp. 1136-1137, fn. omitted.) Saunders noted that the officer’s suspicion of a violation of Vehicle Code section 5200 was supported by the fact that DMV procedures for replacing lost, stolen or mutilated license plates call for the registered owner to surrender the remaining plates, so that the absence of the front plate while the rear one was present provided the factual basis for an articulable suspicion the vehicle was not in compliance with the Vehicle Code.
Appellant urges the circumstances in the present case were less suspicious than in Saunders, because his car had no license plates and the combination of the dealer advertisement on the rear of the car and temporary operating permit on the windshield indicated the car had been sold recently. Accordingly, he argues Officer Schneider did not have any basis for reasonable suspicion that appellant was violating the Vehicle Code. As in Nabong, appellant urges, to uphold the traffic stop here would be to say any driver acting in compliance with temporary registration procedures is subject to a traffic stop.
In Nabong, the officer saw what appeared to be a current temporary registration in the rear window of the car before he initiated the traffic stop but, as indicated above, stopped the car because of his belief that a substantial percentage of temporary registrations are not valid. The stop was held unlawful because the officer had no reasonable basis for suspecting that that particular temporary registration was not valid.
In the present case, by contrast, Officer Schneider testified that he did not see the white paper on the front windshield either when he first saw appellant’s car passing him or after he had appellant stop. The traffic stop occurred at almost 4:00 a.m., on a dark street. The temporary registration was affixed to the windshield, a location which is permitted but not the preferred rear window placement that would have been more visible to the officer following the car. Thus, Officer Schneider saw an apparent violation of the Vehicle Code license plate requirement, albeit one that might turn out to have an innocent explanation. Unlike the officer in Nabong, Schneider acted upon a suspicion raised specifically by appellant’s car. While appellant suggests the officer could have looked for a temporary registration before stopping his vehicle, police officers are not required to use the least intrusive means if their action is otherwise objectively reasonable. (United States v. Sokolow (1989) 490 U.S. 1, 10-11.) Moreover, like the officer in Saunders, Schneider had no ready means short of a traffic stop to investigate whether appellant in fact had a valid temporary operating permit affixed to his car: To view all potential locations for such a permit, Schneider would have had to maneuver his own vehicle around all sides of appellant’s as it was moving on the road, surely posing a hazard to himself, appellant and any other person who appeared in the vicinity.
Appellant’s suggestion that Schneider could have shined a spotlight on the rear window of appellant’s car and, if that did not reveal a temporary registration, pulled in front of appellant and shined a spotlight on the windshield, also seems dubious as a matter of traffic safety.
We recognize that the issue presented by this case is problematic: According to the California Department of Finance’s figures for “New Auto Sales in California and the United States,” the number of “new fee-paid auto registrations” in California averaged 149,415 per month in 2006. All these cars would have been driven, initially, without permanent DMV-issued license plates. Just as “persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers” (Delaware v. Prouse (1979) 440 U.S. 648, 663), citizens operating vehicles in compliance with legal requirements for temporary registration should not for that reason alone be subject to police investigation. Yet, as Saunders instructs, officers observing a vehicle that appears to be in violation of the Vehicle Code must be able to investigate the violation. The question whether an investigative stop meets constitutional standards must be based on “ ‘the totality of the circumstances—the whole picture.’ ” (People v. Souza (1994) 9 Cal.4th 224, 230, quoting United States v. Cortez (1981) 449 U.S. 411, 417.) Here, appellant’s car caught Schneider’s attention as it drove past the officer’s vehicle in the darkness of early morning hours and the operating permit was placed on the windshield while Schneider’s main opportunity to observe appellant’s car was from the rear. The absence of a rear license plate, when Schneider had not seen a temporary registration document in the car’s window, was sufficient to raise a reasonable suspicion that appellant’s car was in violation of the Vehicle Code.
The judgment is affirmed.
I concur: Richman, J.
Concurring Opinion
Haerle, J.
I concur in the majority’s opinion, although for far more simple reasons than those articulated by my colleagues. They affirm the trial court’s judgment, and the denial of appellant’s Penal Code section 1538.5 motion, on the narrow ground that the stop of appellant’s car “occurred at almost 4:00 a.m., on a dark street.” (Maj. opn. at p. 9.)
My reasons for voting to affirm the relevant order is that, as our Supreme Court has made explicitly clear at least twice, the lack of a valid DMV-issued license plate on a car is a valid basis for the police to stop that car––and to do so whether it’s “4:00 a.m., on a dark street” or high noon on a totally unobstructed freeway, and also to do so whether the relevant car and/or the police car are moving or not.
For this reason, I do not reach the issue that the majority rather curiously puts first in its decision: the propriety or lack thereof of Officer Schneider’s reliance on the necklace hanging from the mirror in appellant’s car as a basis for his stop of the car. The explicit and sole basis relied on by the trial court for denying the Penal Code section 1538.5 motion was the lack of a license plate on the rear of the car. I thus respectfully suggest that section I of the majority’s opinion is totally unnecessary.
The leading case for this proposition is People v. Superior Court (1972)7 Cal.3d 186 (Simon), where Justice Mosk, after citing several prior appellate cases approving police stops of licenseless cars, summarized those holdings thusly: “[I]n several of the cases, the officer observed that one or both of the vehicle’s license plates were missing or improperly attached [citations]. Such conditions are not only violations of the code (§§ 5200-5201) and hence grounds for stopping the vehicle and issuing a citation to the driver, they are also relevant to the probable cause question before us.” (Id. at p. 196, italics added.)
This holding was specifically cited by the court just last year in People v. Saunders (2006) 38 Cal.4th 1129, 1136, where the majority of the court stated: “As defendant acknowledges, the lack of a front license plate has long been recognized as a legitimate basis for a traffic stop.” In support of its holding, the court cited not only the pertinent page from Simon, but also People v. Lee (1968) 260 Cal.App.2d 836, 839 (Lee), People v. Odegard (1962) 203 Cal.App.2d 427, 431, and Vehicle Code section 5200.
In that case, the court stated: “When the officers saw the automobile being driven on the public highway without a front license plate, they had reasonable cause to stop the automobile. [Citations.]” (Lee, supra, 260 Cal.App.2d at p. 839.)
Odegard was one of four cases cited by Justice Mosk to support the statement quoted above from Simon. (Simon, supra, 7 Cal.3d at pp. 194, fn. 7, and 196.) And although the majority appears to be very sensitive about the time of day and state of the sunlight at the time of the stop of a licenseless car, they fortunately do not suggest there is, for probable cause purposes, any legal difference regarding which license plate is missing.
A concurring opinion by Justice Corrigan on behalf of herself and two other justices agreed with the majority’s holding, stating: “[T]he missing license plate justified the traffic stop in this case.” (People v. Saunders, supra, 38 Cal.4th at p. 1138 (conc. opn. of Corrigan, J.).)
In my humble opinion, this court need not say more.