Opinion
2d Crim. No. B230388
11-23-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH FREEMAN, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. PA065769-01)
(Los Angeles County)
Daniel Joseph Freeman appeals an order of probation granted after he pleaded nolo contendere to possession of marijuana for sale. (Health & Saf. Code, § 11359.) We conclude that the trial court properly denied Freeman's motion to suppress evidence and affirm.
FACTS AND PROCEDURAL HISTORY
In the early evening of November 19, 2009, Los Angeles County Sheriff's Deputy Keith Greene patrolled the Castaic area in a marked patrol vehicle. Greene observed a red Honda automobile with a school graduation tassel hanging from the rearview mirror. The tassel was one-foot long and one-half inch wide and swayed back and forth as the vehicle proceeded. Greene believed the tassel "was blocking the driver's view" and it could conceal a stop sign. Freeman, a backseat passenger in the Honda, appeared nervous and fidgeted when he saw the patrol vehicle.
Greene stated that he had stopped other motorists under similar circumstances, including motorists with handicap placards hanging from rearview mirrors.
Greene stopped the Honda automobile for violating Vehicle Code section 26708. As he approached the driver, Greene sensed a "fairly strong" odor of marijuana emanating from the vehicle. Greene had smelled marijuana "[t]housands of times" as a law enforcement officer. He directed the driver, Freeman, and a second passenger to leave the vehicle. Greene then searched the vehicle and found a large amount of marijuana (57.2 grams) in the trunk.
Vehicle Code section 26708, subdivision (a)(2) provides: "A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle that obstructs or reduces the driver's clear view through the windshield or side windows." All further statutory references are to the Vehicle Code unless stated otherwise.
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Greene arrested Freeman. During a later police interview, Freeman waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and admitted that he planned to sell the marijuana. Greene also searched Freeman's cellular telephone and discovered messages from persons offering to buy marijuana.
Freeman testified at the preliminary hearing that a necklace, not a tassel, hung from the rearview mirror. He also conceded, however, that there "might have been a tassel in the car." The trial court received evidence of a photograph of the automobile, taken one week following the traffic stop, depicting a necklace hanging from the rearview mirror.
The court conducting the preliminary examination denied Freeman's motion to suppress evidence. (Pen. Code, § 1538.5, subd. (a).) In ruling, the court expressly found that "the tassel version of the events was the accurate one." Freeman later renewed the suppression motion which was again denied.
Thereafter, Freeman waived his constitutional rights and pleaded nolo contendere to possession of marijuana for sale. (Health & Saf. Code, § 11359.) The trial court suspended imposition of sentence and granted Freeman formal probation for three years with terms and conditions, including payment of various fines and fees and two days of confinement in county jail with credit for time served.
Freeman appeals and challenges the trial court's denial of his motion to suppress evidence of the marijuana.
DISCUSSION
Freeman argues that the trial court improperly denied his motions to suppress evidence of the marijuana because Greene did not have an objectively reasonable basis to conduct a traffic stop for a small hanging tassel. He relies upon two "dangling air freshener" cases in support of his argument: People v. Colbert (2007) 157 Cal.App.4th 1068 and People v. White (2003) 107 Cal.App.4th 636.
In deciding whether a search and seizure is unreasonable, the trial court determines the credibility of witnesses, resolves factual conflicts, and weighs the evidence. (People v. Woods (1999) 21 Cal.4th 668, 673.) On review of the denial of a motion to suppress evidence, the appellate court defers to the trial court's express and implied factual findings that are supported by sufficient evidence. (People v. Brendlin (2008) 45 Cal.4th 262, 268.) We exercise our independent judgment, however, in determining the legality of the search and seizure. (Ibid.)
"[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law." (People v. Wells (2006) 38 Cal.4th 1078, 1082.) A traffic stop is reasonable if the detaining police officer can point to specific articulable facts that objectively suggest the detainee is violating the law in light of the totality of the circumstances. (In re Raymond C. (2008) 45 Cal.4th 303, 307.) The question is not whether there is sufficient evidence that the driver's vision was sufficiently impaired to support a conviction, but whether the officer had a reasonable suspicion that the object may have impaired the driver's vision. Thus, the relevant question is whether the dangling tassel provided an objective justification to stop and detain the automobile.
In People v. White, supra, 107 Cal.App.4th 636, a California Highway Patrol officer stopped a vehicle with a tree-shaped air freshener hanging from the rearview mirror. At the suppression hearing, the officer did not testify that he believed the air freshener obstructed the driver's view. (Id. at p. 642.) Moreover, the defense presented expert witness testimony from a civil engineer who opined that the air freshener would not obstruct the vision of a six-foot-tall driver. (Ibid.) The defendant also testified that the air freshener had not obstructed his vision. (Ibid.) Given the evidence, the reviewing court concluded that there were no specific and articulable facts presented to support the officer's purported belief that the driver's view had been reduced or obstructed. (Ibid.)
In People v. Colbert, supra, 157 Cal.App.4th 1068, a police officer detained a motorist who had the "ubiquitous" tree-shaped air freshener dangling from the rearview mirror. (Id. at p. 1070, fn. 1.) The officer described the precise dimensions of the air freshener and stated that he personally experienced a view obstruction when he hung a similar-sized object from the rearview mirror of his vehicle. (Id. at pp. 1070, 1073.) Unlike the circumstances in White, the defendant in Colbert did not offer evidence that the air freshener did not obstruct the driver's view. (Ibid.) The reviewing court concluded that the officer's testimony supported an objectively reasonable conclusion that the hanging air freshener violated section 26708, subdivision (a)(2). (Colbert, at pp. 1070, 1073.)
Here Greene described the physical dimensions of the tassel and stated that it was swaying as the Honda automobile proceeded. In his opinion, he believed the tassel caused a six-by-twelve inch obstruction as it swayed, sufficient to impair the driver's view of a stop sign. Unlike People v. White, supra, 107 Cal.App.4th 636, 642, Freeman presented no expert witness opinion regarding the driver's view. Moreover, People v. Colbert, supra, 157 Cal.App.4th 1068, 1073, does not require the detaining officer to have had a personal experience on which to ground a reasonable suspicion of a violation.
Specific and articulable facts support Greene's reasonable suspicion that the driver of the Honda automobile was violating section 26708, subdivision (a)(2). The principal function of a traffic stop is to resolve the officer's reasonable suspicion of unlawful activity and allow the driver to go on his way or hold him to answer charges. (In re Tony C. (1978) 21 Cal.3d 888, 894.) Once Greene lawfully stopped the automobile, his subsequent search for marijuana was lawful based upon the strong odor of marijuana emanating therefrom.
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
COFFEE, J.
Ronald S. Coen, Judge
Superior Court County of Los Angeles
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.