Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF115874A. Gary T. Friedman, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J. and Levy, J.
OPINION
PROCEDURAL SUMMARY
Appellant Denise Guy was charged with possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), driving a vehicle without a license (Veh. Code, § 12500, subd. (a)), and possession of narcotics paraphernalia (Health & Saf. Code, § 11364). Prior to trial, Guy filed an unsuccessful motion to suppress evidence pursuant to Penal Code section 1538.5. She was convicted after a jury trial of all three counts and was sentenced on the cocaine count to felony probation for a period of three years upon the conditions imposed, including that she serve one year in county jail. She was ordered to serve 90 days in jail for each of the remaining two counts, to be served concurrently with the one-year probation condition.
On appeal, Guy challenges the denial of her motion to suppress.
Because the only issue on appeal relates to the motion to suppress, we summarize here primarily those facts presented to the court at the hearing on the suppression motion.
On August 20, 2006, Bakersfield Police Officer McWilliams initiated a traffic stop of a Ford Bronco driven by Guy after noticing that the car did not have a rear license plate. When McWilliams approached Guy, he told her he had pulled her over because the car did not have a rear plate and asked her for her driver’s license, registration, and proof of insurance. Guy was unable to provide any of these documents. She appeared to be unusually nervous and McWilliams asked her if she had anything illegal in the car. Guy said no. McWilliams asked if he could search the car. Guy said yes, “‘Go ahead and check.’” She and her son, who was a passenger, then exited the car and waited with McWilliams’ partner on the side of the roadway. The partner continued to take information from Guy in an attempt to verify her identity, ownership of the car, and her license status. McWilliams’s search quickly (one to two minutes) uncovered a torn Brillo pad and two altered pens, known to be narcotic paraphernalia. At this point Guy was no longer free to leave and was placed in handcuffs. McWilliams also found three rocks of cocaine in the driver’s side storage compartment.
While sitting with her hands cuffed, Guy directed McWilliams to a roll of “miscellaneous paperwork,” including documents which Guy claims showed that her car was registered. McWilliams did not look carefully at the documents. Using the information Guy gave to his partner, McWilliams called in to see if Guy had a valid drivers’ license. She did not.
At the hearing, an employee of the California Department of Motor Vehicles (DMV) testified that Guy did not hold a valid driver’s license and that the car had not been registered at the time of the stop. Guy testified that she had paid her fees for registration and had a valid temporary sticker in the front window at the time of the stop, but could not produce the sticker at the hearing. Guy initially produced a sticker that was issued in September 2006. The DMV employee testified this sticker was counterfeit. Guy then claimed that she had given the court the temporary sticker that had been in the Bronco and her proof of registration in order to get the Bronco out of impound. Although the court found an order releasing the Bronco from impound, it was unable to find any record that this evidence had been received. McWilliams said he did not recall seeing any temporary sticker. The DMV employee also testified that registration for the Bronco was in progress for one Roberto Lamas, but that the fees were not paid until October 26, 2006, and thus no temporary sticker would have been issued. He did admit, however, that the October information could have overridden earlier attempts at registration.
Guy also testified that she had gone to the DMV in December of 2005 and applied for a driver’s license, but that she had never received it in the mail. She claimed she turned in a valid Hawaii driver’s license when she applied for her California license. DMV records show no record of a Hawaii license being surrendered. Guy does have a California identification card issued by the DMV.
At the suppression hearing, the trial court resolved the credibility issues against Guy.
DISCUSSION
On appeal from the denial of a motion to suppress, our standard of review is settled. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We review de novo whether the search was reasonable under the Fourth Amendment. (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 102.)
Guy concedes, as she must, that the initial stop was permissible given the absence of a rear license plate on the Bronco. “[P]ersons 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.) However, when there is articulable and reasonable suspicion that an automobile is not registered, the vehicle may be stopped and the driver detained in order for the officer to check the driver’s license and the vehicle’s registration status. (People v. Saunders (2006) 38 Cal.4th 1129, 1135; see also Pennsylvania v. Mimms (1977) 434 U.S. 106, 109 [expired registration tags justified traffic stop].)
From here, Guy argues that McWilliams unnecessarily prolonged the justified detention when he asked Guy to allow him to search the car. (Florida v. Royer (1983) 460 U.S. 491, 500 [an investigative stop must last no longer than necessary to effectuate purpose of stop]; People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [traffic stops must be reasonable in duration and not prolonged beyond time necessary to address traffic violation].) We disagree. First, contrary to her assertion that McWilliams did nothing to verify his suspicion concerning the Bronco’s registration status, McWilliams testified that he asked Guy for her license, registration, and proof of insurance, but that Guy was unable to produce them. Indeed, she was not able to produce proof at the suppression hearing that the Bronco was legally registered on the date of the stop or that she was licensed to drive in California. When McWilliams asked to search the car, the purpose of the initial investigatory stop had not yet been satisfied. Guy’s license status was now also under suspicion. McWilliams asked Guy if she had anything illegal in the car and whether he could search it within moments of learning that Guy could not produce the requested documents. Guy immediately and without any further exchange gave McWilliams permission to search the Bronco. Within one to two minutes thereafter McWilliams found the narcotic paraphernalia that provided reasonable suspicion to justify further detention and investigation.
McWilliams’ partner continued the inquiry into Guy’s license status by questioning Guy further while McWilliams searched the car. It is important to note that Guy did not give McWilliams what she claims was DMV paper work when he initially asked for it. By the time she offered the paperwork, McWilliams had already discovered the evidence of illegal narcotics and had moved on to a more serious concern. Whether McWilliams looked at the documents is thus irrelevant to whether there was reasonable suspicion justifying the request to search the car. By Guy’s own admission, she gave the paperwork to McWilliams after he found the evidence she is now attempting to suppress. In any event, the character of the documents she handed McWilliams after her detention/arrest on the drug charges has not been determined and, if they are as represented, are inconsistent with DMV records.
Second, questioning during a routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. (People v. Gallardo, supra, 130 Cal.App.4th at p. 239.) “Detention, not questioning, is the evil at which Terry’s [Terry v. Ohio (1968) 392 U.S. 1] second prong is aimed. [Citation.]” (People v. Brown (1998) 62 Cal.App.4th 493, 496.) The police need not have an articulable suspicion of wrongdoing before asking for consent to search, as long as the detention is not unreasonably prolonged as a result. (People v. Gallardo, supra, 130 Cal.App.4th at p. 238; citing People v. Brown, supra, 62 Cal.App.4th at pp. 493, 495.)
The cases Guy cites in support of her position are not controlling or persuasive on these facts. In Williams v. Superior Court (1985) 168 Cal.App.3d 349, the officer did not pursue the reason for the initial traffic stop but merely used the stop to investigate a hunch that the car in question was involved in a robbery. As we have explained, in this case the reason for the initial stop was pursued when McWilliams asked Guy to produce her registration and license. Only after Guy was unable to produce the required documents did McWilliams ask to search the Bronco. Further, the detention was not prolonged beyond the initial purpose because the officer’s initial concern had not yet been addressed. The investigation into Guy’s license status and the Bronco’s registration continued during the search.
In People v. Nabong (2004) 115 Cal.App.4th Supp. 1, the officer stopped the car for an expired license plate, even though he saw what appeared to be a valid temporary sticker in the window. The court found a Fourth Amendment violation because the officer could have determined, but did not, the sticker’s validity before prolonging the stop. The car in Nabong was validly registered. In contrast, the Bronco had no license plate at all and no temporary sticker. Although Guy says there was a sticker on the front windshield, McWilliams said he did not see any sticker and the court found McWilliams more credible. McWilliams and his partner, unlike the officer in Nabong, had no way of determining whether the car was registered without contacting Guy. Furthermore, Guy was unable to produce a valid license. Driving the car without a license is itself a citable offense. (Veh. Code, § 12500, subd. (a) [person may not drive motor vehicle upon highway without valid license].) Once Guy failed to produce a license, further detention was justified.
Finally, we believe Guy’s extreme nervousness, beyond that which would be expected under the circumstances, coupled with her inability to produce the required documents, provided reasonable suspicion sufficient to extend the detention beyond the initial reason for the stop, at least for the time in which Guy was asked if she would consent to a search of the car. (See People v. Brown (1985) 169 Cal.App.3d 159, 164 [while taken in isolation, manifestation of nervousness in presence of police would not justify detention, combination of circumstances might].) The facts in this case are distinguishable from those cases in which mere nervousness is alone used to justify an otherwise unreasonable detention. Here there is more. This was a very short period of time in which Guy did nothing to appease the officer’s initial suspicions that the Bronco was not legally registered.
Guy’s consent was freely given, obtained only a short time into the investigatory stop and after Guy failed to produce any evidence of a license, valid registration, or insurance, all of which are required under the law to operate a motor vehicle on California highways. Given the totality of the circumstances, we find no Fourth Amendment violation.
DISPOSITION
The judgment is affirmed.