Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC062283A
Kline, P.J.
INTRODUCTION
Myron Craig Kelley appeals from his conviction for possession of cocaine and a loaded operable firearm, which was entered upon his plea of no contest after the trial court denied his motion to suppress. He contends the motion should have been granted. We affirm.
STATEMENT OF FACTS
While on patrol on August 20, 2006, at approximately 8:46 p.m., Menlo Park Police Officers Eric Cowans and William Dixon pulled into a gas station in Menlo Park. The officers knew the gas station was a locus for drug transactions, having each made more than 50 narcotics-related arrests at that location. The officers saw a car, which defendant was driving, emerge from behind the gas station and noticed that it “did not have license plates either in the front o[r] the back nor did it have any visible Department of Motor Vehicles [(DMV)] documentation in the rear window.” The officers believed this was a violation of Vehicle Code section 5200.
All further statutory references are to the Vehicle Code unless otherwise stated.
The officers followed defendant’s car and turned on their emergency lights to make a traffic stop. Defendant slowed but did not immediately stop, driving a tenth of a mile before pulling over on the freeway on-ramp. After pulling defendant over, the officers both got out of the patrol car and approached the passenger side of defendant’s car. Explaining that they did not see any license plates on the car or a temporary registration sticker in the rear window, the officers asked defendant for his driver’s license and vehicle registration. Defendant provided his driver’s license but said that he had just bought the car, had not yet received his license plates, and had no vehicle registration or other documentation in the car that would prove he owned the vehicle. Defendant did not point to the temporary registration sticker apparently attached to the lower right area of his car’s windshield.
At the hearing on the motion to suppress, defendant offered evidence that he had a temporary tag in the windshield at the time of the stop. While the prosecution did not dispute the evidence, one of the officers testified, “I’m not saying that it wasn’t there, but there was nothing that was pointed out as documentation that he owned the vehicle.” The trial court never made an explicit finding on this matter.
Officer Cowans moved to the driver’s side of the vehicle and asked defendant to step out of his car. As defendant opened his car door, Officer Cowans smelled marijuana. Cowans then took defendant to the patrol car while Officer Dixon looked inside the car for evidence of vehicle registration information. Finding the glove compartment locked, Officer Dixon asked defendant for the key to the glove compartment so that he could look there for the vehicle registration. Defendant gave Officer Dixon the key to the glove compartment and admitted he had marijuana in the car.
When Officer Dixon opened the glove compartment he found a loaded semiautomatic handgun, as well as registration documents showing defendant as the owner of the car. He also saw three cell phones on the front passenger seat, two of which were constantly ringing. A further search of the car revealed two baggies of marijuana in defendant’s jacket and four baggies of cocaine under the driver’s seat in defendant’s sunglasses case. Defendant was arrested and later charged with two felonies and three misdemeanors: possession for sale of cocaine (Health & Saf. Code, § 11351, a felony); possession of greater than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b), a misdemeanor); possession of a concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)(1), a misdemeanor); possession of a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(1), a misdemeanor); and possession of cocaine and a loaded operable firearm (Pen. Code, § 11370.1, subd. (a), a felony.)
Defendant moved, pursuant to Penal Code section 1538.5, to suppress all evidence obtained as a result of the traffic stop and the subsequent search of his vehicle. Defendant argued the traffic stop was unlawful for lack of reasonable suspicion he had committed a crime. The trial court held a hearing and then denied defendant’s motion. Subject to his appeal, defendant entered a plea of no contest to possession of cocaine and a loaded firearm (Pen. Code, § 11370.1, subd. (a), a felony.) The court placed defendant on probation on the condition, among others, that he serve eight months in the county jail.
Defendant timely appealed the denial of his motion to suppress.
DISCUSSION
I. Standard of Review
A motion to suppress evidence pursuant to Penal Code section 1538.5 allows a defendant to meet “the initial burden of raising the issue of an unreasonable warrantless search or seizure by ‘simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion.’ [Citation.] After the defendant sufficiently raises the issue, it is the prosecution’s burden to justify a warrantless search or seizure. [Citation.] A defendant then must present any arguments as to why that justification is inadequate.” (People v. Smith (2002) 95 Cal.App.4th 283, 296.) In other words, “the burden of proving the justification for the warrantless search or seizure lies squarely with the prosecution.” (People v. Johnson (2006) 38 Cal.4th 717, 723.)
We apply a mixed standard of review. We review the trial court’s factual findings only for substantial evidence. (People v. Saunders (2006) 38 Cal.4th 1129, 1134 (Saunders); People v. Ramos (2004) 34 Cal.4th 494, 505). However, “whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” (Saunders, at p. 1134 (Saunders).)
II. Analysis
Defendant contends the traffic stop was unlawful because his car properly displayed a temporary registration sticker on its front windshield in compliance with the Vehicle Code and there was therefore no basis for reasonable suspicion that he was violating the law. Defendant also argues that the officers were required to take additional steps to determine whether his vehicle was in fact violating the Vehicle Code before making the stop. Finally, defendant argues the stop was unduly prolonged and should have ended when the officers were in a position to see the temporary registration documents he alleges were on his front windshield.
The Fourth Amendment protects the security of the people against unreasonable searches and seizures by the government. While investigatory police traffic stops fall within the constraints of the Fourth Amendment, this, of course, does not proscribe officers from pulling over any cars anytime but instead forbids arbitrary stops by requiring the police to have a valid reason before making a traffic stop. “An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693.)” (People v. Dolly (2007) 40 Cal.4th 458, 463.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ (Terry v. Ohio [(1968)] 392 U.S. [1,] 19.)” (People v. Wells (2006) 38 Cal.4th 1078, 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.)
This case presents a question similar to that currently pending before the California Supreme Court in People v. Hernandez (2006) 146 Cal.App.4th 773, review granted March 21, 2007, S150038; In re Raymond C. (2006) 145 Cal.App.4th 1320, review granted March 21, 2007, S149728; and People v. Dean (2007) 158 Cal.App.4th 377, review granted April 9, 2008, S160418. As stated by the Supreme Court’s announcement of the granting of review in People v. Hernandez, the question presented in those cases is: “If a police officer sees that a motor vehicle lacks a rear or both license plates, may the officer make a traffic stop to determine if the vehicle has a temporary permit or if a displayed temporary permit is a valid one?” (Statement of the Issues, People v. Hernandez, supra, S150038.)
Section 5200 provides that car owners issued two license plates by the DMV must display both plates on their car at all times, one in the front and the other in the rear. (§ 5200, subd. (a).) The case law establishes that police officers who see a car displaying only one California license plate have a reasonable basis to suspect the car owner is violating section 5200, which provides them sufficient justification for an investigatory traffic stop. (Saunders, supra, 38 Cal.4th at p. 1136; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 196; People v. Lee (1968) 260 Cal.App.2d 836, 839.)
The absence of one or both license plates may mean the car is illegally unregistered, but it could also mean merely that the owner recently purchased the vehicle and has not yet received his plates from the DMV. Section 4456 authorizes car buyers to operate their vehicles without license plates for up to six months after the date of purchase—or until they receive their plates from the DMV—as long as they display a copy of the report-of-sale (often referred to as “temporary tags”) on the vehicle, which car dealers must attach before delivering the car to the buyer. (§ 4456, subd. (c).) Section 26708 generally prohibits vehicles from having objects or materials affixed to any windows, but specifically authorizes the placement of small stickers or signs, such as the temporary registration permits at issue here, in any of three locations on a vehicle: on the lower right front windshield, on the lower right rear window, or on the lower left front windshield. (§ 26708, subd. (b)(3).) At defendant’s request, we have also taken judicial notice of regulations promulgated by the DMV, consistent with sections 4456 and 26708, which advise car dealers where to affix temporary tags before delivering a vehicle to the buyer. (DMV, Handbook of Registration Procedures (Oct. 2007) §§ 2.020, 3.025.)
The Vehicle Code authorizes car owners who have not yet received their license plates to operate their vehicles as long as their temporary tags are displayed in any of the aforementioned window locations on their vehicle. Consequently, if police can stop all vehicles without license plates for suspected section 5200 violations, thousands of new car buyers following the law by properly displaying their temporary tags will arguably forgo their Fourth Amendment protections. However, a categorical rule prohibiting officers who observe vehicles without license plates from investigating suspected violations of section 5200 could shield car thieves and others who seek to evade the law.
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. We presume that all of these cars would have been driven, initially, without permanent DMV-issued license plates.
The question here is simply whether, under the circumstances and in light of their experience, Officers Cowans and Dixon had the basis for an “articulable and reasonable suspicion” that defendant was violating the Vehicle Code. (Saunders, supra, 38 Cal.4th at p. 1135.)
The officers observed defendant’s car emerge from behind an unlit gas station alleyway, at night, in an area they knew to be a locus for drug deals. As they watched defendant’s car drive by them, they saw no front or back license plates, a possible violation of section 5200. The officers also looked for and saw no temporary registration tags on the rear window of the vehicle, a possible violation of section 4456, and did not see the temporary tag apparently at the bottom right of the windshield. The combination of all of these factors makes the officers’ suspicion similar to the basis for the stop upheld in Saunders, where an officer observed a vehicle missing a front license plate and an expired registration tab on the rear plate. (Saunders, supra, 38 Cal.4th 1129.)
In Saunders, the court said that the essential question was “not whether [the owner’s] vehicle was in fact in full compliance with the law at the time of the stop, but whether [the officer] 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, [the officer] 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.4th at pp. 1136-1137, fn. omitted.) Defendant argues that Saunders is in apposite because there were defects with the car in that case in addition to the missing license plate, and it was only the combination of them that provided the officer a reasonable basis for suspecting a Vehicle Code violation. However, the suspicion of the officers here was also based on a combination of factors: missing front and rear license plates, the lack of a temporary permit in the rear window, and the inability to see whether a temporary permit was affixed elsewhere on the vehicle. While defendant asserts the officers’ observations were deficient because they did not eliminate the possibility that defendant had a temporary permit properly displayed on the front windshield, Saunders makes clear that the possibility of an innocent explanation does not preclude the officers from investigating to uncover the truth. (Saunders, at pp. 1136-1137.) In fact, that is exactly what the public expects law enforcement officers to do. “[W]here a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (People v. Wells, supra, 38 Cal.4th at p. 1083.)
Defendant also argues in his reply brief that our recent decision in People v. Dean, supra, 158 Cal.App.4th 377, supports reversal here. But that case has since been granted review by our Supreme Court and depublished. (April 9, 2008, S160418.)
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.) Based on all of the factors known to the officers at the time, we are unable to reject the trial court’s conclusion that the officers had a reasonable basis to suspect defendant was violating the Vehicle Code when they initiated the traffic stop.
Defendant’s other arguments are similarly unpersuasive. Defendant argues that the officers should have looked for a temporary tag on the front windshield before making the stop, which would have eliminated the need for a stop at all. As described above, it appears that the officers failed to see a temporary tag on the bottom of defendant’s front windshield when he drove past them, presumably because they were only looking for a license plate and it was dark. “The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” (United States v. Sokolow (1989) 490 U.S. 1, 11.) In light of this principle, we cannot conclude that the officers were required to drive in front of defendant’s vehicle and look backwards to see if there was a temporary tag in defendant’s front windshield before effectuating an investigatory stop.
We are also unpersuaded that the stop was unduly prolonged. “[A]n investigative detention must be temporary and only last as long as is necessary to effectuate the purpose of the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500; accord, People v. Hughes (2002) 27 Cal.4th 287, 327-328.) Defendant asserts that the stop should have ended within moments, as soon as the officers walked up to the passenger side of defendant’s vehicle where they could have looked to see if there was a temporary tag in the front windshield. The record discloses that the entire detention lasted less than 10 minutes. We can infer from the record that most of that time was consumed after Officer Cowans moved from the passenger side to the driver’s side of the vehicle and smelled marijuana emanating from inside defendant’s car. It was at that point that the officers had independent grounds to conduct the search that followed. “Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]” (People v. Russell (2000) 81 Cal.App.4th 96, 101-102; People v. Bowen (1987) 195 Cal.App.3d 269, 273-274.) It was only after Officer Cowans smelled the marijuana that the bulk of the detention occurred: Officer Cowans took defendant back to the patrol car; Officer Dixon attempted to open the glove compartment and found it locked; defendant admitted to Officer Cowans that he had marijuana in the car; defendant gave his keys to Officer Dixon; Officer Dixon conducted a subsequent search of the car and found two baggies of marijuana, four baggies of cocaine, and defendant’s vehicle registration papers underneath a loaded operable handgun inside his glove compartment. We cannot say that the initial moments of the detention themselves were an undue prolongation merely because the officers could potentially have seen a temporary tag in the front windshield. This is especially true in light of defendant’s failure to point out the temporary tag apparently on the bottom of the windshield when the officers asked him for documentation that the vehicle was registered in his name.
Defendant does not otherwise dispute that after the officers stopped him they conducted their investigation within the constraints of the Fourth Amendment. Since the initial stop was valid, the trial court’s decision to deny the motion to suppress was sound.
DISPOSITION
The judgment is affirmed.
We concur: Lamb den, J., Rich man, J.