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The People v. Gonzalo Barragan

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)


December 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GONZALO BARRAGAN, DEFENDANT AND APPELLANT.

(Super. Ct. No. NCR75003)

The opinion of the court was delivered by: Hull , J.

P. v. Barragan

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Gonzalo Barragan was convicted of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). The trial court sentenced defendant to three years in state prison.

On appeal, defendant contends the trial court erred in denying his suppression motion, as the search was the product of an unlawfully and impermissibly long detention. We affirm the judgment.

FACTS AND PROCEEDINGS

Since defendant contests only the suppression motion, we take the facts from the hearing on that motion.

At approximately 2:30 a.m. on September 5, 2008, Tehama County Sherriff's Deputy Justin Nunes was stopped at the intersection of Corning Road and Black Butte Road when a white Chrysler Sebring passed by, traveling east on Corning Road. Deputy Nunes turned east on Corning Road. He was about 30 to 35 yards from the Sebring when he observed the car's rear license plate light was not illuminating the license plate, a Vehicle Code violation. Deputy Nunes activated his lights and initiated a traffic stop.

Deputy Nunes left his patrol car and contacted the Sebring's driver, defendant. Deputy Nunes asked defendant for his driver's license, which defendant gave to him. While defendant was getting his license, Deputy Nunes asked defendant where he was traveling from. Defendant replied the Richmond area, which prompted Deputy Nunes to ask what he was doing in the area. Defendant said he was visiting his uncle.

After getting defendant's license, Deputy Nunes returned to his patrol car and called the license into dispatch, which confirmed it was valid. Deputy Nunes then asked defendant to get out of his car and talk to him. He asked defendant who owned the car, to which defendant replied, his aunt. Deputy Nunes then told defendant he was confused as to why he was in the Corning area. Defendant said he had come up to see his uncle. When asked where his uncle lived, defendant said he did not know as his uncle had moved. Deputy Nunes then asked defendant if he had any drugs in the car. Defendant said there were not, and told Deputy Nunes "you could check."

Deputy Nunes informed defendant he was going to pat him down before looking in the car. After patting down defendant, Deputy Nunes directed him to stand near the front of the patrol car. During the search, Deputy Nunes smelled marijuana coming from the trunk, which contained three duffel bags.

Deputy Nunes ordered defendant to the ground, handcuffed him, and placed him in the back seat of the patrol car. After giving defendant a Miranda advisement, Deputy Nunes asked whether the bags contained marijuana. Defendant said he did not know. Deputy Nunes asked the same question again, and defendant replied that the deputy could check. Deputy Nunes opened the bags and found two of them contained 20 pounds of marijuana and the third bag had 25 pounds of marijuana.

Deputy Nunes first saw defendant's Sebring at 2:29 a.m. He then ran the license plate and, at 2:33 a.m. determined the car was validly registered. By 2:35 a.m., he had determined defendant's driver's license was valid. Deputy Nunes had not yet decided whether to issue a citation, but was in the process of completing the traffic stop when defendant consented to the search. He had, but did not use, a written consent form in the patrol car.

Defendant testified that Deputy Nunes ordered him out of the car and searched him. He then put defendant in the back seat of the patrol car and searched the Sebring. He did not ask defendant for permission, and defendant never consented to the search. Defendant told Deputy Nunes he spoke only a little English and did not understand. On cross-examination, defendant said Deputy Nunes asked for consent to search, but defendant responded "No."

The trial court denied the suppression motion, finding that defendant's account was not credible, and his consent was not the product of a prolonged detention.

DISCUSSION

Defendant contends the trial court should have granted his suppression motion because his detention was unlawful and unduly prolonged.

On appeal from denial of the suppression motion, all presumptions are in favor of the trial court's factual findings, where supported by substantial evidence, and we review de novo the facts favorable to the People to determine whether the officer's conduct was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Ledesma (2003) 106 Cal.App.4th 857, 862.)

"The Fourth Amendment's protection against unreasonable searches and seizures dictates that traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law. [Citation.]" (People v. Durazo (2004) 124 Cal.App.4th 728, 731.) "A traffic stop is lawful at its inception if it is based on a reasonable suspicion that any traffic violation has occurred, even if it is ultimately determined that no violation did occur. [Citations.]" (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510, italics omitted.) Reasonable suspicion requires only that "the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)

Defendant concedes that failing to illuminate his license plate violated Vehicle Code section 24252, subdivision (a). He nonetheless contests the legality of his detention because Deputy Nunes could not identify the Vehicle Code section which defendant violated, and did not gather any physical evidence of the infraction.

The factual basis of defendant's contention is not found in the hearing on his suppression motion. Instead, defendant takes these facts from Deputy Nunes's trial testimony. Our review is limited to the evidence before the trial court at the suppression hearing. (People v. Neighbours (1990) 223 Cal.App.3d 1115, 1118-1120.) Therefore, the trial testimony is irrelevant to the case before us.

Even if we were to consider those facts, they would not help defendant. So long as there was an objective factual basis supporting probable cause that defendant committed an infraction, the stop was legal, even if Deputy Nunes did not know the specific Vehicle Code section that defendant violated. Deputy Nunes did not need to conduct an inspection of the license plate because he saw it was not illuminated when he turned behind defendant's car. That is substantial evidence supporting the trial court's finding of a valid traffic stop.

Defendant further argues that the stop was illegally prolonged because Deputy Nunes continued to detain defendant when there was no longer any reason to stop him. Defendant asserts the sole purpose of the stop was to determine whether the license plate was functioning and if a citation was in order. Again improperly citing from the trial transcript, defendant claims Deputy Nunes never intended to investigate the license plate light because he did not complete his investigation of the infraction. Arguing the investigation was completed once Deputy Nunes verified defendant's license and registration, defendant concludes he was illegally detained when Officer Nunes ordered him out of the Sebring.

Even if we could rely on Deputy Nunes's trial testimony to review the suppression motion, it would not help defendant. Probable cause for a stop or a search is determined objectively; an officer's subjective beliefs or intent are irrelevant to the legality of the stop. (Cf. Whren v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89, 98] ["[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"].) Whether Deputy Nunes intended to complete the investigation and cite or release defendant has no bearing on the legality of the stop or the detention.

More importantly, the Fourth Amendment did not require Deputy Nunes to end the stop when he validated defendant's license and registration. Questioning during a routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation, as long as it does not result in an unreasonably prolonged detention. (Arizona v. Johnson (2009) 555 U.S. 323, 333 [172 L.Ed.2d 694, 704]; People v. Brown (1998) 62 Cal.App.4th 493, 499.) "Obviously, this rule must be applied in the light of the companion rule that length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. [Citation.]" (Brown, at p. 499.)

After determining the license and registration were valid, Deputy Nunes asked defendant who owned the car, where he was going, where his uncle lived, and whether he had any drugs in his car. Asking four simple questions does not transform a valid traffic stop into an illegally prolonged detention. (Cf. People v. Brown, supra, 62 Cal.App.4th at p. 499 ["[o]ne minute of generalized questioning during a routine traffic stop is not unreasonable"]; see People v. Torres (2010) 188 Cal.App.4th 775, 786 [10 to 15 minute long traffic stop not unreasonable].)

Nor was it an illegal seizure for Deputy Nunes to order defendant out of the car before questioning him. "[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, fn.6 [54 L.Ed.2d 331, 337, fn. 6] (per curiam); see also Arizona v. Johnson, supra, 553 U.S. at p. 331 [172 L.Ed.2d at pp. 702-703].)

Defendant was legally stopped for a traffic violation. Neither his being ordered out of his car nor his questioning transformed the stop into an illegal detention. Accordingly, we conclude his consent to search was not the fruit of a Fourth Amendment violation. Since the search was conducted pursuant to validly obtained consent, the search was lawful, and the trial court correctly denied defendant's suppression motion.

Finally, we note that defendant's reliance on Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d 485] is unfounded because that decision addressed the permissible scope of a non-consensual search of a vehicle incident to an arrest, rather than a consent search. (Id. at p. __ [173 L.Ed.2d at p. 491].)

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. DUARTE , J.

20111219

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