Opinion
C081649
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE CAMPOS-BARAJAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR92998)
Following the trial court's denial of his motions to suppress evidence and to discover police personnel files, defendant Jose Campos-Barajas pleaded no contest to transportation of cocaine for sale and admitted an allegation that he possessed greater than one kilogram of cocaine. On appeal, defendant contends the trial court prejudicially erred by denying his motion to suppress evidence obtained in the search of his car following a traffic stop because the arresting officer prolonged the detention beyond what was reasonably necessary to address the traffic infraction, and by denying his motion to discover police personnel files because he satisfied the low threshold showing of good cause by contesting the basis of his traffic violation. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On a wet and rainy day in December 2014, California Highway Patrol Officer Douglas Mertz noticed a white vehicle traveling 65 miles per hour, about one car length (10 to 15 feet) behind another vehicle on Interstate 5. Believing the vehicle was following too closely in violation of Vehicle Code section 21703 given the speed the vehicles were traveling and the wet weather conditions, Mertz initiated a traffic stop around 9:30 a.m. by activating his emergency lights. Mertz anticipated defendant would pull into a nearby rest area "a little less than a quarter mile" away, but defendant pulled over along a narrow shoulder of the highway, just short of the rest area.
Vehicle Code section 21703 provides that a driver "shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway."
As he approached the vehicle, Officer Mertz observed that in addition to defendant (the driver), there was a male passenger in the rear seat. He also noted that defendant's primary language was Spanish. Mertz asked defendant for his driver's license and vehicle registration, but defendant could not find the registration. Realizing the traffic stop would "take a little longer" so that defendant could locate his registration, Mertz asked defendant to proceed into the rest area for safety reasons. Defendant complied and Mertz followed defendant into the rest area.
As Officer Mertz approached the vehicle again, he smelled marijuana but could not discern whether the odor emanated from the vehicle or from defendant's person. Based on his experience, Mertz believed narcotics were in the vehicle. He ordered defendant out of the vehicle and questioned both defendant and his passenger about narcotics and the purpose for their travel. Both men denied having marijuana in the vehicle, but gave conflicting purposes for their travel. Suspecting that one or both of the men were being dishonest, Mertz called a canine officer for backup around 9:40 a.m. Around this same time, it began to rain harder, so Mertz asked defendant to move the vehicle a second time to an overhang for defendant's convenience during the canine search of the vehicle.
It is unclear from the record whether defendant was questioned in the passenger's presence, but it is clear the passenger was questioned in the presence of defendant. --------
The canine officer arrived two or three minutes later and conducted a perimeter search of the vehicle. The canine, trained in detection of cocaine, methamphetamine, marijuana, and heroin, alerted on the lower door seam of the right front passenger door, indicating to the officers that drugs were in the vehicle. Mertz informed defendant of the alert and the passenger admitted he had marijuana in the car.
Officers searched the vehicle at the rest area and found a black film container filled with several grams of marijuana in the map pocket of the front passenger door. Officers discovered a bundle of currency inside a small garment bag in the rear cargo area and a second bundle of currency underneath the rear seat. The two bundles, wrapped in green cling wrap, totaled $25,000. Defendant carried an additional $1,679 on his person. Officer Mertz arrested defendant at 9:45 a.m.
In a subsequent search of the vehicle at the police station, officers found 1,035.1 grams of cocaine in the air filter. Ultimately, defendant was charged with transportation of cocaine for sale (Health & Saf. Code, § 11352, subd. (b)—count I) and possession of cocaine for sale (id., § 11351—count II), and it was further alleged that defendant possessed greater than one kilogram of cocaine (id., § 11370.4, subd. (a)(1)).
Prior to the preliminary hearing, defendant unsuccessfully moved to suppress evidence of the cocaine found in the air filter and to discover police personnel files. Defendant renewed his motion to suppress following the preliminary hearing, which the trial court again denied. Defendant then pleaded no contest to transportation of cocaine for sale and admitted the sentencing enhancement. The trial court sentenced defendant to a cumulative term of nine years in state prison, to be served in a split sentence of 54 months in custody and 54 months on mandatory supervision.
DISCUSSION
With respect to the trial court's denial of his motion to suppress evidence, defendant contends the trial court erred because the police unconstitutionally prolonged the detention to investigate extraneous matters. He further argues that the odor of marijuana did not provide reasonable suspicion to warrant a search of the vehicle. With respect to his motion for discovery of police personnel files, defendant contends the trial court erred when it denied his motion seeking complaints of dishonesty and racial or ethnic bias against the officers involved in his detention based on its finding that he failed to plead sufficient facts demonstrating the materiality of the requested information. We disagree.
1.0 Motion to Suppress
Defendant challenges the trial court's denial of his motions to suppress evidence by claiming both that (1) the detention was unreasonably prolonged when Officer Mertz asked defendant to pull into the rest stop and (2) there was not reasonable suspicion to conduct a search of the vehicle based on the odor of marijuana and the search unduly prolonged the traffic stop. We disagree.
"In reviewing the trial court's suppression ruling, we defer to its factual findings if supported by substantial evidence. We independently assess the legal question of whether the challenged search or seizure satisfies the Fourth Amendment." (People v. Brown (2015) 61 Cal.4th 968, 975; see People v. Lenart (2004) 32 Cal.4th 1107, 1119.) Therefore, we must determine whether the traffic stop was strictly limited in duration, scope, and purpose. (Terry v. Ohio (1968) 392 U.S. 1, 18 [20 L.Ed.2d 889, 904]; see United States v. Sharpe (1985) 470 U.S. 675, 682 [84 L.Ed.2d 605, 613]; People v. Russell (2000) 81 Cal.App.4th 96, 102 (Russell).) However, we do not resolve credibility issues or conflicts in the evidence de novo. (People v. Jackson (2014) 58 Cal.4th 724, 749.)
A traffic violation justifies a traffic stop, which is an investigatory detention under the Fourth Amendment. (Rodriguez v. United States (2015) 575 U.S. ___, ___ [191 L.Ed.2d 492, 496] (Rodriguez).) The investigatory detention is strictly limited to the time reasonably necessary for the officer to complete the purpose of the stop, i.e., to investigate the driver's license and the vehicle's registration, to attend to safety concerns, and to issue a traffic citation or warning. (Veh. Code, § 4462, subd. (a); People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran); Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358 (Williams).) While officers cannot impose a general crime investigation, independent reasonable suspicion that the driver committed an unrelated offense allows the officer to confirm or dispel his suspicion. (Russell, supra, 81 Cal.App.4th at p. 102.)
Defendant claims that the traffic stop was unduly prolonged when Officer Mertz deviated from the mission of the traffic stop by instructing defendant to move his vehicle into the rest area. Rather, he argues, Mertz had to either issue a citation or deliver a warning and let defendant go. Defendant relies on Williams, supra, 168 Cal.App.3d 349 to support his claim. However, Williams is distinguishable from the instant case. In Williams an officer pulled a car over for failing to stop at a stop sign but did not issue a citation despite promptly obtaining all information he needed to do so. Rather, the officer had been following the car believing the men looked suspicious and that "their ages and general physical appearance" matched broadcast alerts of robbery suspects in the area and, instead of issuing a citation, questioned the men about where they lived and what they were doing in the neighborhood. (Williams, at pp. 354-355, 359.) Therefore, in Williams the unnecessary extension of the traffic stop to investigate extraneous matters was unreasonable. (Id. at p. 359.) However, here defendant was unable to locate his registration, which means that Officer Mertz did not have all the information he needed to issue a citation.
The argument also ignores the fact that defendant pulled over along a narrow shoulder of the highway in the rain, which created a safety hazard for defendant and Officer Mertz. (McGaughran, supra, 25 Cal.3d at p. 584 [the officer may require the driver to proceed to a safer location before the investigation continues if either the driver's or the officer's vehicles is exposed to danger].) Only after defendant failed to produce the registration, did Mertz ask defendant to move to a safer location. Therefore, Mertz justifiably requested defendant move his vehicle into the rest area, and the traffic stop was not unreasonably prolonged by that request.
We turn next to defendant's challenge of the canine drug sniff of the vehicle. Defendant argues, based on Rodriguez, supra, 575 U.S. at p. ___ , that the canine sniff of the vehicle unreasonably prolonged the traffic stop. In Rodriguez, an officer stopped the defendant for veering off onto the shoulder of the highway for a couple of seconds. After collecting the defendant's license, registration, and proof of insurance, the officer ran a records check on the defendant. (Ibid.) Once the records check was complete, the officer questioned the passenger about the nature of their trip, collected the passenger's license, and conducted a records check on the passenger. (Ibid.) Only then did he issue the defendant a written warning. (Id. at p. ___ .)
At this point, even though the reasons for the traffic stop were concededly out of the way, the officer asked the defendant for permission to walk his dog around the defendant's vehicle. (Rodriguez, supra, 575 U.S. at p. ___ .) The defendant denied permission, so the officer instructed the defendant to exit the vehicle and wait for a backup officer to arrive on scene. (Ibid.) A subsequent canine drug sniff uncovered a large bag of methamphetamine, which was presented as evidence against the defendant to prove intent to distribute methamphetamine. The defendant moved to suppress the evidence arguing that the stop was unreasonably prolonged by the dog sniff in the absence of reasonable suspicion to extend the detention. (Ibid.) Because the dog sniff took place after the mission of the stop was concluded, the Supreme Court remanded the matter to the appellate court to determine whether independent reasonable suspicion of criminal activity justified detaining the defendant beyond the completion of the traffic investigation. (Id. at p. ___ [191 L.Ed.2d at pp. 500-501].)
Here, the canine sniff of the vehicle did not occur until after the officer approached the vehicle and smelled marijuana. Thus, if the odor of marijuana did not provide independent reasonable suspicion of criminal activity, the search of the vehicle would be violative of the standard set forth in Rodriguez, supra, 575 U.S. at p. ___ [191 L.Ed.2d at pp. 500-501], which limits the investigatory mission of a traffic stop to addressing the traffic violation that warranted the stop and attending to related safety concerns. Accordingly, we turn to defendant's challenge to the officer's reliance on the scent of marijuana as a basis for reasonable suspicion to search the vehicle.
Defendant maintains that the odor of unburned marijuana could not provide probable cause for a warrantless search in light of recent legal treatment of recreational and medical use of marijuana. California courts have considered and rejected defendant's claims. People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059-1060 rejected the notion that probable cause for a search is lacking when the odor of marijuana is present and the defendant possesses a physician's recommendation for medical marijuana or a state-issued medical marijuana card. The court reasoned that the medical marijuana laws provide a "limited immunity—not a shield from reasonable investigation." (Id. at p. 1060.) An officer with probable cause to search is entitled to "determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." (Ibid.) Additionally, People v. Waxler (2014) 224 Cal.App.4th 712, 725 held that "[t]he automobile exception is not limited to situations where the officer smells or sees more than 28.5 grams of marijuana in the vehicle [citation]; the observation of any amount of marijuana . . . establishes probable cause to search pursuant to the automobile exception." Waxler specifically declined to follow Commonwealth v. Cruz (2011) 459 Mass. 459 , on which defendant in part bases his argument, explaining that: "Cruz does not apply here for at least two reasons. First, in contrast to Massachusetts, possession of up to an ounce of nonmedical marijuana in California is a 'crime.' (Pen. Code, § 16.) Second, neither the California Supreme Court nor the United States Supreme Court has limited the automobile exception to situations where the defendant possesses a 'criminal amount of contraband.' " (Waxler, supra, at p. 723.) Waxler also distinguished People v. Torres (2012) 205 Cal.App.4th 989, 992 [officers lack probable cause to search hotel room without warrant based on smell of marijuana] and People v. Hua (2008) 158 Cal.App.4th 1027, 1033-1034 [officer cannot enter apartment without warrant based on smell of marijuana and observation of occupant smoking marijuana], on which defendant also relies explaining, "Neither Hua nor Torres assists appellant because those cases concerned warrantless entry into a dwelling and the application of the exigent circumstances doctrine to minor, nonjailable offenses. 'The automobile exception to the warrant requirement does not require a showing of exigent circumstances.' " (Waxler, supra, 224 Cal.App.4th at p. 725.) Defendant has presented no compelling grounds for this court to depart from the holdings in Strasburg or Waxler despite the recent passage of the Control, Regulate and Tax Adult Use of Marijuana Act, as approved by voters on November 8, 2016, amending Health and Safety Code section 11357. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 8.1, pp. 204-205, eff. Nov. 9, 2016.)
Finally, we are unpersuaded by defendant's contention that there is no "plain smell" exception to the warrant requirement akin to the "plain view" exception. (See Robey v. Superior Court (2013) 56 Cal.4th 1218, 1244 (maj. & conc. opn. of Liu, J.) [describing plain view doctrine as one allowing officer to seize incriminating object in plain view].) As defendant correctly observes, in the Robey majority opinion, at page 1222, our Supreme Court specifically declined to address whether there is a " 'plain smell' " exception to the warrant requirement. Regardless of whether the plain smell of contraband generally justifies a warrantless search, the issue in this case is limited to the context of a vehicle search, where the law is settled. (See id. at p. 1254 (conc. opn. of Liu, J.).)
In light of our conclusions, that the initial detention was not unreasonably prolonged and that Officer Mertz had reasonable suspicion to conduct a narcotics search of the vehicle, we do not address defendant's argument that evidence found as a result of the search should be suppressed as fruit of the poisonous tree. Therefore, the trial court did not err in denying defendant's motions to suppress evidence.
2.0 Motion for Discovery of Police Personnel Files
Defendant claims the trial court prejudicially erred when it denied his motion to discover police personnel files without conducting an in camera review because, he asserts, officer credibility was at issue with respect to the basis for the traffic stop, the detention, and the search of defendant's vehicle. We are not persuaded.
Defendant filed a broad and wide-ranging motion seeking review of the personnel files of Officer Mertz, the canine officer, and their sergeant. Defendant sought discovery of complaints for racial or ethnic bias, dishonesty, false arrest, illegal search and seizure, the fabrication of charges and/or evidence, or any act involving morally lax character against the officers. He argued that a substantial issue in this case might be illegal search and seizure or police officer perjury on the part of the officers involved. In support of the motion, defense counsel presented a declaration stating, in part, "[s]pecifically, in this case, . . . [t]he Officer who initiated the traffic stop indicated in his report that [defendant] was following a vehicle to[o] closely . . . . [Defendant] contests the truthfulness of this allegation. The Officer who initiated the stop did not make a call to dispatch indicating he had pulled over the defendant's vehicle. No . . . recordings of any kind exist memorializing the stop and subsequent investigation." The trial court denied the motion finding defendant failed to plead sufficient facts demonstrating the materiality of the requested information.
A defendant must show good cause for the discovery of police personnel records. (Evid. Code, § 1043; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 (Warrick).) To show good cause, the defendant must show materiality to the pending action by setting forth a "specific factual scenario" that establishes a "plausible factual foundation." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85, 86 (Santa Cruz); Warrick, supra, at p. 1025.) Good cause is a relatively low threshold. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 538; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 105.) "The information sought must, however, be 'requested with adequate specificity to preclude the possibility that defendant is engaging in a "fishing expedition." ' " (Santa Cruz, supra, at p. 85.) We review the trial court's denial of a motion for discovery of peace officer personnel records for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Defendant provided no facts or scenario implying improper conduct on the part of the canine officer or sergeant. Therefore, he plainly failed to make a good cause showing that would trigger an in camera review of their personnel records. With respect to Officer Mertz, defendant claims he made a sufficient showing by disputing Mertz's assessment that defendant was following another vehicle too closely and by noting there was no dispatch call or recording of the traffic stop. Defendant asserts this dispute places Mertz's credibility at issue, and therefore entitles him to discovery, or at least an in camera review, of Mertz's personnel records. While we agree with defendant that a motion for discovery of police personnel records may "be used to discover information to impeach an officer's credibility" (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 400), we conclude the trial court did not err in finding he has failed to make an adequate showing of good cause to require such discovery here.
Defendant relies on People v. Hustead (1999) 74 Cal.App.4th 410 to support his claim. However, in Hustead, the police officer stated the defendant traveled at an excessive rate of speed, committed numerous traffic violations, nearly collided with another vehicle, and nearly struck two pedestrians. (Id. at pp. 412-414.) In his defense against charges of felony evasion of arrest, the defendant moved for police personnel records based on a declaration by his counsel that claimed the officer's report contained material misstatements, including that the alleged dangerous driving maneuvers were fabricated. The declaration asserted the defendant took specific precautions to avoid any accidents, the driving route was different from that found in the report, and the defendant denied driving dangerously. (Id. at pp. 416-417.) Based on this showing, discovery was proper in that case because the "allegations were sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report. It demonstrated that [the defendant's] defense would be that he did not drive in the manner suggested by the police report and therefore the charges against him were not justified." (Id. at p. 417.) Thus, whether the officer falsified reports in the past became relevant and the defendant met the low threshold of good cause for discovery of prior complaints regarding the arresting officer's dishonesty. (Id. at p. 418.)
Here, in contrast, defendant never explained his actions in any meaningful way. Defense counsel's declaration states: "[T]he Officer who initiated the traffic stop indicated in his report that [defendant] was following a vehicle too closely in violation of Vehicle Code [s]ection 21703. [Defendant] contests the truthfulness of this allegation." This is a conclusory assertion of misconduct without any connection to the facts. Defendant never stated his version of events and offered no facts that provided any reason to believe that police misconduct had occurred. (See Warrick, supra, 35 Cal.4th at p. 1025 [stating that in making a good cause showing, a defendant can present a version of events that overlaps with the officers' account but differs in material ways].) Rather, defendant insinuates there was misconduct because the audio/video recording equipment was broken and because no call was made to dispatch. However, he failed to state how either of those facts relates to Officer Mertz's credibility or to claims of racial or ethnic bias. (Santa Cruz, supra, 49 Cal.3d at p. 85.) Consequently, defense counsel's declaration failed to provide a "specific factual scenario" establishing a "plausible factual foundation" for allegations of misconduct by Mertz. The trial court did not abuse its discretion in denying defendant's request for discovery of police personnel files.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: ROBIE, Acting P. J. MURRAY, J.