Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2009024133, Bruce A. Young, Judge
Lyn A. Woodward, 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, Yun K. Lee, Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Ryan David Dall pled guilty to possession of marijuana for sale. (Health & Saf. Code, § 11359.) He claims he was denied effective assistance of counsel when his counsel failed to renew his suppression motion in the trial court and failed to challenge the warrantless search of his cellular telephone. We affirm.
The facts are taken from the preliminary hearing heard concurrently with the motion to suppress.
On June 29, 2009, at 8:30 p.m., Simi Valley Police Officer Thomas Meyer was on patrol in a marked police vehicle. He heard loud music emanating from a car driven by Dall.
Meyer initiated a traffic stop. When he got to Dall's car, Dall apologized for the loud music. Meyer asked Dall for his driver's license. Once Meyer had Dall's license, he "pretty much jumped right in to asking [Dall] if there was anything illegal in the vehicle."
Dall told Meyer that he had marijuana in his car. Dall showed the officer a "prescription" for it. Meyer waited for a backup unit to arrive, then asked Dall to get out of the car.
After a patdown search, Meyer searched Dall's car. In a backpack Meyer found approximately one ounce of marijuana contained in a mason jar covered with stickers. The marijuana did not have packaging or labels consistent with marijuana from a cannabis dispensary. Meyer also found a scale with marijuana residue on it. Dall had $280 in cash in his wallet. Dall admitted to Meyer that he had been selling marijuana.
Meyer retrieved Dall's cellular telephone from his car. At Meyer's request, Dall unlocked the telephone. Meyer read numerous text messages that described locations, amounts and prices for marijuana sales.
Meyer arrested Dall and interviewed him at the police station. After Dall waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Dall told Meyer that he had been selling marijuana for approximately one month so that he could raise money for a Florida vacation.
DISCUSSION
Dall contends he was deprived of effective assistance of counsel when his counsel failed to renew the suppression motion.
Where a magistrate denies a suppression motion, the defendant must renew the motion in the superior court to preserve the issues raised therein for appeal. (See People v. Callahan (1997) 54 Cal.App.4th 1419.) Here Dall's counsel did not renew the motion to suppress in the superior court prior to his plea.
We have no power to review an ineffective assistance of counsel claim from a conviction following a guilty plea without a certificate of probable cause. (People v. Richardson (2007) 156 Cal.App.4th 574, 596.) The defendant filed a petition for writ of habeas corpus. We deny it by separate order. (Ibid.)
In any event, renewing the suppression motion in superior court would have been futile. Dall acknowledges that the initial traffic stop for loud music was justified. He claims, however, that his detention was impermissibly prolonged when the officer asked him if he had anything illegal in his car.
A detention for a traffic violation cannot be prolonged beyond the time necessary to address the violation. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.) The amount of time that is reasonable for such a detention will depend on the circumstances of each case. (Ibid.)
In People v. Gallardo, supra, 130 Cal.App.4th at pages 236-238, an officer stopped the defendant for driving with a defective tail light. The officer inspected the defendant's license and registration then asked if there was anything illegal in the car. The defendant said there was not, and the officer asked permission to search the car. The defendant gave permission. During the search, the officer found drugs and drug paraphernalia. The officer said approximately two minutes elapsed from the initial contact with the defendant. The court concluded the detention was not unreasonably prolonged. (Id. at p. 238.)
Similarly, in People v. Brown (1998) 62 Cal.App.4th 493, an officer stopped the defendant for riding a bicycle without a light or reflectors. The officer ran a warrant check, which took about a minute. During the minute, in response to the officer's inquiries, the defendant stated he was on searchable probation, and denied he had anything illegal in his fanny pack. The officer asked and got the defendant's permission to search the fanny pack. The officer found methamphetamine in the pack. In deciding that the traffic stop was not unreasonably prolonged, the court stated, "One minute of generalized questioning during a routine traffic stop is not unreasonable." (Id. at p. 499.)
Gallardo and Brown are on point. Simply asking if there is anything illegal in the car does not unreasonably prolong the detention. Contrary to Dall's apparent argument, the officer is not limited to asking questions directly related to the purpose of the traffic stop.
Dall's reliance on People v. McGaughran (1979) 25 Cal.3d 577, is misplaced. There an officer stopped the defendant for driving the wrong way on a one-way street. The officer inspected the driver's license and registration, and decided not to issue a citation. Thereafter the officer detained the defendant for 10 minutes while he checked for outstanding warrants. Our Supreme Court held the detention to check for outstanding warrants was unreasonable.
McGaughran is easily distinguishable. There is a significant difference between a 10-minute detention occurring after the officer decided not to issue a citation and asking a single question while examining a license.
Dall's reliance on other cases is also misplaced. In Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237, officers detained a hitchhiker whom they believed to be a juvenile. After the man produced identification showing him to be an adult, the officers asked if he had any weapons. He replied he had three knives. The officers requested that he produce them. He pulled two knives from his pockets. The officers examined the knives and returned them to him. Then the officers inquired about the third knife. The defendant said it was in his backpack. The officers asked if they could search the backpack. The defendant gave his consent. The officers found marijuana in the backpack. One of the officers testified that until he found a "roach clip" in the backpack, they perceived nothing that caused them to believe the backpack contained contraband. The Court of Appeal determined the detention was unreasonably prolonged, and ordered the trial court to suppress the evidence. The court stated that even after the officers were satisfied the defendant was an adult, they "kept fishing." (Id. at p. 242.)
But Pendergraft involved more than simply asking a question while examining a driver's license. The police undertook a generalized criminal investigation.
In People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, an officer stopped the defendant for failing to yield the right of way. After the officer inspected the defendant's license, registration and proof of insurance, he asked her if she was still a user or seller of narcotics. She denied that she was. The officer then asked if he could search her car. She gave permission. The officer found a hypodermic syringe. She was charged with a misdemeanor possession of the syringe. The trial court denied the defendant's motion to suppress. The superior court appellate panel reversed. The court interpreted McGaughran as allowing the officer to do nothing more than what was reasonably necessary to complete the ticket writing. (Lusardi, at p. 4.)
This is too narrow a reading of McGaughran, where the defendant was detained for an additional 10 minutes. The recent cases we have cited reach a contrary result. The issue is the length of the detention, not the questions asked..
People v. Torres (2010) 188 Cal.App.4th 775, on which Dall relies, concerns the validity of an inventory search of an impounded vehicle. It does not concern the reasonableness of a person's detention.
Nor is counsel's failure to challenge the cell phone search a cause for reversal. Our Supreme Court has recently decided People v. Diaz (2011) 51 Cal.4th 84. There the court held a warrantless search of the text message folder of the defendant's cell phone seized during a lawful custodial arrest is valid.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.