Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC065810
Siggins, J.
Defendant entered a no contest plea to possession of cocaine for sale and admitted the truth of a prior drug conviction. Pursuant to his plea agreement the court dismissed a possession of methamphetamine charge. Defendant was sentenced to the middle term of three years in state prison, and the trial court exercised its discretion to strike the admitted prior conviction.
In this appeal, defendant contends that his detention prior to arrest was unconstitutionally prolonged. Therefore, defendant’s consent to a search was not given freely, and all evidence obtained should have been suppressed. We find defendant’s contentions to be without merit, and affirm the judgment.
BACKGROUND
Officer Jeremy Brandenburg of the San Bruno Police Department stopped a 1995 Lexus he observed speeding and driving erratically on El Camino Real, near Angus Avenue. He approached the car and explained to defendant the reason for the stop. Officer Brandenburg asked defendant for his driver’s license. He ran a check on the license and received a response that it was valid. Although Officer Brandenburg did not observe any signs that defendant was obviously intoxicated, defendant appeared to be very nervous when he gave the officer his driver’s license. The officer asked defendant to step out of the car so he could conduct a driving under the influence (DUI) investigation.
Officer Brandenburg instructed defendant to step to the sidewalk and asked him if he had anything illegal on his person or in the vehicle. Defendant responded that he did not. Officer Brandenburg asked defendant whether he could search his person and vehicle and defendant responded, “Go ahead.” Defendant did not protest when Officer Brandenburg began his search. The search of defendant’s person produced a total of $4,658 in cash, 10 baggies of suspected cocaine, and 10 baggies of suspected methamphetamine. Officer Brandenburg arrested defendant and proceeded to search his car.
Defendant contends that Officer Brandenburg asked, “Do you mind if I search you?” to which defendant responded, “no.”
The following relevant times were recorded in an automated police dispatch log. Officer Brandenburg pulled defendant over at 11:25:56 p.m. Officer Brandenburg ran defendant’s license at 11:27:16 p.m. and arrested him at 11:33:18 p.m. Thus, approximately eight minutes elapsed between when defendant was stopped and he was arrested, and approximately six minutes elapsed between when Officer Brandenburg checked defendant’s license and arrested him.
Following the search of the car, Officer Brandenburg advised defendant of his constitutional rights, then asked defendant if he could search his residence. Defendant responded, “[n]ot without a warrant.” The officer transported defendant to the San Bruno Police Department and he was placed in an interview room. At that time Officer Brandenburg was joined by another officer. Defendant acknowledged his constitutional rights and agreed to speak with the officers. Defendant admitted that he was a drug dealer and described additional illegal substances located in his apartment, including eight-and-one-half-ounces of cocaine and drug paraphernalia. He gave the officers consent to search his apartment. An officer remained in the interview room with defendant during the search of the apartment in case defendant wished to withdraw his consent.
Defendant was charged with one count of possession of cocaine, and one count of possession of methamphetamine. The information also alleged that defendant had a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). The court denied defendant’s motion to suppress the evidence and found that “the three-to four-minute detention after running the license... is not an unduly prolonged detention.” The court also found defendant consented to the search of his person.
Defendant pled no contest to possession of cocaine and admitted the prior conviction. The allegation of possession of methamphetamine was dismissed pursuant to the negotiated plea. The court sentenced defendant to the middle term of three years in prison; imposed fines and fees; ordered him to submit to genetic marker testing; and awarded credit for five actual days served. This appeal timely followed.
DISCUSSION
When we review a trial court’s denial of a suppression motion, we defer to the trial court’s express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (In re H.M. (2008) 167 Cal.App.4th 136, 142; People v. Windham (2006) 145 Cal.App.4th 881, 886 [“[o]n appeal of a trial court’s denial of a motion to suppress, we review the court’s factual findings for substantial evidence and its conclusions of law de novo”].)
A. Legality of Detention
“The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel.” (In re H.M., supra, 167 Cal.App.4th at p. 142.) However, an officer who “has probable cause to believe that an individual has committed even a very minor criminal offense in his presence... may, without violating the Fourth Amendment, arrest the offender.” (Atwater v. Lago Vista (2001) 532 U.S. 318, 354.) In Atwater, the defendant was arrested for violating the Texas seat belt law. (Id. at p. 324.) The United States Supreme Court held the arrest was constitutional even though it may have been embarrassing and unnecessary for the defendant. (Id. at p. 355.) The California Supreme Court has also held “that there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” (People v. McKay (2002) 27 Cal.4th 601, 607.) The defendant in McKay was detained for riding his bicycle in the wrong direction on a residential street, and subsequently arrested when he could not provide identification. (Id. at p. 606; see also U.S. v. McFadden (2d Cir. 2001) 238 F.3d 198, 204 [upholding a search incident to arrest for riding a bicycle on the sidewalk].)
Here, defendant does not dispute the reasons for the initial stop, nor the three to four minutes it took Officer Brandenburg to check defendant’s license, insurance and registration. Instead, defendant argues that Officer Brandenburg had no reason to detain defendant after the DUI inquiry was complete. However, as the above cases demonstrate, Officer Brandenburg had cause to detain defendant for violating Vehicle Code section 22107 for weaving and section 22350 for speeding, and any such detention must necessarily include the time required to issue defendant a citation for those offenses. “Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation.” (People v. Brown (1998) 62 Cal.App.4th 493, 499.) Moreover, defendant acknowledges that a traffic stop may serve to uncover other criminal activity when the officer reasonably suspects a traffic law violation. (Whren v. United States (1996) 517 U.S. 806, 812-813; U.S. v. King (9th Cir. 2001) 244 F.3d 736, 738.) We therefore conclude that defendant was legally detained.
B. Length of Detention
In light of our conclusion that Officer Brandenburg had the right to detain defendant for the Vehicle Code violations, we consider whether his detention was unconstitutionally lengthy.
Defendant relies on People v. McGaughran (1979) 25 Cal.3d 577 to argue his detention was unduly prolonged. McGaughran held that a detention can carry on no longer than necessary to conduct a routine traffic stop, unless there are “ ‘specific and articulable facts’ that could support a rational suspicion that defendant and his companion were involved in ‘some activity relating to crime.’ ” (Id. at p. 591; accord, In re Tony C. (1978) 21 Cal.3d 888, 893.) In McGaughran, a police officer on patrol pulled the defendant over for driving in the wrong direction on a one-way public street. The officer spoke with the defendant for three to four minutes, and the defendant explained he was lost. (McGaughran, supra, at p. 581.) The officer ran a check for outstanding arrest warrants for the defendant. Around 10 minutes later, the dispatcher informed the officer there was a warrant for the defendant’s arrest. (Ibid.) The officer then requested backup and a confirmation of the warrant. Confirmation was received 20 to 25 minutes later and the defendant was arrested. (Ibid.)
We do not see the correlation between the present case, where defendant was detained for roughly four minutes before he was arrested, and McGaughran, where the defendant’s prearrest detention lasted more than half an hour. Defendant’s brief detention beyond the period Officer Brandenburg needed to check for warrants and investigate defendant’s sobriety was not unreasonable. (See also People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [no unreasonably prolonged detention at a traffic stop “as only a very few minutes had elapsed between the deputy’s initial contact with defendant and defendant’s consent to search”].) The motion to suppress was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Jenkins, J.