Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF105670A
SCOTLAND, P. J.
Defendant Raymond Anthony Hill entered a negotiated plea of guilty to being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), admitted having a prior conviction for a serious felony, and was sentenced to a stipulated term of 32 months in state prison.
On appeal, defendant contends the traffic stop that led to the search of his car was unreasonably prolonged in violation of the Fourth Amendment and, thus, the trial court erred in denying his motion to suppress evidence. We disagree and shall affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
At around midnight on September 8, 2007, Officer Robert Wong performed a traffic stop of a Dodge Stratus because it had no front license plate. Wong, who was assigned to the police department’s gang unit, used his police radio to inform other members of the unit that he was making the traffic stop.
Officer Wong walked up to the driver’s side of the car, said why he had stopped the car, asked for the driver’s license of the person behind the wheel, and identified the driver as defendant. When asking the passenger (later identified as Laderall Davis) for identification, Wong noticed Davis was “nervous and sweating and reaching around his lap area.” Wong instructed Davis to keep his hands where they could be seen. Wong then asked defendant and Davis whether either was on probation or parole. After they responded “no,” Wong asked defendant for consent to search the car, which was declined.
Sergeant Richard Ridenour, the supervisor of the gang unit, was at the scene to assist and was standing near the passenger side of the car. Seeing Davis “reach into his waistband area,” Ridenour shined his flashlight into the car and saw Davis “pulling something out of his waistband.” Turning his right shoulder, Davis obscured both of his hands and dropped what appeared to be United States currency on the floorboard of the car.
Because he was unable to see Davis’s hands when the money was dropped, Sergeant Ridenour directed Davis to get out of the car “[f]or officer safety” and turned him over to Officers Morin and Tackazon, who had also arrived to assist with the traffic stop. Morin frisked Davis and found nothing.
Looking into the car while he stood outside it, Sergeant Ridenour saw cash on the front floorboard and what appeared to be an open, partially full bottle of alcohol on the rear floorboard. After reaching into the car and pulling out the bottle, he ordered Officer Wong to remove defendant from the car so it could be searched for other open containers of alcohol.
Officer Morin searched the front and rear floorboards for open containers and found a .9 millimeter handgun on the rear floorboard, obscured by a backpack.
Officer Wong testified that Davis was ordered out of the car just after Wong had asked the occupants whether they were on probation or parole. It took four to five minutes from the initial stop to when Davis was asked to get out of the car. A “couple of minutes” after turning his license over, defendant asked Officer Wong to write the ticket.
At the suppression hearing, defendant testified as follows: Officer Wong asked for his driver’s license and car key. When defendant responded he had never heard of being asked to surrender car keys at a traffic stop, Wong said members of a gang task force take different precautions. In response to Wong’s inquiry, defendant said he was not on probation or parole and did not have anything illegal in the car. When defendant declined Wong’s request for permission to search the car, Wong stated the refusal was reason to believe that defendant might be hiding something in the car. Defendant protested that he was a citizen of the city, being asked for his car keys made him nervous, he did not feel like getting out of his car at midnight, and he had done nothing illegal. Wong then shined his flashlight on defendant’s arm and asked what the tattoo said. When defendant questioned why this was relevant, Wong reiterated he was a member of a gang task force unit. Wong did not respond when defendant asked why he was being detaining so long without being given a ticket; instead, Wong asked Davis for his identification. Before Davis could reply, defendant asked why Wong was questioning Davis when defendant had produced valid identification. Wong said that in his city, he would like to know who is in the car, to which defendant replied: “Is this all standard in a fix-it ticket traffic stop?” Wong said nothing other than asking Davis for his identification. Davis reached into his pocket, pulled out money, and fumbled through it “like he was searching for his identification.” Davis told Wong the only identification he had was a Social Security number the officer could run. At some point, Sergeant Ridenour opened the passenger door of the car. About 20 seconds after Davis was directed to get out of the car, defendant was told to do so.
In denying the suppression motion, the court ruled the traffic stop was valid, Davis’s actions raised legitimate concerns about officer safety, and the detention was not unreasonably long.
DISCUSSION
Defendant does not contend the traffic stop was illegal and does not contest the authority to conduct a warrantless search of the car after the open container of alcohol was observed. (People v. Laursen (1972) 8 Cal.3d 192, 201 [“when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search”].)
Instead, he contends the officers detained him for reasons other than issuing a ticket for the traffic violation, causing the search of his car to be the fruit of an unconstitutionally prolonged detention.
In assessing defendant’s claim of error, we apply the officer’s account of the facts, which the trial court necessarily believed when it denied the suppression motion. (See People v. Alvarez (1996) 14 Cal.4th 155, 182.)
A routine traffic stop must be temporary and last no longer than necessary to effectuate the purpose of the stop, which includes examining the driver’s license and registration, writing a citation, obtaining the motorist’s promise to appear, discussing the violation with the driver, and ascertaining that the driver fully understands the conduct to be avoided. (People v. McGaughran (1979) 25 Cal.3d 577, 584, 586 (hereafter McGaughran).) If further investigation can be “completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.” (Id. at p. 584, fn. omitted.)
There is no set time limit for a permissible investigatory stop; the question is whether the officer diligently pursued a means of investigation reasonably designed to confirm or dispel suspicions quickly. (United States v. Sharpe (1985) 470 U.S. 675, 686-688 [84 L.Ed.2d 605, 615-617] [20-minute investigative detention of suspected drug trafficker did not violate Fourth Amendment].)
Defendant argues McGaughran supports his position that his traffic stop was unreasonably prolonged. In McGaughran, the officer advised the driver of the reason for the traffic stop, examined the driver’s license, and discussed the explanation. (McGaughran, supra, 25 Cal.3d at pp. 585.) The few moments necessary for the officer to return to his vehicle and initiate the warrant check would not constitute an impermissible prolongation of the traffic stop. (Id. at p. 584, fn. 6.) But the warrant check took 10 minutes, during which the officer sat and waited for the results. (Id. at p. 586.) McGaughran held that, since the officer had already detained the driver for the period necessary to perform the officer’s functions arising from the traffic violation, the subsequent detention for an additional period of time solely for the purpose of conducting a warrant check was impermissible. (Ibid.)
Defendant points out that Williams v. Superior Court (1985) 168 Cal.App.3d 349 (hereafter Williams) held the “clear intent of McGaughran is to preclude officers from imposing a general crime investigation upon the detained traffic offender that is not ‘reasonably necessary’ to completion of the officer’s traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses.” (Id. at p. 358.)
However, “the statement [in Williams] must be read in light of the facts of that case and subsequent United States Supreme Court cases.” (People v. Brown (1998) 62 Cal.App.4th 493, 499.)
“Questioning during [a] routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation.” (People v. Brown, supra, 62 Cal.App.4th at p. 499.) And questions about a person’s probation status do “not constitute a general crime investigation”; they merely provide an officer with additional pertinent information about the individual detained. (Ibid.) Therefore, “investigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take.” (Id. at p. 498.)
Here, Officer Wong estimated that four to five minutes elapsed between the traffic stop and when Davis was lawfully ordered to get out of the car. (Maryland v. Wilson (1997) 519 U.S. 408, 414-415 [137 L.Ed.2d 41, 48 [an officer may order a passenger to get out of a car during a routine traffic stop].) Once Davis was out of the car, Sergeant Ridenour saw the open container of alcohol.
Since there is no evidence of any appreciable delay between when Davis got out of the car and the open container was observed, the question is was the four to five minutes between the stop and discovery of the open container an unreasonably prolonged detention? The answer is, “No.”
As the trial court found, “everything took place fairly quickly” from the stop to the search. Officer Wong’s actions included no more than routine questioning appropriate for any traffic stop. Sergeant Ridenour was present when Wong first noticed Davis’s nervous activity. And Davis was ordered to get out of the car soon after Wong asked defendant and Davis whether they were on probation or parole. The only appreciable delay was the one minute that Ridenour waited for other officers to arrive before ordering Davis out of the car. Given Davis’s movements, in particular his efforts to conceal his hands, the one-minute wait for backup was reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 367 [the brevity of the detention “weighs heavily in favor of a finding of reasonableness”].)
Defendant’s suggestion that the officers intended to search the car from the beginning of the traffic stop is irrelevant. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” (Whren v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89, 98].) And the fact Officer Wong ultimately did not issue a traffic ticket once defendant was arrested on a more serious charge does not undermine the basis for the officers’ actions. (See United States v. Sharpe, supra, 470 U.S. at pp. 686-687 [84 L.Ed.2d at pp. 615-616] [“In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. [Citations.] A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. [Citation.] A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But ‘[t]he fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, by itself, render the search unreasonable.’ [Citations.] The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it”].)
In sum, the trial court correctly concluded that defendant was not detained for a period longer than would be reasonably expected for the traffic stop; therefore, the discovery of facts supporting probable cause to search and the subsequent seizures was not tainted.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J. BUTZ, J.