Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-061460-2
STEIN, Acting P. J.
On the morning of September 11, 2006, police officer Robert Brady arrested defendant Otis Johnson after finding a glass pipe and six pieces of an off-white chunky substance on defendant’s person. The chunky substance later was determined to be 1.05 grams of cocaine base. A magistrate denied defendant’s motion to suppress evidence of the pipe and cocaine base. Defendant then was charged by information with possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and possession of a device used for smoking a controlled substance (Health & Saf. Code, § 11364).
Defendant filed a Penal Code section 995 motion to dismiss the information, contending the magistrate had erred in denying the motion to suppress. The court denied the motion. Defendant then pleaded no contest to possession of cocaine base. The court suspended imposition of sentence and placed defendant on formal probation on certain conditions, including he serve 90 days in county jail.
Defendant appeals. His attorney has filed an opening brief in which she raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel declares she has advised defendant of his right personally to file a supplemental brief raising any issues he wishes to call to this court’s attention. Defendant has not filed a supplemental brief.
We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.
Discussion
By pleading guilty to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant has not obtained a certificate of probable cause. We therefore limit our review to determining the validity of the rulings denying defendant’s motion to suppress and to the validity of the proceedings held subsequent to the plea.
I.
The Search
Officer Brady testified at defendant’s preliminary hearing that on the morning of September 11, 2006, he was covering another officer who was making a traffic stop, when he saw defendant riding a bicycle on the sidewalk. Riding a bicycle on the sidewalk violates the local municipal code. As soon as the traffic stop was finished, Officer Brady drove to where defendant was stopped at a bus stop. The officer got out of his police vehicle, and asked defendant to come over and speak to him. Officer Brady told defendant he had stopped him because defendant was riding his bicycle on the sidewalk. Defendant stated he did not know he was not allowed to ride on the sidewalk. Officer Brady then asked if defendant had any weapons, drugs or contraband such as pipes on his person. He explained he asked the question because he was in an area where drugs, pipes and weapons often were located on traffic stops and pedestrian stops. He pointed out, further, “People who normally use drugs often can portray violent behaviors when on such drugs. Again, it’s a safety issue. I would like to know.” Officer Brady stated approximately 30 seconds elapsed between the time he initiated the contact with defendant and the time he asked about weapons, drugs or drug paraphernalia. Defendant responded he had a pipe in his right front pants pocket. Officer Brady then searched the pocket, finding the pipe, which he described as “a circular glass pipe with burned residue, as well as a small piece of a Brillo-type substance stuck in one end.” Officer Brady continued to search. He found an Altoids box, and, inside it, six pieces of an off-white chunky substance that appeared to be cocaine base. Later tests confirmed his suspicion that the substance was cocaine base.
In the trial court, defendant contended the search was improper on the theory officer Brady had changed his focus from the investigation of a violation of the municipal code to an investigation into whether defendant was violating laws prohibiting him from possessing weapons, drugs or drug paraphernalia. We view the officer’s questions as a reasonable part of the detention for the violation of the municipal code, but, even assuming the questions were more of a “fishing expedition” for other crimes, we find no error in the trial court’s denial of the motion to suppress.
As the trial court reasoned here, California law establishes an officer may ask questions unrelated to a traffic stop, and the fruits of those questions need not be suppressed, so long as the questions do not unduly prolong the period of detention beyond that time necessary for the officer to perform the duties flowing from the traffic stop. The state’s Supreme Court, in People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran) considered the validity of a search of a defendant’s vehicle, stopped after defendant was seen driving the wrong way up a one-way street. The court found the police were justified in stopping the vehicle for a traffic violation. (Id. at p. 582.) It found in such cases, provided the offender satisfactorily identifies himself, the officer is entitled to detain the violator, temporarily, while a citation or ticket is prepared. (Id. at p. 583.) However, once the officer has completed the duties flowing from the violation, “no further detention—whether for a warrant check or otherwise—is permissible.” (Id. at p. 586.) Where the violator is not cited, he must be released “forthwith” when the officer has investigated the incident and given an appropriate warning. (Ibid.) The court also found if the police could complete a warrant check within the permissible period for the detention, “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.) In the case before it, however, “[t]he additional period of detention for the purpose of seeking out unrelated arrest warrants in the name of defendant or his passenger was not ‘reasonably necessary’ to that process, and hence ‘exceeded constitutional limitations.’ ” (Id. at p. 587.)
In People v. Gallardo (2005) 130 Cal.App.4th 234 (Gallardo),a deputy sheriff stopped the defendant for driving with a non-functioning taillight. The officer explained his reasons for stopping the defendant, inspected the defendant’s license and registration and then asked if there was anything illegal in the car. The defendant replied in the negative. The deputy asked if he could search the defendant’s car. The defendant consented. According to the deputy, approximately two minutes had elapsed from the time of his initial contact with the defendant. The deputy searched, finding contraband. (Id. at pp. 236-237.) The court upheld the validity of the search. It noted nothing to indicate the traffic stop had been unreasonably prolonged. (Id. at p. 238.) It rejected the defendant’s claim that a pretextual traffic stop is unlawful, but also found nothing indicating a pretextual stop had taken place. (Ibid.) Finally, the court rejected the claim that before requesting consent to search, the police must have an articulable suspicion of wrongdoing, finding the detention to be reasonable “if requesting consent does not otherwise unduly prolong the traffic stop.” (Id. at p. 239.) Under Gallardo, the detention of defendant, during which he was asked if he had weapons, drugs or drug paraphernalia, was valid because it did not unduly prolong the period of detention beyond that necessary for the officer to perform the duties flowing from his investigation of the municipal code violation.
In the trial court, defendant cited People v. Lingo (1970) 3 Cal.App.3d 661 (Lingo) and People v. Lusardi (1991) 228 Cal.App.3d. Supp. 1 (Lusardi). In Lingo, the police stopped a car for an equipment violation. After the police completed the duties flowing from the stop, an officer asked if narcotics were in the car. The defendant said there were none. The officer asked if they could search. The defendant, who was the passenger but had claimed ownership of the car, told them to go ahead and search. The search turned up a box containing marijuana. The court found the police legitimately had stopped the car for a traffic violation, and legitimately had continued the detention while they satisfied themselves about the car’s registration. It assumed the detention validly could have been extended while the officer investigated the ownership of a phonograph and radio seen in the car. (Lingo, at pp. 663-664.) The court further explained it was not dealing, for example, with “a case of interrogation during a detention still lawfully continuing for some other reason.” (Id. at p. 664.) It held, “[o]nce the officers here had detained defendant beyond the time necessary to perform their legitimate functions, he was illegally detained” and the search therefore was unlawful. (Id. at pp. 664-665.)
In Lusardi, the court held the trial court should have granted a motion to dismiss evidence under circumstances similar to those in Lingo. A police officer made a traffic stop. After he completed the duties flowing from the violation, the officer asked the defendant, with whom he was familiar, whether she was still a user of narcotics or was dealing in narcotics, even though he had observed nothing to suggest she was either a user or a dealer. After the defendant said “no,” the officer asked if he could search the car. The defendant consented and the officer found drug paraphernalia. (Lusardi, supra, 228 Cal.App.3d at p. Supp. 3.) The court, following Lingo, reasoned, “[O]fficers making a proper traffic arrest cannot, on a mere hunch, properly ask for consent to search. The consent obtained is vitiated because the detention is unlawfully continued after any lawful and proper purpose has passed. [Citations.]” (Id. at p. Supp. 5.) We do not read either Lingo or Lusardi as authority for the proposition that a police officer is prohibited from asking questions unrelated to the violation justifying the stop. In both cases, the problem was that the questions were asked after the lawful and proper purpose of the detention had passed. That was not the case here, where the officer’s questions took place during the detention for violation of the municipal ordinance.
Defendant also contended the Ninth Circuit has held that during a traffic stop a police officer may only ask questions that are reasonably related in scope to the justification for his initiation of contact. The main, and most recent, case cited by defendant for that contention was United States v. Mendez (9th Cir. 2006) 467 F.3d 1162 (Mendez I). The Ninth Circuit since has issued a superseding opinion in that case (United States v. Mendez (9th Cir. 2007) 476 F.3d 1077 (Mendez II), recognizing the United States Supreme Court has taken a different view, holding in Muehler v. Mena (2005) 544 U.S. 93, 100, that “ ‘mere police questioning does not constitute a seizure’ unless it prolongs the detention of the individual, and thus, no reasonable suspicion is required to justify questioning that does not prolong the stop.” (Mendez II, at p. 1080.)
In sum, the trial court here properly denied defendant’s motion to suppress.
II.
Sentence
Imposition of sentence was suspended and defendant was placed on probation. The conditions of his probation, including the provision he serve 90 days in county jail, are reasonable and reasonably related to his crime. He properly was required to pay a $200 restitution fine, a $200 parole revocation fine (suspended) and a $20 court security fee. (Pen. Code, §§ 1202.4, subd. (b)(1) & 1202.45; 1465.8, subd. (a)(1).) The court properly ordered him to provide samples and specimens. (Pen. Code, § 296, subd. (a).) Defendant was given all the credits to which he was entitled.
Conclusion
In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.