People v. Bell, No. E015215

• Court: California Court of Appeals
• Writing for the Court: RICHLI; McKINSTER, Acting P.J., and McDANIEL
• Citation: 43 Cal.App.4th 754,51 Cal.Rptr.2d 115
• Parties: , 96 Cal. Daily Op. Serv. 1837, 96 Daily Journal D.A.R. 3069 The PEOPLE, Plaintiff and Respondent, v. Keith Barnard BELL, Defendant and Appellant.
• Docket Number: No. E015215
• Decision Date: 15 March 1996

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51 Cal.Rptr.2d 115 43 Cal.App.4th 754, 96 Cal. Daily Op. Serv. 1837, 96 Daily Journal D.A.R. 3069 The PEOPLE, Plaintiff and Respondent,
v.
Keith Barnard BELL, Defendant and Appellant. No. E015215. Court of Appeal, Fourth District, Division 2, California. March 15, 1996.
Certified for Partial Publication ^*.
Rehearing Denied April 3, 1996.
Review Denied May 29, 1996.

[43 Cal.App.4th 757] Brett Harding Duxbury, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, M. Howard Wayne, Supervising Deputy Attorney General, and Gary W. Brozio, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, Associate Justice.

A "K-9" officer stopped the car in which defendant was the passenger for speeding. The officer talked to the driver while writing a ticket, then talked separately to defendant. Because he suspected they were transporting drugs, he asked both men for consent to search; defendant agreed that the officer could search his baggage, which was in the trunk. The officer directed his drug-sniffing dog, Rycon, to sniff the trunk. However, Rycon turned up his nose, so to speak, at the trunk; instead, he trotted to the [43 Cal.App.4th 758] passenger-side door, which defendant had left open, and alerted to the area under defendant's seat. There the officer found a package of cocaine.

After defendant's motion to suppress (Pen.Code, § 1538.5) was denied, he pleaded guilty to possession of cocaine for sale (Health & Saf.Code, § 11351). In this appeal, he contends:

1. The driver was unlawfully detained for questioning unrelated to the purposes of the traffic stop; hence, defendant was unlawfully detained at the same time.

2. After the driver was issued a ticket, defendant was unlawfully detained for additional questioning unrelated to the purposes of the traffic stop.

3. The canine sniff search exceeded the scope of defendant's consent to search.

4. The canine sniff search constituted an unlawful search of the interior of the car without probable cause.

We hold that the trial court properly denied defendant's motion to suppress. Defendant is entitled to challenge the driver's detention because he and the driver were both detained at the same time, but the officer's questioning did not unlawfully prolong the driver's detention. As a result of that questioning, the officer had sufficient reasonable suspicion to detain defendant briefly for further questioning. The canine sniff search did not exceed the scope of defendant's consent, and, while the dog was still outside the car, the sniff search revealed probable cause to search the car interior. Accordingly, we will affirm.

I FACTUAL BACKGROUND

On Saturday, March 12, 1994, California Highway Patrol Officer Joseph David was on routine patrol on Interstate 40, near Needles. Interstate 40 is "a major pipeline used by drug traffickers." Officer David's patrol car was marked "K-9"; in it with him was his trained drug-sniffing dog, Rycon.

At about 6:40 a.m., Officer David saw a car going 75 to 80 miles per hour in the opposite direction. He made a U-turn across the center divider, then overtook the car; he clocked it going over 75 miles per hour. The car took the J Street offramp. Officer David followed it and turned on his flashing lights.

[43 Cal.App.4th 759] The car pulled into a gas station and up to the gas pumps. Officer David pulled in behind it. He ordered the driver of the car,

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Darryl Stewart, to move it to the side of the gas station; Stewart complied, then came back to the patrol car. Stewart displayed an Alabama driver's license. His hands were trembling and he avoided eye contact. Officer David told Stewart why he had stopped the car, then asked Stewart for the registration. Stewart produced a car rental contract.

Officer David began writing a speeding ticket; while he wrote, he "engage[d] in conversation" with Stewart. Stewart said he and his passenger had come from Alabama to attend a car auction in Del Mar. He said they had left Alabama on Sunday (March 6) and arrived in California on Monday (March 7). They had spent two nights in Del Mar, the next two nights with Stewart's girlfriend in Los Angeles, and the fifth night at a motel. The rental contract, however, indicated that the car had been rented on March 10, and was due to be returned in Alabama March 12, that same day.

Officer David gave Stewart the ticket, along with his license and rental contract, then said, "[W]ait here." He walked over to the car, where defendant, the passenger, was sitting. He advised defendant that California law required him to wear a seat belt. Officer David had already noticed that defendant was not wearing a seat belt; however, defendant could have taken it off after pulling in to the gas station. Officer David asked to see defendant's identification. Defendant produced his driver's license; his hands, too, were shaking, and he, too, avoided eye contact.

Officer David asked defendant where he was coming from and where he was going. Defendant said he and Stewart had arrived in California on Thursday (March 10) to attend a car auction in Riverside. Officer David noticed some scars on defendant's leg, and asked if they were bullet holes. Defendant denied this, and said he had been "stuck by something." Officer David also noticed a cellular phone in the car.

At this point, Officer David suspected that the men were transporting drugs. His suspicion was based on: (1) their nervousness, (2) the discrepancies between Stewart's story and the rental agreement, (3) the discrepancies between Stewart's story and defendant's story, (4) the evidence that the car had been rented for "a shot out to Los Angeles to spend one night and come back," which made it unlikely that they had come just to attend a car auction, (5) the cellular phone, and (6) the apparent bullet marks on defendant's leg.

Officer David went back to Stewart, confirmed his story, and wrote down his responses. Then he went back to defendant again, asked him the same [43 Cal.App.4th 760] questions, and wrote down his responses. He radioed for a backup officer. He asked Stewart if he had any cocaine in his car; Stewart said no. He asked Stewart if he could search the car. At first, Stewart said yes. Officer David filled out a written consent form; as he was explaining it to Stewart, Stewart changed his mind and withdrew his consent. Meanwhile, the backup officer arrived.

Officer David went back to defendant and asked if they had any cocaine in the car. Defendant said no. Officer David asked if he could search the car; defendant responded, "Just my stuff." He said he had a bag and briefcase in the trunk. Officer David asked him to open the trunk. Defendant took the keys out of the ignition, got out of the car (leaving his door open), and opened the trunk; he "was shaking so hard he almost couldn't get the keys into the trunk."

The backup officer told defendant to move about 20 feet away from the car. Officer David got Rycon out of the patrol car and directed him to sniff the trunk. Rycon put his front paws up on the trunk, but immediately got down again and went to the open passenger door. He alerted to the area under the passenger seat by placing his head and one foot under the seat. Officer David looked under the seat and found a package of cocaine.

II THE DETENTION OF STEWART

The trial court found that both Stewart and defendant were lawfully detained, and specifically found that their detention was not unlawfully prolonged. Defendant challenges this finding, first with respect to Stewart. He contends that Stewart's detention

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became unlawful because Officer David questioned him about matters unrelated to issuance of a speeding ticket. The People respond that defendant lacks standing to challenge Stewart's detention. They maintain that while Stewart was questioned, defendant was free to leave; they characterize Officer David's initial contact with defendant as consensual.

A. Defendant's Standing to Challenge Stewart's Detention.

An ordinary traffic stop is treated as an investigatory detention, i.e., a "Terry stop." (United States v. Sharpe (1985) 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605; Berkemer v. McCarty (1984) 468 U.S. 420, 439, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317; see generally Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) "Under this approach, [43 Cal.App.4th 761] we examine 'whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' " (United States v. Sharpe, supra, 470 U.S. at p. 682, 105 S.Ct. at p. 1573, quoting Terry v. Ohio, supra, 392 U.S. at p. 20, 88 S.Ct. at p. 1879.) A traffic stop is justified at its inception if based on at least reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926, 21 Cal.Rptr.2d 785.) However, it "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." (Florida v. Royer (1983) 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (plur.opn.).) ¹

Under the Fourth Amendment, a person is detained if a reasonable person in the same position would not feel free to leave. (In re James D. (1987) 43 Cal.3d 903, 912-913, 239 Cal.Rptr. 663, 741 P.2d 161, cert. den. sub nom. James D. v. California (1988) 485 U.S. 959, 108 S.Ct. 1222, 99 L.Ed.2d 422; Florida v. Royer, supra, 460 U.S. at pp. 501-502, 103 S.Ct. at p. 1326.) The United States Supreme Court has strongly hinted, although never held, that a traffic stop of a vehicle constitutes a detention of all its occupants, including passengers. (Berkemer v. McCarty, supra, 468 U.S. at p. 436, 104 S.Ct. at p. 3148 [traffic stop ...