People v. Cartwright, No. G019363

• Court: California Court of Appeals
• Writing for the Court: BEDSWORTH; SILLS, P.J., and RYLAARSDAM
• Citation: 72 Cal.App.4th 1362,85 Cal.Rptr.2d 788
• Parties: , 99 Cal. Daily Op. Serv. 4748, 1999 Daily Journal D.A.R. 6059 The PEOPLE, Plaintiff and Respondent, v. Misty Anne CARTWRIGHT, Defendant and Appellant.
• Docket Number: No. G019363
• Decision Date: 16 June 1999

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85 Cal.Rptr.2d 788 72 Cal.App.4th 1362, 99 Cal. Daily Op. Serv. 4748, 1999 Daily Journal D.A.R. 6059 The PEOPLE, Plaintiff and Respondent,
v.
Misty Anne CARTWRIGHT, Defendant and Appellant. No. G019363. Court of Appeal, Fourth District, Division 3, California. June 16, 1999.

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Randall Bookout, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Esteban Hernandez, Deputy Attorney General, for Plaintiff and Respondent.

O P I N I O N

BEDSWORTH, J.

Analysis of contacts between police officers and passengers in motor vehicles has nettled California courts for some time. Some have held that passengers are not detained for Fourth Amendment purposes simply because they are present inside a car stopped for a traffic violation; others have reached the opposite conclusion. Even where courts have agreed on a result, they have differed over the reasoning that applies.

In this case, we try our hand at it with the guidance of United States Supreme Court precedent and conclude the typical traffic stop does not, by itself, constitute a Fourth Amendment seizure of the passenger. Rather, a passenger is seized only if the officer physically restrains him or initiates a show of authority to which a reasonable innocent person in the passenger's position would feel compelled to submit, and to which the passenger actually does submit. No seizure of either sort occurred here until after the passenger volunteered she was in possession of

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methamphetamine, and we therefore affirm her conviction.

* * *

Officer Dean Michael of the Huntington Beach Police ran a check on the registration of a car in which Misty Ann Cartwright was a passenger. Although the vehicle displayed a current tag, computer records indicated the tag had not been issued for the license plate to which it was attached. Suspecting a violation of Vehicle Code section 4462, subdivision (b), ¹ Michael pulled the car over and asked the driver, Phillip Showalter, for his license and registration. Showalter told the officer his name but was unable to produce any identification or registration for the car. Michael asked Cartwright who she was, and she gave him her name along with some sort of "identification paper." ²

Michael ran a computer check on the names, then asked Showalter to get out of the car. While complying, Showalter volunteered he was on parole and informed the officer the car belonged to someone else -- although he did not know the person's last name. Any experienced officer hearing this frequently used but almost literally incredible tale -- provided by a driver who had no identification, no proof of registration, and a car with tags which DMV records showed did not belong to it -- would have entertained a robust suspicion the car was stolen. And Michael did. He requested Showalter's permission to search the car for evidence of ownership, and Showalter told him to go ahead, denying there was anything illegal in the car. ³ Michael had Showalter sit on the curb and asked Cartwright to step out so he could conduct his search.

Michael never told Cartwright she was obliged to remain at the scene, but he did ask her the driver's name, to see if she would give him a different one than Showalter had. He also asked her whether there was anything illegal in the car. In contrast to Showalter, Cartwright said there was. She told Michael someone had borrowed her purse and left some methamphetamine inside. ⁴

Michael asked if it would be okay for him to retrieve it, and Cartwright said it would. Michael then directed Cartwright to have a seat on the curb next to Showalter. Along with the methamphetamine, Michael found a spoon, a digital scale, a notebook containing pay-owe sheets, and about 25 clear plastic bags of the type commonly used to package methamphetamine for sale. Cartwright eventually admitted these things were hers and was placed under arrest.

The contact, from its inception to the point at which methamphetamine and drug paraphernalia were discovered, lasted about ten minutes. It took place in the neighborhood in which Cartwright had been living, and the car contained her belongings, which Showalter was helping her move.

After unsuccessful motions under Penal Code sections 995 and 1538.5, subdivision (i), Cartwright pled guilty to possessing methamphetamine for sale and was placed on probation. Cartwright contends she was subjected to an illegally prolonged detention ⁵ which tainted the consent leading to

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discovery of the contraband secreted in her purse. Without expressly arguing the point, she grounds her contention on the premise that she was detained by virtue of the traffic stop conducted on the car in which she was riding. We reject that premise and conclude Cartwright was not seized within the meaning of the Fourth Amendment until she was told to have a seat on the curb and she complied. I

A majority of California cases dealing with the question appear to have concluded that a passenger is seized along with the driver during a traffic stop and thus is entitled to raise any defense to the stop the driver might have (see, e.g., People v. Bell (1996) 43 Cal.App.4th 754, 760-765, 51 Cal.Rptr.2d 115, People v. Grant (1990) 217 Cal.App.3d 1451, 1460, 266 Cal.Rptr. 587, and People v. Lionberger (1986) 230 Cal.Rptr. 358, 185 Cal.App.3d Supp. 1, 5). But at least two California courts have endorsed the view that a routine traffic stop does not subject a passenger to a seizure within the meaning of the Fourth Amendment. We find ourselves in agreement with them.

In People v. Gonzalez (1992) 7 Cal.App.4th 381, 8 Cal.Rptr.2d 640, a passenger stepped out of a car immediately after it was stopped for failing to signal its lane change. ⁶ An officer approaching the car ordered him to get back in and put his hands where they could be seen. Without directly addressing the effect of the car stop on the passenger, the court concluded he "was detained when the officer told him to get back in the car" (id. at p. 384, 8 Cal.Rptr.2d 640, italics added) -- thereby implicitly holding the passenger was not seized when the vehicle was stopped.

Next, "[i]n response to defendant's contention that he was detained when the car was stopped," the court in People v. Fisher (1995) 38 Cal.App.4th 338, 45 Cal.Rptr.2d 57 observed, "[W]e believe that in constitutional terms a passenger is not 'lawfully stopped' (contra, People v. Hunt (1990) 225 Cal.App.3d 498, 505, 275 Cal.Rptr. 367), seized, or detained (contra, People v. Grant (1990) 217 Cal.App.3d 1451, 1460, 266 Cal.Rptr. 587) merely because the vehicle in which he or she is riding is stopped for a traffic violation." (People v. Fisher, supra, 38 Cal.App.4th at p. 344, 45 Cal.Rptr.2d 57.)

The court explained, ⁷ "[T]here is no indication that defendant was not free to go about his business when the car was first stopped and while [the officer] was occupied with the car's driver. Defendant made no attempt to depart and [the officer] exercised no control over defendant prior to asking him to step out of the car. Defendant had no indication that the red light on the police car was directed at him, rather than at the driver of the car for speeding. [Citation.]" (People v. Fisher, supra, 38 Cal.App.4th at pp. 343-344, 45 Cal.Rptr.2d 57.)

Two years after Fisher was published, the United States Supreme Court decided Maryland

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v. Wilson (1997) 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41. In Wilson, a passenger was ordered out of the car in which he was sitting after an officer observed he was sweating and extremely nervous. As Wilson exited the vehicle, a quantity of crack cocaine fell to the ground, and he was placed under arrest.

In holding that officers are entitled to order passengers out of a car as a matter of course, the majority recognized that when a traffic stop occurs, "There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers." (Maryland v. Wilson, supra, 519 U.S. at p. 413, 117 S.Ct. at p. 886, 137 L.Ed.2d at p. 47.) By noting the absence of any objective justification to detain passengers in cars stopped for traffic violations, however, the court obviously did not mean to imply that passengers are routinely subjected to illegal seizures. We believe it was saying passengers are not detained as the law uses that term.

It is settled that a Fourth Amendment seizure occurs only when an officer intentionally applies hands-on, physical restraint to a suspect (California v. Hodari D. (1991) 499 U.S. 621, 626, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690, 697; Brower v. Inyo County (1989) 489 U.S. 593, 596-597, 109 S.Ct. 1378, 1381-1382, 103 L.Ed.2d 628, 635) or initiates a show of authority to which a reasonable innocent person would feel compelled to submit (Florida v. Bostick (1991) 501 U.S. 429, 434, 438, 111 S.Ct. 2382, 2386, 2388, 115 L.Ed.2d 389, 398, 400), and to which the suspect actually does submit (California v. Hodari D., supra, 499 U.S. at p. 626, 111 S.Ct. at p. 1550, 113 L.Ed.2d at p. 697) for reasons that are solely related to the official show of authority. (Florida v. Bostick, supra, 501 U.S. at pp. 436-437, 111 S.Ct. at pp. 2387-2388, 115 L.Ed.2d at pp. 399-400; Brower v. Inyo County, supra, 489 U.S. at pp. 597-598, 109 S.Ct. at pp. 1381-1382, 103 L.Ed.2d at p. 636; INS v. Delgado (1984) 466 U.S. 210, 215, 218, 104 S.Ct. 1758, 1762, 1763, 80 L.Ed.2d 247, 254, 256.)

When the siren and the light on top of a police car are turned on, it is the driver's attention the officer is hoping to capture -- not the passenger's. The passenger has typically done nothing wrong and has no power to respond to the police directive. His or her presence in the car is merely fortuitous. (See People v. Grant, supra,...