People v. Glaser, C053974 (Cal. App. 11/28/2007)
| Decision Date | 28 November 2007 |
| Docket Number | C053974 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RONALD DEAN GLASER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Super. Ct. No. 05NCR03167.
After his motion to suppress was denied, defendant Ronald Dean Glaser pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378; undesignated statutory references are to the Health and Safety Code). Sentenced to 10 years in state prison, he now appeals, contending the trial court erred in denying the suppression motion, sentencing defendant to the upper term, and refusing to strike any of the alleged enhancements.
On October 28, 2005, while on duty, City of Colusa Police Officer Terry Baker spotted a black Honda Civic parked on the side of the road near a residence that Officer Baker testified is known within the county to be a "drug residence."2 The Civic was facing oncoming traffic with its headlights on. Officer Baker pulled over and stopped his patrol car about a quarter of a mile behind the Civic to "observe." Shortly thereafter, the driver of the Civic (later identified as defendant) drove away.
Officer Baker followed defendant and realized he could not read the Civic's license plate from 50 feet, as required by the Vehicle Code. (Veh. Code, § 24601.)3 In fact, there was an acrylic cover on the license plate that "obscured the light," rendering the plate "illegible" until Officer Baker was only one or two car lengths behind defendant.
Once Officer Baker was able to read the license plate, he called the dispatcher, gave her the license plate number, and told her he was making a traffic stop. Officer Baker pulled defendant over and approached the car, illuminating the car's interior with his flashlight. Officer Baker told defendant that he pulled him over because of a defective license plate light. Officer Baker asked to see defendant's identification, which defendant produced. He then asked if defendant was on probation or parole, and defendant said he was not.
While talking to defendant, Officer Baker observed that defendant seemed nervous. Defendant would not make eye contact with Officer Baker, and defendant's pupils were constricted even though it was dark outside. Based on his education and experience, Officer Baker suspected defendant might be under the influence of an illegal drug.4 He asked defendant if he was on any illegal drugs at that time. Defendant said he was not currently using, but he had been "arrested for drugs years ago."
Continuing with his investigation, Officer Baker asked defendant if he could search him. Defendant replied: "Yes, you can."5 Thus, with defendant's consent, Officer Baker patted down defendant.
Soon, additional police officers arrived and Officer Baker asked defendant for permission to search the car. Defendant consented to this search as well.6 While Officer Baker was searching the passenger compartment of the car, the other officers conducted a field sobriety test on defendant.7
Finding nothing in the passenger compartment, Officer Baker removed the keys from the ignition and opened the trunk. Inside the trunk, Officer Baker saw "a Brinks safe." He took one of the keys from the same key ring he had removed from the ignition and put it into the safe's keyhole. Defendant immediately told Officer Baker to "stop the search." Officer Baker stopped searching but his fellow officer, Todd James, who has prior experience with detecting methamphetamine, told Officer Baker that he smelled "a chemical odor that was consistent with methamphetamine" coming from the right side of the trunk, near the safe. Officer Baker proceeded to open the safe without defendant's consent.
Inside the safe, Officer Baker found "two hypodermic syringes, a glass smoking pipe commonly used for smoking methamphetamine, [] eight plastic wraps containing a crystal substance [he] believed to be methamphetamine,"8 and a digital gram scale. Defendant was immediately arrested for possession of suspected methamphetamine and drug paraphernalia.
As Officer Baker was putting defendant in the back of the patrol car, defendant "stated that he wanted to assist TAGMET9 by purchasing drugs off of people . . . ." After discussing it with his fellow officers and his sergeant, Officer Baker released defendant with charges pending. He never wrote defendant a traffic citation.
Prior to trial, defendant filed a Penal Code section 1538.5 motion to suppress the evidence found as a result of the search on October 28, 2005. That motion was initially heard in conjunction with the preliminary hearing. Defendant's motion was denied. Later, defendant pled not guilty and renewed his motion to suppress in superior court pursuant to Penal Code section 1538.5, subdivision (i). Defendant's renewed motion to suppress was heard by the same judge who served as the magistrate judge at the preliminary hearing.
At the hearing on his renewed motion to suppress, defendant argued: "The withdrawal of the consent about the search of the car at the point just prior to the safe being opened was never addressed by this Court and there was no finding." The court clarified its prior ruling: "[M]y ruling was not very artful, but I found that there was consent and I found that that consent was never — based upon [defendant's] own testimony, really, was never effectively withdrawn."
Defendant subsequently pled no contest to possession of methamphetamine for the purpose of sale, along with the enhancements for his prior convictions (§ 11370.2, subd. (c)) and his prior prison terms (Pen. Code, § 667.5) in exchange for a 10-year "cap" on his prison sentence. Consistent with his plea, the trial court sentenced defendant to an aggregate term of 10 years in state prison, comprised of the upper term of three years, an additional six years for his prior convictions, and another year for one of his prior prison terms. The court executed but stayed imposition of another three-year enhancement for defendant's prior convictions, and an additional two-year enhancement for defendant's prior prison terms.
On appeal, defendant contends the trial court erred in denying his motion to suppress. Defendant argues: (1) the initial detention was unlawful; (2) the detention was unduly prolonged; (3) his consent was tainted by the unlawful detention; (4) any consent he gave was later withdrawn; and (5) Officer Baker lacked probable cause to search the safe without defendant's consent.10 Defendant further argues the trial court abused its discretion by imposing the upper term for his conviction and not striking any of the enhancements. We affirm the court's judgment and sentence.
DISCUSSION
"In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Defendant first contends the trial court erred in finding the initial detention was lawful. We disagree. An officer with a reasonable suspicion that a motorist has committed a traffic violation may stop the vehicle for investigation. (SeePeople v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148.) Here, Officer Baker testified that defendant's license plate was not sufficiently lit, making it "illegible" from 50 feet in violation of Vehicle Code section 24601. The trial court found Officer Baker's testimony credible. There is substantial evidence to support the trial court's ruling the initial stop was lawful.
As he did in his motion to suppress, defendant argues here the detention was unduly prolonged, and that Officer Baker should have released him as soon as Officer Baker saw defendant's license plate light was working. We reject this argument as well.
Pursuant to the plain language of the statute, defendant was in violation of the Vehicle Code when Officer Baker could not read defendant's license plate from 50 feet. (See Veh. Code, § 24601.) It is irrelevant that Officer Baker may have later discovered the license plate light was actually working.11 The law requires the license plate be "legible" from 50 feet and it was not.
United States v. McSwain (10th Cir. 1994) 29 F.3d 558, which defendant relies on, does not change this analysis or the conclusion. In McSwain, the officer stopped the defendant in order to "verify the validity" of the defendant's temporary registration. (Id. at p. 560.) Once the officer approached the defendant's vehicle he saw the registration was, in fact, valid. (Ibid.) At that moment, the Tenth Circuit ruled, the detention should have ended because "the purpose of the stop was satisfied." (I...
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