People v. Greenwood

• Decision Date: 16 February 2011
• Docket Number: No. B220315.,B220315.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert GREENWOOD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

189 Cal.App.4th 742

117 Cal.Rptr.3d 60

10 Cal. Daily Op. Serv. 13,769

2010 Daily Journal D.A.R. 16,550

The PEOPLE, Plaintiff and Respondent,

v.Albert GREENWOOD, Defendant and Appellant.

No. B220315.

Court of Appeal, Second District, Division 5, California.

Oct. 28, 2010.

Review Denied Feb. 16, 2011.

**61 Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.

*744 Officers on patrol ran a computer check on a vehicle through the Department of Motor Vehicle (DMV) records, which indicated registration of the vehicle expired two years earlier. The vehicle had a temporary permit affixed to the rear window. The officers stopped the vehicle and discovered a phencyclidine cigarette. The trial court denied a motion to suppress the cigarette as a product of an unlawful vehicle stop, distinguishing People v. Hernandez (2008) 45 Cal.4th 295, 86 Cal.Rptr.3d 105, 196 P.3d 806 ( Hernandez ). We affirm on the basis that the report from the DMV that the registration was not current, without any mention of a valid temporary permit, justified the vehicle stop.

Background

Defendant and appellant Albert Greenwood was charged with possession of phencyclidine in violation of Health and Safety Code section 11377, subdivision (a). The information alleged five prior prison terms (Pen.Code, § 667.5, subd. (b)) and one prior conviction under the three strikes law (Pen.Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). After denial of his motion to suppress the product of the vehicle stop under Penal Code section 1538.5, defendant entered a plea of no contest to the charged offense, admitted the prior conviction under the three strikes law, and was sentenced to state prison for 32 months.

In this timely appeal from the judgment, defendant argues the stop of his vehicle violated the Fourth Amendment.

**62 The Penal Code Section 1538.5 Hearing

Officers James Moon and Ryan Marshall were on patrol on May 25, 2009, at 11:05 p.m. when they saw a vehicle driven by defendant. The officers ran a computer check of the DMV records on the license plate and learned the *745 registration expired in July 2007. The vehicle displayed a temporary operating permit with the number "5" (indicating it was for the month of May) affixed to the rear window. Officer Moon believed issuance of this type of sticker by the DMV allowed a vehicle owner to drive a vehicle only for the limited purpose of completing a smog check. Because of the late hour, the officer did not believe the car was being driven to complete a smog check. A traffic stop was effectuated, during which a cigarette dipped in phencyclidine was discovered and defendant was arrested. The temporary permit did not have any driving restriction stated on it.

Defendant testified he obtained the temporary permit sticker from the DMV three weeks before his arrest. The temporary permit allowed him to drive without limitation until the end of May, so he could complete his smog check during that month.

Based upon information obtained from the DMV by the prosecutor after the first day of the hearing on the motion to suppress evidence, the parties stipulated that defendant's temporary permit was valid and the DMV records showed the vehicle registration was suspended.

At the conclusion of the hearing, defendant argued the stop of his vehicle violated the Fourth Amendment because of the existence of the temporary permit sticker. The trial court ruled the officers acted reasonably, despite the presence of the temporary permit, because the information from the DMV indicated the registration on the vehicle lapsed in 2007. The court found the officers had the right to stop the vehicle to investigate whether it was lawfully driven.

Discussion

Defendant argues the traffic stop violated the Fourth Amendment prohibition against unreasonable searches and seizures. Defendant contends the stop was not objectively reasonable because the officers were aware of the temporary permit on the rear window of his car. He reasons the temporary permit is intended to signal that the motorist has complied with the registration requirement and a stop to conduct a general inquiry into registration is impermissible absent specific information the permit is invalid or fraudulent.

Standard of Review

"In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated. 'We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law *746 applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]' ( People v. Saunders (2006) 38 Cal.4th 1129, 1134 [45 Cal.Rptr.3d 66, 136 P.3d 859] ( Saunders ).)" ( Hernandez, supra, 45 Cal.4th at pp. 298-299, 86 Cal.Rptr.3d 105, 196 P.3d 806.)

"The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].) 'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained**63 may be involved in criminal activity.' ( People v. Souza (1994) 9 Cal.4th 224, 231 [36 Cal.Rptr.2d 569, 885 P.2d 982].) Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed. ( People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 [45 Cal.Rptr.3d 8, 136 P.3d 810]; People v. Superior Court ( Simon ) (1972) 7 Cal.3d 186, 200 [101 Cal.Rptr. 837, 496 P.2d 1205].)" ( Hernandez, supra, 45 Cal.4th at p. 299, 86 Cal.Rptr.3d 105, 196 P.3d 806.)

Discussion

Vehicle stops based on facts similar to those presented in this case have been the subject of a variety of recent cases. Based upon nuances in the facts, the cases have reached different conclusions as to the lawfulness of a vehicle stop.

In People v. Brendlin (2006) 38 Cal.4th 1107, 1114, 45 Cal.Rptr.3d 50, 136 P.3d 845 ( Brendlin ), vacated on other grounds in Brendlin v. California (2007) 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132, a deputy "noticed that the registration tabs on the Buick's license plate were expired. However, he also observed a current temporary operating permit in the car's rear window and had received radio confirmation that an application for renewal of the vehicle's registration was indeed in process. Conceding that '[a] vehicle with an application for renewal of expired registration would be expected to have a temporary operating permit,' the Attorney General no longer argues that [the deputy] had articulable suspicion the Buick's registration was invalid." ( Brendlin, supra, at p. 1114, 45 Cal.Rptr.3d 50, 136 P.3d 845, emphasis added.) Thus, where a vehicle displays expired license plates, but also displays a temporary operating permit and it is confirmed that there is a process in place to renew the registration, a detention of the vehicle is inconsistent with the Fourth Amendment. ( Ibid.)

Our Supreme Court returned to this subject in Saunders, supra, 38 Cal.4th at page 1131, 45 Cal.Rptr.3d 66, 136 P.3d 859, which involved a vehicle with no front *747 license plate, expired tabs on the rear license plate, and display of a current temporary operating permit. The court noted it had " not yet decided whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit," and cases from other jurisdictions are divided. ( Id. at p. 1135, 45 Cal.Rptr.3d 66, 136 P.3d 859.) The Saunders court found no need to resolve that issue, because the lack of a front license plate provided reasonable grounds for the stop. The officer had no means of determining if the missing front license plate was excused by the temporary permit, other than to make a temporary stop for the purpose of investigation. ( Id. at p. 1137, 45 Cal.Rptr.3d 66, 136 P.3d 859.) In a footnote, the court observed that although the officer had not run a computer check of the registration, to do so would have been futile as there was evidence the temporary permit was not entered in the computer record of the DMV. ( Id. at p. 1137, fn. 1, 45 Cal.Rptr.3d 66, 136 P.3d 859.)

Defendant places his heaviest reliance on Hernandez, supra, 45 Cal.4th 295, 86 Cal.Rptr.3d 105, 196 P.3d 806. In Hernandez, an officer saw the defendant driving a vehicle with no license plates but with a valid temporary permit in the rear window. In the officer's experience, temporary permits were often forged or switched for use from a different vehicle, so he made a traffic stop. The Supreme Court rejected the argument that the officer's subjective distrust of temporary permits justified the vehicle stop, noting that **64 "[c]ourts from other jurisdictions also seem uniformly to have concluded that permitting officers to stop any car with temporary permits would be to countenance the exercise of the unbridled discretion condemned in Delaware v. Prouse [1979] 440 U.S. [648,] 663 [99 S.Ct. 1391, 59 L.Ed.2d 660]. [Citations.]" ( Hernandez, supra, at p. 301, 86 Cal.Rptr.3d 105, 196 P.3d 806; see People v. Nabong (2004) 9 Cal.Rptr.3d 854, 115 Cal.App.4th Supp. 1, 3-5 [stop of vehicle with expired license tags but displaying a valid permit, without any additional facts other than officer's distrust of the permit, violated the Fourth Amendment].) The court distinguished Saunders on the basis the missing front license plate in Saunders justified the vehicle stop, and there was no similar violation in this case. ( Herna...