People v. Valenzuela

• Decision Date: 15 September 1999
• Docket Number: No. D031323,D031323
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 7715, 1999 Daily Journal D.A.R. 9775 The PEOPLE, Plaintiff and Respondent, v. Lucio C. VALENZUELA, Defendant and Appellant.

Page 707

88 Cal.Rptr.2d 707

74 Cal.App.4th 1202, 99 Cal. Daily Op. Serv. 7715,

1999 Daily Journal D.A.R. 9775

The PEOPLE, Plaintiff and Respondent, v. Lucio C. VALENZUELA, Defendant and Appellant.

No. D031323.

Court of Appeal, Fourth District, Division 1, California.

Sept. 15, 1999.

Howard C. Cohen, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett

B. Beaumont and Robert M. Foster, Deputy Attorneys General for Plaintiff and Respondent.

HUFFMAN, Acting P.J.

Following denial of his motion to suppress evidence (Pen.Code, § 1538.5), Lucio C. Valenzuela entered a negotiated guilty plea to possessing a controlled substance (Health & Saf.Code, § 11350, subd. (a)) and admitted a strike (Pen.Code, § 667, subds. (b)-(i)). The court sentenced him to 32 months in prison (twice the lower term). Valenzuela now appeals the denial of his suppression motion. We agree with his contention he was stopped on a pretext and therefore reverse the judgment.

THE PEOPLE'S EVIDENCE

For over seven years, the sale and use of controlled substances at The End Zone Bar had posed a problem for the San Diego Police Department. During that period, San Diego Police Sergeant Michael Brogdon had made more than a dozen drug-related arrests there. Brogdon had extensive training on the subject of illicit drugs, had testified as an expert on drug-related issues over 200 times, and had made a total of more than 200 drug-related arrests. His 12-year tenure as a police officer included 5-1/2 years in the narcotics section, a 1-year stint with the walking enforcement campaign against narcotics, and 19 months as a vice detective buying controlled substances in bars and other places subject to regulation by the Department of Alcoholic Beverage Control. Brogdon's latest position was patrol supervisor.

Around 2:15 p.m. on February 6, 1998, Brogdon was outside The End Zone Bar. He saw a taxicab parked in front of the bar. He saw Valenzuela come out of the bar, walk toward the cab, climb in the front passenger's seat, and close the door. Brogdon followed the cab for a short distance and then stopped it.

Brogdon testified that his purpose was to conduct a cab inspection, as he had done over 30 times before. According to Brogdon, vice officers made these inspections daily and patrol officers made them occasionally. On cross-examination, he acknowledged that he initiated the stop "based upon the knowledge of the establishment" although this knowledge was unrelated to whether the cab was licensed or insured.

After the cab stopped, Brogdon approached the passenger's side; asked driver Alvaro Rodriguez for his driver's and cab licenses, registration, and insurance papers; and announced he was conducting a cab inspection. As Rodriguez was retrieving his papers, Brogdon casually asked Valenzuela if he could speak with him. Valenzuela agreed. Brogdon asked him to step out of the cab. Valenzuela complied. Brogdon asked him if he had any form of identification. Valenzuela produced his driver's license. Still speaking casually, Brogdon asked for permission to search him. Valenzuela consented. The search yielded a bag of powder resembling cocaine. Brogdon arrested Valenzuela and handcuffed him. Valenzuela became very unsteady on his feet and nearly passed out. Brogdon held him up and called for paramedics.

After Brogdon handcuffed Valenzuela, Rodriguez gave Brogdon his license, registration, and proof of insurance. Although Rodriguez appeared to be holding all the papers Brogdon had requested, Brogdon did not go through them. Because the handcuffs prevented Valenzuela from removing money from his wallet, Brogdon helped him pay Rodriguez. Brogdon spoke with Rodriguez briefly and then allowed him to leave. Brogdon did not finish the cab inspection, assertedly because his attention was focused on Valenzuela's safety. Brogdon did not recall whether the cab had a medallion on its trunk, which he testified was required for cabs operating "in the county ... as well as the

                city." 1  He did not look for the medallion, although he positioned his patrol car about 20 to 25 feet behind the taxicab when he stopped it
                

DEFENSE EVIDENCE

Rodriguez testified he handed over his papers and Brogdon returned them right away. Brogdon then requested Valenzuela's identification and asked him to get out of the cab. According to Rodriguez, Brogdon never announced he was conducting a cab inspection or said why he wanted to see Rodriguez's papers.

THE TRIAL COURT'S RULING

The court discussed with counsel whether the stop was pretextual but made no express finding on the issue. At the conclusion of argument, the court cited the following cases: United States v. Orito (1973) 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (reversing dismissal of charge of knowingly transporting obscene material on common carrier (airplane) in interstate commerce; holding privacy of home does not extend to common carrier and Congress has power to prevent obscene material from entering commerce); People v. McGaughran (1979) 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207 (driver stopped for noncustodial traffic violation and detained for time necessary to complete police functions arising from violation cannot be further detained solely for warrant check); People v. Bell (1996) 43 Cal.App.4th 754, 51 Cal.Rptr.2d 115 (typical traffic stop constitutes detention of passenger; scope of driver's detention lawful at least until officer ticketed him and turned attention to passenger; canine sniff did not exceed scope of passenger's consent to search); People v. Lopez (1989) 212 Cal.App.3d 289, 260 Cal.Rptr. 641 (police request for identification during street encounter is not detention); and Williams v. Superior Court (1985) 168 Cal.App.3d 349, 213 Cal.Rptr. 919 (no justification for prolonging detention or requesting consent to search vehicle because this was not reasonably necessary to officer's performance of duties concerning traffic violation and facts known to him did not support objectively reasonable suspicion petitioners were involved in robberies).

After citing the above cases, the court here stated:

"Based upon the evidence presented here and the applicable cases, the court finds that the cab was lawfully pulled over, and the seizure of the defendant under these circumstances does not contravene the Fourth Amendment. Asking defendant to exit or get out of the car and to produce his identification does not contravene the Fourth Amendment right. There was no unlawful detention in this case.

"In addition, there is nothing in the record to indicate that the defendant did not consent to the search. There is no indication that the defendant's consent to be searched was invalid. It appears to have been freely and voluntarily given."

DISCUSSION

I

Valenzuela contends the stop was pretextual, it did not comply with the cab inspection ordinance, and the ordinance is unconstitutional.

We may easily dispose of the latter two arguments. In the court below, Valenzuela did not argue unconstitutionality and presented no evidence the stop violated the cab inspection ordinance. He is therefore precluded from raising those issues now. (People v. Williams (1999) 20 Cal.4th 119, 130-131, 135-136, mod. 20 Cal.4th 439a, 83 Cal.Rptr.2d 275, 973 P.2d 52; People v. Benson (1990) 52 Cal.3d 754, 788, 276 Cal.Rptr. 827, 802 P.2d 330.)

Valenzuela's first contention, however, the asserted pretextual nature of the stop, was the gist of his suppression motion and requires more attention. In reviewing the denial of that motion, we must view the record in the light most favorable to respondent (People v. Aguilar (1996) 48 Cal.App.4th 632, 637, 55 Cal.Rptr.2d 716), uphold all express and implied factual findings of the trial court that are supported by substantial evidence, then independently apply the proper federal constitutional standards to those facts (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221; People v. Blardony (1998) 66 Cal.App.4th 791, 794, 78 Cal.Rptr.2d 291; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224, 266 Cal.Rptr. 473).

Our first task is to consider whether the stop here was pretextual, a legal matter we review de novo. (United States v. Hernandez (9thCir.1995) 55 F.3d 443, 446.) We conclude that it was. ² Sergeant Brogdon was motivated by a desire to approach Valenzuela rather than to conduct a cab inspection. This is borne out by Brogdon's vast experience enforcing drug laws which far exceeded his experience conducting cab inspections; by his acknowledgement that patrol officers conducted such inspections only "occasionally;" by his apparent failure to perform any element of a cab inspection other than obtaining Rodriguez's papers; by his nearly immediate focus of attention on Valenzuela; and, most tellingly, by his admission that he stopped the cab "based upon the knowledge of the establishment." (Cf. People v. Williams, supra, 20 Cal.4th at p. 138, 83 Cal.Rptr.2d 275, 973 P.2d 52.) Having thus concluded that the record compels a finding of pretext, we turn to our second task, determining the legal effect of the pretextual stop.

We begin by considering pretextual police-citizen encounters in the context of criminal law violations. In this realm, pretext is clearly permissible. "Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (Whren v. United States (1996) 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89.) Thus, in Whren, a traffic stop yielding illegal drugs was valid despite the plainclothes vice officers' subjective motivation because there was probable cause to believe a traffic violation had occurred. (Id. at pp. 808-809, 813, 116 S.Ct. 1769.) Conversely, in Delaware v. Prouse (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660,...