Filed 4/6/15 P. v. Murray CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                            C076661

                   Plaintiff and Respondent,                             (Super. Ct. No. MM125766C)

         v.

BRYANT DUANE MURRAY,

                   Defendant and Appellant.




         After the denial of his motion to suppress, defendant Bryant Duane Murray
entered a plea of no contest to a charge of impersonation, with a stipulated term of
two years in state prison. In exchange, the trial court dismissed a charge of carrying
a concealed (steak) knife and multiple recidivist allegations.

         On appeal, defendant challenges the denial of his motion to suppress. He contends
the evidence of impersonation that caused the officer to focus on him was the result of an


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unduly prolonged traffic stop, and his possession of the concealed knife was the product
of a subsequent unlawful patdown search. We shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Defendant premised his written motion to suppress on facts from the testimony
of the arresting officer at his preliminary hearing (the transcript of which the trial court
reviewed). The arresting officer also testified at the hearing on the motion. We therefore
draw our facts from both sources, resolving all conflicts in favor of the trial court’s
ruling. (People v. Hernandez (2008) 45 Cal.4th 295, 298-299 (Hernandez).)

       The officer had been patrolling the City of Tracy in the early morning hours of
February 22, 2013, when he stopped a car being driven with an inoperable headlight at
4:50 a.m. Defendant—one of three passengers—was sitting behind the driver. The
officer requested the requisite documentation from the driver to confirm his identity and
to submit a warrant check, as well as requesting the three passengers to identify
themselves for purposes of warrant checks. When he asked the occupants of the car if
anyone was on probation, no one answered.

       Further clarifying this testimony at the hearing, the officer stated he
contemporaneously asked for identification from the three passengers when he asked for
the information from the driver (subject to the caveat that “I can’t talk to everybody at the
same time”). “Once [he] got all the ID’s,” he began checking names with dispatch for
warrants via the radio on his person, starting with the driver but also providing the other
names as well. It took one or two minutes to confirm the driver’s information, and a total
of two to four minutes to obtain the remaining results. Defendant had given a false first
name (Ozell). The officer asserted that the absence of any match in the records for the
name defendant had given made the officer believe it was a false name, based on his
“training and experience” and the fact that defendant had offered alternative spellings of
his supposed given name.

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        The officer asked the driver to get out of the car. This was about two to four
minutes after the start of the traffic stop. He also obtained the driver’s permission to
conduct a search of the car, even though he had sufficient information for issuing a traffic
citation to him at this point. (The officer did not testify about finding anything in the
course of the subsequent search.)

         The officer asked defendant to step out of the car about a minute after the driver.
Defendant again did not respond when the officer asked if he was on probation. The
officer told him he was going to conduct a patdown search. The officer testified that he
was concerned about defendant wearing loose clothing; based on his experience “people
are known to carry weapons in the waistband.”1 When the officer started to search
defendant’s person, defendant admitted that he had a steak knife in his back pocket
(which his shirttail and coat had concealed) and (after the officer found an ankle monitor)
that he was on probation. Defendant continued to maintain, however, that his given name
was Ozell; the officer eventually cited him for possession of the knife under that name
when the defendant’s booking fingerprints also did not return a match.

        The actual Ozell Murray came to the police station in June 2013 to identify
himself and clear his name. He explained that his brother (defendant) had provided
Ozell’s name two or three times to police. Ozell Murray gave the officer defendant’s real
name.

        The trial court determined that the permissible identification query of a passenger
led to a circumstance reasonably raising the officer’s suspicions about defendant (the
absence of any records match) that had in essence occurred simultaneously with the
completion of the process for citing the driver: “After . . . receiv[ing] information that



1 The officer acknowledged that he had not seen anything otherwise suspicious in the
course of the traffic stop.


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the defendant had given a false identity at or about the same time he received information
regarding the driver, [the officer] had a reasonable suspicion sufficient to continue his
investigation of the defendant” (italics added). The court denied the motion on that basis,
without considering the argument regarding defendant’s probationary status that the
prosecution had raised in its written opposition (as an alternate justification for the
patdown search).

                                       DISCUSSION

       A police officer with a reasonable articulable basis for suspecting a violation of
the Vehicle Code or criminal activity may properly detain a vehicle in a traffic stop; for
purposes of constitutional analysis, all of its occupants have standing to challenge the
detention as a “seizure.” (Hernandez, supra, 45 Cal.4th at p. 299; Brendlin v. California
(2007) 551 U.S. 249, 251 [168 L.Ed.2d 132, 136].) In the course of a traffic stop, an
officer is entitled to ask all of those detained for identification; running a check for any
outstanding warrants connected with these identifications or questioning the detainees
about possible probationary status is permissible as long as it does not prolong the
detention beyond the time ordinarily necessary to investigate its basis and respond with
appropriate action. (People v. Vibanco (2007) 151 Cal.App.4th 1, 13, citing Muehler v.
Mena (2005) 544 U.S. 93, 100-101 [161 L.Ed.2d 299, 308-309]; People v. Brown (1998)
62 Cal.App.4th 493, 498-500.)

       Defendant does not dispute the legitimate basis for the traffic stop. In his version
of the facts, however, he contends the officer did not develop his suspicion that defendant
was falsely identifying himself until after the officer had prolonged the traffic stop
beyond the scope of performing the duties connected with the circumstances that had
justified it, in violation of the holdings in People v. McGaughran (1979) 25 Cal.3d 577,
584, 586, 587 and Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358-359.



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However, defendant’s argument founders on two obstacles, one that is legal and one that
is based on our standard of review of the facts.

       We note that People v. Durant (2012) 205 Cal.App.4th 57 (a case not cited by
either party) has held that an officer’s mistake about the legitimacy of the basis for a
traffic stop does not require exclusion of evidence obtained as a result, because the illegal
“taint” of the detention was dissipated in light of the defendant’s subsequently discovered
probationary status. (Id. at p. 66.) (People v. Bates (2013) 222 Cal.App.4th 60 declined
to follow this holding in the circumstance where an officer did not have any reasonable
basis for the traffic stop other than a “mere hunch” (id. at pp. 67, 70-71), which is not the
state of the present record.) Arguably, this rule could apply to an illegally prolonged
detention as well. But we do not need to resolve this legal question.

       Defendant’s efforts to parse the facts into discrete components, in which the
processing of the driver’s traffic violation ended before the results of the records check
for defendant’s false name, falls afoul of the trial court’s resolution of the officer’s
explanation of his actions. Its characterization of the two processes as being essentially
simultaneous has support in the record, and we (and defendant) must consequently defer
to it. As a result, the officer did not prolong the authorized detention in any appreciable
amount before developing independent reasonable suspicions about defendant’s criminal
activity. We therefore reject this fork of his argument.

       As for defendant’s challenge to the legality of the patdown search, we quote from
a recent decision of this court (on which the prosecution relied in the trial court, but
which neither party cited on appeal), which is applicable in the present case as well.
“In their original briefing on appeal, the parties argued only whether the search was valid
. . . . Neither party considered the estoppel theory raised by the [prosecution in
opposition to] defendant’s . . . motion. We requested supplemental briefing on that
issue.” (People v. Watkins (2009) 170 Cal.App.4th 1403, 1408.) That defendant, as in


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the present case, supplied his brother’s name during a traffic stop, which did not reveal
any probationary status during the records check (although that defendant had mentioned
being on probation to the officer). Based on that defendant’s statement but without
knowledge of the actual search condition of his probation, the officer searched the car,
finding controlled substances. (Id. at p. 1406.) We concluded in Watkins that the action
of affirmatively preventing the officer from learning about the actual probationary status
of that defendant estopped him from arguing that the officer illegally conducted a
probation search without preexisting knowledge of the actual search condition. (Id. at
pp. 1409-1410.)

       The People agree that estoppel applies in the present case to uphold the patdown
search. Defendant argues the estoppel argument is “waived” (“forfeited” is the correct
term) because the prosecutor did not urge it at the hearing. This is an insufficient basis
on which to argue forfeiture. The prosecutor apparently chose to focus on the merits of
the validity of the patdown search at the hearing (perhaps feeling it to be the stronger
argument), but never explicitly abjured the fallback estoppel argument, which was a
question of law on undisputed facts that did not require further litigation. It was a theory
of which defendant had notice, and to which apparently he chose not to respond. None of
the purposes of the forfeiture rule are served in applying it to the present instance, which
preclude raising an issue in the first instance on appeal because it is unfair to the trial
court and the opponent, contrary to judicial efficiency, and also encourages the practice
of embedding reversible error. (People v. Crockett (2015) 234 Cal.App.4th 642, 651.)
Defendant also asserts the present case is distinguishable, but his focus is on the lack of
basis for the present detention, which does not have any bearing on applying estoppel to a
patdown search after upholding the initial detention. We therefore reject his challenge to
the patdown search.




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                                 DISPOSITION

     The judgment is affirmed.




                                               BUTZ   , J.



We concur:



     BLEASE             , Acting P. J.



     NICHOLSON          , J.




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