Filed 8/24/15 P. v. Cruz CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061411

v.                                                                       (Super.Ct.No. FVA1300345)

ELISANDRO PEREZ CRUZ,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Shahla S. Sabet,

Judge. Affirmed.

         Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Elisandro Perez Cruz was charged and convicted by a jury with one

count of felony possession of a controlled substance, in violation of Health and Safety

Code section 11350, subdivision (a). He was sentenced to three years probation and

appealed. On appeal, defendant argues (1) the officer’s initial stop of the vehicle was

unreasonable, (2) even if the initial stop and vehicle search were justified, the officer’s

prolonged detention of him and his person were not, and (3) he was prejudiced by Officer

Gonzalez’s violation of his Fourth Amendment rights.

                                          BACKGROUND

       On November 10, 2012, Officer Crystal Gonzalez was on patrol in the area of

Frisbee Park in Rialto. While entering the parking lot, she passed closely by a van that

was exiting. Driving around five miles per hour, with both her windows and the van’s

windows rolled down, she noticed the strong smell of marijuana coming from the van.

After pulling the van over, she asked the driver about the smell, and he replied that they

had “just finished smoking a blunt.” She obtained consent to search the vehicle for

illegal contraband and asked the driver and his three passengers to sit on the curb while

she conducted her search. At this point, nobody was free to leave. The vehicle search

lasted “five to ten minutes.” After finding no contraband or illegal substances in the

vehicle, Officer Gonzales then gained permission to search the defendant. Before

beginning her search, defendant informed her that he had cocaine in his front pocket. She

then recovered a small baggie of a white substance, and arrested defendant for possession




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of cocaine. Officer Gonzalez’s field test and the crime lab results of the testing of the

powder recovered from defendant were positive for cocaine.

       Defendant was charged with possession of a controlled substance, in violation of

Health and Safety Code, section 11350, subdivision (a). On June 18, 2014, a hearing was

held on defense’s Penal Code section 1538.5 motion to suppress evidence seized during

defendant’s arrest. The judge heard the motion despite its untimeliness and denied it on

the merits. Jury trial then commenced on the same date. After a guilty verdict from the

jury, defendant was sentenced to three years probation. He appeals.

                                           DISCUSSION

       Defendant contends that denial of his motion to suppress under section 1538.5 was

improper because the initial stop was unreasonable and defendant was unlawfully

detained. We disagree.

       The Fourth Amendment protects individuals against unreasonable searches and

seizures. A defendant may move to suppress evidence under Penal Code section 1538.5

on grounds that the search or seizure was unreasonable. (Pen. Code § 1538.5, subd.

(a)(1)(A).) To determine whether a denial of the motion was proper, we examine the

reasonableness of the initial stop, the detention of the passengers, and defendant’s

consent to be searched.

       A) Standard of Review

       At a hearing on a motion to suppress evidence, the trial court is vested with the

power to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the



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evidence, and draw factual findings. (People v. Sun (2007) 148 Cal.App.4th 374, 381

quoting People v. Lawler (1973) 9 Cal.3d 156, 160.) On appeal, all presumptions favor

the proper exercise of that power, and this court upholds the trial court’s express and

implied factual findings if they are supported by substantial evidence. (People v. Leyba

(1981) 29 Cal.3d 591, 596-597 (Leyba).) When the facts bearing on the legality of a

detention are undisputed, there is no factual issue entitled to a substantial evidence

standard of review. (People v. Aldridge (1984) 35 Cal.3d 473, 477.) Instead, we are

confronted with a question of law as to whether the search or seizure was reasonable

under the Fourth Amendment, under an independent standard of review. (Leyba, supra,

29 Cal.3d at p. 597; People v. Turner (2013) 219 Cal.App.4th 151, 159.)

       B) The Validity of the Traffic Stop

       Circumstances short of probable cause to arrest may justify a police officer

stopping and briefly detaining for questioning or other limited manifestations. (Terry v.

Ohio (1968) 392 U.S. 1, 22 (Terry).) In order to justify an investigative stop an officer

must be able to point to “specific and articulable facts” leading him or her to believe that

either (1) some activity relating to a crime is occurring, and (2) the person he or she

intends to stop is involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.)

Additionally, it must be objectively reasonable for the officer to entertain such a

suspicion. (Ibid.) 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. Suff (2014) 58 Cal.4th 1013, 1054.)



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       A police officer has probable cause to search a vehicle after smelling burnt

marijuana. (People v. Waxler (2014) 224 Cal.App.4th 712, 721 (Waxler); see also,

People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059 (Strasburg).) In Waxler, the

court reasoned that the smell of marijuana would reasonably lead to the suspicion that the

vehicle contains contraband, and therefore a warrantless search is justifiable. (Waxler,

supra, at pp. 719-720; Strasburg, supra, at p. 1059.) If the smell of marijuana provides

probable cause to search, at minimum it constitutes reasonable suspicion to conduct an

investigative stop.

       Here, the officer, who was in her patrol car with the driver’s side window open,

smelled marijuana emanating from the vehicle in which defendant was a passenger.

Notwithstanding the fact that possession of small quantities of marijuana is a minor

offense, nonmedical marijuana is still contraband, and may provide probable cause to

search a vehicle. (Waxler, supra, 224 Cal.App.4th at pp. 715-716.) Thus, the initial stop

was valid.

       Defendant argues that Waxler and Strasburg do not control our decision because

in those cases the officers stopped the vehicles for other reasons, and the smell of

marijuana was detected when the drivers were contacted, giving the officers probable

cause to conduct a search. But here, stopping a vehicle based on the smell of marijuana

can be analogized to the plain view doctrine. It is well established that observing

evidence in “plain view from a position where an officer has a right to be is not

constitutionally prohibited.” (People v. Webster (1991) 54 Cal.3d 411, 431.) If an object



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is in the plain view where an officer has a right to be, there can be no “search in the

constitutional sense.” (People v. Camacho (2000) 23 Cal.4th 824, 831-832.) Here, the

officer was in a position where she had a right to be when she experienced the “plain

smell” of marijuana in the open air between the two vehicles as they passed. Because

there was no infringement on defendant’s liberty interests at the point where the officer

came into possession of facts justifying the stop, the traffic stop and detention of the

driver were lawful.

         C) Detention of Passengers

         Courts have found that during a traffic stop, the police officer detains “everyone in

the vehicle, the driver and his passengers.” (Arizona v. Johnson (2009) 555 U.S. 323,

326; accord Brendlin v. California (2007) 551 U.S. 249, 257.) The court in Brendlin

explained that it is reasonable for a passenger to understand that when a police officer has

stopped a vehicle, he is exercising control over it to the point that no one is free to leave.

The California Supreme Court also stated that an officer may order passengers out of the

vehicle without violating the Fourth Amendment. (People v. Hoyos (2007) 41 Cal.4th

872, 892 [overruled on a different point in People v. Black (2014) 58 Cal.4th 912, 919-

920].)

         An officer’s authority to order passengers to exit a vehicle during a traffic stop

will be upheld so long as the initial stop was lawful. (People v. Vibanco (2007) 151

Cal.App.4th 1, 10 (Vibanco), quoting People v. Saunders (2006) 38 Cal.4th 1129, 1134.)

Thereafter, the officer was authorized to ask defendant for identification, or to perform



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other investigative activities beyond the original purpose of the traffic stop, so long as

they do not prolong the stop beyond the time it would otherwise take. (People v.

Gallardo (2005) 130 Cal.App.4th 234, 238.)

       Once a vehicle has been stopped, it is reasonable to request such things as

identification or other information from passengers as long as it is within the scope of the

initial stop. (See People v. Grant (1990) 217 Cal.App.3d 1451, 1461.) The officer may

also talk to anyone he or she encounters while regularly performing his or her duties.

(Vibanco, supra, 151 Cal.App.4th at p. 13, citing People v. Castaneda (1995) 35

Cal.App.4th 1222, 1227.) When drugs are involved, it may also be reasonable for an

officer to conduct a “limited pat down” of a passenger based on officer safety. (People v.

Collier (2008) 166 Cal.App.4th 1374, 1378.)

       However, even where “legitimate law enforcement interests justify” a search, it

must be “limited in scope” and last “no longer than necessary to effectuate the purpose of

the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500.) A search must be “strictly tied to

and justified by” the initial stop. (Ibid,. quoting Terry, supra, 392 U.S. at p. 19.)

Defendant argues that the detention was unduly prolonged at the time the officer

requested consent to pat him down, thereby vitiating his consent. We acknowledge that

an investigating stop exceeds constitutional bounds when extended beyond what is

reasonably necessary under the circumstances that made its initiation permissible.

(People v. McGaughran (1979) 25 Cal.3d 577, 586.) A consent to search obtained during

an unduly prolonged detention is vitiated. (People v. Grace (1973) 32 Cal.App.3d 447,



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454.) However, there is no set time limit for a permissible investigative stop and facts

coming to light during detention may provide justification to prolong it. (People v.

Russell (2000) 81 Cal.App.4th 96, 102.)

       Here, Gonzalez’s search of the vehicle lasted only five to ten minutes and was

only conducted for the purpose of searching for contraband after the driver admitted to

marijuana use. It was not unduly prolonged so defendant’s consent was valid.

       D) Pat down search of Defendant

       After determining that the stop and initial detention is valid, the next step in the

Fourth Amendment analysis is to determine the validity of the pat down search of

defendant. In the case at bar, defendant consented to his search. In general, if a

defendant freely consents to a search his constitutional rights are not violated. (People v.

Michael (1955) 45 Cal.2d 751.) The prosecutor has the burden of proving that consent

was “freely and voluntarily given” and must show more than an “acquiescence . . . to

lawful authority.” (Bumper v. North Carolina (1968) 391 U.S. 543, 548-549.) The

voluntariness of defendant’s consent is based on the totality of facts. (Ohio v. Robinette

(1996) 519 U.S. 33.) For example, consent is not voluntary if made under compulsion.

(People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033-1034.) Also, if the search was part

of an illegal detention or without probable cause, the consent becomes ineffective.

(People v. Leib (1976) 16 Cal.3d 869, 877; People v. Lawler (1973) 9 Cal.3d 156.)

However, a defendant need not be aware of his right to refuse consent to a search in order

for his consent to be voluntary. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 234.)



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       Here, there is nothing in the record to suggest that defendant’s consent to be

searched was not valid. He was not coerced, his detention was legal, and he was not

merely submitting to authority. Furthermore, defendant not only gave permission to be

searched, but freely and voluntarily revealed that he had contraband on his person.

Therefore, defendant’s search was valid.

       Based on the above analysis, there is nothing to indicate that the initial stop was

unreasonable or that defendant was unlawfully detained and searched. Firstly, the initial

stop was reasonable based upon a reasonable suspicion of the presence of drugs in the

van. Secondly, the detention and search of the defendant was justified because he was a

passenger in the vehicle that was stopped. Thirdly, there is nothing in the record to

suggest that defendant’s consent to be searched was not valid.

                                           DISPOSITION

       For reasons stated above, the vehicle stop, defendant’s detention, and defendant’s

search were all valid. Therefore, his section 1538.5 motion to suppress was properly

denied. We affirm the trial court’s decision.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 RAMIREZ
                                                                                        P. J.


We concur:

HOLLENHORST
                          J.

CODRINGTON
                          J.


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