Filed 1/16/14 P. .v Chan CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048071

         v.                                                            (Super. Ct. No. 12WF2430)

PANHA RITH CHAN,                                                       ORDER MODIFYING OPINION
                                                                       AND DENYING PETITION FOR
     Defendant and Appellant.                                          REHEARING; NO CHANGE IN
                                                                      JUDGMENT


                   The opinion, filed December 30, 2013, is hereby modified in the following
particulars:
                   1. On page 8, before the paragraph that begins “Although, as the trial court
observed,” add the following paragraph:
                   “Even assuming Dalton’s conduct in patting down Chan amounted to
deliberate police misconduct, Herring would not compel exclusion of the cocaine that
was found in Chan’s trunk. Herring speaks to the remedy available when an unlawful
police action leads to the discovery of incriminating evidence. (See also Brown v. Illinois
(1975) 422 U.S. 590 [assessing admissibility of incriminating statements that would not
have been obtained but for the defendant’s illegal arrest].) However, in our case, the
unlawful police action (Chan’s patdown) did not yield any evidence or have any effect on
its discovery. In fact, nothing incriminating was seen or seized during the stop until after
the officers opened Chan’s trunk. And by that time, the drug-sniffing dog had already
alerted on Chan’s car, giving the officers probable cause to search the vehicle. (Illinois v.
Caballes, supra, 543 U.S. 405.)”
              This modification does not affect the judgment.
              The petition for rehearing is DENIED.




                                                  BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




                                              2
Filed 12/30/13 (unmodified version)




                      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
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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048071

         v.                                                            (Super. Ct. No. 12WF2430)

PANHA RITH CHAN,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
                   Jill Kent, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
                  Appellant Panha Chan was convicted of transporting cocaine that was
found in the trunk of his car during a traffic stop. He contends the cocaine was
unlawfully seized because the stop was unduly prolonged, but we disagree and affirm the
judgment.
                                                      FACTS
                  On the night of September 8, 2012, Garden Grove Police Officer Brian
Dalton noticed a car with illegally tinted windows heading north on Brookhurst Street.
After following the car for a few moments, he activated his overhead lights, and the car
pulled over to the side of the road. Dalton then pulled up behind the vehicle in his squad
car. According to recording equipment in his car, the stop occurred at 6:53 p.m.1
                  While his partner approached the passenger side of the car, Dalton
contacted its lone occupant, Chan. Dalton told Chan why he stopped him and asked for
his driver’s license, registration and proof of insurance. Chan seemed nervous. Rather
than making eye contact with Dalton, he looked straight ahead, swallowing and stuttering
at times. However, he provided all of the items Dalton requested.
                  Dalton took Chan’s paperwork back to his car to “check his license status”
and “run him for wants and warrants.” Not finding any wants or warrants, he then
walked back to Chan’s car and contacted him again. At this time, Dalton did not have
Chan’s paperwork with him, nor did he write him a ticket. Instead, he twice asked Chan
if there was anything illegal in his car. Both times Chan said no. He also asked Chan if
he could search his car, and Chan said he would like to have his lawyer present.
                  At that point, Dalton had Chan step out of his car and patted him down for
weapons. Not finding any, he sat Chan down on the curb. This was about five minutes
into the stop.


         1
                   A video camera in Dalton’s squad car was directed toward Chan’s car throughout the entire course
of the stop. Like the trial court below, we have reviewed the footage it captured to get a better understanding of the
facts.


                                                          4
              By that time, a K-9 patrol officer had arrived at the scene with a drug-
sniffing dog. After speaking with Dalton briefly, the officer walked the dog around
Chan’s car. When they got to the trunk, the dog alerted for the presence of narcotics.
The officers then began searching Chan’s car. They didn’t find anything in the passenger
compartment, but upon opening the trunk, they discovered a nylon bag that contained two
packages of cocaine.
              Chan was charged with transporting and possessing cocaine for sale. In
moving to suppress the cocaine, he argued Dalton lacked reasonable suspicion to pat him
down, and because of the illegal patdown, the stop was unduly prolonged, rendering the
subsequent search of his trunk unlawful. The trial court agreed the patdown was
unjustified, for lack of evidence Chan was armed. It also questioned Dalton’s motivation
for the stop, saying “[I]t’s pretty clear the officer had some suspicion about [Chan] and
his activities prior to or at the time of the stop considering how quickly the K-9 unit
arrived[.]” However, given that only about seven minutes elapsed from the time Chan
was pulled over until the dog alerted on his trunk, the court determined the stop was not
unreasonably prolonged. It therefore denied Chan’s motion. Chan then pled guilty and
was sentenced to six years in prison.
                                        DISCUSSION
              Chan contends the trial court erred in denying his motion to suppress, but as
we now explain, the court’s decision was correct.
              First, there is no dispute Dalton had the right to pull Chan over for having
illegally tinted windows. Although the trial court surmised Dalton suspected Chan of
criminal behavior unrelated to that violation, and Chan asserts the stop was merely a
pretext for Dalton to conduct a “fishing expedition” for incriminating evidence, police
conduct is judged by an objective standard of reasonableness. (Whren v. United States
(1996) 517 U.S. 806.) Because Dalton had an objectively reasonable basis to believe a
traffic violation had occurred, the stop was lawful under the Fourth Amendment,

                                              5
regardless of his motivation for pulling Chan over. (Id. at p. 813 [“Subjective intentions
play no role in ordinary, probable-cause Fourth Amendment analysis.”].)
              In addition, as Chan concedes, Dalton was justified in obtaining his driver’s
license, registration and proof of insurance. Indeed, examining a driver’s paperwork,
explaining the basis for the stop, and listening to any explanation the driver may offer are
all things an officer is expected to do during a traffic stop. (People v. McGaughran
(1979) 25 Cal.3d 577, 584 (McGaughran).) These actions are considered lawful because
they are part and parcel of an officer’s statutory duties in conducting a traffic stop, which
are to issue the driver a citation and release him when he signs a promise to return.
(Ibid.) Of course, in lieu of writing a ticket, the officer also has the discretion to send the
driver on his way with a warning. (Ibid.) However, in either case, an officer may detain
the driver only “for the period of time necessary to discharge the duties that he incurs by
virtue of the traffic stop.” (Ibid.; accord Illinois v. Caballes (2005) 543 U.S. 405, 407 [a
traffic stop “that is justified solely by the interest in issuing a warning ticket to the driver
can become unlawful if it is prolonged beyond the time reasonably required to complete
that mission.”].)
              Conducting a warrant check, patting down the driver and bringing in a
drug-sniffing dog are not among the duties that an officer naturally incurs by virtue of an
ordinary traffic stop. (See McGaughran, supra, 25 Cal.3d at p. 584.) However, if these
actions can be performed within the time it would have taken the officer to issue the
driver a ticket, there is no basis to suppress any evidence they yield. The key element is
timing. In fact, it’s not so much what the officer did during the course of a traffic stop as
whether what he did “prolong[ed] the stop beyond the time it would otherwise [have]
take[n].” (People v. Bell (1996) 43 Cal.App.4th 754, 767.)
              Therefore, “If a warrant check can be completed within [the time it would
have taken to issue the driver a ticket] no reason appears to hold it improper: because it
would not add to the delay already lawfully experienced by the offender as a result of his

                                                6
violation, it would not represent any further intrusion on his rights.” (McGaughran,
supra, 25 Cal.3d at p. 584.) The same rule applies to dog sniffs and patdowns. (Illinois
v. Caballes, supra, 543 U.S. at p. 407; United States v. Johnson (7th Cir. 2009) 331
Fed.Appx. 408; see also People v. Bell, supra, 43 Cal.App.4th at p. 767 [officer’s actions
in asking driver questions unrelated to his traffic violation and seeking his consent to
search did not render traffic stop unlawful because they “did not add to the delay
otherwise resulting from the . . . stop.”].)
              In this case, it took Dalton only a couple of minutes to run a computer
check on Chan. Thus, Chan does not complain about that aspect of the stop. However,
he argues that once the check was complete, Dalton should have issued him a ticket and
sent him on his way, instead of patting him down and bringing in the drug-sniffing dog.
Chan contends these actions unduly prolonged the stop because they were “unnecessary
to discharge Dalton’s duties to conduct the traffic stop[.]”
              The flaw in this argument is that it fails to take into account the actual facts
of this particular incident. Conducting a patdown and a dog sniff were clearly not related
to the underlying purpose of the stop, which was to cite Chan for his tinted windows. But
from the time Chan pulled over, to the time the dog alerted on his trunk, only about seven
minutes elapsed. And Dalton spent the first two minutes of the stop speaking to Chan
about the stop and obtaining his paperwork, which were unquestionably legitimate
activities. That means, at most, the stop was extended about five minutes by virtue of the
warrant check, the patdown, and the dog sniff.
              In the context of a traffic stop, five minutes is a very short time. Most of us
would consider a five-minute traffic citation blessedly short. Although no evidence was
presented on the issue below, it appears it would have taken Dalton at least that long to
issue Chan a traffic ticket, had he decided to do so. Chan asserts this consideration is
wholly irrelevant, but as we have explained, it is actually the pivotal issue in determining
whether a valid traffic stop has been transformed into an unreasonably prolonged

                                               7
detention. (See generally Note, The Legality of Prolonged Traffic Stops after Herring:
Brief Delays as Isolated Negligence (2009) 76 U.Chi.L.Rev. 1781, 1787 [in assessing the
legality of police detentions, “current Fourth Amendment analysis turns on whether the
length of detention was unreasonably extended.”].)
              And while the police are required to act diligently in pursuing their
suspicions during the course of a detention (United States v. Sharpe (1985) 470 U.S. 675,
685), they are “not required to move at top speed when executing a lawful traffic stop.”
(United States v. Turvin (9th Cir. 2008) 517 F.3d 1097, 1102 [“fourteen minutes is not
unreasonably long for a traffic stop.”]; United States v. Mendez (9th Cir. 2007) 476 F.3d
1077, 1079-1080 [eight-minute traffic stop was not unnecessarily prolonged]; United
States v. Williams (8th Cir. 2005) 429 F.3d 767, 772 [five to six minute delay occasioned
by use of drug-sniffing dog did not render traffic stop unduly prolonged].) There is
nothing wrong with an officer “‘paus[ing] for a moment to take a breath, to think about
what they have seen and heard, and to ask a question or so.’” (United States v. Turvin,
supra, 517 F.3d at p. 1102, quoting United States v. Hernandez (11th Cir. 2005) 418 F.3d
1206, 1212, fn. 7.)
              Under the circumstances presented in this case, we cannot say Dalton’s
actions in patting Chan down and bringing in the drug-sniffing dog appreciably extended
the stop beyond the time it would have taken to issue Chan a traffic ticket. Therefore, the
stop was not unduly prolonged in violation of Chan’s Fourth Amendment rights.
              Our conclusion in that regard should not be taken as an endorsement of
Dalton’s actions. Although Chan appeared nervous, that did not give Dalton the right to
pat him down. Dalton did have the authority to order Chan out of his car. (Pennsylvania
v. Mimms (1977) 434 U.S. 106, 111, fn. 6.) But “[t]o justify a patdown of [a] driver . . .
the police must harbor reasonable suspicion that the person subjected to the frisk is armed
and dangerous.” (Arizona v. Johnson (2009) 555 U.S. 323, 327.) As the trial court
found, and the Attorney General impliedly concedes, there was no basis for believing

                                             8
Chan had any kind of weapon. Other than refusing to give his consent to search, which
he had every right to do, he was fully cooperative during the stop. Since there was no
reason to believe he was armed and dangerous, there was no basis to delay the stop for a
patdown. (People v. Dickey (1994) 21 Cal.App.4th 952, 956.) Still, as we have
explained, the patdown did not extend the stop beyond the time it would have taken
Dalton to issue Chan a traffic ticket. So, the patdown is not determinative of the outcome
in this case.
                In arguing otherwise, Chan relies on Illinois v. Caballes, supra, 543 U.S.
405, which was also a dog sniff case. As here, the police dog in Caballes alerted on the
suspect’s vehicle during the course of a valid traffic stop. (Id. at 406.) “Based on the
alert, the officers searched the trunk, found marijuana, and arrested [the driver]. The
entire incident lasted less than 10 minutes.” (Ibid.) In upholding the search, the Supreme
Court rejected the claim that the dog sniff transformed the stop into an illegal detention.
(Id. at pp. 408-410.) Given that the dog sniff occurred while the driver was being
lawfully detained and it did not actually reveal anything incriminating, the court found no
Fourth Amendment violation in that case. (Ibid.)
                Except for the fact that Chan was patted down, the stop in this case was not
materially different from the one that occurred in Caballes. In our view, the critical
feature of both cases is that the police seized the drugs in a timely manner during the
course of a lawful traffic stop. In seizing the drugs, the police did not unduly prolong the
driver’s detention by extending the stop beyond the time reasonably required to complete
the duties they incurred by virtue of the stop. Therefore the seizures were not illegal.
(Illinois v. Caballes, supra, 543 U.S. at p. 407; accord, McGaughran, supra, 25 Cal.3d at
p. 584.)
                Arguing the patdown amounted to flagrant police misconduct, Chan also
draws our attention to Herring v. United States (2009) 555 U.S. 135. In that case, the
police seized contraband from the defendant incident to an unlawful arrest. However,

                                              9
because the arrest was due to simple negligence in the form of a bookkeeping error, the
Supreme Court determined the rationale for applying the exclusionary rule — to deter
deliberate police misconduct — did not apply. (Id. at pp. 143-148.) Therefore, there was
no need to suppress the fruits of the search. (Ibid.)
              Although, as the trial court observed, the unwarranted patdown “looks
bad,” and has certainly provided plenty of grist for Chan’s arguments on appeal, it did not
change the material dynamics of the stop. At bottom, we are convinced that neither the
patdown nor the dog sniff had the effect of unreasonably prolonging the stop. Therefore,
the cocaine in Chan’s trunk was lawfully seized, and his motion to suppress was rightly
denied. (Illinois v. Caballes, supra, 543 U.S. 405.); United States v. Johnson, supra, 331
Fed.Appx. at p. 410; McGaughran, supra, 25 Cal.3d at p. 584.) We discern no basis for
disturbing that ruling on appeal.
                                      DISPOSITION
              The judgment is affirmed.




                                                  BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




                                             10
