Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION ON REHEARING
After his motion to suppress was denied, defendant Ronald Dean Glaser pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378; undesignated statutory references are to the Health and Safety Code). Sentenced to 10 years in state prison, he now appeals, contending the trial court erred in denying the suppression motion, sentencing defendant to the upper term, and refusing to strike any of the alleged enhancements. We shall conclude the denial of the motion to suppress, on the ground defendant consented to the search of a safe in the trunk of his car, is erroneous. We shall reverse the judgment and remand for the trial court to decide whether the search may be justified by probable cause apart from defendant's consent.
FACTUAL AND PROCEDURAL BACKGROUND1
On October 28, 2005, while on duty, City of Colusa Police Officer Terry Baker spotted a black Honda Civic parked on the side of the road near a residence that Officer Baker testified is known within the county to be a "drug residence."2 The Civic was facing oncoming traffic with its headlights on. Officer Baker pulled over and stopped his patrol car about a quarter of a mile behind the Civic to "observe." Shortly thereafter, the driver of the Civic (later identified as defendant) drove away.
Officer Baker followed defendant and realized he could not read the Civic's license plate from 50 feet, as required by the Vehicle Code. (Veh. Code, § 24601.)3 In fact, there was an acrylic cover on the license plate that "obscured the light," rendering the plate "illegible" until Officer Baker was only one or two car lengths behind defendant.
Once Officer Baker was able to read the license plate, he called the dispatcher, gave her the license plate number, and told her he was making a traffic stop. Officer Baker pulled defendant over and approached the car, illuminating the car's interior with his flashlight. Officer Baker told defendant that he pulled him over because of a defective license plate light. Officer Baker asked to see defendant's identification, which defendant produced. He then asked if defendant was on probation or parole, and defendant said he was not.
While talking to defendant, Officer Baker observed that defendant seemed nervous. Defendant would not make eye contact with Officer Baker, and defendant's pupils were constricted even though it was dark outside. Based on his education and experience, Officer Baker suspected defendant might be under the influence of an illegal drug.4 He asked defendant if he was on any illegal drugs at that time. Defendant said he was not currently using, but he had been "arrested for drugs years ago."
Continuing with his investigation, Officer Baker asked defendant if he could search him. Defendant replied: "Yes, you can."5 Thus, with defendant's consent, Officer Baker patted down defendant.
Soon, additional police officers arrived and Officer Baker asked defendant for permission to search the car. Defendant consented to this search as well.6 While Officer Baker was searching the passenger compartment of the car, the other officers conducted a field sobriety test on defendant.7
Finding nothing in the passenger compartment, Officer Baker removed the keys from the ignition and opened the trunk. Inside the trunk, Officer Baker saw "a Brinks safe." He took one of the keys from the same key ring he had removed from the ignition and put it into the safe's keyhole. Defendant immediately told Officer Baker to "stop the search." Officer Baker stopped searching but his fellow officer, Todd James, who has prior experience with detecting methamphetamine, told Officer Baker that he smelled "a chemical odor that was consistent with methamphetamine" coming from the right side of the trunk, near the safe. Officer Baker, however, testified that he did not smell anything. Officer Baker proceeded to open the safe without defendant's consent.
Inside the safe, Officer Baker found "two hypodermic syringes, a glass smoking pipe commonly used for smoking methamphetamine, [] eight plastic wraps containing a crystal substance [he] believed to be methamphetamine,"8 and a digital gram scale. Defendant was immediately arrested for possession of suspected methamphetamine and drug paraphernalia.
As Officer Baker was putting defendant in the back of the patrol car, defendant "stated that he wanted to assist TAGMET9 by purchasing drugs off of people . . . ." After discussing it with his fellow officers and his sergeant, Officer Baker released defendant with charges pending. He never wrote defendant a traffic citation.
Prior to trial, defendant filed a Penal Code section 1538.5 motion to suppress the evidence found as a result of the search on October 28, 2005. That motion was initially heard in conjunction with the preliminary hearing. Defendant's motion was denied. Later, defendant pled not guilty and renewed his motion to suppress in superior court pursuant to Penal Code section 1538.5, subdivision (i). Defendant's renewed motion to suppress was heard by the same judge who served as the magistrate judge at the preliminary hearing.
At the hearing on his renewed motion to suppress, defendant argued: "The withdrawal of the consent about the search of the car at the point just prior to the safe being opened was never addressed by this Court and there was no finding." The court clarified its prior ruling: "[M]y ruling was not very artful, but I found that there was consent and I found that that consent was never -- based upon [defendant's] own testimony, really, was never effectively withdrawn."
Defendant subsequently pled no contest to possession of methamphetamine for the purpose of sale, along with the enhancements for his prior convictions (§ 11370.2, subd. (c)) and his prior prison terms (Pen. Code, § 667.5) in exchange for a 10-year "cap" on his prison sentence. Consistent with his plea, the trial court sentenced defendant to an aggregate term of 10 years in state prison, comprised of the upper term of three years, an additional six years for his prior convictions, and another year for one of his prior prison terms. The court executed but stayed imposition of another three-year enhancement for defendant's prior convictions, and an additional two-year enhancement for defendant's prior prison terms.
On appeal, defendant contends the trial court erred in denying his motion to suppress. Defendant argues: (1) the initial detention was unlawful; (2) the detention was unduly prolonged; (3) his consent was tainted by the unlawful detention; (4) any consent he gave was later withdrawn; and (5) Officer Baker lacked probable cause to search the safe without defendant's consent. Defendant further argues the trial court abused its discretion by imposing the upper term for his conviction and not striking any of the enhancements.
In an opinion filed on November 28, 2007, we affirmed the trial court's judgment, finding the trial court could have denied defendant's motion to suppress by finding probable cause to search. (People v. Glaser (Nov. 28, 2007, C053974) [nonpub. opn.].) On December 12, 2007, defendant filed a petition for rehearing, arguing this court could not affirm the trial court's ruling on probable cause grounds because the trial court did not rule on that issue and the evidence does not establish probable cause as a matter of law.
We granted the petition and vacated the decision of November 28, 2007. Having considered the issue, we agree with defendant in part, reverse the trial court's judgment, and remand for further proceedings.
DISCUSSION
I. Motion to Suppress
"Under [Penal Code] section 1538.5, subdivision (i), where a defendant unsuccessfully moves to suppress at the preliminary hearing, the motion may be renewed at a special hearing in the superior court. At such a special hearing, and where, as here, the evidence is limited to the preliminary hearing transcript, the superior court is 'bound by the factual findings of the magistrate and, in effect, becomes a reviewing court drawing all inferences in favor of the magistrate's findings, where they are supported by substantial evidence.' [Citations.]
"On appeal, we do not review the findings of the superior court since it acts as a reviewing, and not a fact-finding, court. Rather, the 'appellate court disregards the findings of the trial court and reviews the determination of the magistrate who ruled on the motion to suppress.' [Citation.] In doing so, 'all presumptions are drawn in favor of the factual determinations of the [magistrate] and the appellate court must uphold the [magistrate's] expressed or implied findings if they are supported by substantial evidence.'" (People v. Snead (1991) 1 Cal.App.4th 380, 383-384, fn. omitted.)
"In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A. The Initial Detention Was Lawful
Defendant first contends the trial court erred in finding the initial detention was lawful. We disagree. An officer with a reasonable suspicion that a motorist has committed a traffic violation may stop the vehicle for investigation. (See People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148.) Here, Officer Baker testified that defendant's license plate was not sufficiently lit, making it "illegible" from 50 feet in violation of Vehicle Code section 24601. The trial court found Officer Baker's testimony credible. There is substantial evidence to support the trial court's ruling the initial stop was lawful.
B. The Detention Was Not "Unduly Prolonged"
As he did in his motion to suppress, defendant argues here the detention was unduly prolonged, and that Officer Baker should have released him as soon as Officer Baker saw defendant's license plate light was working. We reject this argument as well.
Pursuant to the plain language of the statute, defendant was in violation of the Vehicle Code when Officer Baker could not read defendant's license plate from 50 feet. (See Veh. Code, § 24601.) It is irrelevant that Officer Baker may have later discovered the license plate light was actually working.10
The law requires the license plate be "legible" from 50 feet and it was not.
United States v. McSwain (10th Cir. 1994) 29 F.3d 558, which defendant relies on, does not change this analysis or the conclusion. In McSwain, the officer stopped the defendant in order to "verify the validity" of the defendant's temporary registration. (Id. at p. 560.) Once the officer approached the defendant's vehicle he saw the registration was, in fact, valid. (Ibid.) At that moment, the Tenth Circuit ruled, the detention should have ended because "the purpose of the stop was satisfied." (Id. at p. 561.) Here, defendant remained in violation of the Vehicle Code regardless of whether and when the officer learned the license plate light was working because at 50 feet the plate was "illegible." Hence, the officer's further investigation was lawful and the detention was not unduly prolonged.
C. Probable Cause
Defendant further claims the warrantless search was unlawful because he withdrew his consent and the officers lacked probable cause to search the safe that was locked in his trunk. The parties agree the trial court erred in finding the warrantless search justified because defendant failed to effectively withdraw his consent to the search.11 The search was therefore unlawful unless there was probable cause, as argued by the prosecution below. (See United States v. Ross (1982) 456 U.S. 798, 804-809 [72 L.Ed.2d 572, 580-584]; Carroll v. United States (1925) 267 U.S. 132, 13-154 [69 L.Ed. 543, 551-552]; People v. Chavers (1983) 33 Cal.3d 462, 467-468.)
However, in ruling on the suppression of evidence motion, the trial judge did not reach the issue proffered by the prosecution that the search was justified by probable cause. (See People v. LeBlanc (1997) 60 Cal.App.4th 157, 167 (LeBlanc), citing Murray v. United States (1988) 487 U.S. 533, 537-539 [101 L.Ed.2d 472].) Thus, "although the basis relied upon by the trial judge did not permit the challenged evidence to be admitted consistent with the requirements of the Fourth Amendment, there was an additional ground which had not been evaluated which would have permitted the motion to suppress to be denied." (LeBlanc, supra, 60 Cal.App.4th at p. 168.)
Because the trial court failed to adjudicate the issue of probable cause, we cannot affirm the judgment unless we can say as a matter of law that there was probable cause to search the locked safe in defendant's trunk. (People v. Rios (1976) 16 Cal.3d 351, 356.) On the issue of probable cause, Officer James testified that he smelled an odor consistent with methamphetamine coming from defendant's trunk, near the safe. On the other hand, Officer Baker testified that he did not smell anything, even after he opened the safe.
Additionally, there was evidence that the methaphetamine found was in crystalline form and contained within "heat-sealed" plastic bindles, which arguably would prevent an odor from escaping. Given the conflicting evidence, we cannot determine in the first instance that there was an odor associated with methamphetamine coming from defendant's trunk, which may have given the officers probable cause to open the locked safe and search for methamphetamine as a matter of law. (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059, citing People v. Dey (2000) 84 Cal.App.4th 1318, 1320-1322 [finding probable cause to search defendant's car for marijuana after smelling the odor of marijuana emanating from the car].)
Accordingly, "[we will] leave these issues in the good hands of the experienced trial judge. We remand to allow the trial judge to resolve the alternative issue[]." (LeBlanc, supra, 60 Cal.App.4th at p. 168, citing People v. Brooks (1980) 26 Cal.3d 471, 483.) If on remand the trial judge determines that any of the challenged evidence must be suppressed, defendant shall be given the option of setting aside his plea and admission and proceeding to trial with all of the prior charges reinstated. (LeBlanc, supra, 60 Cal.App.4th at p. 169-170, citing People v. Hill (1974) 12 Cal.3d 731, 768-770.)
In light of the fact that we will order defendant to be resentenced if the motion to suppress is denied, we decline to address defendant's sentencing issues.
DISPOSITION
The judgment is reversed and the cause is remanded for further proceedings, at which the trial court is directed to make a determination with respect to whether there was probable cause to search the safe in the absence of defendant's consent. In the event the trial court grants the motion to suppress, defendant shall be allowed to withdraw his no contest plea. In the event the trial court denies the motion to suppress, the trial court shall resentence the defendant.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.
1. The facts relating to defendant's detention and subsequent arrest were derived from the transcript of the preliminary hearing where defendant submitted evidence in support of his motion to suppress, and which the parties agreed the trial court could rely on in deciding the renewed motion to suppress. No new evidence was adduced at the renewed hearing.
2. Defendant argues for the first time on appeal that the court improperly took judicial notice of the fact that the Skidmore residence is known in Glenn County to be a "drug residence." Defendant did not raise this objection below and thus forfeits the argument on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 434, citing People v. Green (1980) 27 Cal.3d 1, 22.) Defendant's argument fails in any event because although the court indicated it was taking judicial notice of the fact that the Skidmore residence was a "known drug residence," the People did not request the court take judicial notice of that fact. Rather, the People presented testimony in that regard from Officer Baker, which the court apparently found credible.
3. "Either the taillamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear license plate during darkness and render it clearly legible from a distance of 50 feet to the rear. When the rear license plate is illuminated by a lamp other than a required taillamp, the two lamps shall be turned on or off by the same control switch at all times." (Veh. Code, § 24601.)
4. The trial court found Officer Baker to be qualified as an expert in assessing whether someone may be under the influence of an illegal drug.
5. Defendant testified that he did not consent to the patdown search, but the court did not find his testimony credible on this issue and we will defer to that credibility determination. (See People v. Boyer (2006) 38 Cal.4th 412, 444.)
6. Again, defendant testified that he did not consent to the search of his vehicle. The court did not find defendant's testimony credible in this regard either. We will defer to the trial court's credibility determination. (See People v. Boyer, supra, 38 Cal.4th at p. 444.)
7. Presumably, defendant passed the sobriety test as the officers later allowed defendant to drive away.
8. The crystal substance was tested by another officer and it all "came back presumptively positive for methamphetamine."
9. According to the Internet at www.rbpd.org/tagmet, TAGMET is the "Tehama and Glenn Methamphetamine Enforcement Team." The website indicates that TAGMET was created in 1998 "to combat all forms of controlled substance trafficking and manufacturing in Tehama and Glenn Counties through an aggressive multi-jurisdictional law enforcement approach."
10. The evidence does reveal that Officer Baker ultimately found the light was working, though it is not at all clear when he made that discovery. Nevertheless, Officer Baker also discovered there was an acrylic license plate cover "obscur[ing]" the license plate light, which the court found was probably why Officer Baker could not read the license plate from 50 feet.
11. Thus, in their respondent's brief, the People say, "Respondent acknowledges that the record supports [defendant]'s claim that the parties understood [defendant]'s protest to Baker opening the safe to be an effective withdrawal of his consent to the search."