People v. Vera

• Court: California Court of Appeal
• Decided: November 5, 2018
• Docket: E069367
• Status: Published

Opinion

Filed 11/5/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E069367

v. (Super.Ct.No. FWV17002549)

ESTEBAN VERA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed.

Anna Dorn, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers and

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Esteban Vera was convicted of possessing one kilogram

of a controlled substance that was discovered through a dog sniff during a traffic stop of

his vehicle. An officer had stopped Vera due to a tinted-window infraction. We must

1 determine whether the dog sniff unconstitutionally prolonged his detention for that traffic

stop, requiring suppression of the drugs under Rodriguez v. United States (2015) __

U.S.__, 135 S.Ct. 1609 (Rodriguez). We affirm the trial court’s denial of Vera’s

suppression motion.

I. FACTS

On June 22, 2017, City of Rialto police detective Joseph Maltese was driving in

his patrol car with his narcotics-certified dog. On Riverside Avenue in Rialto, Maltese

observed a vehicle driving with windows that were illegally tinted, in violation of

California Vehicle Code section 26708, subdivision (a). Maltese directed the vehicle to

stop, and both vehicles pulled into a lot and parked.

When Maltese approached the vehicle on foot from behind, he could not see

through the rear window because it was so darkly tinted; the driver, Vera, was visible

only through the driver’s side rearview mirror. Maltese asked Vera to drop the rear

window, but Vera would not do so. For Maltese’s safety, he ordered Vera out of the car.

Maltese ordered Vera to walk to Maltese’s patrol car, turn around, and put his

hands on his head. Maltese patted Vera down for weapons, finding a knife in Vera’s

pocket. The knife appeared to be a switchblade.

Maltese asked Vera to sit on a curb, and he did. He asked for Vera’s driver’s

license, and Vera said it was in the glove compartment of his car. Maltese asked for and

received permission to retrieve the license, and he found it in the car. Maltese also found

the vehicle registration.

2 Around that time, another officer, Garcia, arrived. Garcia happened to be in the

same parking lot and came as backup without being called. Maltese performed a records

check on Vera, finding no warrants. Maltese also examined the knife and determined that

it was not an illegal switchblade. During this time, Garcia made sure Vera was not going

to run away or harm Maltese.

Maltese then asked Garcia to write the citation for the window tint violation and

Garcia said “sure.” Over the next 32 seconds, Maltese went to his patrol car, obtained

both his citation book and his dog, and handed the citation book to Garcia. (The record

contains a video from a body camera on Maltese that covers this time period.) After

Maltese handed Garcia the citation book, Garcia began writing the citation. While

Maltese retrieved his citation book and dog, and for about 40 seconds thereafter, Maltese

repeatedly asked Vera for consent to search his car. Vera repeatedly said no. At the

vehicle, the dog alerted on the trunk, and then alerted again on the interior dashboard. At

the time that the dog was examining the car, Garcia was still writing the citation.

Maltese opened the trunk of Vera’s car and found a blue duffle bag, to which the

dog alerted. In the bag, Maltese found various bags of a substance that appeared to be

methamphetamine, and he found additional bags in the center console of the car behind

air vents. He weighed the substance in the duffle bag at over 4.5 kilograms, and he

received a positive result upon field testing it for methamphetamine.

Vera was charged with felony possession for sale of a controlled substance, and he

filed a written motion to suppress the drug evidence under Penal Code section 1538.5.

Vera argued, among other things, that his traffic stop was unreasonably prolonged under

3 Rodriguez. After hearing testimony from Maltese and viewing the excerpt of the video of

the stop from Maltese’s body camera, the trial court denied the motion.

Vera later pled no contest to an amended information alleging possession of one

kilogram of a controlled substance, reserving his right to appeal. He received a custody

term of five years, of which two years were suspended and mandatory supervision by the

probation department imposed.

II. DISCUSSION

Vera’s sole argument on appeal is that the methamphetamine found in his car must

be suppressed because his traffic stop was unreasonably prolonged by the dog sniff, in

violation of Rodriguez. We therefore explain Rodriguez and then apply it to the facts of

this case. Because the relevant facts are not disputed, we exercise de novo review.

(People v. Stanley (2017) 18 Cal.App. 5th 398, 402.) Ultimately, we reject Vera’s claim

and affirm.

A. Rodriguez

Because the Fourth Amendment to the United States Constitution forbids only

unreasonable searches and seizures, “an officer may stop and detain a motorist on

reasonable suspicion that the driver has violated the law.” (People v. Wells (2006) 38

Cal.4th 1078, 1082-1083; see, e.g., Arizona v. Johnson (2009) 555 U.S. 323, 330-331

[discussing United States Supreme Court cases permitting detention during traffic stops].)

During the execution of a lawful traffic stop, the police may have a trained dog

sniff the driver’s vehicle, typically to detect the presence of drugs. Even if they lack any

reason to believe that the dog will alert, police officers may conduct a dog sniff without

4 implicating the Fourth Amendment, because a dog sniff is not a search at all. (Illinois v.

Caballes (2005) 543 U.S. 405, 409 (Caballes); see People v. Mayberry (1982) 31 Cal.3d

335, 337 [dog sniff of luggage at airport not a search prohibited by Fourth Amendment].)

However, the Fourth Amendment nevertheless provides a limitation on a dog sniff

performed in conjunction with a traffic stop. A detention that is justified solely by the

governmental interest in issuing a traffic ticket to the driver “can become unlawful if it is

prolonged” by the dog sniff “beyond the time reasonably required” to complete the

mission of the traffic stop. (Caballes, supra, 543 U.S. at p. 407.)

In Rodriguez, supra, 135 S.Ct. at pages 1610-1613, the United States Supreme

Court addressed a case where a dog sniff prolonged a lawful traffic stop by seven to eight

minutes beyond the point at which the stop otherwise was complete. A police officer

observed a vehicle being driven for one or two seconds onto the shoulder of a highway,

in violation of state law. After stopping the vehicle for that traffic infraction, the officer

questioned the driver about the incident; gathered his driver’s license, registration, and

proof of insurance; ran a records check; and then returned all the documents to the driver

with a written warning. After that point, a second officer arrived with a trained dog that

sniffed the vehicle, alerting to drugs seven or eight minutes after the warning was issued.

On these facts, the federal court of appeals held that the extension of the stop was

“de minimis” and thus did not violate the Fourth Amendment. The Supreme Court,

however, reversed, holding “that a police stop exceeding the time needed to handle the

matter for which the stop was made violates the Constitution’s shield against

5 unreasonable seizures.” (Rodriguez, supra, 135 S.Ct. at p. 1612.) The Court allowed no

“de minimis” exception. (Id. at pp. 1615-1616.)

Central to the Court’s analysis was its explanation of the “‘mission’” of a traffic

stop, which is “to address the traffic violation that warranted the stop . . . and attend to

related safety concerns.” (Rodriguez, supra, 135 S.Ct. at p. 1614.) The mission includes

“determining whether to issue a traffic ticket” and “‘ordinary inquiries incident to [the]

stop.’” (Id. at p. 1615, quoting Caballes, supra, 543 U.S. at p. 408.) These “inquiries

involve checking the driver’s license, determining whether there are outstanding warrants

against the driver, and inspecting the automobile’s registration and proof of insurance.”

(Rodriguez, supra, at p. 1615.) The mission involves activities that serve the purpose of

“enforcement of the traffic code” (id. at p. 1615) and the “safety precautions” that

officers may need to take while doing so (id. at p. 1616).

A dog sniff is outside the mission of the traffic stop because it is a measure “aimed

at ‘detect[ing] evidence of ordinary criminal wrongdoing.’” (Rodriguez, supra, 135 S.Ct.

at 1615, quoting City of Indianapolis v. Edmond (2000) 531 U.S. 32, 40-41.) A dog sniff

“is not fairly categorized as part of the officer’s traffic mission.” (Rodriguez, supra, at p.

1615.) “Highway and officer safety are interests different in kind from the Government’s

endeavor to detect crime in general or drug trafficking in particular.” (Id. at p. 1616.)

Because a traffic stop may “‘last no longer than is necessary to effectuate’” the

mission, “[a]uthority for the seizure thus ends” when the mission is completed “or

reasonably should have been” completed. (Rodriguez, supra, 135 S.Ct. at p. 1614.) It

6 follows that a seizure of a driver is “‘unlawful’” when a suspicionless dog sniff prolongs

the detention “‘beyond’ that point.” (Id. at p. 1616.)

The Court stated that the permissible duration of the stop is not to be measured by

the reasonable duration of traffic stops in similar circumstances, but by the amount of

time actually necessary to perform the stop expediently. (Rodriguez, supra, 135 S.Ct. at

p. 1616.) A police officer does not earn “bonus time to pursue an unrelated criminal

investigation” by proceeding rapidly. (Ibid.) “If an officer can complete traffic-based

inquiries expeditiously, then that is the amount of ‘time reasonably required to complete

[the stop’s] mission.’” (Ibid.) Thus, the “critical question . . . is not whether the dog sniff

occurs before or after the officer issues a ticket . . . but whether conducting the sniff

‘prolongs’—i.e., adds time to—‘the stop,’ [citation].” (Ibid.)

B. Rodriguez’s Application to This Case

We start by considering the record as to the time period from the outset of the

traffic stop for Vera’s tinted window infraction through the point where Detective

Maltese asked Officer Garcia if he would write Garcia’s citation for that infraction (“the

initial period”). Our record does not contain a video from Maltese’s body camera for this

period, so the evidence of the events comes entirely from Maltese’s testimony.

Under Rodriguez, Vera properly was detained for any time period necessary to

perform the mission of the traffic stop. (Rodriguez, supra, 135 S. Ct. at p. 1616.) During

the initial period, most of Maltese’s actions were within that mission, as Rodriguez

defines it. Maltese acted to ensure his safety by ordering Vera out of the car, patting him

down, and asking him to sit on a curb. Maltese obtained Vera’s identification documents

7 from his car and performed a warrant check, both of which were within the mission. It

was constitutional to detain Vera for these mission-related actions.

One officer action during the initial period was not part of the traffic stop’s

mission. Around the time that he performed the warrant check, Maltese spent some time

investigating the legality of the knife he found in Vera’s pocket, which appeared that it

could be an illegal switchblade. But a stop may be prolonged “if the prolongation itself is

supported by independent reasonable suspicion.” (United States v. Evans (9th Cir. 2015)

786 F.3d 779, 788.) Here, such reasonable suspicion justified prolonging the traffic stop

for the brief time Maltese took to investigate the knife.

We next consider the time period beginning with Maltese’s request that Garcia

write the tinted-window citation (“the dog sniff period”). Our record contains a portion

of the video from Maltese’s body camera, covering one minute and 26 seconds beginning

with that request, so the evidence about the dog sniff period comes from the video as well

as Maltese’s testimony.

The critical issue here is whether the dog sniff extended Vera’s detention for

longer than it would have lasted without the dog sniff—including the time for issuing the

citation. That is, the yardstick for measuring whether the dog sniff prolonged Vera’s

detention is the length of time of that detention had Maltese written the citation himself

without the dog sniff. (See United States v. Stewart (7th Cir. 2018) 902 F.3d 664, 675

[“salient question” under Rodriguez was whether stop was longer than if officer had

“simply written” a citation without the dog sniff; government must ask officer “if he

could have finished writing the ticket” in the time the sniff was conducted].)

8 Vera thus is misguided in arguing “Officer Maltese had already finished the

mission of the traffic stop—to write a citation for illegally tinted windows—when he

transmuted the stop into a drug trafficking investigation . . . . Officer Maltese had

finished all aspects of the traffic stop when he began the dog sniff . . . .” The mission of

the traffic stop was in fact not finished when the dog sniff began, because the citation had

not yet been written. (See Rodriguez, supra, 135 S.Ct. at p. 1612 [referring to the

mission “of issuing” a ticket for the violation, quoting Caballes, supra, 543 U.S. at p.

407].)

We thus must closely examine what Maltese did instead of simply writing the

citation. Rather than write the citation himself, Maltese asked Garcia to write it and then

returned to his vehicle and procured both his citation book and his dog. The video shows

that it took Maltese only about 32 seconds to obtain the book and dog and hand the book

to Garcia. Because this was so quick, we have no reason to conclude that it would take

any less time for Maltese to obtain the citation book for himself, if Maltese was writing

the citation himself without using the dog to examine the vehicle. Up through the point

where Maltese handed the citation book to Garcia, we have no reason to conclude that the

dog sniff extended the stop.

Although Maltese repeatedly asked Vera for consent to search the vehicle, which

was outside the mission of the stop, he began to do so during the time that he was

retrieving the citation book and handing it to Garcia. This questioning during this 32

seconds occurred during the traffic stop without prolonging it.

9 Maltese continued to unsuccessfully request Vera’s consent for about 40 seconds

after he handed the citation book to Garcia, and then Maltese and the dog began to

examine the car. The video ends at this point, before the dog actually alerted and thereby

indicated the presence of narcotics. The record does not reveal precisely how much time

it took the dog to alert; Maltese’s uncontroverted testimony is that the dog alerted to the

trunk of the vehicle when Garcia was still filling out the citation. Once the dog alerted to

the vehicle, there was independent reasonable suspicion for Maltese to prolong Vera’s

detention to search for drugs. Because the only evidence we have is that the dog alerted

before the citation was issued, this chronology—without more—indicates that the use of

the dog did not extend the length of Vera’s detention.

It does not necessarily end the inquiry that the dog alerted before the citation was

issued. Vera could demonstrate that the dog alert came after the time at which the

citation reasonably should have been issued had there been no dog sniff. (Rodriguez,

supra, 135 S.Ct. at p. 1614 [“Authority for the seizure thus ends when tasks tied to the

traffic infraction are—or reasonably should have been—completed.”].) But this Vera did

not do. The dog sniff began about 72 seconds after Maltese proceeded to his car to

retrieve the citation book, and about 40 seconds after he handed the book to Garcia. The

dog may have alerted to the trunk shortly after that; Vera has not established any length

of time that it took the dog to alert. Vera also did not establish how long it takes Maltese

(or Garcia) to write a citation. Vera did not establish that Garcia took more time than

usual to write it. On this record, we cannot conclude that the dog alert occurred after the

citation reasonably should have been issued.

10 The record therefore provides us no reason to conclude that Vera’s traffic stop was

unconstitutionally prolonged by the use of a dog to sniff his vehicle.

III. DISPOSITION

The judgment of conviction is affirmed.

RAPHAEL J. We concur:

RAMIREZ P. J.

MILLER J.