Opinion
During а traffic stop for failure to signal a left turn, police discovered that appellant Anthony Leon Durant was carrying a loaded handgun despite his status as a convicted felon currently on probation. After the court denied his motion to suppress evidence under Penal Code section 1538.5, appellant pled no contest to a singlе count of firearm possession by a felon, admitted a prior conviction allegation under the “Three Strikes” law, and was placed on felony probation after the trial court struck the “strike.” (Pen. Code, former § 12021, subd. (a)(1); id., § 1170.12; People v. Superior Court (Romero) (1996)
I. BACKGROUND
The following evidence was adduced at the suppression hearing:
Shortly after midnight on June 19, 2010, appellant was stopped by a San Mateo Gang Task Force unit for a traffic violation in the area of Bayshore Boulevard and Carter Avenue. He was driving a black Pontiac and had three passengers in his car. Daly City Police Officers Taylor and Miller, along with Millbrae Pоlice Sergeant Fregosi, formed another task force unit that assisted in the stop. Taylor learned from dispatch during the stop that appellant was on probation subject to search conditions. Appellant and his passengers were not taken into custody.
The following evening, Officers Taylor and Miller went on task force patrol with Sergeant Fregosi not far from the location where appellant hadbeen stopped the night before. About 10:55 p.m., Taylor was driving the patrol car northbound on Bay shore Boulevard and saw a black Pontiac that was travelling in front of them pull into the dedicated left-turn lane at the intersection at Guadalupe Canyon Parkway. Appellant was driving the Pontiac, though Taylor did not initially recognize him from their contact the previous evening. Appellant stopped at the red turn arrow for over 30 seconds and made a left turn onto westbound Guadalupe when the light changed to a green arrow, but at no time did he activate the car’s turn signal. Several vehicles that were travelling southbound оn Bay shore stopped at the intersection as appellant began making the left turn; one of these vehicles was in the right-turn lane.
Officer Taylor believed that the failure to signal was a violation of Vehicle Code section 22108,1 which provides, “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.” He activated the patrol car lights to initiate a traffic stop. Although Taylor had not recognized appellant up until that point, immediately after he turned on the lights Officer Miller reminded him that the driver was the person who had been stopped by task force officers earlier that day. Taylor then recognized appellant and the car.
After appellant pulled over, Officer Taylor approached on the driver’s side and the other officers approached on the passenger’s side. Taylor asked appellant if he had his driver’s license and appellant said no; Taylor asked appellant whether he was still on probation and appellant said yes. Appellant denied having anything illegal and gave Taylor consent to search him and his car. Taylor performed a patdown for weapons and found a loaded handgun in appellant’s waistband.
Defense counsel argued that the traffic stop was an illegal seizure under the Fourth Amendment because the Vehicle Code did not require appellant to signal while in a dedicated left-turn lane and Officer Taylor did not have a reasonable suspicion that a traffic violation had occurred. The prosecution responded that the stop was proper because vehicles travelling in the other direction were stopped at the light and section 22107 requires “thе giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” The prosecution also noted that by the time of the search, Officer Taylor knew that appellant was on probation subject to search conditions.
The trial court denied the motion to suрpress. It took judicial notice that at the time of the traffic stop, appellant was on felony probation in a prior burglary case, and that a condition of his probation required him to “submit to search and seizure of his person, place of residence, or area under his control, or his vehicle by any probation officer or peace officer.” The court agreed with defense counsel that “no signal was required by [appellant] and that a traffic stop under these circumstances [wasn’t] supported by the code,” but it concluded that the patdown search was authorized by the conditions of appellant’s probation. The court found that the officеrs did not act in an arbitrary, capricious or harassing way in conducting the probation search; hence, suppression of the gun was not required.
II. STANDARD OF REVIEW
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial еvidence. 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)
III. DISCUSSION
Appellant argues that his motion to suppress should have been granted because the traffic stop was illegal and the patdown leading to the discovery of the gun was the product of that unlawful detention. He contends the probation search condition cannot be uséd to validate the patdown because the officer was unaware of that condition when he first initiated the traffic stop. The People respond that the traffic stop was lawful and the patdown was independently authorized by appellant’s probation search condition.
A. Legality of Traffic Stop
“ ‘A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ ” (People v. Hernandez (2008)
Officer Taylor detained appellant because he failed to signal his left turn from Bay shore Boulevard onto Guadalupe Canyon Parkway. Section 22107 provides, “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected . . . Section 22108 directs that “[a]ny signal of intention to turn right or left shall be given continuously during thе last 100 feet traveled by the vehicle before turning.” Sections 22107 and 22108 must be read together to mean that “a motorist must continuously signal during the last 100 feet traveled before turning, but only in the event other motorists may be affected.” (People v. Carmona (2011)
The trial cоurt concluded that appellant did not violate sections 22107 and 22108 because none of the other motorists that were stopped at the intersection were potentially affected by his left turn on a green arrow. When assessing the reasonableness of a traffic stop, the question is not whether appellant actually violated the Vehiclе Code, but whether there was some “ ‘objective manifestation’ that [he] may have” violated the Vehicle Code. (Logsdon, supra,
Appellant suggests that the stop was unreasonable because it was based on a mistake of law by Officer Taylor. He relies on our decision in People v. White (2003)
B. Probation Search Condition
Probationers in California typically consent in advance to warrantless searches as a condition of probation, in exchange for the opportunity to avoid a prison sentence. (People v. Medina (2007)
As appellant points out, a police officer who relies on a probation condition to justify an otherwise illegal search or seizure must know of that condition when he acts, and may not rely on subsequently acquired information about the person’s probationary status. (People v. Hoeninghaus (2004)
Appellant argues that Officer Taylor’s failure to recognize him before he decided to make the stop precludes the prosecution from relying upon the search condition to uphold the subsequent patdown search and seizure of the gun. He reasons that Taylor was not aware of the search condition when he undertook what would otherwise be аn illegal traffic detention because he did not know the driver of the Pontiac was appellant, a person who was on probation and subject to that search condition. Appellant contends that the discovery of appellant’s search condition, like the discovery of the gun itself,
The exclusionary rule extends to the “fruits” of an illegal search or seizure, but not all evidence is “ ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” (Wong Sun, supra,
In determining whether appellant’s search condition attenuated any illegality in the traffic stop, we are guided by Brendlin, supra,
As tо the first factor of the analysis—temporal proximity—the court in Brendlin acknowledged that only a few minutes had elapsed between the unlawful traffic stop and the search incident to arrest that uncovered the challenged evidence. (Brendlin, supra,
In any event, under the second factor of the attenuation analysis, an arrest under an outstanding warrant is an intervening circumstance that tended to dissipate the taint of an unlawful traffic stop. (Brendlin, supra,
Applying the factors used by the Brendlin court to the case before us, we conclude that any illegality in the initial traffic detention was attenuated by appellant’s probation search condition. Although the patdown search and discovery of the gun occurred shortly after the traffic detention, they did not occur until after Officer Taylor had recognized appellant as a person subject to a search condition. (Brendlin, supra, 45 Cal.4th at pp. 270-271.) The search condition supplied legal authorization to search that was completely independent of the circumstances leading to the traffic stop. (Id. at p. 271.) Nor is there any flagrancy or purposefulness to the alleged unlawful conduct by Taylor—though the trial court found that the traffic stop was made without reasonable suspicion, it specifically found Taylor did not act in an arbitrary, capricious, or harassing manner. (Id. at pp. 271-272.)
The purpose of the exclusionary rule—deterring police misconduct—is not served by suppressing the gun that was seized simply because Officer Taylor did not recognize appellant as a probationer until immediately after he initiated a traffic stop made in good faith. (Contra, People v. Wilkins (1986)
The judgment is affirmed.
Simons, Acting P. J., and Bruiniers, J., concurred.
Notes
Further statutory references are to the Vehicle Code unless otherwise indicated.
The defendant in Brendlin was also on parole, but the court did not consider whether the search was authorized by the conditions of his parole because the officer never relied on a parole search condition and no search occurred until after the outstanding warrant was discovered. (Brendlin, supra, 45 Cal.4th at pp. 272-273.) The court noted, however, that the reasonableness of a search must be determined based upon “ ' “circumstances known to the officer when the search is conducted.” ’ ” (Id. at p. 273.)