The Orange County District Attorney challenges an order of the trial court granting defendant’s motion pursuant to Penal Code section 1538.5 and dismissing the indictment against him. We find there was no violation of the Fourth Amendment and therefore reverse the order granting the motion and dismissing the information.
I
FACTS
On July 4, 2004, Orange County Deputy Sheriff Mark Froome was on patrol in Lake Forest when he saw a truck with a smashed taillight. He made a traffic stop of the vehicle, which defendant was driving. Froome told defendant he had stopped him because of the taillight and inspected defendant’s license and registration.
Froome then asked defendant if there was anything illegal in the car, like weapons
Froome proceeded with his search and found a case containing a glass methamphetamine pipe, two small plastic bags each containing a white crystalline substance, and two cut straws. Based on his training and experience, Froome testified that the pipe was used to smoke methamphetamine, while the straws could be used to inhale it. He further testified the bags contained a usable amount of the substance, and a presumptive test returned positive for methamphetamine.
Defendant was arrested and later charged with one count of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and one count of misdemeanor possession of paraphernalia (Health & Saf. Code, § 11364). No citation was written for the broken taillight.
Defendant moved, pursuant to Penal Code section 1538.5, to suppress all evidence obtained as a result of the search. Defendant argued the detention was unlawful for lack of reasonable suspicion, and because the detention was illegally prolonged, the consent given was invalid. The trial court granted the motion and dismissed the case. The prosecution now appeals.
n
DISCUSSION
In reviewing a motion to suppress, we defer to the lower court’s findings of fact supported by substantial evidence, but exercise lndependent judgment in determining whether the detention was reasonable under the Fourth Amendment. (People v. Glaser (1995)
Defendant’s argument is threefold. First, he asserts that the police may not prolong a traffic stop beyond the time needed to address the traffic violation. Second, the police may not use a traffic stop as a pretext to conduct an unrelated search or investigation. Third, the police must have reasonable suspicion of criminal activity before they can request consent to search.
We agree with the first proposition. “Under Terry v. Ohio (1968)
Moreover, while a police officer may stop a motorist for a traffic violation, the detention cannot be prolonged beyond the time period necessary to address the violation. (People v. McGaughran (1979)
Thus, we agree with defendant’s claim that traffic stops must be reasonable in duration and not prolonged beyond the time necessary to address the traffic violation. There is no indication here, however, that the detention was unreasonably prolonged,
Defendant’s second claim, that a pretextual traffic stop is unlawful, is clearly in error. (See Whren v. United States (1996)
Finally, defendant argues that before requesting consent to search, the police must have an articulable suspicion of wrongdoing. The case law holds otherwise, as long as the detention is not unreasonably prolonged as a result of the request to search. In People v. Brown, supra,
The Brown court addressed the permissibility of running the warrant check, asking about the defendant’s probation status, and requesting permission to search. In addition to holding that the warrant check was permissible, the court also found that questioning the defendant during the time it took to run the warrant check was permissible because it did not prolong the detention. (People v. Brown, supra, 62 Cal.App.4th at pp. 498-499.) “Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. [Citations.] While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.]” (Id. at p. 499.) Similarly, the officer was permitted to ask for consent to search, because the search, like the questioning, did not unduly prolong the traffic stop. (Id. at pp. 499-500.)
Nothing in Brown suggests that reasonable suspicion was required to request consent to search. Although defendant attempts to distinguish Brown on the basis that the defendant was on probation, the case discusses a consensual search, not a probation search, and any such distinction is unavailing. The cases defendant relies upon address the issue of obtaining consent to search which unreasonably prolongs the initial detention.
Thus, we reject the argument that consent requires reasonable suspicion, if requesting consent does not otherwise unduly prolong the traffic stop. There is no indication in this case that the stop was prolonged in any manner; the only evidence offered was that the time that elapsed from the initial contact to requesting consent to search was as little as two minutes. We cannot characterize this as “unduly prolonged” under any reasonable definition of the term, and defendant was, of course, free to decline consent. He does not dispute that his consent was freely given, and because he was not unreasonably detained, we find no Fourth Amendment violation. Thus, the trial court’s ruling was in error and shall be reversed.
III
DISPOSITION
The court’s order granting defendant’s motion and dismissing the information is reversed.
Rylaarsdam, Acting P. J., and Fybel, J., concurred.
A petition for a rehearing was denied June 17, 2005, and appellant’s petition for review by the Supreme Court was denied September 7, 2005.
Notes
Alternatively, as this court noted in People v. Gomez (2004)