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GERALD VILLARREAL
ATTORNEY AT LAW
3436 Mendocino Ave. #B
Santa Rosa, California, 95403
Telephone: (707) 527-4044

Attorney for Defendant
Jose Rodriguez

Prepared by:
Mark T. Clausen SB#196721
Attorney at Law
10918 Rio Ruso Drive
Windsor, California 95492
Telephone: (707) 838-2215

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA

PEOPLE OF THE STATE OF CALIFORNIA,	Case No. ___________________
								
	Plaintiff,					NOTICE OF MOTION AND MOTION
							TO SUPPRESS EVIDENCE PURSUANT
vs.							TO PENAL CODE §1538.5 
								
JOSE ALFREDO OLVERA RODRIGUEZ,			Date:	
								Time:
	Defendant.						Dept.:
____________________________________/		Testimony Is Required
								Estimated Time: 30 Minutes

TO:	THE DISTRICT ATTORNEY OF THE COUNTY OF SONOMA and to THE CLERK OF THE ABOVE-ENTITLED COURT:

	PLEASE TAKE NOTICE that on _________________ at ____________ in Department _____ of the above-entitled court, defendant will move pursuant to Penal Code §1538.5 to suppress all evidence obtained during a traffic stop and subsequent search of his person which occurred on December 25, 1999 – Christmas Day.
	Said motion is based on the grounds that the traffic stop of the defendant was unlawful, the traffic stop was unlawfully prolonged, the defendant did not give consent, and/or the defendant’s consent to search was involuntary and/or coerced and is therefore invalid.
	Said motion is supported by the instant notice, the memorandum of points and authorities submitted herewith, all documents on file in this action, and any additional evidence or argument 

to be presented at the hearing. 
					Respectfully Submitted,

Date:______				By:_____________________
					     Gerald Villarreal,
					Attorney for Defendant Rodriguez

MEMORANDUM OF POINTS AND AUTHORITIES

“ THE GRINCH WHO STOLE (THE DEFENDANT’S) CHRISTMAS” 

	Twas just after midnight on Christmas morn, 
	and all were preparing for the day Jesus was born.
	All but the Grinch, who was out on patrol,
	moving chimney to chimney filling stockings with coal.    
	Disguised as a policeman, with gun in tow,
	the Grinch stopped the defendant – Why?  We don’t know!
	Having snatched up the presents and removed all the trees,
	the Grinch turned his attention to traffic technicalities.
	The defendant’s license plate light was out, claimed the Grinch with a frown, 
	but the defendant’s true sin was “driving while brown.”
	After approaching the car, the Grinch – as fast as a rocket --
	inquired about the contents of the defendant’s pocket.
	“Any weapons or drugs will I find in there?”
	asked the Grinch with an accusatory stare.
	“No,” said the defendant, “there is nothing to find,”
	but the Grinch was not listening and paid him no mind.
	“I want to search your pockets before I go,”
	and the Grinch looked so mean the defendant could hardly say no.
	The cries from the Fourth Amendment grew louder and louder,
	as the Grinch reached inside and retrieved a small bag of powder.
	“Lookie here,” said the Grinch grinning with delight,
	“.6 grams of crack lands you in jail till Christmas night.”
	But the Grinch’s joy was short-lived and he could no longer rejoice
	when from the bench came the sound of a lone Whoville voice.
	Dressed in black, in a robe, like a member of a choir,
	(s)he glared at the Grinch with eyes full of fire.
	“No cause to stop, unlawfully prolonged detention --
	we here in Whoville pay the Constitution close attention.
	So go back to your cave -- bring your dog and your sleigh –
	for we do not tolerate Fourth Amendment violations on Christmas Day!
	You may steal our trees, take our presents and turn out our seasonal lights,
	but you will never be allowed to trample on our constitutional rights.”
	The Grinch cowered and crept back to his enclave on high,
	and the defendant was set free with a fond, “Goodbye.”
	He tipped his hat, said, “So long and farewell,’”
	and went to pay his respects and apologies to Mr. Theodor Seuss Geisel.
 
STATEMENT OF FACTS
	On Saturday, December 25, 1999 – yes, Christmas Day! – the defendant was driving his green Ford Mustang at a lawful rate of speed in a lawful manner when his commute was interrupted by the flashing lights of a trailing police car.   Apparently having nothing better to do than act like the Grinch, the officer decided to conduct a traffic stop of the defendant because (allegedly) his licence plate light was out. 
	The defendant immediately pulled to the side of the road and did not engage in any “furtive gestures.”  The officer approached and asked the defendant to provide his driver’s license, but made no mention of a traffic violation. The defendant calmly and quickly produced a valid California Driver’s Licence bearing his true name, Jose Alfredo Rodriguez.  The officer barely paused to look at the licence before telling the defendant to step out of the car and walk back to the patrol car.  The defendant, who speaks little English, understood the gist of the order and complied.
	Back at the patrol car, the officer – who had been joined by a back-up officer – took absolutely no steps related to the traffic infraction.  He did not run the defendant’s license, did not inform the defendant of the nature of the violation, and did not ask for registration or insurance.  Instead, the officer asked the defendant if he had any weapons or drugs on his person.  The defendant said, “No,” and raised his hands in the air while opening his jacket to show that their was nothing illegal inside.  Taking this an invitation to intrude further, the officer asked if he could search inside the jacket and within the defendant’s pockets.  The defendant, being of Mexican descent and unaware of his Fourth Amendment rights, reportedly said, “Yes – O.K.”
	In the right front coin pocket of the defendant’s jeans the officer located .6 grams of methamphetamine.  The defendant was taken into custody, but it was the officer who was  removed from Santa’s “nice” list.   When told of this development, the officer replied, “Bah hum bug.”     	
	   	ARGUMENT
I.
THE TRAFFIC STOP WAS UNLAWFUL
	The defendant was detained when she pulled her car to the side of the road in response to the overhead emergency lights of a trailing police car.  (See United States v. Sharpe (1985) 470 U.S. 675, 682 [84 L. Ed. 2d 605, 613, 105 S. Ct. 1568]; Berkemer v. McCarty (1984) 468 U.S. 420, 439 [82 L. Ed. 2d 317, 334, 104 S. Ct. 3138].)  A police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Superior Court (1972) 7 Cal.3d 186, 200; People v. Griffith (1971) 19 Cal.App.3d 948, 950-951; see Terry v. Ohio (1968) 392 U.S. 1, 16-19 [20 L.Ed.2d 889, 902-905, 88 S.Ct. 1868]; People v. Franklin (1985) 171 Cal.App.3d 627, 633; see also People v. McGaughran (1979) 25 Cal.3d 577, 582; United States v. Fouche (9th Cir. 1985) 776 F.2d 1398, 1403.)
	Here, defendant submits that he did not violate any traffic laws and the “inoperable license plate light” was simply a manufactured basis to conduct a stop.

II.
THE TRAFFIC STOP WAS UNLAWFULLY PROLONGED

A.	Introduction.
	An officer cannot transform a traffic stop into an investigation of general illegalities, such as a search for drugs, unless he has a reasonable suspicion of criminal activity above and beyond a routine traffic violation.  Absent reasonable suspicion, an officer cannot prolong a traffic stop by asking about the presence of illegal items or seeking permission to search. (People v. Lusardi (1991) 228 Cal.App.3d Supp. 1; U.S. v. McSwain (10th Cir. 1994) 29 F.3d 558, 561-562; U.S. v. Walker (10th Cir. 1991) 933 F.2d 812, 814-816 and 816, fn. 2.)  Here, the officer exceeded the scope of the traffic stop and thereby violated the Fourth Amendment when he asked the defendant if he had any drugs or weapons and if he could conduct a search. (People v. Lusardi, supra,  228 Cal.App.3d Supp. 1, 3-5.)  As such, the methamphetamine located in the defendant’s pocket must be suppressed.

B.	The traffic stop was prolonged beyond its initial justification.
	The reasonableness of a traffic stop is evaluated by asking (1) whether the officer's action was justified at its inception, and (2) whether the officer’s subsequent actions were reasonably related in scope to the circumstances which justified the interference in the first place. (United States v. Sharpe, supra, 470 U.S. at p. 682 [84 L. Ed. 2d at p.613], quoting Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L. Ed. 2d 889, 905; 88 S. Ct. 1868];People v. McGaughran (1979) 25 Cal.3d 577, 588;  Williams v. Superior Court (1985) 168 Cal.App.3d 349, 357, 359; United States v. McSwain, supra, 29 F.3d 558, 561.)  The United States Supreme Court has explained that an investigative detention must "last no longer than is necessary to effectuate the purpose of the stop," and "the scope of the detention must be carefully tailored to its underlying justification." (Florida v.Royer (1983) 460 U.S. 491, 500 [75 L. Ed. 2d 229, 103 S. Ct. 1319].)
	The defendant concedes that if a violation of the Vehicle Code occurred (such as driving with an inoperable license plate light) then the traffic stop was justified at its inception.  (See People v. Miranda (1993) 17 Cal.App.4th 917, 926 [pre-text is irrelevant, sole issue is whether a traffic violation occurred].)  Therefore, the issue reduces to whether the officer’s subsequent actions in the period following the initial stop were a reasonable extension beyond what was necessary to justify the stop at its inception (i.e., the issuance of a citation or warning for the Vehicle Code violation). (See U.S. v. Fernandez, supra, (10th Cir. 1994) 18 F.3d 874, 878.) 
	Defendant submits that the officer exceeded the justification for the traffic stop as soon as he began a general criminal investigation by asking the defendant if he had any weapons or drugs and, when the defendant said, “No,” asking whether he could search. (See People v. Lusardi, supra, 228 Cal.App.3d Supp.1, 3-5 [traffic stop unlawfully prolonged when officer asked if there was anything illegal in the vehicle and asked for consent to search]; United States. v. McSwain, supra, (10th Cir. 1994) 29 F.3d 558, 561 [officer’s further detention of the vehicle to question defendant about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop's underlying justification]; U.S. v. Walker, supra, 933 F.2d 812, 814-816 and 816, fn. 2 [car stopped for speeding; detention became unlawful when officer questioned driver about weapons, drugs, and alcohol and requested consent to search].) see also People v. McGaughran, supra, 25 Cal.3d 577 [detention unlawfully prolonged by warrant check]; Williams v. Superior Court, supra, 168 Cal.App.3d 349, 357-359.)

C.	The prolonged detention was not consensual or justified by a reasonable suspicion of criminal activity.
	Where, as here, a traffic stop is prolonged beyond its initial justification in order to investigate other matters, the People must prove that the remaining (i.e. “prolonged”) portion of the traffic stop was “consensual” or was justified by a reasonable suspicion of criminal activity. (United States v. Gonzales-Lerma (10^th Cir. 1994) 14 F.3d 1479, 1483; United States v. Pena (10^th Cir. 1990) 920 F.2d 1509, 1514; and see Williams v. Superior Court, supra, 168 Cal.App.3d 349, 357-359; Ohio v. Robinette (1996) 117 S. Ct. 417 [136 L. Ed. 2d 347], Dis. Opn. of Justice Stevens [detention of motorist beyond justification for initial traffic stop requires a showing of a reasonable suspicion of criminal activity]^1.)  Defendant submits that no such showing can be made.

^1  In Robinette, the United States Supreme Court was confronted with a factual scenario similar to that presented here wherein a motorist was stopped for a traffic violation and was asked by the officer to consent to a search. The Ohio Supreme Court found that the traffic detention was unlawfully prolonged as a reasonable person would not have felt free to leave because, among other things, the officer never told the driver he was free to leave. The U.S. Supreme Court reversed on the sole basis that federal law did not require a per se rule that a driver must be told he is free to leave in order for a traffic stop to become “consensual.”  The High Court remanded the case to the Ohio Supreme Court and announced its continued adherence to the “totality of the circumstances test” when determining the presence of a detention. (See Michigan v. Chesternut (1988) 486 U.S. 567, 573 [100 L. Ed. 2d 565, 108 S. Ct. 1975] [whether a reasonable person, viewing the particular police conduct as a whole and within the setting of all the surrounding circumstances, would have concluded that the officer had in some way restrained his liberty so that he was not free to leave.].)  Justice Stevens agreed that the per se rule was not mandated by federal law, but dissented on the basis that reversal was inappropriate because under the “totality of the circumstances test” (including the failure to inform the driver he was free to leave) the driver was clearly detained at the time consent to search was sought.  Justice Steven’s dissent is not at odds with the majority, but simply goes on to apply the majority’s “totality of the circumstances test” to the facts; a step which the majority did not take.  Thus, this court can consider Justice Steven’s persuasive analysis.

	1.  The traffic stop was never transformed into a “consensual” encounter.
	A traffic stop does not become a consensual encounter until a reasonable person would believe that the driver is free to leave. (See, e.g. In re James D. (1987) 43 Cal. 3d 903, 912-913 [92 Cal. Rptr. 301, 479 P.2d 661], cert. den. sub nom. James D. v. California (1988) 485 U.S. 959 [99 L. Ed. 2d 422].) There is no doubt that the initial act of pulling the defendant over constituted a detention. (People v. Bailey (1985) 176 Cal.App. 3d 402, 405-406.)  The question is whether the detention was later transformed into a “consensual” encounter.  Here, no such transformation occurred and the defendant was detained during the entire traffic stop.
	The defendant was not free to simply drive away at any point during the traffic stop.  Upon his approach the officer immediately asked for the defendant’s driver’s license and held onto it while he walked back to the car.  Obviously, the defendant could not drive away while the officer held his driver’s license.  Moreover, the officer asked the defendant if he had any drugs or weapons and then asked if he could search.  Under such circumstances a reasonable person would not feel free to simply disregard the officer and drive away. (United States v. McSwain, supra, 29 F.3d @ p. 562, fn. 1; 4 W. LaFave, Search and Seizure @ 9.3(a), p. 112 (3d ed. 1996 and Supp. 1997) [During a traffic stop if an officer begins interrogation concerning other criminal activity but has not told the driver he is free to leave, the officer has not manifested a change in the nature of the encounter by which the driver would know that the traffic stop is over and he is no longer detained and thus free to leave]; State v. Retherford (1994, Ohio Ct. Of App.) 93 Ohio App.3d 586, 599 [639 N.E.2d 498, 507] [”it strains credulity to imagine that any citizen, directly on the heels of having been pulled over to the side of the road by armed and uniformed police officers in marked patrol cars, would ever feel ‘free to leave’ or ‘at liberty to ignore the police presence and go about his business’. . . when she is then asked investigatory questions by the officers and faced with a request to search her vehicle for contraband.”]; and see People v. Lusardi, supra, 228 Cal.App.3d Supp. 1, 3-5 [finding that driver was detained when officer asked her about the presence of drugs in her car and asked for consent to search].)
	Notably, the officer never told the defendant he was free to leave.  Although the failure to inform a driver that the traffic stop is over and he is now free to leave does not, per se, preclude a finding of a consensual encounter (Ohio v. Robinette, supra, 117 S. Ct. 417 [1996 U.S. LEXIS 6971; 136 L. Ed. 2d 347], discussed in footnote 1, ante), absent such an advisement the driver has no way of knowing that the initial traffic stop is over and the encounter is entering a new “consensual” phase.  (See id., diss. Opn. of Justice Stevens; Berkemer v. McCarty, supra, 468 U.S. 420, 436 [82 L. Ed. 2d 317, 104 S. Ct. 3138] ["Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so."].)  In such a situation, the driver would reasonably feel that if he attempted to drive away before the traffic stop was deemed complete the officer would follow in hot pursuit. (See People v. Bailey, supra, 176 Cal.App. 3d 402, 405-406; Ohio v. Robinette, supra, dis. Opn. of Justice Stevens.)
	Moreover, by asking if there were any drugs or weapons and asking to search, the officer conveyed his belief that the defendant was presently in possession of some illegal item, thereby eliminating any possibility that the traffic stop could have evolved into a consensual encounter. (See Wilson v. Superior Court (1983) 34 Cal. 3d 777, 790 [common sense suggests that when an ordinary citizen is confronted by a law enforcement agent who has just told him that he has information that the citizen is carrying drugs, the citizen would not feel at liberty simply to walk away from the officer]; U.S. v. White (10th Cir. 1989) 890 F.2d 1413, 1415 [defendant detained when officer told him he exhibited characteristics of those trafficking in drugs]; see also State v. Retherford, supra, 93 Ohio App.3d 586, 599 [639 N.E.2d 498, 507]; United States v. Berry (5th Cir. 1982) 670 F.2d 583, 597; and see Morgan v. City of Los Angeles, et al. (9th Cir. 1993) 997 F.2d 1244, 1254.)
	Given that the officer changed the scope of the traffic stop into a general investigation of criminal activity almost immediately after approaching the defendant’s vehicle, it simply cannot be said that the traffic stop ever moved from a detention to a “consensual encounter.”

2.	There was no reasonable suspicion of criminal activity which would justify the prolonged detention.
	The defendant did absolutely nothing to warrant a reasonable suspicion of criminal activity which would provide a basis to change the scope of the traffic stop into a broader criminal investigation and justify the prolonged detention.

D.	As the traffic stop was prolonged without a reasonable suspicion, the defendant’s consent is invalid.
	Where an individual is detained without the requisite reasonable suspicion, his detention is unlawful and any consent provided during the detention is invalid. (Florida v.  Royer, supra, 460 U.S. 491 [75 L.Ed.2d 229, 103 S.Ct. 1319]; Wilson v. Superior Court, supra, 34 Cal.3d 777; People v. Bailey, supra, 176 Cal.App.3d 402, 406.)  Here, if the defendant consented to a search did so only after the officer exceeded the scope of the traffic stop and unlawfully prolonged the detention.  As such, the defendant’s consent is invalid and the search fails.^2 

^2   The request to search the defendant’s pockets cannot not be justified on the grounds of officer safety. A person subject to a routine traffic stop cannot be subjected to a pat-search. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 206; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807; see also People v. Lawler (1973) 9 Cal.3d 156, 160-162.)  Before a traffic stop can justify a pat-search an additional factor must be present: a reasonable and articulable suspicion the person is armed and dangerous. (See Terry v. Ohio (1968) 392 U.S. 1 [20 L. Ed. 2d 889, 88 S. Ct. 1868]; Michigan v. Long (1983) 463 U.S. 1032, 1049 [77 L.Ed. 2d 1201, 1219-1220, 103 S. Ct. 3469]; People v. King (1989) 216 Cal.App.3d 1237, 1239.)  Here, no such articulable suspicion existed.  Therefore, there was no basis to ask if the defendant had any weapons or to search him for weapons.

II.
EVEN IF THE DETENTION WAS VALID, THE DEFENDANT’S
CONSENT WAS NOT FREE AND VOLUNTARY
	Once it is established that a search or seizure was made without a warrant, the burden is on the prosecution to show proper justification.  (People v. Marshall (1968) 69 Cal.2d 51, 56.)  Where the government relies upon consent, it has the burden of presenting "substantial evidence of consent to the search." (Castaneda v. Superior Court (1962) 59 Cal.2d 439, 444; see also United States v. Matlock (1974) 415 U.S. 164, 171, fn. 7 [39 L.Ed.2d 242, 250] -- consent must be shown by a preponderance of the evidence; People v. James (1977) 19 Cal.3d 99, 106, fn. 4.)  The burden has been characterized as a "heavy" one. (Parrish v. Civil Service Commission (1967) 66Cal.2d 260, 270.) The government must show "that the consent was, in fact, freely and voluntarily given" (see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854]) and the "burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." (Bumper v. North Carolina (1968) 391 U.S. 543, 548-549 [20 L.Ed.2d 797, 802].)  The People must show that consent was "uncontaminated by any duress or coercion, actual or implied." (People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033.)
	Whether consent is voluntarily given, as opposed to coerced by law enforcement pressure, is judged by the totality of the circumstances. (United States v. Mendenhall (1980) 446 U.S. 544, 557 [64 L. Ed. 2d 497], citing Schneckloth, supra, 412 U.S. at 227.)  Factors to consider in this analysis include the location of the encounter (e.g., a public place open to view versus a location obstructed from public scrutiny); the number of officers and suspects present; whether the officers displayed their weapons; whether there was physical contact; whether the officers used language or a tone of voice indicating threats or compulsion; the subjective state of mind, age, and intelligence of the consenting party; the length of the detention (if any) prior to consent; and the individual's knowledge of his right to refuse consent. (United States v. Watson (1976) 423 U.S. 411, 424 [46 L. Ed. 2d 598].)
	Here, the defendant is of Mexican descent, speaks little English, and has no understanding of his constitutional rights and specifically his Fourth Amendment rights to avoid an unreasonable search and seizure.  In his country, whatever an officer tells you to do, you do!  The officer never informed the defendant that he had a right to refuse to answer the officer’s inquiries or to refuse consent and did not slow down long enough to explain – in understandable Spanish – what rights the defendant possessed.  To the extent the defendant even understood what was being asked of him, he certainly did not knowingly and voluntarily relinquish his Fourth Amendment rights and therefore did not provide valid consent to search.

///
///
///

CONCLUSION
	The officer was no doubt well intentioned when he asked the defendant if he had an weapons or drugs and if he could search, but good intentions are no basis upon which to dispense with constitutional requirements.  As Justice Brandeis once noted:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of seal, well-meaning but without understanding." (Olmstead v. United States (1928) 277 U.S. 438, 479 [72 L.Ed. 944, 957], fn. omitted, overruled on other grounds in Katz v. United States (1967) 389 U.S. 347, 353 [19 L.Ed.2d 576, 583].)

	Or, as stated in a related context:

"Liberty -- the freedom from unwarranted intrusion by government -- is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark." (United States v. Campbell (9th Cir. 1988) 873 F.2d 1240, 1246.)

	Based on the foregoing, it is respectfully requested that the court grant defendant’s motion to suppress pursuant to Penal Code §1538.5.
					Respectfully Submitted,
					By:                                     
					      Gerald Villarreal,
					Attorney for Defendant

					Prepared by:
					Mark T. Clausen,
					Attorney at Law

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