• Pretextual Traffic Stops
• Prolonged Traffic Stops
• The Mission of a Traffic Stop
• California Vehicle Code § 2806.5 

The duration of a traffic stop is measured from the time the stop is made until the subject is either released or a reasonable suspicion of other criminal activity is developed, justifying a continued detention, whichever occurs first.  That point in time when a violation is first observed is irrelevant when measuring the duration of a traffic stop.  California Vehicle Code § 2806.5 does not make illegal a pretextual traffic stop, but rather only requires that an officer inform the detainee of the reasons for the stop and document the same in later reports. 

On March 31, 2023, at approximately 10:00 p.m., Santa Rosa Police Officer Brett Wright and his partner, Officer Dane Schindler, observed defendant Adrian Osvaldo Valle pumping gas into his vehicle at a local gas station.  Officer Wright (being a member of Santa Rosa Police Department’s Special Enforcement Team) recognized defendant as an active gang member, and knew that the gang he belonged to (a subset of the Sureño gang) was currently feuding at the time with another subset of that same gang.  He also noticed that defendant was missing the front license plate on his car; a violation of Veh. Code § 5200(a). 

Knowing that they were in an area known for its gang activity, Officer Wright suspected that defendant might be carrying a firearm.  So the officer decided that as soon as defendant left the gas station, he would make a traffic stop for the V.C. § 5200(a) violation.  While waiting, Officer Schindler called for a K-9 unit with a gun-sniffing dog. The plan was to stop defendant for the Vehicle Code violation and while writing him a citation, have the dog do an “open-air sniff” of his vehicle. 

In accordance with this plan, Officer Wright and Officer Schindler followed defendant out of the gas station and made a traffic stop in a parking lot less than a quarter mile away. The time of the stop was 10:03 p.m.  Upon stopping defendant, Officer Wright informed him why he was being stopped.  Obtaining defendant’s driver’s license and registration, the officer returned to his patrol car where he ran a license check. It was quickly determined that his license was valid but that he did indeed have prior arrests for drugs and firearms, with at least one felony conviction. Officer Wright then began writing the citation.  While this was happening, K-9 Officer Aaron Gonzales-Campos arrived on scene with his gun-sniffing dog "Ghost".  The time was 10:06 p.m.  As Officer Wright continued working on the citation, K-9 Officer Gonzales-Campos began running his dog around defendant’s vehicle.  Within a minute and a half, K-9 "Ghost" alerted to the driver’s side door.  The time was 10:10 p.m.  At this time, Officer Wright stopped writing the citation and began an investigation into the possible presence of a firearm in defendant’s car.  Upon searching the car, a loaded handgun that appeared to be functional was in fact found in the center console.  Defendant was arrested. 

Charged in state court with various firearms-related offenses (including being a felon in possession of a firearm), defendant filed a motion at his preliminary hearing to suppress the firearm.  The prelim magistrate granted defendant’s motion, ruling that the traffic stop was (1) unlawfully prolonged and (2) in violation of recently enacted Veh. Code section 2806.5.  The People appealed. 

The First District Court of Appeal (Div. 1) reversed.   

(1) Prolonged Traffic Stops:  It is well-settled that law enforcement officers may not extend the duration of a traffic stop for the purpose of conducting a dog sniff longer than it would have reasonably taken to write a citation, at least absent a newly developed reasonable suspicion of some other criminal activity.  Per the U.S. Supreme Court: “(A) police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”  (Rodriguez v. United States (2015) 575 U.S. 348, 250-351, 353.)  In this case, the preliminary hearing magistrate measured the time of the traffic stop from when Officer Wright first observed the missing license plate at the gas station up until when the K-9 sniffed the gun in defendant’s car.  This was error.  “A traffic stop begins for purposes of the Fourth Amendment when an officer pulls a vehicle over for a traffic infraction.” (People v. McDaniel (2021) 12 Cal.5th 97, 129-130; People v. Ayon (2022) 80 Cal.App.5th 926, 936.)  The traffic stop did not begin merely upon the officer’s observation of a Vehicle Code violation.  The fact that Officer Wright may have delayed in making the stop in order to allow time for a gun-sniffing dog to be brought to the scene before the stop was made was held to be irrelevant.  In this case, the total elapsed time between the actual traffic stop and when the K-9 sniffed defendant’s gun was only 7 minutes, occurring before Office Wright had even finished the ticket.  The officer testified that it typically takes up to 10 minutes to write a citation, which the Court inferably found to be reasonable. And once the dog sniffed the gun, prolonging the stop longer for the purpose of investigating this newly developed information is lawful.  The traffic stop, therefore, was not unlawfully prolonged.   

(2): Vehicle Code section 2806.5:  The magistrate also ruled that Officer Wright unlawfully conducted a so-called “pretext stop,” in violation of the recently enacted Veh. Code § 2806.5 (effective Jan. 1, 2024; AB 2773).  Again, the magistrate was in error.  First, section 2806.5 does not make illegal pretextual stops. All section 2806.5 requires is that the officer “state the reason for the stop” and then “document the reason for the stop on any citation or police report resulting from the stop.”  (Subds. (a) & (b).)  Officer Wright complied with at least the first requirement, telling defendant up front as to why he was being stopped. (It is assumed that Officer Wright also documented this in his arrest report.) Also, The United States Supreme Court has long since held that, under the Fourth Amendment, “the constitutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers involved.” (Whren v. United States (1996) 517 U.S. 806, 813.)  In other words, an officer’s “subjective” intent in making a traffic stop is irrelevant.  Even before Whren, the rule has been that; “[w]hether a Fourth Amendment violation has occurred ‘turns on an objective (emphasis added) assessment of the officer’s actions in light of the facts and circumstances confronting [him or her] at the time,’ . . . and not on the officer’s actual state of mind (i.e., “subjective intent”) at the time the challenged action was taken.” (Maryland v. Macon (1985) 472 U.S. 463, 470-471.)  The Court here, therefore, held that “the only pertinent inquiry is whether the officer had an objective basis for conducting the traffic stop.”  The missing license plate (a violation of Veh. Code § 5200(a), consistently held to be legal justification upon which to base a traffic stop. [People v. Saunders (2006) 38 Cal.4th 1129, 1136; People v. Vibanco (2007) 151 Cal.App.4th 1, 8.]) supplied the required objective basis.   

Conclusion:  With the K-9 sniff itself not being contested, the Court determined that the traffic stop and subsequent search of defendant’s car were both lawful.  The case was remanded for further proceedings consistent with this opinion.

There is nothing surprising in this decision.  Officers Wright, Schindler, and Gonzales-Campos [and "Ghost"] did everything by the book.  The only surprise here is how the preliminary hearing magistrate could have possibly have gotten it so wrong in light of the strong and unambiguous case law and the obvious meaning of Veh. Code § 2806.5 as it is written.  It is true that section 2806.5, as initially submitted to the State Assembly, was intended to outlaw pretextual traffic stops.  But more rational minds eventually prevailed, with this section being watered it down to its present wording.  The magistrate should have known this. 

Robert Phillips
Deputy District Attorney (Ret).

Publisher Notes:
The prosecution team credited with appealing this decision includes Carla C. Rodriguez, District Attorney; Anne C. Masterson, Chief Deputy District Attorney; and Sarah A. Brooks, Deputy District Attorney.