P. v. Saunders

Filed 1/9/04 P. v. Saunders CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DEVANCE SAUNDERS,
Defendant and Appellant.
H025674
(Santa Clara County
Super. Ct. No. CC246493)
Defendant Devance Saunders appeals after pleading guilty to possession of a
firearm by a felon (Pen. Code, § 12021, subd. (a)(1)),1 carrying a concealed firearm by a
felon (§ 12025, subd. (a)(2)); carrying a loaded firearm in a vehicle by a felon (§ 12031,
subd. (a)(1)); and possession of ammunition by a felon (§ 12316, subd. (b)). Defendant
admitted a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12). The trial court struck
the prior and placed defendant on probation for three years with the condition, inter alia,
that he serve six months in county jail.
On appeal, defendant contends the trial court erred by denying his motion to
suppress evidence. We find no error and affirm the judgment.
1 Unspecified section references are to the Penal Code.

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I. BACKGROUND
On March 31, 2002, San Jose Police Officers Mark Womack, Brian Simuro, and
Javier Acosto were on an assignment to patrol a gathering of motorcycle clubs near Club
Rodeo on Coleman Avenue in San Jose. The gathering, an annual ritual called a
“blessing,” included members of the Hell’s Angels, the Mongols, and several sub-clubs,2
including the Soul Brothers, who were associated with the Hell’s Angels. The officers
had knowledge of the clubs’ involvement in violence and weapons possessions on
previous occasions, including an incident where members of the Hell’s Angels were
arrested for possession of weapons and ammunition at the previous year’s blessing.
Additionally, earlier that day, Officer Womack had been in on a traffic stop where
members of the Hell’s Angels had body armor and guns in their possession.
At approximately 10:30 a.m., the officers saw a Chevy pick-up truck following
directly behind 15 to 20 Soul Brothers members riding their motorcycles along Coleman
Avenue. The officers were aware from their training that often the vehicle preceding or
following a group of motorcycles is the “load” or “tail” car; this vehicle “usually contains
. . . other members or associates, . . . wives, girlfriends of the members,” “weapons,
drugs, [and] other items.” After Officer Womack noted that the truck had expired
registration tags and no front license plate, the officers stopped the vehicle. Both the
driver, Roosevelt Ingram, and the passenger, defendant, wore clothing with indicia of
membership in the Soul Brothers motorcycle club. Officers Womack and Simuro asked
both men for identification and ran a records check on their driver’s licenses. This took
“four to five minutes.”
2 Smaller clubs align themselves with the major outlaw motorcycle clubs in their
respective geographical areas. Officer Gil-Blanco, whom the court recognized as an
expert on the Soul Brothers, testified, “[h]istorically, California west coast has been
predominantly overseen by the Hell’s Angels being one of the major outlaw motorcycle
[clubs] worldwide.” The Mongols are primarily a southern California club.

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After the check revealed that Ingram possessed a suspended license, police policy
called for impounding the vehicle. Consequently, the officers asked both men to get out
of the truck. As defendant stepped out of the truck, Officer Womack noticed that
defendant wore a “large” and “bulky” jacket bearing a Soul Brothers patch. The jacket
“went over his waistband, covering his waistband.” Officer Womack was concerned
because he was aware that people often hide guns in large jackets or in their waistbands.
Defendant seemed “very nervous;” he was “very quiet,” and appeared to be “shaking or
trembling.” Officer Womack’s awareness “that these vehicles often times carry weapons
or guns,” coupled with the fact that he personally had participated in a stop earlier that
morning where some Hell’s Angels were found to have weapons and armor, led him to
feel “concerned that [defendant] possibly had weapons or guns on him.”
Officer Womack decided to pat search defendant, and as he stepped behind
defendant to begin the pat search, he asked defendant “if he had anything illegal on him.”
As Officer Womack was starting to pat him down, defendant “said yes, I have a gun in
my pocket.” Officer Womack found a loaded gun on defendant’s person where
defendant said it was. A search of the truck before it was impounded produced “a plastic
baggie with seven Winchester .25 caliber bullets, and a speed loader holding six .357
caliber bullets.” This was found on the floorboard of the passenger side of the truck.
Defendant was charged, by information, with possession of a firearm by a felon (§
12021, subd. (a)(1)); carrying a concealed firearm (§ 12025, subd. (a)(2)); carrying a
loaded firearm in a vehicle by a felon (§ 12031, subd. (a)(1)); and possession of
ammunition by a felon (§12316, subd. (b)). The information alleged a prior “strike”
conviction (§§ 667, subds. (b)-(i); 1170.12). When he was arraigned on September 16,
2002, defendant pleaded not guilty and denied the prior.
On October 10, 2002, defendant brought a motion under section 1538.5 to
suppress “all observations of the officer, any statements by the defendant,” the loaded
gun, and the ammunition. At the suppression hearing, Ingram, the driver, testified that he

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had owned the truck3 for four to five months prior to the incident. He had applied to
register the vehicle and to get new license plates. The truck, however, “was missing the
bumpers, [and] all the smog stuff had to be done.” The DMV had issued Ingram a
“temporary sticker” that would allow him to operate the vehicle until all the work was
complete. This sticker, which Ingram placed in the upper right corner of the back
window “just above the license plate,” bore the No.“3.” The number corresponded to the
month of March, and allowed him to operate the vehicle through March 31, 2002.
Although he was charged with “not having any front plate,” Ingram testified that all the
charges against him related to the stop were later dismissed after he brought the
temporary operating permit to court.
Connie Gonzalez, a staff member of the Department of Motor Vehicles, testified
that a temporary operating permit is “issued to a vehicle for the owner to” “legally use
[the vehicle] on public roads, streets, [and] parked.” 4 The permit, which is always red,
displays a large bold face number in white indicating that the vehicle may be lawfully
operated until the last day of the corresponding month. Handwritten information on the
permit specifies, among other things, “the make of the vehicle, the VIN number, . . .and
the [registration] amount that was purchased.” This allows an officer to stop the vehicle,
look at the information on the permit and on the vehicle itself, “and make sure they
match.” Nothing is documented in the computer.
Defendant claimed that the officers acted unreasonably when they failed to
examine the permit after stopping the truck for expired registration tags and the missing
front license plate. The driver had obtained a temporary operating permit bearing a large
No. “3.” Defendant argued that the “only reasonable inference from making [the]
number so large . . . is to indicate to law enforcement personnel out on the field that this
3 The truck was registered in Ingram’s wife’s name.
4 Vehical Code sections, 4156, 4606, 5200, 5202, 5205.

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car may be operated lawfully.” Defendant asserted that this was a case of prolonged
detention where the officers did not inspect the permit after pulling [the truck] over;
rather they did “everything else but deal[] with the permit.”
The trial court denied the motion, finding that the officers were justified in
stopping the vehicle to check registration and could ask for identification in the course of
the stop. The court emphasized the concern for officer safety. “[O]fficer safety is a
higher concern on this particular time and place. The intrusion . . . to the defendant based
on the clothing he wore was minimal at best, and only when the officer took the brief pat
searching did the defendant finally admit he had the unlawful items that the officer
testified to. . . . I think all the conduct was justified.”
On November 13, 2002, defendant changed his plea to guilty on all counts and
admitted the prior strike conviction. At sentencing, the trial court struck defendant’s
prior strike conviction and placed defendant on three years probation provided, inter alia,
that he serve six months in county jail.
II. ISSUES
Defendant contends that the evidence should have been suppressed because it was
obtained as a result of an illegal stop, detention and pat-search.
Standard of Review
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is
governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial
court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies
the latter to the former to determine whether the rule of law as applied to the established
facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these
inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s
resolution of the first inquiry, which involves questions of fact, is reviewed under the
deferential substantial-evidence standard. [Citations.] Its decision on the second, which
is a pure question of law, is scrutinized under the standard of independent review.

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[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is
however predominantly one of law, . . . is also subject to independent review.” ’
[Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
The Initial Vehicle Stop
Defendant argues that the initial vehicle stop was illegal because the officers did
not have reasonable suspicion that the truck was in violation of the Vehicle Code.
Although the truck had no front license plate and expired registration tags, it did have a
temporary permit affixed to the rear window. (See Veh. Code, § 4156.) Because the
permit was in plain sight, with the No. 3 prominently displayed, the officers could see
that the vehicle was registered through March. This should have dispelled any
reasonable suspicion the officers might otherwise have entertained concerning the
operation of the vehicle.
The People argue that the defendant does not have standing to challenge the initial
vehicle stop because he was only a passenger in the vehicle. His privacy rights were not
implicated in the vehicle stop because he was not detained. The People rely on People v.
Fisher (1995) 38 Cal.App.4th, 338, in which this court held that a passenger is not
detained when officers stop a vehicle. “[I]n constitutional terms a passenger is not
‘lawfully stopped’ [citation], seized, or detained [citation] merely because the vehicle in
which he or she is riding is stopped for a traffic violation.” (Id. At p. 344.)
Defendant asks that we reconsider Fisher in light of subsequent authority, namely
People v. Bell (1996) 43 Cal.App.4th 754, where the Fourth District Court of Appeal held
that a car stop constitutes a detention of any passengers in the car. We acknowledge a
split of authority on this issue. A different division of the Fourth District Court of Appeal
recently analyzed both Fisher and Bell under the standard expressed by the United States
Supreme Court in Maryland v. Wilson (1997) 519 U.S. 408, and agreed with Fisher,
concluding that “[p]assengers are not seized within the meaning of the Fourth
Amendment simply because they occupy a seat in a vehicle which a police officer stops

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for a violation of the Vehicle Code.” (People v. Cartwright (1999) 72 Cal.App.4th 1362,
1369; see also People v. Gonzalez (1992) 7 Cal.App.4th 381; People v. Castellon (1999)
76 Cal.App.4th 1369, 1374.) We will follow Fisher and Cartwright.
Furthermore, even if defendant had standing to challenge the initial vehicle stop, it
was valid. “As a general matter, the decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic violation has occurred.” (Whren v.
United States (1996) 517 U.S. 806, 810.) “The Fourth Amendment requires only
reasonable suspicion in the context of investigative traffic stops.” (United States v.
Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1105.)
Here the officers observed two Vehicle Code violations that warranted the stop of
Ingram’s truck. First, the truck was missing a front license plate in violation of Vehicle
Code section 5200.5 Second, the truck had expired registration tags in violation of
Vehicle Code section 5204.6 (See, People v. Torralva (1971) 17 Cal.App.3d 686, 689;
People v. Castellon, supra, 76 Cal.App.4th at p. 1373.) The trial court’s finding that the
officers were unable to verify whether the vehicle had a current temporary permit without
stopping to investigate was supported by the testimony of the DMV clerk. Even though
there is a number displayed on the permit, this does not necessarily associate that permit
with that particular vehicle. The permit “would have to be looked at” with the vehicle
identification number on the car to “make sure they match.” After observing that the
5 “When two license plates are issued by the department for a vehicle, they shall
be attached to the vehicle for which they were issued, one in the front and the other in the
rear. When one license plate is issued for use upon a vehicle, it shall be attached to the
rear thereof.” (Former Veh. Code, § 5200, amended by Stats. 2003, c. 594, § 27.)
6 “(a) Except as provided by subdivisions (b) and (c), a tab shall indicate the year
of expiration and a tab shall indicate the month of expiration. Current month and year
tabs shall be attached to the rear license plate assigned to the vehicle for the last
preceding registration year in which license plates were issued, and, when so attached,
the license plate with the tabs shall, for the purposes of this code, be deemed to be the
license plate . . . [v]ehicles that fail to display current month and year tabs or display
expired tabs are in violation of this section.” (Veh. Code, § 5204, subd. (a).)

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truck had no front license plate and expired registration tags, the presence of the
temporary permit alone did not dispel the officers’ reasonable suspicion that a traffic
violation had occurred. Thus, the officers had the right to stop the vehicle.
The Traffic Stop Was not Unlawfully Prolonged
Defendant argues that even if the traffic stop was valid initially, it was unlawfully
prolonged when the officers did not simply verify the temporary permit but instead asked
for identification and ran records checks. We disagree. A request for a passenger’s
identification during a routine traffic stop does not transform the encounter into a Fourth
Amendment seizure. (People v. Cartwright, supra, 72 Cal.App.4th at p. 1370 People v.
Lopez (1989) 212 Cal.App.3d 289, 291.) And if a records check can be completed in
approximately the same amount of time that the officer would take to discharge his or her
duties by virtue of the traffic stop, it is not improper. (People v. McGaughran (1979) 25
Cal.3d 577, 584.) Here, considering the lack of a registration tag and front license plate,
the police could reasonably run a check to determine the validity of the car registration
and the driver’s license. Furthermore, Officer Womack testified that he did not demand
defendant’s driver’s license; rather, he “just asked [defendant] if he had any I.D. with
him.” In response, defendant produced a California driver’s license. The records check
on defendant’s license and Ingram’s license took only “four to five minutes.” This was
not an unreasonable delay.
The Pat Search Was Justified
Once the license check revealed that Ingram’s license was suspended, police
procedure required that the car be impounded. Consequently, Officer Womack asked
defendant to step out of the car. Defendant did not object. Defendant first argues that
removing him from the car was unlawful because it was based on the fact that Ingram’s
license was suspended, when his license was actually not suspended. Defendant relies on
Ingram’s testimony that he had a valid license. However, Officer Womack testified that
the check showed that the license was suspended. The court was entitled to believe

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Womack’s testimony and find that the license was suspended at the time of the stop in
March of 2002.
Next, the decision to impound the truck because of the suspended license required
the removal of the individuals in the truck, since the truck would be towed away. Officer
Womack’s request that defendant get out of the truck, and his compliance, did not
constitute a Fourth Amendment seizure. “[A] mere request to exit a vehicle, as opposed
to a command, is insufficient in and of itself to transform the contact into a detention. As
the high court has explained, a Fourth Amendment seizure does not occur unless the
contact ‘loses its consensual nature.’ ” (People v. Cartwright, supra, 72 Cal.App.4th at
p. 1370, fn 10; Florida v. Bostick (1991) 501 U.S. 429, 434.) Asking defendant to step
out of the car under the circumstances here was a “minimal” intrusion not amounting to a
seizure. (Maryland v. Wilson, supra, 519 U.S. at p. 419.)
Defendant argues that because he was simply a passenger in a car stopped for a
minor vehicle code violation, and he did nothing to indicate he posed any danger, the
police had no reasonable basis for pat-searching him. We disagree. A limited search for
weapons is permissible if the officer is “able to point to specific and articulable facts”
indicating that the person is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 21,
30; People v. Medina (2003) 110 Cal.App.4th 171, 176.)
Here Officer Womack had been assigned as part of a team to patrol the biker
blessing to prevent any outbreak of violence. He was aware that during the previous
year’s blessing police had recovered weapons in the possession of the Hell’s Angels. He
was aware through his training that the Soul Brothers were associated with the Hell’s
Angels. He was aware that there had been recent violence in Southern California
involving the Hell’s Angels and another club. He was also aware from his training that
cars immediately preceding or following a procession of members of a motorcycle club
often carried weapons. And he had personally been in on a vehicle stop earlier that day
where body armor and weapons were recovered. Womack testified that defendant wore

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several items that identified him as a member of the Soul Brothers. When defendant
stepped out of the truck, he was “shaking or trembling” and “seemed very nervous.”
Because of defendant’s nervous behavior, and his “large, bulky” jacket, and because of
the other circumstances involving the motorcycle clubs that Officer Womack was aware
of, he was concerned that defendant might be hiding a weapon. Under all of these
circumstances, a cursory search of defendant for weapons was reasonable under the
Fourth Amendment. (See, e.g., United States v. Flett (8th Cir. 1986) 806 F.2d 823, 828;
United States v. Arvizu (2002) 534 U.S. 266, 274.)
There was no Violation of Harvey-Madden-Remers7
Defendant argues that the court erred in considering expert testimony to determine
the validity of the search because the record does not show that defendant was aware of
the information given by the expert and because it was otherwise inadmissible under the
Harvey-Madden-Remers rule. The testimony referred to was given by Officer Jorge Gil-
Blanco, an expert on outlaw motorcycle gangs and the Soul Brothers in particular. The
court allowed the evidence, over repeated objections by the defense under Harvey-
Madden-Remers. Gil-Blanco testified that the blessing was an annual event that had been
going on since at least 1990. Members of outlaw motorcycle gangs, including the Hell’s
Angels and other “subclubs,” participated in it. It involved the motorcycle riders riding
in procession and being anointed with holy water by a priest. Gil-Blanco testified that
tensions between the Hell’s Angels and a motorcycle gang from southern California
known as the Mongols had been escalating. At the previous year’s blessing, two
members of the Hell’s Angels had been found to possess various weapons. There was an
expectation that there would be a confrontation between the Hell’s Angels and the
Mongols at the San Jose event and it was in part for this reason that the event was heavily
7 People v. Harvey (1958) 156 Cal.App.2d 516, 523-524; Remers v. Superior Court
(1970) 2 Cal.3d 659, 666-667; People v. Madden (1970) 2 Cal.3d 1017, 1021.

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patrolled. Gil-Blanco testified that the Soul Brothers aligned themselves with the Hell’s
Angels. He testified further that a “crash” car or “tail” car often traveled with the
motorcyclists, and carried spare parts, weapons, the wives or girlfriends of the
motorcyclists, and food. Gil-Blanco testified that he had given trainings on motorcycle
gangs to San Jose police officers but he did not know whether the officers patrolling this
particular event had been to his training.
First, defendant’s contention that the record does not establish that Womack
personally was aware of any of this information is belied by Womack’s own testimony.
He stated that he did receive training about the motorcycle clubs and about this particular
event. He knew that the Soul Brothers were associated with the Hell’s Angels. He was
aware of the tension between the Hell’s Angels and the Mongols, and of the recent
violence. He was also aware that Hell’s Angels had been found to have weapons at the
previous year’s blessing. And he had learned in his training that “tail” cars often carried
weapons or drugs.
Secondly, defendant’s argument that the rules of Harvey-Madden-Remers were
violated here is also unfounded. The court in People v. Madden (1970) 2 Cal.3d 1017
summarized the rationale and general scope of these rules as follows: “[A]lthough an
officer may make an arrest based on information received through ‘official channels,’ the
prosecution is required to show that the officer who originally furnished the information
had probable cause to believe that the suspect committed a felony. We reaffirmed this
principle in the recent case of Remers v. Superior Court[, supra, at] pp. 659, 666-667,
where we pointed out: ‘It is well settled that while it may be perfectly reasonable for
officers in the field to make arrests on the basis of information furnished to them by other
officers, “when it comes to justifying the total police activity in a court, the People must
prove that the source of the information is something other than the imagination of an
officer who does not become a witness.” [Citations.] To hold otherwise would permit the
manufacture of reasonable grounds for arrest within a police department by one officer

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transmitting information purportedly known by him to another officer who did not know
such information, without establishing under oath how the information had in fact been
obtained by the former officer. [Citations.] “If this were so, every utterance of a police
officer would instantly and automatically acquire the dignity of official information;
‘reasonable cause’ or ‘reasonable grounds,’ . . . could be conveniently fashioned out of a
two-step communication; and all Fourth Amendment safeguards would dissolve as a
consequence.” [Citation.]’ ” (Id. at p. 1021.) “The whole point of the Remers rule is to
negate the possibility that the facts which validate the conduct of the officers in the field
are made up inside of the police department by somebody who is trying to frame a person
whom he wants investigated.” (People v. Orozco (1981) 114 Cal.App.3d 435, 444.)
These rules generally come into play where the authority to arrest comes from
information obtained through a dispatcher or an anonymous tip. (See, People v. Orozco,
supra, 114 Cal.App.3d 435; People v. Johnson (1987) 189 Cal.App.3d 1315, 1320;
People v. Armstrong (1991) 232 Cal.App.3d 228, 283.) Where this information is not
verified or corroborated, or where the police do not have independent evidence for the
arrest, the Harvey-Madden-Remers rules provide a basis for a suppression motion on
grounds that the information was inherently unreliable. We are unaware of any cases
applying these rules to test the reliability of expert testimony. We do not believe they
apply in this case, for several reasons.
First, there is no danger here that the information the arresting officer possessed
about motorcycle clubs was the product of “the imagination of an officer who does not
become a witness.” (People v. Madden, supra, 2 Cal.3d at p. 1021.) “The best way of
negating ‘do it yourself probable cause’ is to have the officer who received the
information from outside the police department testify.” (People v. Orozco, supra, 114
Cal.App.3d at p. 444.) Here Officer Gil-Blanco testified as to his experience and
qualifications and the court found that he was an expert on motorcycle clubs and on the
Soul Brothers. Furthermore, Officer Womack testified as to what he had personally

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learned about motorcycle club activities in his training as a police officer. The court
offered to give defense a continuance so that they could put on their own expert to refute
the information testified to by Officer Gil-Blanco, but they did not do so.
Furthermore, there is no danger that the facts leading to the arrest of defendant
were “made up inside of the police department by somebody who is trying to frame a
person whom he wants investigated.” (People v. Orozco, supra, 114 Cal.App.3d at p.
444.) None of the information testified to by Gil-Blanco was directed towards defendant.
And defendant’s arrest was not solely the result of information regarding the motorcycle
clubs. In addition to his training regarding the event, Officer Womack was personally
aware, from participating in another vehicle stop earlier in the day, that other motorcycle
club members participating in the event were carrying weapons.
Finally, there was an independent reason for stopping the truck: it was lawfully
stopped for a Vehicle Code violation. The driver had a suspended license, necessitating
the impounding of the car. And independent circumstances justified the pat search of
defendant once he was out of the vehicle, including his nervous behavior, his bulky
jacket, and the prevailing atmosphere of tension between the gangs participating in the
blessing event. Thus this is not a case where “the detaining officer himself does not have
personal knowledge of facts justifying the detention, but acts solely on the basis of
information or direction given him through police channels.” (People v. Collin (1973)
35 Cal.App.3d 416, 420.) We find no violation of the Harvey-Madden-Remers rules in
the circumstances here.
There was No Miranda Violation
Defendant argues that even if the police acted lawfully in asking him to get out of
the vehicle, Officer Womack unlawfully conducted a custodial interrogation by failing to
give him his Miranda8 warnings before asking “if he had anything illegal on him.” We
8 Miranda v. Arizona (1966) 384 U.S. 436.

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have found that Officer Womack had “specific and articulable facts” justifying a brief
detention to pat-search defendant. (Terry v. Ohio, supra, 392 U.S. at p. 21.) As he was
conducting the pat-search he asked defendant if he had anything illegal on him. Since the
officer’s question was asked during a lawful pat-search, rather than a custodial
interrogation, the protections of Miranda did not come into play. (See, Berkemer v.
McCarty (1984) 468 U.S. 420, 440; see, People v. Williams (1988) 44 Cal.3d 1127, 1142;
People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on another point in People v.
Stansbury (1989) 9 Cal.4th 824, 830, fn 1.)
The trial court properly denied defendant’s motion to suppress evidence.
DISPOSITION
The judgment is affirmed.
__________________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
_________________________
WUNDERLICH, J.
_________________________
MIHARA, J.

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