P. v. Dewberry

P. v. Dewberry

























Filed 8/5/10 P. v. Dewberry CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
TWO




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THE PEOPLE, Plaintiff and Respondent, v. RODERIC DEWBERRY, Defendant and Appellant.

A126260 (San Francisco County Super. Ct. No. 208324)

Charged
by information with felony possession of marijuana
for sale (Health & Saf. Code, § 11359), defendant Roderic Dewberry
entered a negotiated plea of no-contest to an added count of misdemeanor
solicitation of a felony (Pen. Code, § 653f, subd. (d)),[1]
receiving dismissal of the possession count, plus three years’ unsupervised
probation, with time served. Defendant
challenges denial of a suppression motion
he brought at three different points in the proceedings. We uphold the denial and affirm the resulting
judgment.

Background

Evidence
from the preliminary hearing was the
basis for all three motions, and the key issue was whether San Francisco Police
Officers had reasonable suspicion to detain and frisk defendant when he was
found walking and talking with suspect Robert Abangan right after a report of a
minutes-old armed assault. Because
defendant’s briefing appears to concede that the stop and frisk, if proper, led
to permissible discovery of the marijuana fueling the charges, we focus on
events leading to the stop and frisk.
Those events were related by Officer William Palladino and Sergeant
Michael Andraychak.

>Evidence. Around 4:54 p.m. on January 1, 2009,
Palladino got a call from victim Carlos Perez reporting that a man with a gun
had assaulted him no more than 10 minutes earlier at the intersection of
Taylor and Eddy Streets. Perez described
the assailant as a Black man, about 30 to 35 years old, about five foot nine
inches tall, about 175 pounds, with braided black hair, wearing blue jeans, a
black “hoody” (hooded sweatshirt) and red and white tennis shoes, and carrying
a white trash bag. Perez did not mention
a companion. He said he last saw the man
going west on Eddy from Taylor Street. Palladino broadcast Perez’s description
“multiple times,” and went to Perez at Eddy and Taylor Streets.[2]

Sergeant
Andraychak and Sergeant Liu were the sole officers standing in front of a
police station near 310 Ellis Street when, about 4:54 p.m., they got the
radio description of the man with the firearm.[3] “Less than a minute” later, Liu alerted
Andraychak to two men, later identified as Abangan and defendant, walking west
on the north side of Ellis Street,
across from him, coming from the direction of Eddy and Taylor Streets. Andraychak saw them pass, walking casually
and “very, very close” together, side-by-side, apparently conversing with each
other. Andraychak and Liu followed them
for a half block before eventually stopping them.

Of
the two men, Abangan more closely matched the broadcast description. He was Black, wore a black sweatshirt and
blue jeans, and, as a booking photograph from that evening shows, was about 30
years old, had braided (or “dreaded”) black hair, a goatee and mustache,
weighed about 145 pounds, and stood five foot six inches tall. Defendant was also Black with a goatee and
mustache, and wore a black sweatshirt and jeans, but wore a black puffy jacket
over his sweatshirt, had short and unbraided hair, measured 280 pounds and five
foot ten inches tall (265 pounds and six feet even, according to the booking
photo). Defendant was also 44 years old
and wore white (not red and white)
tennis shoes.

Andraychak
and Liu, both in uniform, followed behind the two men for half a block, drawing
their guns, radioing for backup and, at 350 Eddy Street, commanding the two to
stop, turn away from them, and face a building at 350 Eddy Street, where they
handcuffed the two and then pat-searched them for weapons. The record does not disclose what, if anything,
was found on Abangan, who was searched by the nontestifying Sergeant Liu. Andraychak, however, described finding on
defendant no weapon, but marijuana. Both
detainees cooperated, and by the time they had been handcuffed, at least six
backup officers had arrived. Upon
nearing defendant for the frisk, Andraychak and Liu had put away their
guns. Andraychak smelled marijuana on
defendant as he conducted the frisk for weapons. He then felt a very hard object in a pocket
that, when opened, turned out to be a camera.
This gave him a view of two baggies of suspected marijuana. Continuing the weapons search to the
waistband of defendant’s hooded sweatshirt, Andraychak found a larger amount of
marijuana bunched into a tight wad, and then, in a jacket pocket, about 70
small zip baggies.

Andraychak
variously described how and why he conducted the stop and frisk. “The information I had from the police radio
was that a subject matching Mr. Abangan’s description had just committed a
brutal assault and battery and a firearm had been used. That’s the information that I was acting
upon, and that’s why I took the steps I did to insure my safety.” “I keyed in on the clothing description and
the close proximity, one block away, walking the same direction, within a short
minute—within a minute of hearing the crime broadcast.” “I drew my firearm. I was fearing for my safety because the radio
broadcast stated that a firearm was used in the earlier attack.” “Sergeant Liu and I both drew our
firearms. We pointed them at Mr.
Dewberry and Mr. Abangan. [¶] We
gave them verbal commands to stop, to turn away from us, and to face the
building that they were walking next to.
[¶] The immediate concern at that point is to watch their hands to
make sure that they don’t reach for a weapon, because in my mind, in any event,
I was concerned that the firearm was present.
[¶] As we were doing so, a group of people were walking down the
same sidewalk from my left, so they were walking eastbound.” Seeing those people created “a heightened
sense of danger. If gunplay were to
erupt, they could possibly become victims of either the suspect’s gunfire or,
God forbid that I have to shoot somebody with a bullet, I have to be concerned
where my bullet’s going to go.
[¶] And I ordered [the approaching people] to turn around and go
back in the other direction. There’s a
lot going on in that circumstance when dealing with a possible gun.” He handcuffed defendant “[b]ecause he had
been walking and conversing with Mr. Abangan.
He was walking next to and very, very close to that subject. They were both coming from the direction of
Eddy and Taylor, which is only a block away, and it’s very close proximity and
close time to this radio broadcast that I just heard about the
assault—aggravated assault in the presence of a gun.” “I handcuffed him because I was fearful that
he may have had a gun.” Andraychak saw
that defendant “was a large man, heavier than I. He felt strong—stronger than I was. [¶] . . . [¶] It’s a
threat to my safety if he were to—to resist me placing the handcuffs or attempt
to escape or assault me, that he could possibly injure me.
[¶] . . . [¶] . . . Once he was
in handcuffs and I switched gears from being a little bit less worried about a
gun, because now his hands were restrained, as I got closer to his shoulder, I
began to smell the odor of marijuana coming from his person. [¶] . . . [¶] I
performed a search for—for weapons because that is first and foremost the
immediate threat, you know, to my safety, my partner officer, and, again, there
were bystanders, people, citizens walking down the street.”

Hearing
over the radio from Sergeant Liu that two suspects were in custody, Officer
Palladino took the victim to the scene where, after a cold-show admonition, the
victim identified Abangan (not defendant) as his assailant.

>Rulings. Judge Marla Miller, acting as magistrate at
the preliminary hearing, ruled: “I think
it’s a very close case, and I’m going to deny the motion to suppress. [¶] The descriptions are not as specific
as one might like. However, what sways
me in this instance is the proximity in time and proximity in
location. . . .
[¶] . . . I find there was a basis to detain. I find there was a basis to do the pat
search, for officer safety, and there was no evidence to contradict the
officer’s statement that the . . . drug evidence was discovered in
connection with the pat search.”

Judge
Wallace Douglass, reviewing the same evidence as presented on a
section 995 motion to dismiss the information, denied suppression with
these comments: “I think the magistrate
concluded that the suspicion that a gun was involved justifies the police
having their guns drawn, and that proximity in proximity and temporally [ >sic] makes up for the lack of the match
between suspect description and people detained.”

Judge
Teri Jackson, facing the same evidence, this time on a defense motion for a
“special hearing” (§ 1538.5, subd. (i)), ruled that the motion was
unauthorized, given the prior renewal before Judge Douglass, but then ruled
alternatively: “[S]ince the defense has
asked and the Court wants its record to be clear, I did look at the 1538.5 and
the issues raised at the preliminary hearing, as well as what was raised at the
995. And the Court, this Court, will
deny the motion based upon the record, the arguments that the Court has
heard. And when I say the ‘record,’ that
is all the fully litigated record.
[¶] So, it’s clear that the Court did look at the merits of whether
or not the detention was reasonable, and based upon the facts in this
case. And . . . the Courts are
looking at the cases of [People v. Rico
(1979) 97 Cal.App.3d 124, 128, and People
v. Smith (1970) 41 Cal.App.3d 431], that similarities or if it’s minor
discrepancies, that can negate any problems here in this case. [¶] The Court’s looking at close in
proximity, the general description, what the officers had at the time. I agree with the 1538.5 and the decisions by
Judge Miller, as well as Judge Douglass.”

Discussion

A. The
Third Motion

Because
Judge Jackson denied suppression partly on the procedural ground of the third
motion being unauthorized, defendant devotes considerable briefing to that
issue, arguing that there was jurisdiction to hold a “special hearing” under
section 1538.5, subdivision (i).
The People argue that, since defendant’s initial motion was heard and
denied at the preliminary hearing, his second one—the basis for his section 995
motion to dismiss—was in effect the special hearing or at least the only
renewed motion allowed by law and policy.[4] We deem the question purely academic and
therefore do not resolve it.

All
three motions and denials were made on the same evidence, as adduced at the
preliminary hearing. If defendant were
to prevail on the procedural question, we would review the third denial; if the
People were to prevail, we would review the second. But either way, review on appeal is
authorized despite the plea-based conviction (§ 1538.5, subd. (m))
and, with no additional evidence having been presented at either renewed motion,
review is de novo after deferring to all matters of historical fact as found,
expressly or implicitly, by the magistrate at the preliminary hearing ( >People v. Parson (2008) 44 Cal.4th
332, 345; § 1538.5, subd. (i)).

Because
the outcome for us is the same, we review the motion on the preliminary hearing
evidence, without need to identify which “review” we review.

B. The
Stop and Frisk

“The
Fourth Amendment prohibits
‘unreasonable searches and seizures’ by the Government, and its protections
extend to brief investigatory stops of persons or vehicles that fall short of
traditional arrest. [Citation.] Because the ‘balance between the public
interest and the individual’s right to personal security,’ [citation], tilts in
favor of a standard less than probable cause in such cases, the Fourth
Amendment is satisfied if the officer’s action is supported by reasonable
suspicion to believe that criminal activity ‘ “may be afoot.” ’ [Citations.]”
(United
States v. Arvizu (2002) 534 U.S.
266, 273.) A reviewing court looks
“at the ‘totality of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis’ for suspecting
legal wrongdoing. [Citation.] This process allows officers to draw on their
own experience and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might well elude an
untrained person.’ [Citations.] Although an officer’s reliance on a mere
‘ “hunch” ’ is insufficient to justify a stop [citation], the
likelihood of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying a preponderance
of the evidence standard [citation].” ( >Id. at pp. 273-274.)

Our
case involves also a frisk for weapons.
In the formulation derived from Terry
v. Ohio (1968) 392 U.S.
1, a stop and frisk is “constitutionally permissible if two conditions are
met. First, the investigatory stop must
be lawful. That requirement is met in an
on-the-street encounter . . . when the police officer reasonably
suspects that the person apprehended is committing or has committed a criminal
offense. Second, to proceed from a stop
to a frisk, the police officer must reasonably suspect that the person stopped
is armed and dangerous.” ( >Arizona > v. Johnson (2009) 555 U.S.
_, _, 172 L.Ed.2d 694, 700.)

By
that formulation, officers clearly had cause to stop and frisk Abangan. He matched the general description given by a
presumptively reliable victim of violence (People
v. Dolly (2007) 40 Cal.4th 458, 467-471 [anonymous 911 caller]; see
also conc. opn. by Kennard, J., id.
at p. 474), and general descriptions like this one, which might fall short
of probable cause to arrest, may nevertheless support an investigative stop
(see, e.g., People v. Curtis (1969)
70 Cal.2d 347, 350, 358-359 [male Negro about six feet tall wearing a
white shirt and tan trousers]). Abangan
also wore distinctive black and red Nikes and was spotted just a block away
from, and 10 minutes after, a reported assault with a firearm. Similarly, reasonable suspicion that Abangan
was armed and dangerous clearly appears from the victim’s report of a brutal
assault with a firearm just 10 minutes before, and a block away.

Defendant
all but concedes the existence of reasonable suspicion to stop and frisk
Abangan but, focusing on the stop, argues:
“What[ever] reasonable suspicion police had that Abangan was the
assailant, it did not extend to [defendant] by virtue of association with
Abangan on a public street.”

We
accept defendant’s point as far as it goes—that his being with Abangan was the
only reason to suspect him of criminality.
The victim had not reported anyone being with the assailant, and
defendant’s own appearance varied significantly from that given for the
assailant. But this is not the end of
our inquiry. Rather, it moves us to case
law examining the circumstances under which the risk of violence to police
officers from a companion of a suspect constitutionally justifies detaining the
companion for a frisk, even without individualized suspicion of criminality as
to him.

One
such case is People v. Samples (1996)
48 Cal.App.4th 1197 (Samples),
where, the parties recognize, we found no reason to decide whether an
“ ‘automatic companion’ rule” of some federal circuits should apply, but
upheld the frisk of a companion under a less bright-line, competing test of
“the ‘totality of the circumstances.’ ”
(Id. at p. 1212.) We held:
“[A] reviewing court should endeavor to balance the governmental
interest which is sought to be protected against the degree of intrusion
involved in the detention. This
balancing must demonstrate that, to be sustainable, the detention meets ‘the
ultimate standard of reasonableness embodied in the Fourth Amendment.’ [Citations.]”
(Id. at p. 1206; see
generally Pennsylvania v. Mimms
(1977) 434 U.S. 106, 108-109.)

Police
officers in Samples were at an
apartment to execute a warrant search of the premises and two residents for drug
activity when, for their safety, they frisked Samples, the driver of a car,
when he pulled to the curb about 160 feet away from the apartment with several
passengers, including the two residents.
(Samples, supra,
48 Cal.App.4th at pp. 1200-1201.)
He, like defendant here, urged that the frisk was unreasonable under
federal high court precedent that “ ‘mere propinquity to others
independently suspected of criminal activity’ does not, without more, permit a
detention and pat-search” (id. at
pp. 1207-1208, quoting Ybarra v.
Illinois (1979) 444 U.S. 85, 91 [mere patron of tavern being warrant
searched]; see also United States v. Di
Re (1948) 332 U.S. 581, 583, 592-594 [in counterfeit gas ration coupon
case, investigator lacked probable cause to arrest (and thus search) mere
passenger in car with an informant who had identified only the person behind
the wheel as the guilty party]), but we distinguished his authority. (Samples,
at pp. 1207-1208.) Accepting as “essentially correct” that Samples
was not a subject of the search warrant, had no apparent connection to the
house or any drug activity, and did nothing to raise suspicion that he was
armed and dangerous, we found that he overlooked key factors of
“(a) officer safety and (b) the apparent relationship between [him]
and the subjects of the warrants.” ( >Id. at p. 1208.) Noting that drug trafficking is fraught with
firearm violence and that officers should not have to make on-the-spot
distinctions as to whether a person with a suspect is “ ‘a companion in crime
or a social acquaintance’ ” (id.
at pp. 1212), we upheld the frisk as justified in the total circumstances,
including Samples’s apparently close physical and functional association with
the subjects of the warrant, their being together at night in the car, and the
concern for officer safety (Samples,
pp. 1212-1213). We had also said of
the detention preceding the search, as the car was emptied of occupants, that
it was “minimal” and without “handcuffs or drawn weapons.” (Id.
at p. 1207.)

There
are certainly distinctions in the present case, but the total circumstances are
more convincing than in Samples. The detention leading to the frisk did
involve drawn weapons and handcuffs, but the detention was evidently very brief
and the risk to officers far greater.
These officers did not have to assess generalities about the risks of
firearms associated with drug trafficking and removing people from a car. Rather, they operated on information that one
of these men was armed and had >used a gun to assault someone just 10
minutes earlier. Multiplying that threat
was a risk to passersby, a risk not present in Samples. And while it was
unknown whether defendant was a “companion” or cohort, there was strong reason
to suspect a threat from him as well.
With Abangan’s armed assault just 10 minutes old and a block away, it
was highly unlikely that defendant just happened to join him within the last
few minutes, unaware of the assault. If,
as was more likely, defendant knew of Abangan’s assault, he could have Abangan’s
gun or have one of his own.

The
Fourth Amendment balance here is not even close, and the basic flaw in
defendant’s contrary argument is his inability to articulate what the officers
could have prudently done, short of stopping and frisking him, to minimize the
threat to officers and bystanders. We
recognize that there were probably six other officers on the scene by the time
Andraychak and Liu ordered the suspects to the wall and quickly cuffed and
frisked them, but it is not clear that the other officers were yet in a
position to assist or to protect the bystanders. The magistrate could infer from Andraychak’s
testimony that he had barely enough time to yell for the oncoming people to go
back as he and Liu physically engaged Abangan and defendant, stopping and
cuffing them “within seconds” of each other.
Even if six or more other officers had arrived, it is not clear how
their mere arrival reduced the risk of an armed attack, and potential harm to
bystanders, as Abangan and defendant were being stopped by just two officers on
foot.

Applying
our independent review, after
deferring to all supported express and implied findings of historical fact
favoring the ruling (People v. Glaser
(1995) 11 Cal.4th 354, 362), we conclude that the stop and frisk of
defendant were reasonable in the totality of the circumstances.

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Disposition

The
judgment is affirmed.







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Kline,
P.J.





We concur:





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Haerle, J.





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Richman, J.







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