P. v. DelaCerada

Filed 3/5/08 P. v. DelaCerada CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

After the trial court denied his motion to suppress evidence, Benjamin DelaCerda pleaded guilty to possession of methamphetamine. (Health & Saf. Code,

11377, subd. (a).) He appeals the judgment resulting from that plea, and claims the trial court erred in denying his suppression motion. We affirm.

FACTS AND PROCEDURAL HISTORY[1]

At 9:30 a.m., police officer Roger Ramirez drove his patrol car into a park where people were known to congregate and drink. He saw DelaCerda and another man in a remote part of the park. Suspecting that the men were drinking, Officer Ramirez drove within 15-20 feet of them and stopped. DelaCerda was wearing a baggy shirt and trousers. The other man had a tattoo of a local gang on the back of his head.

DelaCerda, who had been lying on his side, looked at Officer Ramirez and rolled to his stomach and knees, got up and started to walk away. The other man also started to walk away but in a different direction. During the period DelaCerda was getting up and starting to walk away from Officer Ramirez, Ramirez saw him manipulate the waistband of his trousers and appear to place something into his waistband. Officer Ramirez suspected DelaCerda was trying to conceal alcohol or some other contraband in his waistband. Ramirez also feared DelaCerda might be reaching for a weapon.

Officer Ramirez ordered DelaCerda to stop, remove his hands from his waist, and sit on the grass. When DelaCerda complied, Ramirez saw a bright orange cap protruding from DelaCerda's waistband. Based on his training and experience, Ramirez concluded that the orange cap was the cover for a syringe needle commonly used to inject narcotics. DelaCerda admitted the object was a syringe. He also nodded affirmatively when Ramirez asked if he used heroin. After determining he was on probation, Officer Ramirez searched DelaCerda and found a crystal-like substance which was later identified as methamphetamine.

DelaCerda was charged with possession of methamphetamine, and with the misdemeanor offenses of being under the influence of a controlled substance and possession of an injection device. (Health & Saf. Code,  11550, 11364.)

DelaCerda filed a motion to suppress the evidence obtained in the search which was denied by the trial court.[2] He then pleaded guilty to possession of methamphetamine. The trial court declared the offense to be a misdemeanor and placed DelaCerda on probation for three years. One of the terms of probation was that he serve 120 days in county jail.

DISCUSSION

DelaCerda contends the court erred in denying his Penal Code section 1538.5 suppression motion because Officer Ramirez lacked "reasonable suspicion" to justify the initial detention. We disagree.

"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231; see also United States v. Arvizu (2002) 534 U.S. 266, 273 [an investigatory stop satisfies the Fourth Amendment if supported by reasonable suspicion to believe that criminal activity "may be afoot"].) Police officers are permitted to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them. (Arvizu, at pp. 273-274.)

In reviewing the denial of a motion to suppress, we view the record in the light most favorable to the ruling and defer to the trial court's factual findings that are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We exercise our independent judgment in deciding whether the search or seizure was reasonable under the Fourth Amendment. (Ibid.; People v. Maury (2003) 30 Cal.4th 342, 384.) We will affirm an order denying a suppression motion where the evidence shows the detaining officer had a "particularized and objective basis" for suspecting criminal activity. (United States v. Cortez (1981) 449 U.S. 411, 417-418.)

Based on the totality of the circumstances, Officer Ramirez suspected that DelaCerda was drinking in violation of a local ordinance. This suspicion was both honestly held and objectively reasonable, and provided a lawful basis to detain DelaCerda. First, it is reasonable for the police to approach and investigate persons in a secluded area of a park known to be used for unlawful purposes. Law enforcement officers "are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." (Illinois v. Wardlow (2000) 528 U.S. 119, 124; see also Florida v. Royer (1983) 460 U.S. 491, 497.)

Second, Officer Ramirez had further reason to investigate when he saw the gang tattoo on DelaCerda's companion and DelaCerda's own baggy clothes suggesting the possibility of a gang affiliation. Generally, an indication of a possible gang association, standing alone, does not establish reasonable suspicion for a detention, but it is a relevant factor in assessing the total picture. (See People v. Hester (2004) 119 Cal.App.4th 376, 387-388.) Moreover, here, both men quickly began walking away in different directions. They did not run away, but their movements showed some level of unprovoked flight from the police. Such action is an important consideration in determining whether there is sufficient cause to detain the individual. (Illinois v. Wardlow, supra, 528 U.S. at p. 125; People v. Souza, supra, 9 Cal.4th at p. 235; see also People v. Brown (1989) 213 Cal.App.3d 187, 189-191.)

Third, as soon as Officer Ramirez approached, DelaCerda reached towards and manipulated his waistband. Again, standing alone, conduct of this sort is merely ambiguous, but an officer may properly consider a defendant's strange or nervous behavior in making a decision to detain. (Illinois v. Wardlow, supra, 528 U.S. at p. 124; People v. Souza, supra, 9 Cal.4th at p. 241.) Here, DelaCerda's behavior was particularly significant in combination with the other circumstances, and was consistent with hiding an object or reaching for a weapon.

At this point, Officer Ramirez was justified in detaining DelaCerda both because he had reason to believe DelaCerda was engaging in unlawful conduct, and because he had reason to fear for his own safety. The detention was lawful and the ensuing search is not challenged on appeal.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The facts are taken from the preliminary hearing.

[2] DelaCerda filed two unsuccessful motions to suppress, but the parties treat them as a single motion.