P. v. Gatison
Filed 1/13/14 P. v. Gatison CA1/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
KENNETH GATISON,
Defendant and
Appellant.
A137180
(
Super. Ct. No. 5-120821-4)
This is an appeal from final
judgment following entry of a no contest plea by appellant Kenneth Gatison
after the trial court denied his
combined motion to suppress (Pen. Code, § 1538.5) and to dismiss the
information (Pen. Code, § 995).
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2012, an information was filed charging appellant with one felony count
of possession of marijuana for sale (
§ 11359).
title="">[2] This charge stemmed from appellant’s arrest
on the afternoon of May 2, 2011 near the campus
of Riverview Middle School in Bay Point. At about 2:20 p.m. on that date, just as students were being dismissed, Officer Leah
Stabio, the school resource officer, was on duty in uniform with the assignment
to ensure students safely left school.
Officer Stabio was approached by Rhonda Moncrief, a school employee who
also helped ensure student safety during afternoon dismissal. Moncrief directed Officer Stabio’s attention
towards appellant, an adult male standing on school grounds whom she identified
as “Kenny.†Specifically, Moncrief told
Officer Stabio: “[T]here was a gentleman
that sells drugs on campus. She pointed
in the direction of a certain gentlemen that was crossing the street. She said, ‘That’s him right there. That’s Kenny.
He sells weed to all the kids at school.’ â€
Based on this information, Officer
Stabio walked towards appellant to investigate whether he was a student at the
school and whether he was on school grounds for an unlawful purpose. As Officer Stabio explained, “nonstudents are
not allowed on campus.†However, when
Officer Stabio approached, appellant looked at her and walked off campus in the
direction of an ice cream truck. Officer
Stabio confronted him there, introducing herself and asking in a conversational
tone why he was on campus and whether he had identification. When appellant queried why he needed to
provide identification since he had done nothing wrong, Officer Stabio
explained that, for her own safety, the school’s safety and the public’s
safety, she had a duty to identify nonstudents on campus to make sure they were
not violent or the subject of any active warrants.
that she had received information
from a school employee identifying him as a possible drug dealer.
Appellant cooperated with Officer
Stabio’s request by providing his high school identification card, which
Officer Stabio used to search the CLETS database for information confirming his
identity and the existence of any outstanding warrants (there were none). Officer Stabio then asked appellant whether he
was carrying any drugs. Appellant
responded, “no,†and Officer Stabio then asked whether he “had any weed on
him,†to which appellant responded that he may have “a little.†Officer Stabio asked whether she could search
him for the marijuana, and appellant stated: “I don’t care.†As such, Officer Stabio conducted a search,
finding, among other things, a plastic container in appellant’s right vest
pocket with a pill bottle and 19 individual baggies of marijuana.
Officer Stabio thus arrested
appellant for possessing marijuana for sale, read him his Miranda rights and placed him in her patrol car. During the drive to the station, Officer
Stabio continued to question appellant, asking whether he was selling the
marijuana. Appellant responded,
“no.†When Officer Stabio then asked him
how much one of the baggies of marijuana found on his person sold for, he
answered: “sometimes ten, sometimes
eight.†Officer Stabio continued
questioning, asking how much appellant could make in a single day selling
marijuana. Appellant answered: “I don’t know, sixty.â€
On August 1, 2012, appellant filed the combined motion to suppress the evidence
seized from his person on the afternoon in question and to dismiss the
information, which is now the subject of appeal. At the August 16, 2012 hearing on appellant’s combined motion, the trial court accepted
argument from both parties before ultimately denying it.
evidence clearly shows that the defendant voluntarily consented to the
search. Because his consent was
voluntary, and his detention was lawful, the court declines to suppress the
evidence. It does not do so, and the
motion to dismiss is denied.â€
On November 5, 2012, appellant withdrew his not guilty plea and pleaded no contest to
the charge. The trial court thereafter
sentenced appellant to two years of probation.
This timely appeal followed.
DISCUSSION
Appellant raises one issue on
appeal. He contends Officer Stabio
lacked reasonable suspicion to detain him and, thus, that her subsequent search
of his person was illegal. As such,
appellant reasons, his motion to suppress all evidence derived from her illegal
search should have been granted. He thus
asks this court to reverse the judgment and remand the matter to the trial
court to allow him to withdraw his no contest plea. The following legal principles govern his
contention.
“When reviewing the grant or denial
of a motion to suppress, an appellate court must uphold the [lower] court’s
express or implied findings of fact if the facts are supported by substantial
evidence.†(People v. Lim (2000) 85 Cal.App.4th 1289, 1296.) We then employ our independent judgment to
decide whether, under those facts, the search and seizure was legal. (People
v. Ruiz (1990) 217 Cal.App.3d 574, 580; People
v. Ayala (2000) 23 Cal.4th 225, 255.)
Otherwise stated, the legality of a search or seizure is measured by
“the facts, as found by the trier [of fact], against the constitutional
standard of reasonableness.
[Citations.] Thus, in determining
whether the search or seizure was reasonable on the facts found by the [trier
of fact], we exercise our independent judgment.
(People v. Glaser (1995) 11
Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].)†(People
v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Slightly altering this procedure, in
cases like this one, where “a magistrate rules on a motion to suppress
. . . raised at the preliminary examination, he or she sits as the
finder of fact with the power to judge credibility, resolve conflicts, weigh
evidence, and draw inferences. In reviewing the magistrate’s ruling on a
subsequent motion under Penal Code section 995, the superior court sits as a
reviewing court — it must draw every legitimate inference in favor of the
information, and cannot substitute its judgment for that of the magistrate on
issues of credibility or weight of the evidence. On review of the superior
court ruling by appeal or writ, we in effect disregard the ruling of the
superior court and directly review the determination of the magistrate. In
doing so we draw all presumptions in favor of the magistrate’s express or
implied factual determinations and must uphold them if they are supported by
substantial evidence.†(
omitted].)
With respect to the substantive law,
“state
and federal claims relating to exclusion of evidence on grounds of unreasonable
search and seizure are measured by the same standard. (In re Tyrell J.
(1994) 8 Cal.4th 68, 76 [32 Cal.Rptr. 2d 33, 876 P.2d 519]; In re Lance W.
(1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744].) ‘Our state
Constitution [Cal. Const., art. I, § 13] thus forbids the courts to order
the exclusion of evidence at trial as a remedy for an unreasonable search and
seizure unless that remedy is required by the federal Constitution [U.S.
Const., 4th Amm.] as interpreted by the United States Supreme Court.’ (In re
Tyrell J., supra, at p. 76.)â€
(People v. Camacho (2000) 23
Cal.4th 824, 830.)
U
“the judicial inquiry into the reasonableness of a detention is a dual one –
whether the officer’s action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the
interference in the first place.†(
case, the officer is justified in briefly detaining an individual if, at its
inception, the officer had “a reasonable suspicion, based on objective facts,
that the individual is involved in criminal activity.†(California
v. Hodari D. (1991) 499 U.S. 621, 636, fn. 10; People v. Hernandez (2008) 45
Cal.4th 295, 299.) In other words, even
where “there is no probable cause to make an arrest,†an officer can initially
detain an individual for purpose of an investigation if the officer reasonably
suspects unlawful activity has or will occur.
(Terry v. Ohio, supra, 392
U.S. at p. 22.)
Applying these principles to the facts at hand, we thus must determine
whether Officer Stabio had reasonable suspicion to detain appellant based on
the information she received from Rhonda Moncrief that he sold drugs to
students on campus.
title="">[5] (People v. White (2003) 107 Cal.App.4th 636, 642.) Affording all presumptions in favor of the
lower court’s factual findings, as the law requires (People v. Shafrir, supra, 183 Cal.App.4th at pp. 1244-1245), we
conclude that she did.
First, with respect to Officer
Stabio’s initial encounter with appellant, it is “well settled that a police
officer may approach a citizen, identify himself as a police officer and ask
questions even without any objective justification.†(People
v. Rosales (1989) 211 Cal.App.3d 325, 330; see also People v. Vibanco (2007) 151 Cal.App.4th 1, 14.) “Detention, not questioning, is the evil at
which Terry’s
second prong is aimed. [Citation.]†(People
v. Brown, supra, 62 Cal.App.4th at p. 496.) “ ‘[A]n officer has every right to talk
to anyone he encounters while regularly performing his duties . . . .’ (People
v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 [42 Cal.Rptr.2d 18].) [¶] . . . ‘[A]sking questions
is an essential part of police investigations.
In the ordinary course a police officer is free to ask a person for
identification without implicating the Fourth Amendment.’ (Hiibel
v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177,
185 [159 L.Ed.2d 292, 124 S.Ct. 2451] (Hiibel).)†(People
v. Vibanco, supra, 151 Cal.App.4th at p. 13.) As such, Officer Stabio was undoubtedly
entitled, as a school resource officer on duty and in uniform, to approach appellant
after seeing him on campus to ask him for identification and whether he was a
student. (See In re Joseph F. (2000) 85 Cal.App.4th 975, 986 [“unlike
the rules applicable to public places in general, school officials, including
police who assist in maintaining general order on school campuses, need not
articulate a specific crime which appears to be violated in order to detain an
outsider for the limited purpose of determining the fundamental factors
justifying an outsider’s presence on a school campus, such as who he is, why he
is on campus, and whether he has registeredâ€]; see also § 626.7 [“If a person who is not a student
. . . of a public school, and who is not required by his or her
employment to be on the campus . . . enters a campus or facility
outside of the common areas where public business is conducted, and it
reasonably appears to . . . an officer or employee designated by the
chief administrative officer to maintain order on the campus or facility, that
the person is committing any act likely to interfere with the peaceful conduct
of the activities of the campus or facility, or has entered the campus or
facility for the purpose of committing any such act, the chief administrative
officer or his or her designee may direct the person to leave the campusâ€].)
Further,
with respect to Officer Stabio’s subsequent questions regarding whether
appellant was carrying drugs or marijuana, the law is likewise clear that 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.’ [Citation.]†(People
v. Letner and Tobin (2010) 50
Cal.4th 99, 145-146.) Here, appellant’s
detention was justified because, as the record reflects, Officer Stabio had
discovered specific, articulable facts that, considered in light of the
surrounding circumstances, indicated appellant may have been present on school
grounds to sell drugs to students. These facts, quite simply, were that
appellant, who was standing on campus just as students were being dismissed,
“sells weed to all the kids at school.â€
Appellant,
of course, disputes these “facts,†received by Officer Stabio from Rhonda
Moncrief, were sufficient to establish reasonable suspicion. Rather, appellant insists that, because Moncrief
was “not a witness to any crime,†her statements to the officer were mere
hearsay and too conclusory and non-specific to justify a detention. We disagree.
As the People accurately note, Officer Stabio testified at the
preliminary hearing that Moncrief was a school employee whose responsibilities
included helping to ensure students safely left school at dismissal time. Officer Stabio also confirmed Moncrief was present
at school daily, and was regularly in contact with Officer Stabio, who, like
Moncrief, was responsible for the students’ safe departure. On the day in question, Moncrief specifically
told Officer Stabio “there was a gentlemen that sells drugs on campus,†and
that, in fact, this “gentleman†was presently on campus. Moncrief then pointed to this person, and
identified him to Officer Stabio by the name of “Kenny.â€
When Officer Stabio testified under
oath regarding the information she received from Moncrief, Officer Stabio did
not indicate that Moncrief had told her she learned about “Kenny†and his student
drug sales from another person. Rather, her
testimony reflects that Moncrief directly told her the information in a manner suggesting
that it was based on firsthand knowledge; and nothing she said on
cross-examination suggested otherwise.
As such, the magistrate hearing Officer Stabio’s testimony could
reasonably have interpreted it to have come from Moncrief’s personal
observations of appellant during the course of her daily school duties. Given that the magistrate, unlike this court,
observed this testimony firsthand, we decline to second guess his
judgment that it was “reasonable, credible and of solid
value.†(People v. Johnson (1980) 26 Cal.3d 557, 578; see also
judge the credibility of the witnesses, resolve any conflicts in the testimony,
weigh the evidence and draw factual inferences, is vested in the trial
court’ â€].)
Accordingly, based on this factual
record, we conclude that Officer Stabio did in fact have grounds to reasonably suspect
appellant was on campus to sell drugs, thereby justifying her decision to
detain him for purposes of an investigation.
The law required nothing more.
(2002) 98 Cal.App.4th 695, 699-700 [the law requires a
reasonable suspicion, not proof beyond reasonable doubt, to warrant an
investigatory stop]. Compare
1735, 1741 [information from an unnamed mother of a student that her son had
seen the appellant at a school event the previous week in possession of a gun
was sufficiently reliable to demonstrate reasonable suspicion justifying a
search of the appellant’s locker].) Moreover, because the facts as found by the lower court provided an
objective legal basis for Officer Stabio’s decision to detain appellant for a
possible drug offense, there was no violation of appellant’s Fourth Amendment
rights.
The judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting
P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Unless otherwise
stated, all statutory citations herein are to the Penal Code.
2011, a complaint based on the same charge was filed in criminal court. Appellant pleaded not guilty to this charge
and, on December 5, 2011, filed a motion to suppress evidence
(§ 1538.5). This motion was heard
by a magistrate in conjunction with a preliminary hearing on December 7,
2011. Following the magistrate’s denial
of this motion, the district attorney filed the above-referenced information on
May 30,
2012.
