P. v. Glover



















Filed 6/7/13 P. v. Glover CA1/2











NOT TO BE PUBLISHED IN
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO


>

THE PEOPLE, Plaintiff and Respondent, v. HENRY GLOVER, Defendant and Appellant.

A135985 (Solano County Super Ct. No. FCR288745)

Defendant Henry Glover seeks
reversal of the judgment below, in which he was found guilty of href="http://www.mcmillanlaw.com/">possessing a concealed firearm, on the
ground the police conducted a patdown search of him that violated his federal
constitutional rights against improper search
and seizure. We affirm the judgment
in its entirety.

BACKGROUND

In November 2011, defendant was
charged by felony complaint with one count of having a concealed firearm upon
his person (Pen. Code, § 12025, subd. (a)(2)).href="#_ftn1" name="_ftnref1" title="">>[1]
A preliminary hearing before a magistrate was held, at which defendant’s motion
to suppress evidence pursuant to section 1538.5 was also heard. David Neal and Alexandria LeBlanc testified,
on behalf of the prosecution and defense respectively.

>Testimony of Officer David Neal

Officer David Neal of the Fairfield
Police Department testified that on the afternoon of October 27, 2011, he was
on patrol, in uniform and armed, with parole agent Donovan Lewis, also armed,
in the Parkway Gardens community in Fairfield, href="http://www.adrservices.org/neutrals/frederick-mandabach.php">California,
which Neal knew from experience to be a high-crime neighborhood. They were looking for a suspect in a prior
gun case. A security guard flagged them
down and said he was “watching a group of females and males loitering to the
rear of one of the condos . . . inside Parkway Gardens, and there was—they
were arguing and fighting, and he’d been contacted by some other residents
there.” Neal understood he had
permission from the homeowners association to enforce the trespass ordinance
there. He informed dispatch and he and
Lewis approached the group on foot “in an open area in the middle of the
complex.”

Neal said he observed “a large group
of adult males and females and some smaller children. There was a lot of yelling going on back and
forth.” The females were arguing and the
males were standing around, looking on.
He could not tell if the yelling was going to escalate, “but it was just
back and forth, a lot of commotion.”
There were no other officers present at this initial contact, although
there were other officers later.

Neal further testified that he
noticed defendant in the group that was arguing, standing with females and
small children, because he resembled the suspect in the gun case. Defendant “was standing there with the
females who were arguing, . . . but he was not physically fighting with
anyone.” As Neal approached, he realized
defendant was not the suspect. However,
Neal recognized defendant as someone with whom he had had prior contacts in
Parkway Gardens, including about loitering a couple of months before. Neal did not know defendant’s name, but knew
he was “always hanging out in the area and [did] not live in the complex.”

Neal said he smelled the “very
strong” odor of fresh marijuana coming from defendant’s person when he got
within five or six feet of defendant.
Neal was sure the odor of marijuana came from defendant because he
smelled it when the others left the immediate area and he was standing with
Lewis and defendant only.

Neal also testified that he asked
defendant a series of questions in his initial contact with him. Defendant said he thought he was on
probation, indicated he did not live at Parkway Gardens, and was evasive about
whether he had marijuana on his person.
Defendant also did not respond when asked his name, although Neal did
not include this in his police report.

Asked if defendant made any furtive
movements or if his demeanor was questionable, Neal testified, “he was evasive
at the beginning . . . and throughout most of the contact he didn’t want to
provide his name . . . he just kind of stood there.” Defendant did not make any furtive movements
or threatening statements. Also, defendant
was wearing “completely baggy clothes” that concealed his waistband from
view. This concerned Neal because
defendant “could easily conceal things underneath his oversized baggy shirt and
pants, and due to the nature of the area that we were in, it was definitely a
concern for mine and Officer Lewis’s safety.”


Neal said he then conducted a
patdown search of defendant for officer safety.
He felt the handle of a pistol in defendant’s waistband. The officers removed from defendant’s
waistband a semi-automatic nine-millimeter pistol, loaded with a magazine and
ready to be fired, and placed defendant in handcuffs. Later, the officers determined the pistol’s
serial number had been altered so that it could not be read.

Neal handcuffed defendant and
transported him to the police station.
On the way, defendant stated spontaneously that he found the gun in a
trash can and was just holding it.
Later, after Neal read defendant his Miranda
rights, defendant said the gun was not his, he had found it in a trash can,
and he did not live at Parkway Gardens.

>Testimony of Alexandria LeBlanc

Alexandria LeBlanc, a resident of
Parkway Gardens, testified that she was with a group that included defendant, a
long-time friend of hers, when two officers arrived. LeBlanc was standing right
next to defendant, holding her baby; about five people were present in the
group and defendant was the only male.
There had been a fight between girls from the high school up the street,
but LeBlanc had broken it up before the officers arrived.

The officers walked up to defendant
and asked him his name. Defendant
responded, “My name is Henry Glover.” A police officer said, “That’s not your
name,” put defendant’s hands behind his back, and started to arrest him. Defendant said, “That is my name,” and
LeBlanc said, “That really is his name.”
The police still put defendant’s hands behind his back and arrested
him.

LeBlanc testified that she offered
to get defendant’s aunt, a Parkway Gardens resident with whom defendant often
stayed, to prove defendant’s identity, but the police did not listen to
her. LeBlanc did not know where
defendant lived.

LeBlanc said she was familiar with
the odor of marijuana and did not smell it on defendant or anyone else in the
area at the time of the incident, nor did she hear the police ask defendant
about marijuana. She saw the police pat
down the exterior of defendant’s body.
There was a piece of paper in defendant’s pocket that had his name on it
and LeBlanc pointed that out, but police just threw the paper on the ground.

LeBlanc also said two officers
approached the group, “but as you turned the corner from where their car was
parked at, there were many more.”

>The Magistrate’s Ruling

The magistrate denied the motion to
suppress. The magistrate found “credible
evidence that there was a strong odor of marijuana emanating from defendant”
and that the officers were investigating in a high crime area. The magistrate observed, “two persons
witnessing the same event often see or hear it differently,” and stated,
“that’s I think what happened here. I’m
certainly not going to suggest that either of the witnesses lied.” The magistrate concluded, “the officer’s
conduct was reasonable. The odor of
marijuana emitting from the defendant justified a patdown, in my opinion, and
also for officer safety, which was articulated by the officer, regarding this
high crime area and the defendant’s appearance, I think the officer’s conduct
was reasonable under all the circumstances.”


>Defendant’s Motion to Set Aside the
Information

Defendant was later charged by
information with one count of having a concealed firearm upon his person, to
which he pled not guilty. He moved to
set aside the information pursuant to sections 1538.5, subdivision (i) and 995
because of legal error by the magistrate.
The court denied the motion.

Subsequently, defendant changed his
plea to no contest and was found guilty as charged. The court suspended imposition of sentence
and placed defendant on three years probation with credits for time served. Defendant filed a timely notice of
appeal.

DISCUSSION

Defendant argues the police patdown
search violated his rights under the Fourth Amendment of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution.href="#_ftn2"
name="_ftnref2" title="">[2] Therefore, the evidence obtained as a result
of this search, that being the pistol and defendant’s statements to police,
should have been suppressed and the judgment must be reversed. We conclude the pat down was constitutionally
permissible under the totality of the circumstances.

“ ‘On appeal from a section 995
review of the denial of a defendant’s motion to suppress, we review the
determination of the magistrate at the preliminary
hearing. [Citations.] We must draw all presumptions in favor of the
magistrate’s factual determinations, and we must uphold the magistrate’s
express or implied findings if they are supported by substantial evidence.’
” (People
v. Hawkins (2012) 211 Cal.App.4th 194, 200.) “ ‘We judge the legality of the search by
“measur[ing] the facts, as found by the trier, against the constitutional
standard of reasonableness.”
[Citation.] Thus, in determining
whether the search or seizure was reasonable on the facts found by the
magistrate, we exercise our independent
judgment.’ [Citation.] We will uphold the magistrate's ruling if it
‘is correct on any theory of the law applicable to the case, even if the ruling
was made for an incorrect reason.’ ” (>People v. Guzman (2011) 201 Cal.App.4th
1090, 1096.)

As defendant points out, “No right
is held more sacred . . . than the right of every individual to the possession
and control of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of the law.” (Terry
v. Ohio (1968) 392 U.S. 1, 9 (Terry).) With this right in mind, the >Terry court held that limited searches
for the purposes of officer safety are permissible under certain
circumstances. “Each case of this sort
will, of course, have to be decided on its own facts. . . . [W]here a police officer
observes unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom
he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others’ safety, he is
entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him. Such a search is a reasonable search under
the Fourth Amendment, and any weapons seized may properly be introduced in
evidence against the person from whom they were taken.” (Id. at
pp. 30-31.)

The “protection of police and others
can justify protective searches when police have a reasonable belief that the
suspect poses a danger;” also, “danger may arise from the possible presence of
weapons in the area surrounding a suspect.”
(Michigan v. Long (1983) 463
U.S. 1032, 1049.) “[A] pat-down search
for weapons may be made predicated on ‘specific facts and circumstances giving
the officer reasonable grounds to believe’ that defendant is armed [citation]
or on other factors creating a potential for danger to the officers.” (People
v. Superior Court (Brown) (1980)
111 Cal.App.3d 948, 956.) “[T]he officer
need not be absolutely certain that the individual is armed; the crux of the
issue is whether a reasonably prudent person in the totality of the
circumstances would be warranted in the belief that his or her safety was in
danger.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1074, citing >Terry, supra, 392 U.S. at p.
27.)

In other words, “ ‘it will suffice
that there is a substantial possibility the person is armed, and . . . there
need not be the quantum of evidence which would justify an arrest for the crime
of carrying a concealed weapon.
Sometimes this possibility may be said to exist merely because of the
nature of the crime under investigation, while on other occasions something in
addition will be required, such as a bulge in the suspect’s clothing, a sudden
movement by the suspect toward a pocket or other place where a weapon could be
hidden, or awareness that the suspect was armed on a previous occasion. The test is an objective one, and thus the
officer need not later demonstrate that he was in actual fear.’ ” (People
v. Osborne (2009) 175 Cal.App.4th 1052, 1061.)

Also, reviewing courts “must look 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. . . . 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.”
(United States v. Arvizu (2002)
534 U.S. 266, 273-274.)

In the present case, we conclude the
officers’ patdown search of defendant’s exterior was constitutionally
permissible because the totality of the circumstances supported the objectively
reasonable concern that criminal activity might be afoot and defendant might be
armed and presently dangerous.
Furthermore, nothing in the officers’ initial encounter with defendant
served to dispel this reasonable concern.


The trial court neatly summarized
the relevant facts in the record in the course of denying defendant’s motion to
set aside the information. Among other
things, the court noted that Neal had been flagged down by a security guard in
the apartment complex “in the area that was notorious for high-crime, that
there was a disturbance that was going on, the people had been calling, [and]
males and females were involved.” The
court referred to Neal’s testimony that he saw a large group of males and
females as he approached, heard a lot of yelling back and forth, did not know
if it was going to escalate, and observed “ ‘a lot of commotion.’ ”

The court stated, “So this was a
situation where he had been called over to handle this by a security
guard. He heard the arguing, males and
females, and went over to investigate.
Given the reputation of the particular community involved—he
would have legitimately had some concerns for officer safety. But be that as it may, as he approached [defendant]
and got within a short distance of him, he testified that he smelled the odor
of marijuana, and he stated that the defendant was very close to him, and the
other people were not close at the time he smelled this marijuana.

“There were other people around, but
he testified clearly . . . that it was coming directly from [defendant.] So this officer did not approach someone
where he had no reasonable suspicion of any involvement in href="http://www.fearnotlaw.com/">criminal activity; he had some suspicion,
and so he did have reasonable grounds to detain.

“And under the law, if there are
reasonable grounds to detain, the officer has the right to pat search for
officer safety. There may not have been
grounds to arrest. But for a detention—limited
detention for investigative purposes, this officer clearly was within the
law[.]” Accordingly, the court denied
the motion.

In addition to these facts, Neal
testified that defendant, while not arguing or fighting when Neal arrived, was
“in” the group making the “commotion” when Neal arrived; the security guard
indicated that multiple residents had complained about a “fight” to security;
and Neal and Lewis, approaching on foot, encountered “a large group of adult
males and females and some smaller children” in an open area in the middle of
the apartment complex.

Additionally, Neal smelled the “very
strong” odor of fresh marijuana coming from defendant when Neal got within five
or six feet of him. Such a strong odor
from that distance, as well as Neal’s failure to respond to Neal’s query about
marijuana, gave Neal an objectively reasonable suspicion that defendant could
be under the influence (and, therefore, not necessarily in control of his
behavior) and in illegal possession of marijuana. Furthermore, such suspicion about defendant’s
activities was heightened because Neal knew defendant did not live in the
apartment complex and had been contacted there for loitering a couple of months
before.

Also, nothing in the initial stages
of Neal’s encounter with defendant served to dispel his reasonable concern for
officer safety. According to Neal,
defendant, after indicating he thought he was on probation and did not live in
the complex, did not give a direct answer as to whether he had marijuana with
him or provide his name when asked. He
also wore baggy clothing, making it difficult for the officers to determine
from a visual observation if he was armed.

Based on these facts and those cited
by the trial court, we conclude the totality of the circumstances the officers
encountered furnished them with objectively reasonable grounds to be concerned
about officer safety, suspect criminal activity, including violent criminal
activity, was afoot, and believe that defendant could be armed and dangerous. Neal and Lewis approached on foot a large
group of men and women located in the middle of an apartment complex in a high
crime area who were reportedly involved in a disturbance that might have
involved physical assault, the officers observed a potentially combustible
commotion and defendant, a non-resident, in the middle of it, reeking of
marijuana, being evasive in his responses to questions, and wearing clothing
that could conceal a weapon. It was
reasonably prudent for the officers to conduct a patdown search of defendant in
the course of further investigating what they encountered. Therefore, their limited patdown search of
defendant’s exterior was constitutionally permissible.

Defendant does not present any
persuasive arguments to the contrary. Rather
than discuss the totality of the circumstances, he largely ignores Neal’s
testimony about the report of the fight that brought the officers to the scene
in the first place, as well as much of Neal’s account about the large group of
men and women and the uncertain commotion he observed. Instead, defendant takes some of the
circumstances involved, such as that the officers were in a high crime area,
defendant did not make any furtive gestures, defendant was wearing baggy
clothing, Neal smelled marijuana, defendant refused to give his name, and
defendant indicated he was on probation, and discusses case law that suggests
each one, standing alone, is not a legitimate basis for a patdown search.

For example, defendant cites case
law which states that, while an officer being in a high crime area may be a
factor in evaluating the reasonableness of a “Terry frisk” for weapons, it should be appraised with caution
because “[t]he spectrum of legitimate human behavior occurs every day in
so-called high crime areas” (People v.
Medina (2003) 110 Cal.App.4th 171, 177); reasonable suspicion, even just to
detain someone, “cannot be based solely on factors unrelated to the defendant,
such as criminal activity in the area” (People
v. Perrusquia (2007) 150 Cal.App.4th 228, 233); police do not have the
authority “carte blanche to pat down anyone wearing baggy clothing” (>People v. Collier (2008) 166 Cal.App.4th
1374, 1377, fn. 1); and police may not “assume that any person possibly engaged
in a narcotics transaction . . . is armed and dangerous.” (Santos
v. Superior Court (1984) 154 Cal.App.3d 1178, 1185.) In none of these cases, or in the other cases
cited by defendant, did police encounter the significant collective dangers and
possible criminal activity described by Neal in the present case.

We must review the totality of the
circumstances, rather than engage in a

“ ‘divide-and-conquer’
analysis in which individual facts are considered in isolation.” (People
v. Perrusquia, supra, 150
Cal.App.4th at p. 233.) Thus, in >People v. Collier, supra, 166 Cal.App.4th 1374, one of the cases cited by defendant,
officers engaged in a routine traffic stop in the afternoon smelled the strong
odor of marijuana emanating from inside the passenger side of the vehicle,
where defendant sat, dressed in baggy clothes.
(Id. at p. 1376.) The officers conducted a patdown search of
the defendant and found a loaded nine-millimeter handgun and a jar of PCP. (Id.
at pp. 1376-1377.) The trial court
denied a motion to suppress based on these facts. (Id.
at p. 1377.) The appellate court found
that, although the defendant’s presence in the car “was not probable cause to
arrest him for a drug offense, it furnished a rational suspicion that he may
have been in possession and transportation of drugs.” (Ibid.) The court ruled that the trial court
“correctly and reasonably ruled that there were specific and articulable facts
to conduct a limited patdown based on officer safety and the presence of
drugs,” even though there were “no furtive gestures, no gang evidence, and the
traffic stop was not in a high-crime area,” so that police could safely search
the car interior and further investigate.
(Id. at p. 1378.) The totality of the circumstances in the
present case involves a greater danger than that discussed in >Collier.

In short, defendant’s various
arguments are unpersuasive because he largely ignores the totality of the
circumstances of the present case.
Therefore, we need not discuss the case law defendant cites in any
further detail.

Defendant also contends the officers
were told that the “disturbance” reported to them by the security guard was
between females. However, the record
does not establish this point. Neal
testified on direct that he was told by the security guard that a group of males
and females . . . were arguing and fighting[.]”
Later, on cross examination, as Neal described what he himself observed
upon approaching the group, he was asked, “And what you were told was females
were fighting?” Neal responded, “Females
and males—females were arguing, and there were males standing around,
yes.” Asked, “[s]o the males were not
involved in the fight, as far as you knew?” Neal replied, “Other than being
onlookers as far as I knew, yes.” The
magistrate could reasonably construe this testimony together as indicating Neal
was told by the guard that both males and females were involved in fighting and
arguing, but observed only females arguing.
We so construe the record, as “ ‘[w]e must draw all presumptions in
favor of the magistrate’s factual determinations, and we must uphold the
magistrate’s express or implied findings if they are supported by substantial
evidence.’ ” (People v. Hawkins, supra,
211 Cal.App.4th at p. 200.)

Finally, defendant points to certain
aspects of LeBlanc’s testimony that support his version of the facts. This includes her testimony that defendant
did in fact give his name to police and did not smell of marijuana. Defendant points out the magistrate indicated
LeBlanc was a credible witness. However,
the magistrate did not state that LeBlanc’s account was accurate, but only that
he was not suggesting that LeBlanc or Neal had lied. Again, “ ‘we must uphold the magistrate’s
express or implied findings if they are supported by substantial evidence.’
” (People
v. Hawkins, supra, 211
Cal.App.4th at p. 200.) Neal’s testimony
that he smelled the strong odor of fresh marijuana emanating from defendant,
and that defendant would not give the officers his name, provided substantial
evidence in support of the court’s ruling.

Defendant also points to LeBlanc’s
testimony that she observed more police officers around the corner to contend
the two officers who approached the group had no reason to believe they were
outnumbered. However, nothing in the
record indicates Neal or Lewis were aware of any such officers’ presence
initially, and Neal testified that there were no other officers present when he
made the initial contact with defendant.
Therefore, defendant’s contention is of no consequence in our analysis.

Given our conclusion, we do not
address the People’s argument that the pistol was discovered as part of a valid
search incident to arrest for loitering and/or trespass.

DISPOSITION

The judgment is affirmed.





_________________________

Lambden,
J.





We concur:





_________________________

Kline,
P.J.





_________________________

Richman,
J.