P. v. Hanks
Filed 1/30/14 P. v. Hanks CA1/2
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opinion has not been certified for publication or ordered published for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.
MAURICE LAPRELE HANKS, JR.,
Defendant and
Appellant.
A135496
(
Super. Ct. No. 51117506)
Maurice Hanks, Jr., appeals from
convictions of illegal possession of a
firearm and ammunition. He contends
the trial court erred in denying his motion
to suppress evidence seized in what he claims was an unlawful detention and
search of his person. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information
filed on November 9,
2011, with one count of possession of a
firearm by a felon (former Pen. Code, § 12021, subd. (a)(1) [now
§ 29800, subd. (a)(1)])
name="_ftnref1" title="">[1]
and one count of possession of ammunition by a convicted person (former § 12316,
subd. (b)(1) [now § 30305, subd. (a)(1)]). It was alleged that appellant had been
convicted of burglary, a felony, on August 31, 2011. It was further alleged that
the prior burglary constituted a strike under subdivisions (b) through (i)
of sections 667 and 1170.12, and rendered appellant eligible to be
sentenced to state prison. (§ 1170,
subds. (f) & (h)(3)(A).)
At the preliminary hearing on November 2, 2011, appellant moved to suppress evidence of the firearm and ammunition
seized as a result of what he argued was an illegal detention and search. This motion was denied.
In the trial court, appellant again moved to suppress evidence, as
well as to dismiss the information
(§ 995). These motions were denied
after the court heard argument on February 2, 2012.
Jury trial began on February 15 and on February 17, the
jury found appellant guilty of both counts.
Appellant had previously stipulated that he had suffered a prior felony
conviction. The court found the strike
and prison eligibility allegations true.
On May 7, the court denied appellant’s motion to strike the
prior and sentenced appellant to the middle term of two years on each count,
doubled because of the prior strike conviction, to run concurrently for a total
prison sentence of four years.
Appellant filed a timely notice of appeal on May 16, 2012.
STATEMENT OF FACTS
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In October 2011, Richmond Police Officers
Benjamin Therriault was working as a crime-free housing officer at the Pullman
Point apartment complex, a complex consisting of four separate two-story buildings
with about 200 units in a high-crime area.
The crime-free housing program
had police officers work with the management of low-income housing areas to
alleviate criminal problems, through actions such as foot patrols, advising
management on ways to enhance the standard of living for the tenants, and
targeting gang members and living in or visiting the complex. Therriault and other Richmond police
officers had investigated a number of violent crimes at the complex, including
shootings, and had encountered firearms on individuals and in apartments there
on many occasions.
Trespassing was a specific problem at Pullman Point. On the evening of October 6, Therriault
and Officer Matthew Stonebraker were assigned to observe a back gate to the
complex that was frequently scaled by trespassers. This vehicle gate, in a fence about eight feet
high, was kept open during school hours and secured the rest of the time. Previously, a pedestrian gate next to the
vehicle gate had been kept open 24 hours a day, but it had been locked not long
before the present incident, preventing access to that side of the complex. Many residents of the complex would jump over
the fence to get in or out instead of walking the long way around through the
front gate. There was a “no trespassingâ€
sign affixed to the locked gate, as well as other such signs in the area facing
the gate.
At about 9:30 p.m.,
the officers observed two Black males scale the gate, one of whom Therriault
identified in court as appellant. Therriault
testified that after the two continued a little further into the property, he
and his partner decided to detain them on suspicion of trespassing. Therriault walked in appellant’s direction
and told him to stop. Therriault did not
recall whether he identified himself as a police officer, but he and his
partner were in full uniform. Appellant
did not stop initially, and Therriault repeated his command several times. Appellant, who was holding a cell phone in his
right hand, put the phone down against the side of his body and turned toward
Therriault. Due to his knowledge of the
area, the time of day, appellant’s baggie clothing and the fact he could not
see appellant’s hand, Therriault believed appellant could be armed. He withdrew his service revolver and held it
at the “low ready,†at a down angle in front of his body, for “[m]aybe a
second,†then reholstered it when he saw appellant’s hand. Therriault heard appellant’s companion, who
had been detained by Officer Stonebraker, say something about a knife. This caused Therriault concern because
“usually when there’s one weapon there are more.â€
Therriault directed appellant to
place his hands on top of his head and interlock his fingers. Appellant did not completely interlock his
fingers to the officer’s satisfaction; Therriault tried to hold them together
and appellant began to pull them apart to separate his hands. Therriault tightened his grip on appellant’s
hands but because of appellant’s resistance and concern for his safety, he put
appellant’s hands in handcuffs behind his back. He then conducted a pat search of appellant’s
waistband. In front of appellant’s right
hip, Therriault felt a solid object he could not immediately identify. As he tried to feel it again, appellant
shifted his body and Therriault did not feel the object anymore. Therriault pulled appellant closer to him,
heard a sound “[c]lanking, metallic sound†from the area of appellant’s leg,
looked down and saw the barrel of a black firearm protruding from appellant’s right
pants leg. Therriault lifted appellant’s
pant leg and saw the rest of the firearm, then placed appellant on the ground
in a prone position and conducted a more extensive pat-down search for weapons.
Officer Stonebraker retrieved the
firearm and checked to see whether it was loaded. As Stonebraker was checking the weapon, appellant
said something to the effect of, “Dam[n], and it’s loaded, too.†Appellant was placed under arrest. The weapon, a .380 caliber automatic
pistol, was found to contain one live .380 caliber bullet in the chamber
and 10 .380 caliber bullets in the magazine.
Therriault testified that not long
before the present incident, he had had contact with appellant and determined
that appellant did not live at the complex but was there to visit a girl.
DISCUSSION
Appellant contends the trial court
should have granted his motion to suppress because Officer Therriault did not
have reasonable suspicion to detain or to pat search him. In essence, appellant argues that the various
factors the officer cited did not provide a reasonable basis for suspicion of
criminal activity, it would have been more reasonable for the officer to
conclude appellant was at the complex to visit the friend he had previously
visited there, and there was no justification for the pat search.
“ ‘In ruling on a
motion to suppress, the trial court must find the historical facts, select the
rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. We review the
court’s resolution of the factual inquiry under the deferential substantial-evidence
standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is
subject to independent review.’ (
1129, 1133–1134.) On appeal we consider
the correctness of the trial court’s ruling itself,
not the correctness of the trial court’s reasons
for reaching its decision. (
929, 976 [if the trial court’s ruling is correct ‘ “ ‘ upon any
theory of the law applicable to the case, it must be sustained regardless of
the considerations which may have moved the trial court to its conclusion’ †’];
People v. Braeseke (1979) 25 Cal.3d
691, 700–701.)†(People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
Even
in the absence of probable cause to arrest, “[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.†(
224, 231; People v. Celis (2004)
33 Cal.4th 667, 674.) That the
events may also be consistent with innocent is irrelevant: “[W]hen circumstances are ‘ “consistent
with criminal activity,†they permit—even demand—an investigation . . . .’
(In re Tony C. [(1978)] 21 Cal.3d
[888,] 894.) A different result is not
warranted merely because circumstances known to an officer may also be ‘ “consistent
with lawful activity.†’ (
does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct. Indeed, the principal function of [police]
investigation is to resolve that very ambiguity and establish whether the
activity is in fact legal or illegal . . . .’ (Ibid.)†(People
v. Souza, supra, 9 Cal.4th at p. 233.)
Further, police officers have
a “narrowly drawn authority†to conduct “a reasonable search for weapons for
the protection of the police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime. The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent man in
the circumstances would be warranted in the belief that his safety or that of
others was in danger. [Citations.] And in determining whether the officer acted
reasonably in such circumstances, due weight must be given, not to his inchoate
and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience. [Citations.]†(Terry
v. Ohio (1968) 392 U.S. 1, 27, fn. omitted.)
Although
appellant now challenges both the detention and the pat search, in the trial
court he expressly conceded the validity of the detention and challenged only
the search. His argument at the
preliminary hearing was that the officer improperly went “directly into a
pat-search†rather than asking questions to investigate whether appellant was trespassing.
At the trial court hearing on the motion
to suppress, the parties’ arguments and the court’s decision were also directed
to the propriety of the search, not the detention.
The
detention was clearly lawful. The fact
that appellant scaled a locked gate clearly labeled with “no trespassing†signs,
in a location where the officers had been assigned specifically because of a
trespassing problem, made it more than reasonable for Officer Therriault to
investigate the potential trespass violation. The only question, here as below, is whether
the officer’s search was reasonable.
As
indicated above, Officer Therriault enumerated several factors that caused him
to believe appellant might be armed: His
knowledge of the area, the time of day, appellant’s baggie clothing, the fact
he could not see appellant’s hand, and the fact that appellant’s companion said
something about a knife. The trial court
based its decision that the officer’s concern was reasonable primarily on
appellant’s companion’s apparent possession of a knife (citing
1107, 1112) and appellant’s “delay†in complying with the officer, which it viewed
as potentially indicating defiance (citing People
v. Wigginton (1973) 35 Cal.App.3d 732). The court also viewed the high-crime area as a
relevant circumstance, albeit not sufficient to automatically justify a pat
search; and noted that the fact it was nighttime and appellant’s baggie
clothing were relevant but of minor importance in the analysis. Acknowledging it was a close case, the court
held that the combination of factors justified that officer’s decision to
conduct the search.
Appellant
urges that these factors, in combination, were insufficient to create an
objective reasonable basis for suspicion that appellant was engaged in criminal
activity or presented a danger to the police officers.
Appellant
correctly points out that presence in a high crime area does not in itself
provide a reasonable basis for suspicion of criminal conduct or concern for
officers’ safety. (People v. Bower (1979) 24 Cal.3d 638, 645.) “But officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact
that the stop occurred in a ‘high crime area’ among the relevant contextual
considerations in a Terry analysis. [Citations.]â€
(Illinois
that prompted Therriault to detain and search him, but his conduct in scaling
the locked gate to a complex where he did not reside and subsequent lack of
cooperation, combined with his companion’s reference to a knife. (See In
re H.M. (2008) 167 Cal.App.4th 136, 147–148 [stop and frisk not based
solely on presence in gang territory but on “curious activities†observed by
experienced officer].)
Appellant
contends Officer Therriault, the prosecutor and the trial court improperly
emphasized the “uncharged, unproven allegation that he was entering the property
as a trespasser.†His climbing over the
gate, he maintains, should not have been seen as a reliable indicator of
trespass because the gate was routinely scaled by residents; Therriault’s prior
contact with appellant established appellant was an invitee of a resident on a
prior occasion; Therriault did not know or determine that appellant’s companion
was not a resident; and climbing over a gate is not an act that would lead a
reasonable person to believe the climber is carrying a weapon. Appellant misses the point. That he might
have been innocently entering the premises did not eliminate the officers’
need to determine whether the activity was in fact legal or illegal. (See People
v. Souza, supra, 9 Cal.4th at p. 233.) After the police initiated the stop—when
appellant failed to immediately respond to the command to stop and to comply
with the directions to keep his hands interlocked on top of his head—his
conduct, combined with the location, time of night, and reference to a knife by
his companion, was the basis for the further decision to conduct a pat search.
Appellant
contends that his failure to stop immediately in response to the police
officers was not a reasonable basis for suspicion because he was on his cell
phone and might not have heard the initial command to stop. Again, the possible innocent explanation does
not obviate the officers’ legitimate reason for detaining a suspected
trespasser, and the search (as opposed to the detention) was based on
appellant’s further conduct resisting the officer and circumstances including
the location and his companion’s reference to a knife. The same is true of appellant’s baggie
clothing: While it might have been
completely innocent, given the totality of the circumstances, Officer Therriault
was reasonable in viewing it as a factor supporting concern about he potential
for a concealed weapon.
Appellant
contends we must ignore the officer’s and court’s reliance upon Therriault’s
testimony that he heard appellant’s companion say something about a knife
because there was no proof that the conversation Therriault thought he heard in
fact occurred or that the companion actually had a knife. Appellant notes that Officer Stonebraker
did not testify that he seized a knife from the companion or corroborate
Therriault’s description of the conversation.
That
Stonebraker—who was not called as a witness at the preliminary hearing—did not
corroborate Therriault’s testimony on this point did not undermine the
testimony. It was for the court (in this
case, at the preliminary hearing, as no additional testimony was presented at
the hearing on the subsequent motion to suppress (§ 1538.5, subd. (i))
to determine the credibility of Therriault’s description of what he heard and
how he interpreted it.
Appellant
also challenges the trial court’s reliance on People v. Wright, supra, 206 Cal.App.3d at p. 1112, for
the proposition that it was reasonable for Officer Therriault to consider
appellant’s companion being armed as a factor bearing on his need to conduct a
pat search for weapons. Appellant
contends the facts of Wright have no
relevance to the present case: There,
the defendant found in a motel room with several other people, including a man
familiar to the police officer for having a history of carrying concealed
weapons. (Ibid.) Here, appellant
maintains, there was no evidence that either of the police officers knew
appellant or his companion to have a history of carrying concealed
weapons. Again, appellant misses the
point. Wright viewed the officer’s knowledge that the defendant’s
companion had a history of carrying concealed weapons as providing a reasonable
basis for suspicion that the defendant might
be armed. In the present case, the
reasonable basis for suspicion was the comment Therriault overhead which led
him to believe appellant’s companion was presently
armed. The point is simply that an officer may reasonably be concerned that
a subject is armed when that subject’s companion is, or there is objective
reason to believe might be, armed.
In
sum, considering the totality of the circumstances we have discussed,
Officer Therriault’s decisions to detain appellant and then to conduct a
pat search were reasonable. There was no
error in denial of the motion to suppress.
The judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
The statement of facts is based primarily on the evidence presented at
trial. The factual basis for the
pretrial motion to suppress, however, was limited to the transcript of the
preliminary hearing. A few of the facts
relevant to the suppression motion were brought out at the preliminary hearing
but not at trial; for these, we will refer to the transcript of the preliminary
hearing.
Respondent points out that the argument in
appellant’s opening brief on appeal improperly relies in part on trial
testimony that was not part of the record upon which the motion to suppress was
considered. For the most part, the citations
respondent provides point to trial testimony that does not differ in substance
from the testimony at the preliminary hearing.
To the extent appellant asks us to consider points not established by
the evidence at the preliminary hearing, we decline the request.
