P. v. Harbison










Filed 3/22/17 P. v. Harbison CA1/1







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
LAMAR HARBISON,
Defendant and Appellant.


A148738

(Contra Costa County
Super. Ct. No. 05-151863-8)

INTRODUCTION
Defendant Lamar Harbison entered a plea of no contest to carrying an unregistered, loaded handgun and was placed on probation. On appeal, he challenges the trial court’s denial of his motion to suppress on the grounds that he was illegally arrested and searched after the car in which he was a passenger was legally detained. (Pen. Code, § 1538.5, subd. (m).)[1]We affirm.
STATEMENT OF THECASE
Following a preliminary hearing at which defendant unsuccessfully moved to suppress the evidence against him, the Contra Costa District Attorney charged defendant by information with carrying an unregistered andloadedhandgun on January 6, 2015. (§ 25850, subd. (a).)The trial court denied defendant’s renewed motion to suppress evidence andmotion to set aside the information on February 17, 2016. (§§ 1538.5, subd. (i), 995.) Defendant pleadedno contest to the information on May 11, 2016.
On June 3, 2016, the trial court granted defendant’s motion toreducehis conviction to a misdemeanor, suspended imposition of sentence, and placed defendant on probationforthree years.
Defendanttimely filed a notice of appeal from the denial of his suppression motion.[2](§ 1538.5, subd. (m).)
STATEMENT OFFACTS[3]
On January 6, 2015, at approximately 3:30 p.m., Richmond Police OfficerTerryThomas and his partner, Officer Augustin, were on duty and patrolling the area of Lancaster Drive and Birmingham Drive in Richmond. Officer Augustin was in a separate vehicle. That area is notable for its “high narcotic activity”;in addition, there hadbeenseveral recent shootings in the area.Officer Thomas saw three people in an Infinitiparked alongside the curb on Lancaster. The cardidnot have license plates; it had “paperplates” from the dealer, but the car lacked a temporary operating permit in awindow. Officers Thomas and Augustinpulled their patrol vehicles behindtheInfiniti; Thomas stepped out of his car to investigate the Infiniti’s registration.
Defendant, who was sitting in the front passenger seat, and another individual, who was sitting in a rear passenger seat, tried to exit the car on the passenger side, but Officer Thomas ordered them back inside the car. At that point he drew his firearm and pointed it in a “low ready position,” i.e., pointed downward and in front of him at a 45-degree angle. Officer Augustin was also out of his vehicle at this point.
As Officer Thomas approached the driver’s side of the car to contact the driver, he noticed a strong smell of fresh marijuana coming from inside the car. He asked the driver if they had consumed marijuana in the car and he said yes. At that point, all three men were handcuffed inside the car by Officers Thomas and Augustin and then removed from the car. The driver was removed first, then the rear passenger, and finally defendant.Just before making contact with defendant individually, Officer Thomas noticed defendant make “furtive movements.”Defendant “appeared nervous and he was moving quickly in the front passenger seat of the vehicle.”
After handcuffing defendant, Officer Thomas removed defendant from the car. While removing him, Officer Thomas noticed something,conducted a search of defendant’s person, and located a loaded revolver in defendant’s right front pocket.He searched all of defendant’s pockets for contraband. Meanwhile, Officer Augustin conducted a search of the car. A loaded firearm was also located in the rear passenger compartment behind the driver’s seat.The vehicle was searched after all three of the occupants were removed from it “due to the smell of marijuana coming from the passenger compartment, and because of the loaded firearm that was recovered from Mr. Harbison.”
DISCUSSSION
“The Fourth Amendment of the federal Constitution requires state and federal courts to exclude evidence obtained from unreasonable government searches and seizures. [Citation.]Penal Code section 1538.5 allows a defendant to move to suppress evidence obtained in an improper seizure. [Citation.] Our standard of review ‘is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ ”(People v. Garry (2007) 156 Cal.App.4th 1100, 1105–1106.) We look for substantial evidence in the record of the de novo hearing—in this case, the transcript of the preliminary hearing—to support the denial of the renewed motion to suppress. (People v. Torres, supra, 188 Cal.App.4th at p. 785.)
Defendant was detained during a traffic stop, and he concedes the detention was lawful based on reasonable suspicion of an invalid vehicle registration. (People v. Dotson (2009) 179 Cal.App.4th 1045, 1052; People v. Saunders (2006) 38 Cal.4th 1129, 1136.)He further concedes that Officer Thomas lawfully ordered defendant, a passenger, out of the detained vehicle with his gun drawn. (See Brendlin v. California (2007) 551 U.S. 249, 263; People v. Vibanco (2007) 151 Cal.App.4th 1, 9–12.)He contends the detention morphed into an illegal de facto arrest when Officer Thomas unnecessarily and unreasonably handcuffed defendant and placed him in the patrol car.[4]
“ ‘A seizure occurs whenever a police officer “by means of physical force or show of authority” restrains the liberty of a person to walk away.’ ” (People v. Celis (2004) 33 Cal.4th 667, 673.) Both detentions and arrests are seizures, and the distinction between them “ ‘may in some instances create difficult line-drawing problems.’ ” (Id. at p. 674.) “An arrest is defined in the Penal Code as ‘taking a person into custody, in a case and in the manner authorized by law.’ (§ 834.) It is made by ‘an actual restraint of the person, or by submission to the custody of an officer.’ (§ 835.) A detention, on the other hand, has been said to occur ‘if the suspect is not free to leave at will—if he is kept in the officer’s presence by physical restraint, threat of force, or assertion of authority.’ ” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 330.)“A police stop that began as an investigative detention may ‘become so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. [Citation.] When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.’ ”(In re Antonio B. (2008) 166 Cal.App.4th 435, 440.) “ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ [Citations.] Important to this assessment, however, are the ‘duration, scope and purpose’ of the stop.” (People v. Celis, supra, 33 Cal.4th at pp. 674–675.)
In this case, defendant’s detention did not exceed reasonable bounds. “With regard to the scope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period . . . do not convert a detention into an arrest.” (People v. Celis, supra, 33 Cal.4th at p. 675.) Being forced out of the car, or held in the patrol car for a limited period of time, likewise do not transform a detention into an arrest. (Ibid., citing Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 991; United States v. Alvarez (9th Cir. 1990) 899 F.2d 833, 838–839.) Here, the odor of marijuana emanating from the passenger compartment of the car warranted further investigation and provided probable cause to search the car. (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059.) The fact the two police officers were outnumbered by the suspects justified use of the handcuffs. (Washington v. Lambert (9th Cir. 1996)98 F.3d 1181, 1190; People v. Stier (2008) 168 Cal.App.4th 21, 28.) The fact that narcotics activity and recent shootings had occurred in the area where the detention was occurring is “among the relevant contextual considerations in a Terry[v. Ohio (1968) 392 U.S. 1, 21] analysis.”(Illinois v. Wardlow (2000) 528 U.S. 119, 124; see People v. Souza (1994) 9 Cal.4th 224, 240.) Other proper considerations include the fact that defendant and the other passenger had attempted to leave the scene when Officer Thomas stepped out of his police vehicle (see People v. Turner (2013) 219 Cal.App.4th 151, 168), and defendant appeared nervous and fidgety [“moving quickly”] prior to the officer’s approach (see In re H.M.(2008) 167 Cal.App.4th 136, 144). Under the totality of the circumstances, it was not unreasonable for Officer Thomas to handcuff defendant and place him in the patrol car while Officer Augustin conducted a search of the suspects’ car for contraband. There is no evidence the duration of the detention was excessive; so far as this record shows it was contemporaneous with the search of the car, after which the police had probable cause to arrest. Defendant’s detention was not an illegal de facto arrest.
Defendant also argues the search of his pockets was illegal, because it was not conducted incident to a lawful arrest, and Officer Thomas “did not conduct a pat-down search.” We agree Officer Thomas’s search of defendant’s pocket was not incident to a lawful arrest. However, in our view the record supports the inference that Officer Thomas’s “full” search included a pat-down of defendant’s outer clothing.On direct examination, Officer Thomas was asked: “Did you notice anything when you went to remove the defendant from the vehicle?” (Italics added.) Officer Thomas replied: “Yes. During a search of his person, I located a loaded firearm in his right front pocket.” Officer Thomas then testified that as he approached defendant, just before he made contact, he saw defendant make furtive movements. The prosecutor then asked: “So after you removed him from the vehicle, at that point did you conduct a search?”Officer Thomas said: “I did.” Asked to describe what, if anything, he “located on the defendant’s person” (italics added), Officer Thomas testified, “I locate[d] a loaded revolver in his right front pocket.”On cross-examination, defense counsel asked Officer Thomas: “Okay. So . . . after you handcuffed Mr. Harbison and had him step outside of the vehicle, then you searched him for any contraband, correct?” Officer Thomas answered: “Correct.” Defense counsel then asked: “And did you search all of Mr. Harbison’s pockets?” Thomas said: “I did.”
The prosecutor argued the odor of marijuana, coupled with defendant’s furtive movements, supported “a search of the defendant.” The court asked: “ A search or a pat search?” The prosecutor responded that a patsearch alone would have been supported by defendant’s furtive gestures, but that coupled with being in a neighborhood “associated with violence and narcotic activity,” and the odor of marijuana, a full search was permitted. He reasoned that if the search of “any container in any part of the vehicle . . . for marijuana” was allowed, it followed logically that a person could be searched as well, “especially if a person is going to sort of move around quickly. [¶] If that person couldn’t be searched then it would be pretty easy for whatever is creating the smell of marijuana to have been sort of grabbed from the center console and put in that person’s pocket.”
Defense counsel argued, “This was not a pat down search. The officer actually didn’t use the word pat down search. He searched him. He searched him as part of the investigation. He went through his pockets. He didn’t pat search him, he searched him. And we do not concede that this is legal, even given his testimony regarding smelling marijuana.”
The court denied the motion, stating: “I believe that, at the very least, . . . a pat down search, whether it was in fact intended as a pat down, was allowed. [¶] And that an actual search, certainly with a pat down, would have located—certainly any capable, competent, adequate officer, would have noted . . . the outline of a gun if a pat down was initiated. [¶] The fact that it was in fact described as a search does not take away from the fact that a pat down would have revealed the weapon. And, finally, the search, I believe, is allowed under the law.”
In superior court, the prosecutor argued in his written reply to the renewed motion that Officer Thomas had reason to believe defendant was armed and dangerous, and the patsearch for weapons was therefore justified.Defendant maintained at the hearing that “it wasn’t actually a pat-down search which was conducted. It was actually a full search of Mr. Harbison.” In denying the motion to suppress, the superior court stated: “While the fact is it’s not a pat-search, I think that the magistrate made an implicit factual finding here, which the Court has to give deference to, that a pat-search alone would have revealed the weapon that was on the defendant’s person.”
“Section 1538.5, subdivision (i), expressly endows the defendant with the right to obtain a determination by the superior court as to ‘the validity of a search or seizure de novo on the basis of the evidence.’ Consequently we do not sit to review the finding of the magistrate upholding the seizure of evidence in the present case. That finding has been overturned by the de novo determination of the superior court. Our task, instead, is to review the superior court’s ruling under appropriate standards of review.” (People v. Lawler (1973) 9 Cal.3d 156, 160.) “[W]hile we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found.” (People v.Woods (1999) 21 Cal.4th 668, 673–674; People v. Linn (2015) 241 Cal.App.4th 46, 56–57.)
In this case, the superior court’s finding of fact that a pat-down search did not occur lacks substantial evidentiary support. It is true Officer Thomas did not use the term patsearch, but he was never asked if he conducted a patsearch, and never said or implied he did not conduct a pat search in connection with the full search of defendant’s person.The record shows that as Officer Thomas was approaching defendant, defendant made furtive movements, including moving around quickly. Officer Thomas handcuffed defendant before removing him from the car. In the process of removing defendant from the car, he noticed something. During a search of defendant’s person, he located a firearm in his right front pocket. In our view, the record supports the reasonable inference that after Officer Thomas noticed somethingthat could have been a weapon and before he located the gun in defendant’s front pocket, he must have swiftly confirmed what he noticed by touch.He was fully justified in reaching into defendant’s pocket and seizing a gun confirmed by patsearch.(People v. Brown (1989) 213 Cal.App.3d 187, 192.)
Of course, a patsearch conducted in connection with a traffic stop is justified only if the officer has an objectively reasonable belief the defendant is presently armed. (Arizona v. Johnson (2009) 555 U.S. 323, 331–332 (Johnson).) “Law enforcement officers may lawfully conduct a ‘frisk’ or ‘pat-down search’ of a passenger during a lawful investigatory ‘stop’ if the officer reasonably suspects the passenger is armed and dangerous.” (United States v. Burkett (9th Cir. 2010) 612 F.3d 1103, 1107.)
In our view, the totality of the circumstances present here gave rise to such a suspicion.The furtive movements immediately preceding the officer’s observation of something that may have been a weaponlegitimately contributed to the officer’s suspicion.(United States v. Burkett, supra, 612 F.3d at pp. 1104, 1107[furtive movements]; In re H.M., supra, 167 Cal.App.4th at p.146 [same].)The odor of marijuana coming from the car, and the driver’s admission “they” had been smoking it, strongly suggested a search of the car would yield contraband. It is no stretch to suspect guns where drugs are present. In addition, defendant and the other passenger had tried to flee a car that had no valid license plates or permits. (In re H.M.,at p. 144[fleeing and nervous, evasive behavior contributed to reasonable suspicion defendant was armed].)“Traffic stops are ‘especially fraught with danger to police officers.’ ” (Rodriguez v. United States (2015) ___U.S. ___ , 135 S.Ct. 1609, 1616, quoting Johnson, supra, 555 U.S. at p. 330.) To make matters more dangerous, the car was stopped in a neighborhood where recent shootings and drug activity had occurred. (In re H.M., at p. 146 [“[T]he location of the stop is an especially significant factor demonstrating the officer had reasonable suspicion to stop and frisk.”].)Under these circumstances, we will not second-guess the reasonableness of the officer’s suspicion that the thing he noticed when he removed defendant from the car could be a gun.
DISPOSITION
The judgment is affirmed.


_________________________
Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.




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A148738 People v. Harbison

[1]Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] Although defendant states his appeal challenges the magistrate’s denial of his motion to suppress at the preliminary hearing,actually, his appeal is from the trial court’s denial of his renewed motion to suppress based on the preliminary hearing transcript (People v. Torres (2010) 188 Cal.App.4th 775, 783) and we so construe his notice of appeal.
[3] The facts are drawn from the transcript of the joint preliminary hearing/motion to suppress evidence.
[4] We reject the Attorney General’s suggestion that defendant forfeited this precise argument by not raising it below. Defendant argued in his written motion that defendant’s detention was illegal because, among other reasons, Officer Thomas “ordered him back into the car at gunpoint.” One of the prosecutor’s responses to that argument was that “officers are permitted to utilize officer-safety precautions without converting a detention into a de facto arrest.” The trial court found defendant was properly detained inside the car at gunpoint “for officer safety since there was only one officer plus another.”While the point could have been more clearly articulated below, we think the question whether Officer Thomas used an unreasonable level of restraint under the Fourth Amendment to detain defendant is preserved.