P. v. Okoh































Filed 8/9/10 P. v. Okoh CA6













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. EDEKI OKOH, Defendant and Appellant.

H034614 (Santa Cruz County Super. Ct. No. F17747)

After his
motion to suppress evidence was denied, on June 30, 2009, appellant Edeki Okoh entered a plea of no
contest to one count of possession of a
controlled substance (crack cocaine).
(Health & Saf. Code, § 11350, subd. (a).) The court placed appellant on probation for
three years pursuant to the provisions of Proposition 36. (Pen. Code § 1210.1.)

Appellant
filed a timely notice of appeal on August 19, 2009, "based on the
denial of his motion to suppress evidence under Penal Code section
1538.5." We affirm the judgment.

The Suppression Hearing

At
approximately 8:00 p.m. on March 25, 2009, Santa Cruz Police
Officer Matthew Mulvihill responded to a report of a "domestic disturbance" between
a male and a female at 200 Button Street
in the City of Santa Cruz. Officer Mulvihill had information that the
male involved in the disturbance was a "black male adult" about 20
years old, five feet 10 inches tall and heavy set, wearing a blue striped shirt
and blue jeans.

When
Officer Mulvihill arrived at an apartment complex parking lot and got out of
his car, he "could hear people yelling at the top of their
voice[s]." Two women
"frantically" pointed in the direction of the east side of a building. As Officer Mulvihill walked up the sidewalk
he saw Officer Hillier giving commands to a "subject" who was lying
face down with his arms extended outwards.
Three other "subjects" were on a nearby stairwell; they
appeared to be yelling at Officer Hillier.

Officer
Mulvihill identified appellant as the male on the ground and as matching the
description of the male involved in the disturbance.

While
appellant was on the ground he was compliant, but upset and yelling. Officer Mulvihill heard a woman standing
behind him say, " 'He pulled a gun' or something to that
effect." Officer Mulvihill had no
idea who the woman was talking about at the time. When he heard the mention of a gun, Officer
Mulvihill went over to assist Officer Hillier in detaining appellant. Officer Mulvihill ordered appellant to put
his hands behind his back, which appellant did, and then placed him in
handcuffs. At this point in time,
Officer Mulvihill was concerned for his safety.
He admitted, however, that he had no idea whether anyone at the scene
was armed.

Officer
Mulvihill told appellant that he was being detained until he could "sort[]
out the situation." At that time,
everyone continued to yell obscenities and people were "advancing" on
him, meaning they walked towards him and would not back up when asked. They were angry. Officer Hillier told the people on the
stairwell to step back and they were yelling at him as well.

Officer
Mulvihill told appellant that he was going to take him to his patrol car
"to a safe location." At the
patrol car, Officer Mulvihill asked appellant if he had any weapons and then
explained to appellant that he was going to patsearch him. Officer Mulvihill testified that he
"wanted to make [appellant] safe before [he] put him" in the patrol
car. On cross-examination, Officer
Mulvihill testified that it is not uncommon for people to slip their handcuffs
while in a patrol vehicle.

As Officer
Mulvihill patsearched appellant he felt something in his right pocket. It was hard to the touch and bulky. Officer Mulvihill did not know what it was,
but thought it was "likely more than one object." Officer Mulvihill removed the items from
appellant's pocket in one motion. The
items turned out to be a cell phone, a set of keys and a large bag of crack
cocaine.

Officer
Mulvihill testified that based on his experience "guns and knives come in
different shapes and sizes." On
cross-examination, he acknowledged that it was Officer Hillier that had pulled
the gun and not appellant, but he did not know that at the time.

Appellant
testified that it was Officer Hillier that pointed a gun at him; he complied
with the officer's orders. When Officer
Mulvihill searched him, the keys and cell phone were in his left pocket and the
crack cocaine was in his right pocket.
Officer Mulvihill took the cocaine out the right pocket first and then
took the phone and keys out of the left pocket.

Appellant's
counsel argued that there were several grounds upon which to grant the motion
to suppress. First, there was no
reasonable suspicion to handcuff appellant.
Second, the search was improper because the officer had no reason to
believe that appellant was going to pull out a gun.

The trial
court denied appellant's motion to suppress.
The court reasoned that Officer Mulvihill was faced with a
"domestic disturbance. You have a
guy albeit on the ground detained but yelling.
You have other people yelling.
You have people advancing on the officer and the officers. And so he does what -- and by the way, this
is a detention situation. He hasn't
sorted it out yet, so all he knows is that he has a potentially very serious
situation and a gun may be on the scene.
[¶] And quite frankly, common
sense would tell you that's probably the most dangerous situation the officer
can walk into. And he does what he
appropriately should do, and that is it's reasonable for him to handcuff the
defendant at that time and get him out of the area. The officer stated, and I think he reflected
credibility in his testimony, that the defendant was not being arrested but
merely detained to sort out the situation and get him away from the scene so
the officers -- because they were in a situation that I think reasonably they
could fear potentially for their safety that he did what he did. [¶]
Insofar as whether or not he went from one pocket and then to another, I
actually believe the testimony of the officer.
I see no reason why he's lying to me.
He's stating things the way they occurred from his standpoint and he has
no motive to lie to this Court. And he
testified that before he put him in his patrol car he wanted to make sure he
wasn't armed, which is also reasonable under the circumstances. [¶]
Remember, I've already viewed the situation that the defendant was properly
detained and pulled away from the area of agitation so the officers could
safely sort out the situation, and certainly before he put him in his patrol
car he had a right to pat search him. He
felt a hard object that was not inconsistent with a weapon. He reached in, pulled out the object, and
what came out with it was alleged contraband.
And I think it's a reasonable search under the circumstances overall of
the situation. And, of course, the
atmosphere out there was not exactly calm and quiet."

Discussion

Motion to Suppress

Appellant
contends that the "pat search of appellant was not supported by reason to
believe that he was armed and dangerous and thus violated his Fourth Amendment
right against unreasonable search and seizure, requiring suppression of the
fruits of the search."

In our
review of the trial court's ruling on a suppression motion, we affirm the
factual findings that are supported by sufficient evidence. (People v. Hughes (2002) 27 Cal.4th
287, 327.) Independently, we determine
whether the challenged search or seizure is constitutional within the Fourth Amendment. (Ibid.)

At the
outset, it is important to note that appellant does not challenge the
reasonableness of his detention or the fact that he was placed in handcuffs.[1] Accordingly, we confine our analysis to the
reasonableness of the patsearch.

Warrantless
searches are per se unreasonable pursuant to the Fourth Amendment subject to a
few specifically established and well-delineated exceptions. (Arizona
v. Gant (2009) --- U.S.
---- [129 S.Ct. 1710, 1716] (Gant).) Thus, the Fourth Amendment guarantees the
right to be free of unreasonable searches and seizures by law enforcement
personnel. (U.S. Const., 4th Amend.; Terry
v. Ohio (1968) 392 U.S. 1, 8-9 (Terry).) Nevertheless, in Terry , supra, 392 U.S. at page 27, the United States
Supreme Court determined that "there must be a narrowly drawn authority to
permit 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 [person] in the circumstances would be warranted in the
belief that his safety or that of others was in danger." However, "in justifying the particular
intrusion the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion."
(Id. at p. 21, fn. omitted.)
"[S]uch a search, unlike a search without a warrant incident to a
lawful arrest, is not justified by any need to prevent the disappearance or
destruction of evidence of crime.
[Citation.] The sole
justification of the search . . . is the protection of the police officer and
others nearby, and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer." (Id. at p. 29.)

Appellant
argues that here "there simply were no articulable reasonable
circumstances to believe that [he] was armed and dangerous--despite the comment
that indicated that someone had a gun."


In
reviewing the Fourth Amendment
reasonableness of an officer's conduct, we must consider the totality of the
circumstances known to the officer when the search was conducted. (Terry, supra, 392 U .S. at p. 27; People
v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) Thus, "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." (Terry, supra, 392 U.S. at p.
27.) "Reasonable suspicion must be
based on 'commonsense judgments and inferences about human behavior.' [Citation.]
The determination of reasonableness is 'inherently case-specific.' [Citation.]" (In re H.M. (2008) 167 Cal.App.4th
136, 143-144.)

Although
officers may "give appropriate consideration to their surroundings and
. . . draw rational inferences therefrom" (Souza, supra, 9
Cal.4th at p. 241), an officer may not conduct a patsearch if the officer has no other reason to suspect the
person is armed. (People v. Sandoval
(2008) 163 Cal.App.4th 205, 212.)

Here,
Officer Mulvihill had reason to believe that someone was armed based on him
hearing the two women say, " 'He pulled a gun.' " He testified, however, that while he was
concerned for his safety he had no idea whether anyone was armed. Obviously, this includes appellant.

"[D]espite
the danger that inheres in on-the-street encounters and the need for police to
act quickly for their own safety, the Court in Terry did not adopt a
bright-line rule authorizing frisks for weapons in all confrontational
encounters." (Maryland v. Buie
(1990) 494 U.S. 325, 334, fn. 2.) "Terry
requires reasonable, individualized suspicion before a frisk for weapons can be
conducted." (Ibid.) The circumstances
known to Officer Mulvihill did not give rise to such a reasonable belief that
appellant was armed. (See People v.
Medina (2003) 110 Cal.App.4th 171,
177-178; see also People v. Dickey (1994) 21 Cal.App.4th 952, 956
[finding patsearch performed "for 'officer safety' and because appellant
'potentially may have been armed' " unlawful because there were no
specific and articulable facts suggesting this person was armed and
dangerous].)

Furthermore,
there was no evidence appellant wore clothing that could be used to hide a
weapon, and Officer Mullvihill did not describe any suspicious activity
appellant was engaged in that might have given cause to believe he was armed. (Cf. In re Frank V. (1991) 233
Cal.App.3d 1232, 1241 [suspect wore heavy coat and tried to return his hands to
his pockets after being ordered to keep them out].)

Nevertheless,
the need to transport a person in an officer's patrol vehicle creates an
exigency that entitles the officer to conduct a limited search for weapons,
even where the officer has no reason to believe the person is armed and
dangerous. (People v. Brisendine
(1975) 13 Cal.3d 528, 537 superseded
by constitutional amendment on other grounds as stated in In re Lance W.
(1985) 37 Cal.3d 873 [where
"exigencies of the situation require that officers travel in close
proximity with arrestees, a limited weapons search is permissible"]; People v. Tobin (1990) 219 Cal.App.3d 634, 641 [patdown of
passenger justified before transport]; People v. Mack (1977) 66
Cal.App.3d 839, 848 [patdown search for weapons warranted by need to transport
traffic misdemeanant to magistrate]; People v. Ramos (1972) 26
Cal.App.3d 108, 112 [patdown of suspected witness before transport was a sensible
precaution; policemen have been attacked and killed by back seat passengers
with concealed guns and knives].) In such a situation the increased danger to
the officer warrants the minor intrusion of a protective search. (People v. Brisendine, supra, 13
Cal.3d at pp. 537-538; People v. Tobin, supra, 219 Cal.App.3d at p. 641
[exigency and need for public safety supported minimally intrusive
patdown].) " '[T]he officer risks
the danger that the [person] may be armed with and draw a weapon. This danger is not necessarily eliminated by
handcuffing the [person] as he may still be able to reach a weapon secreted on
his person. And, incident to the entire
process of transportation, it may be impossible for the officer to keep the
[person] under constant surveillance by reason of the requirements of driving
the vehicle and other responsibilities.' "
(People v. Brisendine, supra. at p. 537, fn. omitted.)

Here,
Officer Mulvihill testified that he was going to take appellant "to a safe
location." This is one of those
very rare cases where, absent probable cause for arrest, the removal of a
suspect away from the initial encounter for further investigation is
constitutionally permissible. ( >People v. Harris (1975) 15 Cal.3d 384,
390-391.) In People v. Courtney (1970) 11 Cal.App.3d 1185, 1191-1192 ( >Courtney), the investigating officer
adjourned his interrogation of the suspect when a crowd of potentially hostile
students gathered at the detention scene.
He transported the suspect to a campus police department and resumed the
interrogation there. The court held that
"there was no Fourth Amendment compulsion on the police to choose between an
on-the-spot continuation of their investigation at the probable cost of their
own safety, or abandoning the
investigation . . . ." ( >Id. at p. 1192.)

In this
case there were special circumstances such as those present in >Courtney that
justified the pre-arrest transportation away from the scene of the initial
encounter--as detailed ante, there was
a threatening group of people yelling obscenities advancing on the
officers.

Since
Officer Mullvihill testified he was going to take appellant to a safe location,
which similar to the trial court we interpret to mean that he was going to
transport him in his patrol car away from the scene, the patsearch of appellant
for weapons was not constitutionally unreasonable.[2]

As to the
scope of the search, when Officer Mulvihill patsearched appellant he felt
something in appellant's right pocket that was hard to the touch and
bulky. When a police officer's frisk of
a detainee reveals a hard object that might be a weapon, the officer is
justified in removing the object into view.
(People v. Brown (1989) 213 Cal.App.3d 187, 192; accord, >People
v. Limon (1993) 17
Cal.App.4th 524, 535.)

In so doing, Officer Mulvihill pulled out the contents of
appellant's pocket in one motion and discovered the drugs.

In sum, the
findings are supported by the evidence and those findings, in our independent
judgment, supported the denial of appellant's motion to suppress.

Probation Condition

In addition to challenging the
constitutionality of the patsearch, appellant contends that as a condition of
probation he was ordered in part to " 'not associate with persons whose
behavior might lead to criminal activities.' " Appellant argues that this condition is
unconstitutionally vague and overbroad.
If this condition had actually been imposed, we might agree with
appellant. However, although the
condition appears in the minute order of the June 30, 2009 hearing, and on the back of a form entitled
"PROBATION/ CONDITION SENTENCE ORDER", this condition was never
ordered by the court.

When the
court pronounced judgment, the court stated the following. "Imposition of sentence will be
suspended. Three years of formal
probation under these terms. Obey all
laws. Enter into and complete Prop 36
treatment program. Maintain gainful
employment and/or school. Participate in
any educational, vocational, or therapeutic program as directed by
probation. [¶] You must not discontinue the program without
the approval of probation or program directors.
Sign all waivers of confidentiality and pay all fees associated with the
program. You must totally abstain from
the use of alcohol and controlled substances.
Not possess any paraphernalia for the use of ingestion of drugs. [¶]
Submit to testing for the use of drugs or alcohol at any time by a peace
or probation officer with or without a warrant.
Submit your person, residence, vehicle, areas under your dominion and
control to search and seizure at any time by a peace or probation officer with
or without a warrant for drugs, alcohol, and contraband. [¶]
Complete the AIDS education class.
If you don't successfully complete the treatment program, you will have
to register as a drug offender. There
are 125 volunteer service hours to be done.
And fines are $30 critical needs facility fee, $20 security fee, $190
AIDS fine, $190 lab analysis fee, $150 drug program fee, and $200 restitution
fine all payable through probation. Do
you accept these terms, sirâ€