Poland v. Superior Court

Filed 9/30/08 Poland v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of mandate.

The Law Office of Robert C. Schell and Robert Charles Schell for Petitioner.

No appearance for Respondent.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Doris A. Calandra, Deputy Attorneys General, for Real Party in Interest.

-ooOoo-

In this timely filed petition for writ of mandate, petitioner seeks review of the denial of her statutory motion to suppress evidence (Pen. Code,  1538.5, subd. (i)). She claims the officer was unable to identify the specific, articulable facts needed to justify her detention. Consequently, she believes respondent (the court) erred in denying her motion to suppress. We agree and will grant petitioner relief.

BACKGROUND

Petitioner is facing one count of transporting a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) and various misdemeanor charges. Pursuant to Penal Code section 1538.5, she sought suppression of the evidence that flowed from what she claimed was an unlawful detention. She insisted the officer did not have reasonable suspicion to initially detain her.

In their written opposition, the People urged the court to find the encounter was consensual.

However, at the outset of the hearing on the suppression motion, the People conceded the case did not involve a consensual encounter. The parties stipulated that petitioner had standing to challenge the detention, that the detaining officer, Deputy Gempler, had acted without a warrant, and that a detention had occurred when the officer turned on his red overhead light. The parties also agreed the focus of the suppression hearing was to see if the officer could articulate sufficient facts to establish reasonable suspicion to detain petitioner.

In his effort to articulate those facts, the officer testified that he had been a sworn officer with the Tuolumne County Sheriffs Department for the past five years. He indicated that, on March 14, 2008, he was in uniform and using a marked car to patrol the same beat he patrolled for most of those years.

At 9:55 p.m., the officer was parked on a cul-de-sac roughly 1,000 feet from the main roadway, Tuolumne Road North. This was a dark, rural area with the nearest home located roughly a quarter of a mile away. The officer said he would go to that location sometimes to get out and stretch his legs, make a phone call and to patrol the area for different things.

The officer also testified that he found quite a bit of vehicles that . . . dont belong in that area. The officer said he had stopped vehicles in this area for Vehicle Code violations and controlled substance violations. He had made more than 10 arrests based on controlled substance activity.

The officer was asked if there was anything significant in the area. He replied the Black Oak Casino and volunteered that the casino had video surveillance cameras in its parking area.

The officer said that, on the night in question, he had been parked for about 10 minutes when he saw a truck come from the direction of the casino and pull onto Porto Fina Road. Even though the vehicle had its lights on, they just missed illuminating the officers car. The truck then turned around and parked almost across from the cul-de-sac with its front pointed towards the main road.

The officer was roughly 100 feet from the vehicle and had a clear view of it. He could see two people in the truck cab. The cab was illuminated so the officer could see the female driver talking on a cell phone and what appeared to be something being smoked in the vehicle. It was the consistent glow of an item in the vehicle that caused him to suspect something was being smoked. He continued to watch the truck for several minutes and assumed its occupants were smoking dope.

The People asked the officer if he was familiar with items used to smoke methamphetamine and he answered affirmatively. The two methods he knew about employed either a glass smoking pipe or a piece of aluminum foil. He explained that use of a glass pipe required a continuous heat source such as a cigarette lighter or a propane torch.

Once he decided the trucks occupants were smoking dope, the officer drove to the trucks location, illuminated it with his spotlight and turned on his red light. He then approached the vehicle and made contact with the driver, petitioner herein.

On cross-examination, the officer admitted he had no information that the vehicles occupants had been to the casino before he made contact with them. He also admitted he did not actually see the driver speaking on the phone; he merely saw the glow from the phone on her face.

As for the other light he saw, he thought it belonged to a lighter or some other object. The officer was sure they were either playing with a lighter or smoking something. When defense counsel asked how long that light lasted, the officer guessed it was 10 seconds. He saw it only one time before he turned on his red light.

Defense counsel asked if the light was the reason he thought they were smoking dope. The officer replied that it was that observation, the area where they were parked and how they were parked, that led him to that conclusion. He thought the way they parked was suspicious because they backed the truck in as if to see someone coming. He also noted there was a line of trees that would make it difficult for someone to see a vehicle parked there from the roadway. Its placement would also give the vehicles occupants time to leave if another car headed in their direction.

His experience with other drivers in the area also played a role. The officer said he had stopped hundreds of cars on the stretch of road between the casino and the place where the truck was parked although he admitted that most were traffic stops. He [p]robably had not observed anyone actually using controlled substances while driving. He also admitted he had no prior experience with anyone using a controlled substance in the actual place where the truck was parked. But he did say that, at the very beginning of Porto Fina Road and North Tuolumne, he had made several stops of vehicles that led to the discovery of narcotics. He also knew from reports of other officers that numerous narcotic stops had been made in the area. He also knew that tribal security patrolled the area as well.

The court excused the officer and asked for argument from counsel. Before arguments began, the court recalled the deputy to the stand on its own motion. Defense counsel objected to the officer being recalled. The court noted the objection and proceeded to ask the officer some questions about the placement of the two vehicles in relation to one another. Defense counsel also inquired a bit further along those same lines. The court then gave both attorneys an opportunity to ask any additional questions.

The People took the opportunity and, after asking a few related questions, asked if Porto Fina roadway was paved. The officer answered yes. The People then asked if the truck was parked on the pavement. The officer responded that the truck was partially on the shoulder and partially in the roadway.

At this point, defense counsel objected to this as being outside the scope of cross-examination. The court said, Im going to allow it because all of that is helping me and I want it in . This was a point of interest for the court.

The officer then explained that, excepting the passenger side tires, the entire truck was on the roadway. The People received an affirmative response when he asked if the vehicle was blocking the road for a vehicle proceeding northbound on Porto Fina Road (the same direction as the truck). The officer explained that Porto Fina road was sufficiently narrow in that it would be a tight fit for two cars to pass on the roadway. The officer said that, had another car come down the road on the side where the truck was parked, it would have had to swerve into the oncoming lane to avoid hitting the truck. He also testified the truck was parked there for several minutes. In response to defense questioning, the officer acknowledged the absence of a no parking sign in the area.

During argument, defense counsel maintained the detention was unlawful because the officer observed no illegal activity and acted on nothing more than a hunch when he concluded the trucks occupants were smoking dope. Defense counsel also pointed to what he believed was a lack of evidence to show the truck was illegally parked.

The People objected to the last comment. The court assured the People that it was treating it as argument and was capable of sorting it all out.

Defense counsel, relying on In re Tony C. (1978) 21 Cal.3d 888 and its progeny, urged the court to find the People had failed to meet their burden of showing the officer had a subjective belief that petitioner or her companion were involved in illegal activity and that the officers belief was objectively reasonable. The officer never stopped anyone at that cul-de-sac for drug violations. His experience with traffic offenders that yielded illicit drug activity was far too speculative.

The People opined that the officers subjective belief of drug use was objectively reasonable given: the officers familiarity with the area; knowledge of drug use in the area; the lateness of the hour (nearly 10:00 p.m.); the remoteness of the area; the appearance that the occupants were smoking something; and the way they were parked. The People noted that, even though the smoking may have been lawful, the reason for allowing the detention is to allow the officer to determine if the trucks occupants were engaged in legal or illegal smoking activities.

The People also took issue with defense counsels characterization of the officers testimony to mean the truck was parked legally. The officer only said there were no no parking signs in the area. But the officer also said the vehicle was blocking the roadway. The People claimed the detention would be lawful if there was a Vehicle Code violation even if that was not part of the officers subjective belief. The People thought the illegal parking coupled with the officers other observations provided reasonable bases to believe the trucks occupants were engaged in illegal activity.

Defense counsel reminded the court that the Vehicle Code violation was not mentioned in the moving or opposing papers.

The court made the following observations before it denied the motion:

Well, it is clear that as soon as the red light goes on, it is a detention, so previous argument, which have not been made today, and obviously dont apply.

The question is whether or not there was [sic] sufficient facts to warrant that detention. I have got some difficulty with it. It is at night. Surely, it is a remote area. A vehicle pulls up and parks in a roadway. Officer sees a cell phone light in the vehicle. Two people inside, so obviously he sees them using a cell phone. Nothing illegal about that.

And then he sees the vehicle lit up from between one to two seconds or more than one to ten seconds by something. The way in which the vehicle was parked, he relied upon it. Certainly was in a high crime area, at least there was no evidence to that effect, although there was some testimony that there had been . . .

Boy.

There certainly is no question but that it would have been appropriate conduct for the officer to approach, even illuminate with a spotlight. Plenty of cases that support that. But then to make a consensual encounter. That would have been certainly something that could have been done.

Summarize the Courts findings from the evidence, the important issues, I think, are the location of the officer, an abandoned area or remote area, position of the vehicle where it was parked. Based on the officers observation, he believed from what he saw they were smoking, that there had been other arrests for drug trafficking or drug-related activity in that area.

The Court is going to deny the motion.

This petition for a writ of mandate/prohibition timely followed. (Pen. Code,  1538.5, subd. (i).)

ANALYSIS

Standard of Review

When reviewing the denial of a motion to suppress, we employ a two-prong standard of review. We begin by viewing the record in a light favorable to the ruling and defer to the trial courts factual findings, express or implied, where supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We then exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (Ibid.) 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 maybe involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)

The Purported Lack of Facts to Support the Detention

Petitioner claims the officer did not identify any specific, articulable facts to justify her initial detention. She believes the officer acted on nothing more than a hunch and, as such, believes the court erred when it denied her motion to suppress the evidence obtained during their unlawful encounter.

The People have not tried to persuade this court to uphold the search based on the officers belief that petitioner and her companion were smoking illicit drugs.

If we limit ourselves to those facts, the basis for the detention does not pass the maybe involved in criminal activity test set forth above. The officer saw a continuous glowing light in the truck cab that he believed was consistent with methamphetamine being smoked by the trucks occupants. Even if we consider the detaining officers experience and knowledge of drug-related incidents in the area, his physical description of the area and the trucks position in the area, a continuous glow, without more, is not enough to reasonably cause one to conclude that methamphetamine was being smoked. Noticeably absent from the officers testimony is any indication that he saw the glow or anything else being moved toward and away from either one of the trucks occupants. Also missing was any explanation how methamphetamine could be smoked without that movement occurring.

We turn then to the Peoples argument that the detention was justified on the theory that petitioner was illegally parked. A law enforcement officer can, consistent with the Fourth Amendment, briefly detain a vehicle if the objective facts indicate its operator violated a traffic law. (Whren v. United States (1996) 517 U.S. 806, 809-810.) But applying this theory to the case before us presents a number of problems.

First, the Peoples opposition to petitioners motion to suppress made no mention of this theory. Second, the People never identified in the trial court proceedings the precise parking law petitioner allegedly violated.^[1] These omissions left petitioner in the untenable position of having to speculate what law she may have violated and then having to respond to the theory without knowing what elements the People needed to prove to meet their burden of justifying the detention.

Only now have the People identified those laws as Vehicle Code section 22504 and Tuolumne County Ordinance No. 10.24.010. As to the former, the People admit the trial court record does not establish that Porto Fina Roadwhere the detention occurredwas in an unincorporated area of Tuolumne County. This lack of evidence means the People failed to prove a necessary element of a Vehicle Code section 22504 violation during the trial court proceedings.^[2] That lack of evidence proves fatal to their effort to justify the detention on that basis.

Then there is the Peoples reliance on the purported violation of Tuolumne County Ordinance No. 10.24.010.^[3] The People maintain the evidence presented below shows the truck was stopped on the roadway in such a way that it prevented other traffic from passing. Closer examination of the testimony in question does not support the Peoples interpretation. The officer testified the roadway was between 14 and 16 feet in width; that petitioners truck was parked entirely on the roadway except for her passenger side tires; and that another vehicle could not pass if it remained in the right hand lane of traffic behind petitioners truck. No evidence was presented to show the roadway was so narrow that traffic could not go around petitioners truck. As such, the People failed to meet their burden of proving the road was obstructed by petitioners truck.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent to vacate its June 3, 2008 order denying petitioners motion to suppress evidence and to instead enter an order granting said motion. The stay previously imposed by this courts order of August 21, 2008, is lifted.

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^*Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.

^[1] Indeed, the parking violation theory did not even come up until after the People initially rested their case and the court, on its own motion, reopened questioning.

^[2] The applicable portions of this section provide:

(a) Upon any highway in unincorporated areas no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or leave the vehicle off such portion of the highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of the stopped vehicle shall be available from a distance of 200 feet in each direction upon the highway. . . .

(b) This section shall not apply to the driver of any vehicle which is disabled in such a manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle on the roadway. (Veh. Code,  22504, subds. (a) & (b).)

Highway is defined in Vehicle Code section 360 as a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.

^[3] This provision reads as follows:

10.24.010 Obstructing vehicular traffic prohibited. The parking of vehicles on any portion of the county road system or the county rights-of-way in a manner which will obstruct vehicular traffic traveling upon the County roads is prohibited. Vehicle as used in this section includes, but is not limited to, automobiles, trucks, trailers, house trailers and movable living quarters of any nature or description. (Ord. 271 1, 1952).