P. v. Bey

Filed 10/11/07 P. v. Bey CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Shawn Hutcherson Bey appeals his conviction for possession of cocaine base, contending the trial court erred in denying his motion to suppress. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 16, 2006, at approximately 10:00 p.m., two Sheriffs Deputies, Michael Vale and Greg Steindorf, and Police Officer Robert Lindner were separately dispatched to respond to a disturbance call on a light rail train. Deputy Vale testified that the call involved a black male subject harassing passengers and acting violently.

Deputy Vale boarded the train first and saw defendant standing near the front of the train quickly waving his arms in a violent manner. The train was fairly full, with some passengers just two or three feet away from defendant. As Officer Lindner boarded the train behind Deputy Vale, he saw passengers pointing to the front of the train with concerned looks on their faces. Deputy Steindorf simultaneously boarded the train from a door near the rear of the train. He saw passengers pointing toward the front of the train saying up there. One passenger told the officer something to the effect that defendant was acting crazy and intoxicated and threatening some females on the train. Two female passengers sitting near the front of the train told the deputy that defendant was acting irrational, crazy, like he was under the influence of drugs or alcohol and verbally harassing them.

Upon contact with defendant, the officers each observed objective signs of alcohol intoxication: his eyes were bloodshot, his breath had the strong odor of alcohol, and his speech was slurred and slow. When questioned, defendant admitted he had been drinking. Officer Vale placed a control hold on defendant and directed him off the train because the officer was concerned for passenger safety. All of the officers had training and experience in making arrests for public disturbances. After getting off the train, the officers placed defendant under arrest. During a search incident to the arrest, defendant was found to possess illegal narcotics.

Defendant was charged in a three-count information with possession of cocaine base, resisting arrest, and public intoxication. Defendant filed a motion to suppress evidence, contending the officers did not have probable cause to arrest him. After the trial court denied the motion to suppress, defendant pled no contest to possession of cocaine base and admitted a prior strike conviction in exchange for a low term commitment and dismissal of the other two counts.

DISCUSSION

On appeal, defendant contends the trial court erred when it denied his motion to suppress because the officers did not have probable cause to arrest him for public intoxication and therefore the search incident to arrest violated his Fourth Amendment rights. We disagree.

In reviewing the trial courts ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. (People v. Hughes (2002) 27 Cal.4th 287, 327.)

The offense of public intoxication is committed when a person is (1) intoxicated (2) in a public place and either (3) is unable to exercise care for his own safety or the safety of others or (4) interferes with or obstructs or prevents the free use of any street, sidewalk or public way. (People v. Lively (1992) 10 Cal.App.4th 1364, 1368-1369; Pen. Code, 647, subd. (f).) The fourth element is not applicable here and both parties agree that the first two elements of the offense were met. Defendant also does not dispute the trial courts factual findings. Therefore, the only contention on appeal is that the officers did not have probable cause to believe that defendant was unable to exercise care for his own safety or the safety of others.

Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. (People v. Kraft (2000) 23 Cal.4th 978, 1037.) When determining whether an intoxicated person can exercise care for his or her own safety or the safety of others, the totality of circumstances must be considered. (People v. Lively, supra, 10 Cal.App.4th at p. 1372.) The totality of circumstances includes not only all of the facts known to the arresting officer at the time he acted, but also his special training, experience and expertise. (People v. Profit (1986) 183 Cal.App.3d 849, 881, 883.)

Here, there was sufficient evidence, under the totality of the circumstances, for officers of ordinary care and prudence to entertain an honest and strong suspicion that defendant was unable to care for the safety of others. Part of the purpose of Penal Code section 647, subdivision (f), is to protect the general public from dangers associated with the presence of intoxicated individuals in public places. (People v. Belanger (1966) 243 Cal.App.2d 654, 662.) The concern for the safety of the public is particularly significant on a public light rail train where passengers are trapped with a potentially harmful offender between station stops. Under these circumstances, when officers with training and experience with public disturbances encounter an individual violently waiving his arms in a fairly full public light rail train hear that he threatened passengers, and observe objective signs of intoxication, it is reasonable for the officers to entertain a strong suspicion that the individual is unable to exercise care for the safety of the other passengers. Accordingly, there was probable cause to arrest defendant for public intoxication.

Defendant argues that the motion to suppress was improperly denied [d]ue to a complete lack of competent evidence to support the charge of drunk in public. Probable cause for arrest, however, is not determined by whether the evidence on which the officers acted was sufficient to convict. (People v. Ingle (1960) 53 Cal.2d 407, 412-413.) The standard of probable cause to arrest is the probability of criminal activity, not a prima facie showing. (People v. Lewis (1980) 109 Cal.App.3d 599, 608.) Therefore, evidence sufficient for probable cause to arrest defendant only had to support a strong suspicion that defendant was unable to care for the safety of other passengers, and not prove beyond a reasonable doubt that he could not care for the safety of others. As stated above, we find that threshold of strong suspicion met.

Focusing on the fact that he did not stumble or have difficulty maintaining his balance and arguing that he was therefore not unable to care for himself or others, defendant attempts to distinguish his case from a line of cases in which appellate courts have found probable cause to arrest for public intoxication. In the cited cases, however, stumbling indicated that those defendants were unable to care for their own safety. (See In re William G. (1980) 107 Cal.App.3d 210, 214; People v. Steeples (1972) 22 Cal.App.3d 993, 995, disapproved on other grounds in People v. Longwill (1975) 14 Cal.3d 943, 952, fn 5.)

In this case, however, the primary concern of the officers responding to the disturbance call was the safety of others, not (primarily) whether defendant could care for himself. Therefore, these cases are not helpful to defendants contention that there was no probable cause for his arrest.

Furthermore, defendants lack of stumbling is not dispositive because probable cause is based on the totality of the circumstances of all of the facts known to the arresting officers at the time of arrest. (People v. Lively, supra, 10 Cal.App.4th at p. 1372.) The fact that defendant was not stumbling does not negate the fact that the officers saw him waving his arms violently, received information that he was making threats, and observed his apparent intoxication. Under the totality of the circumstances, it was this information that furnished the probable cause to arrest defendant despite his lack of stumbling.

Defendant also errs in contending there was a lack of sufficient evidence to arrest him because the officers relied on statements made by unidentified passengers. It is well established that citizen informants who are witnesses to a criminal act are presumptively reliable unless the circumstances cast doubt on their information. (People v. Boissard (1992) 5 Cal.App.4th 972, 979.) Furthermore, in this case, unlike citizen informant cases, the statements made by the other passengers were not the sole basis of probable cause to arrest; the passengers statements formed only part of the evidence on which the officers acted. Although defendant did not continue his verbal abuse once the officers boarded the train, the officers could reasonably rely on the passengers statements that he had been making threats, considering the circumstances of the disturbance call, the officers own observations of his violent manner, and his apparent intoxication. (People v. Lewis (1966) 240 Cal.App.2d 546, 549-550 [probable cause to arrest defendant where officer relied on the report of a citizen witness in addition to officers own observations].)

Given the totality of the circumstances, there was probable cause to arrest defendant for public intoxication because the facts known to the officers at the time of arrest were sufficient for them to strongly suspect that he was unable to exercise care for the safety of other passengers on the train. Since defendant concedes the other elements of the offense, the trial court correctly found the officers had probable cause to arrest defendant. It was not error to deny defendants motion to suppress.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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