P. v. Davis

Filed 2/27/09 P. v. Davis CA1/5

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant William Davis was sentenced to four years in state prison after he pled no contest to possession of cocaine base under Health and Safety Code section 11350, subdivision (a) and admitted allegations that he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He appeals the denial of his motion to suppress, arguing that the drugs were the product of an illegal detention. We affirm.

I. Facts and Procedural History

Fairfield Police Department Officer David Neal was on patrol at about 2:20 a.m. when he noticed appellant and a woman standing in the parking lot of the La Aurora Market on the corner of West Texas and Pennsylvania Streets. The market was closed, and Neal believed the pair might be in violation of a Fairfield city ordinance prohibiting a person from entering and remaining in the parking lot of a closed business. Neal made a U-turn and appellant and the woman began walking down Pennsylvania Street.

Neal contacted appellant and the woman and directed them to sit on the sidewalk with their feet crossed and their hands in their laps. He asked for permission to search appellant for weapons and contraband and appellant said yes. Neal conducted a pat search of appellants clothing and felt a lump the size of a pencil eraser in appellants pants. The lump turned out to be .29 gram of cocaine base, a usable amount. During the search, appellant asked Neal why he was being searched and Neal responded that he was checking for weapons and determining whether to issue a citation for loitering.

A criminal complaint was filed charging appellant with possession of cocaine base and alleging several prison prior enhancement allegations. Appellant filed a motion to suppress evidence of the drugs as the product of an illegal search, arguing, among other things, that his detention by Officer Neal was not supported by reasonable suspicion. (Pen. Code,  1538.5.) The magistrate heard the motion at the preliminary hearing, denied it, and held appellant to answer.

The prosecution filed an information containing the same charges as the complaint and appellant renewed the suppression motion by way of a motion to dismiss the information. (Pen. Code,  995.) The court denied the motion. Appellant entered a no contest plea to possessing cocaine base and admitted two of the charged prison priors. The court imposed a four-year prison term, consisting of the two-year middle term on the substantive charge and a consecutive one-year term for each prison prior.

II. Discussion

Appellant argues that evidence of the cocaine base discovered in his pocket should have been suppressed because he was illegally detained at the time Officer Neal conducted the consent search. We disagree.

When a motion to suppress is made at the preliminary hearing, the magistrate sits as the trier of fact. (People v. Laiwa (1983) 34 Cal.3d 711, 718.) When the motion is renewed under Penal Code section 995 on the basis of the preliminary hearing transcript alone, the superior court is bound by the factual findings of the magistrate and must accept those findings so long as they are supported by substantial evidence. (People v. Ramsey (1988) 203 Cal.App.3d 671, 679.) On appeal, we review the factual determinations of the magistrate, not the trial court, and uphold those findings if supported by substantial evidence. (Ibid.) We must then exercise our independent judgment to determine whether, under the facts as found by the magistrate, the police acted reasonably under the Fourth Amendment. (People v. Leyba (1981) 29 Cal.3d 591, 597.)

The People do not dispute that appellant was detained when Officer Neal directed him and his companion to sit on the ground. A detention is authorized when the 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. (People v. Souza (1994) 9 Cal.4th 224, 231.) Appellant contends his detention was not authorized because Neal could point to no facts suggesting that he (appellant) was involved in criminal activity.

Officer Neal detained appellant because he was investigating a possible violation of Fairfield City Code section 12.16, subdivision (b) (the ordinance), which states, It shall be unlawful for any person to enter and remain upon any privately owned off-street parking facility or lot when the adjoining business or commercial establishments are not open for business without the written consent of the owner of such privately owned parking facility or lot. Fairfield City Code section 1.7 makes a violation of this provision an infraction. Appellants presence in the parking lot of a closed market at 2:20 a.m. was a circumstance from which a reasonable officer might infer that the ordinance had been violated. The possible violation of a local ordinance will furnish grounds for a brief investigatory detention. (See Santos v. Superior Court (1984) 154 Cal.App.3d 1178, 1184 [exchange of object in darkened parking lot and possible violation of anti-loitering ordinance supplied sufficient grounds for detention]; compare Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [stop and arrest for violation of Texas seatbelt law]; People v. McKay (2002) 27 Cal.4th 601, 606-607 [stop and detention for infraction of riding bicycle on wrong side of street].)

Appellant acknowledges that he enter[ed] the markets parking lot after hours, but claims there were no facts observable to Officer Neal that would suggest he had remain[ed] in the lot as required for a violation of the ordinance. We disagree. The reasonable suspicion required for a detention is a lesser standard than the probable cause required for an arrest and can be based on less reliable information. (People v. Dolly (2007) 40 Cal.4th 458, 463.) The standard will be met when the officer can point to specific, articulable facts reasonably consistent with criminal activity, and it is not defeated by the possibility of an innocent explanation for the suspicious conduct. (In re Tony C. (1978) 21 Cal.3d 888, 894.) Officer Neal may not have known with certainty whether appellant had remain[ed] in the parking lot for a sufficient time to constitute a violation of the ordinance, but he was entitled to detain appellant to briefly question him about his activities and to determine whether to issue a citation.[1]

The decision in People v. Roth (1990) 219 Cal.App.3d 211, relied upon by appellant, does not require a different result. There, the court determined that the challenged detention was illegal when its only basis was the defendants presence in a deserted parking lot when the adjacent businesses were closed. (Id. at p. 215.) There was no indication, as there was in this case, that such conduct violated a local ordinance and amounted to a citable infraction.

Because the initial detention of appellant was lawful, and because substantial evidence supports the magistrates determination that appellant consented to the search, the motion to suppress was properly denied. (People v. Gallardo (2005) 130 Cal.App.4th 234, 239.)

III. Disposition

The judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

STEVENS, J.*

        Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] Appellant makes no argument that the ordinance is unconstitutionally vague or is otherwise unenforceable.