P. v. Medina

Filed 1/6/10 P. v. Medina CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant John Kevin Medina guilty of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)),^[1]a lesser included offense of the charged offense of possession of methamphetamine for sale (Health & Saf. Code,  11378), and resisting arrest (Pen. Code, 148, subd. (a)(1)). In addition, the trial court found true that defendant had sustained two prior prison terms. (Pen. Code, 667.5, subd. (b).) Defendant was sentenced to a total term of four years in state prison; however, execution of that sentence was suspended and defendant was placed on three years formal probation with various terms and conditions, including serving one year in a residential substance abuse treatment program. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) there was insufficient evidence to support the convictions as they stemmed from an unlawful detention and/or an unlawful search. We reject these contentions and affirm the judgment.

I

FACTUAL BACKGROUND^[2]

Around 9:59 a.m., on March 14, 2008, Officer Traynham and Sergeant Pickering were in uniform and riding Segways on routine street patrol when they saw defendant coming out of a house located at 44726 King Street, with a man known to have prior police contacts. Officer Traynham had made several arrests in front of that residence for drug-related offenses and had been involved in serving a search warrant at that address. Officer Traynham had also heard of arrests being made for weapons charges in front of that residence. The residence was described as the problem house of the block. In addition, the area was known as a high-drug problem area. The area was also known for stolen property crimes and people with warrants.

After defendant exited the problem residence, he walked over to, and eventually got into, a vehicle that had California disabled person plates on it. As defendant was walking to the vehicle, Sergeant Pickering initiated a conversation with defendant. Sergeant Pickering and Officer Traynham asked defendant about the disabled person plates, wondering why the vehicle had such plates when defendant appeared to be in good health. The officers had essentially engaged him in small talk and never told defendant he could not leave. Officer Traynham admitted that he did not know whether it was a violation of the Vehicle Code to have disabled person plates on a vehicle without being entitled to them.

Defendant answered the officers questions. Defendant gave Officer Traynham his drivers license and a card, which stated he was discharged from parole. Initially, defendant appeared calm, but the more the officers talked to him, the more he began getting a little more agitated with [the officers]. Defendant also stated, Hey, I got to go to work, you know. You can check my license. Im off parole. Defendant was rambling and may have also stated that he had to go pick up a baby. As defendant spoke about the fact that he was off parole and as Officer Traynham informed defendant that he was in a high-drug crime area, defendant became more nervous and fidgety.

When Officer Traynham mentioned drugs, defendant really started getting nervous. Based on defendants actions and demeanor, Sergeant Pickering asked defendant to exit the vehicle.^[3] Officer Traynham explained, . . . Sergeant Pickering asked [defendant] to exit the car because you know the way he was acting. We didnt know if he had a weapon, if he was trying to get away from us, what was going on at that point. He was making us nervous. We asked him to step out just to make sure he didnt have anything on him.^[4] Officer Traynham believed that defendant had a weapon based on his actions. Defendant began to get real excited, raising his voice, and repeatedly stating, Im off parole. He was also moving around and appeared to be freak[ing] out.

Officer Traynham spoke with defendant in a normal tone of voice and asked defendant to calm down. He informed defendant that he was just going to pat [him] down just for weapons. Sergeant Pickering never raised his voice at defendant. Defendant, however, yelled and rapidly said, Check my pockets. Check my pockets. Check it out. Check it out, while moving his hands toward his pockets and all around. At that point, Officer Traynham grabbed defendants hands. Defendant tried to pull away and kept telling the officer to check his pockets.

As Officer Traynham released one of defendants hands to conduct a pat-down search, defendant ran away. Officer Traynham pursued defendant and seized defendant by his shirt. However, the shirt ripped, and defendant continued to flee. As defendants shirt ripped, a black bag flew through the air. Officer Traynham eventually apprehended defendant and handcuffed him.

Thereafter, Officer Traynham searched the area and found the black bag. The black bag contained six bindles of methamphetamine. Officer Traynham also searched defendants person and discovered a large amount of money and a light bulb wrapped in a dew rag. After defendant was arrested, Officer Traynham read defendant his Miranda^[5]rights from a department-issued card. Defendant appeared to understand his rights and agreed to speak with Officer Traynham.^[6]

Following arguments from counsel, the trial court denied defendants suppression motion. The court found the initial encounter to be consensual. The court also found that the officers had detained defendant when they ordered defendant to exit the vehicle, and the detention was justified by reasonable suspicion. The court explained, I think it is a detention when they tell him to get out of the car. Prior to that point hes coming from a house thats known for high-crime narcotics. He is acting erratic. I think its real close, but I will find that there was justification for the detention and for the pat-down, but I think its a real close question and the motion is denied.

II

DISCUSSION

A. Motion to Suppress

Defendant argues that the trial court erred in denying his Penal Code section 1538.5 motion, stating that the methamphetamine and his confession should have been suppressed as the fruit of an illegal detention. We disagree.

1. Legal Principles

In evaluating a challenge to the trial courts ruling on a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling and defer to its factual findings, whether express or implied, if they are supported by substantial evidence. We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

There are three categories of police contacts with individuals: consensual encounters; detentions; and arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) The first question is whether the contact between defendant and the officers was a consensual encounter or a detention. Consensual encounters do not trigger Fourth Amendment scrutiny, detentions do. (Ibid.)

A consensual encounter occurs if a reasonable person would [have felt] free to disregard the police and go about his or her business . . . . (In re Manuel G., supra, 16 Cal.4th at p. 821.) Unlike a detention, a consensual encounter requires no articulable suspicion [on the part of the officer] that the person has committed or is about to commit a crime. (Ibid.) A consensual encounter may properly be initiated by police officers even if they lack any objective justification. (People v. Hughes (2002) 27 Cal.4th 287, 327.)

[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. (In re Manuel G., supra, 16 Cal.4th at p. 821.) A detention occurs when an officer restrains a persons liberty to walk away by force or show of authority. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 (Terry).) A police officer may temporarily detain a suspect based only on a reasonable suspicion that the suspect has committed or is about to commit a crime. (People v. Bennett (1998) 17 Cal.4th 373, 386-387.) 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 may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).)

Factors to consider in determining whether the police contact is a consensual encounter or a detention include: the number of officers present; whether the officer(s) displayed a weapon; whether there was physical touching; and whether the officer(s) used language or . . . a tone of voice indicating that compliance with the officers request might be compelled. (In re Manuel G., supra, 16 Cal.4th at p. 821.) Neither the officers uncommunicated state of mind nor the individuals subjective belief are relevant in determining whether a detention has occurred. (Ibid.)

2. Initial Encounter

Under the circumstances presented here, we conclude that defendant and the officers initially had a consensual encounter, and defendant was not detained until he was ordered to exit the vehicle. The officers approached defendant on a public street and engaged him in small talk, asking about the disabled person plates on the vehicle. The officers were not driving a patrol vehicle and did not have to go out of their way to stop in order to make contact with defendant. Rather, the officers were on routine street patrol, riding Segways, when they approached defendant. Defendant continued to walk to his vehicle and get inside. Defendant calmly answered the officers questions. Then, as the officers continued to speak with defendant, defendant began getting agitated, fidgety, nervous, and rambling about having to go to work and pick up a baby. He also volunteered that the officers could check his license and that he was off parole. Up to this point, defendants contact with the officers was a consensual encounter; it was not a detention. The record indicates that neither Officer Traynham nor Sergeant Pickering had (1) displayed their service weapon, (2) physically touched defendant, (3) blocked defendants passage or restrained him in any manner, or (4) accused defendant of any criminal activity. Further, the record indicates that the officers used a conversational tone of voice. In short, up until the officers asked defendant to exit the vehicle, there was no show of authority restraining his libertyeither expressed or implied. The officers words and actions would not have conveyed to a reasonable person that he or she was detained.

As our Supreme Court noted in In re Manuel G., supra, 16 Cal.4th at page 821: The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur.

Defendant relies on Wilson v. Superior Court (1983) 34 Cal.3d 777 (Wilson), where the Supreme Court reversed an order denying a motion to suppress. In that case, the arresting officer was working as an undercover narcotics agent at the Los Angeles International Airport. He saw the defendant, who was carrying an attach case, and a companion. The officer thought the two were somewhat suspicious and followed them down a concourse to the street. The defendant and his companion were aware they were being followed, as they looked back at the officer several times. The officer, similarly, knew the defendant knew he was being followed. (Id. at pp. 780-781.) The defendants vehicle was parked on the street. The defendants companion left to retrieve luggage, and the officer approached the defendant displaying his police identification. The officer told the defendant that he was a police officer and asked if he might have a minute of his time. When the defendant responded, [s]ure, the officer told him, I [am] conducting a narcotics investigation, and . . . received information that [you] would be arriving today from Florida carrying a lot of drugs. (Id. at p. 781.) The officer then asked if he could search the defendants carry-on luggage and, according to the officer, the defendant gave him permission to search. The search turned up two small vials of narcotics. (Id. at pp. 781-783.)

Our Supreme Court found the officer did not detain the defendant by merely approaching him, identifying himself as a police officer, and asking if he might have a minute of his time. (Wilson, supra, 34 Cal.3d. at p. 790.) However, [c]ommon sense suggests to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer. Before [the officer] made that statement, [the defendant] might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the timeor, perhaps, the inclinationto answer the officers questions or to comply with his requests for permission to search. Once the officer advised [the defendant] that he had information that [the defendant] was carrying a lot of drugs, the entire complexion of the encounter changed and [the defendant] could not help but understand that at that point he was the focus of the officers particularized suspicion. Under these circumstancesand particularly in the absence of any clarifying advice from the officer explaining to [the defendant] that he was, in fact, free to drive away if he desiredno reasonable person would have believed that he was free to leave. [Citations.] (Id. at pp. 790-791.)

Contrary to defendants contention, the facts of this case are not analogous to Wilson. The officers conduct in approaching defendant and asking defendant about the disabled person plates did not make the encounter a detention. Unlike the situation in Wilson, the officers query of why defendant had such plates on his vehicle, when defendant did not appear to be disabled, did not transmute the encounter into a detention. There is a vast difference between being informed one is under suspicion for transporting narcotics and being questioned about disabled license plates. No reasonable person would expect to be placed under arrest for having disabled person plates on a vehicle. And, no reasonable person would assume he or she had no choice but to submit to the officers questions and/or to a search of their body or vehicle after being questioned as to why he or she had such plates when he or she appeared to be in good health. We also do not find the officers question concerning the disabled person plates created a particularized suspicion defendant was being investigated for possession of weapons or drugs. To the contrary, under the circumstances, the question reasonably appeared to be a general one, which would have allowed defendant to go on his way if he chose to discontinue any further conversation with the officers or give any explanation as to why there were disabled person plates on the vehicle.

3. Detention

Defendant next contends that even if the initial contact between defendant and the officers was legal, an unlawful detention occurred when Sergeant Pickering asked him to exit his vehicle so that Officer Traynham could search him for weapons because the officers lacked specific articulable facts to detain him.

As the trial court found, once defendant was ordered out of his vehicle by the officers, the initial consensual encounter turned into a detention. The totality of the circumstances shows that the officers had reasonable suspicion to detain defendant. Officer Traynham and Sergeant Pickering were on routine patrol on King Streetan area known for high-crime activity. They had observed defendant exit a known problem house with a man known to have prior police contacts. The address was described as the problem house of the block. As Officer Traynham and Sergeant Pickering were conversing with defendant about the disabled person plates, defendant became agitated, fidgety, and nervous. Defendant also volunteered that he was off parole and that the officers could check his license. Defendant was moving around, raising his voice, and getting really excited and nervous, especially when Officer Traynham mentioned drugs in the area. Based on the area, defendants actions and demeanor, and the belief that defendant may have had a weapon, the officers asked defendant to exit the vehicle. These combined factors, under the principles laid down by our Supreme Court in Souza, justified the stop and detention of defendant.

In Souza, drugs were seized from the defendant after he was stopped by a police officer around 3:00 a.m. in a high crime area of that city. The defendant had taken evasive actions when the police patrol unit shined its lights on a parked vehicle and its passengers. The defendant, who was standing near the vehicle, fled the scene. (Souza, supra, 9 Cal.4th at p. 241.) Citing numerous relevant United States Supreme Court cases on the issue, the court stated: From these decisions by the United States Supreme Court we distill this principle: 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 may be involved in criminal activity. (Id. at p. 231.) And it found such totality of the circumstances in the record before it, namely, the areas reputation for criminal activity, the presence of two people near a parked car very late at night and in total darkness, and evasive conduct not only by defendant but by the two occupants of the parked car . . . . The court then considered each of these circumstances. It ruled that each was relevant to whether an investigative detention is reasonable under the Fourth Amendment and, hence, reversed the decision of the Court of Appeal. (Id. at pp. 240, 242.)

Since Souza, the principle it enunciated has consistently been relied upon. Thus, in In re H.M. (2008) 167 Cal.App.4th 136 (H.M.), the Second District Court of Appeal upheld the pat search of a defendant when that defendant was (1) . . . running through traffic and nervously looking around; . . . (2) the area was known for gang activity; . . . and (4) there had been a shooting a block away the previous day. (Id. at p. 144.) Emphasizing one of these factors, that court cited Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow), for the proposition that [n]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion. (H.M., supra, 167 Cal.App.4th at p. 144; see also People v. Williams (2007) 156 Cal.App.4th 949, 959 [deputy sheriff permitted to stop and detain a person driving a motorcycle [b]efore sunrise, on a winding dirt road, in the vicinity of marijuana plantings]; In re Frank V. (1991) 233 Cal.App.3d 1232, 1237-1239 [police stopped a motorcycle in an active gang area after a reckless driving complaint and ordered the defendant, who was a passenger, to remove his hands from his pockets; he did so, but then placed them back; subsequent detention and search approved]; People v. Holloway (1985) 176 Cal.App.3d 150, 152-155 [detention occurred around 3:00 a.m. in an area where narcotics traffic often occurred; defendant was observed with others, who fled as police approached; defendant manifested surprise and closed his hand into a fist, as if he might discard contraband when he saw the police].)

Several United States Supreme Court decisions are very much to the same effect as Souza. Thus, in Wardlow, supra, 528 U.S. 119, not only did the court note that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion, it also stated that unprovoked flight is simply not a mere refusal to cooperate. (Id. at pp. 124-125; see also United States v. Arvizu (2002) 534 U.S. 266, 273-278.)

Defendant relies principally on People v. Medina (2003) 110 Cal.App.4th 171 (Medina) and People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia) in support of his argument that there were insufficient circumstances observed by Officer Traynham and Sergeant Pickering to justify defendants detention. We find both casesin which the Courts of Appeal found there were insufficient circumstances to support the detentionsdistinguishable. In Medina, the defendant was stopped for driving a vehicle car with a broken taillight and then searched for weapons. (Medina, supra, 110 Cal.App.4th at p. 174.) The officer explained that it was standard procedure to conduct weapons searches in a high gang area late at night, and that there wasnt anything specific about [the defendant] that led him to believe [he] was armed. (Id. at pp. 175, 177.) The appellate court properly found the standard procedure inappropriate. (Id. at pp. 177-179.)

In Perrusquia, the detained person was in a vehicle outside an open convenience store at 11:26 p.m.; the vehicles engine was running and an observing officer thought the defendants posture in the vehicle looked suspicious. (Perrusquia, supra, 150 Cal.App.4th at p. 231.) As several officers approached the vehicle, the defendant dropped something, exited the car, and refused to stop for a pat-down search when requested to do so; he was detained, searched, and found to be carrying weapons and drugs. (Ibid.) But the detention did not occur in either a high-crime area, an area near a recent crime (although there had been robberies at other convenience stores in the area), nor late at night. The court found the detention unlawful because it was merely based on the location of the stop and unrelated to the defendants activities. (Id. at p. 234.)

As the H.M. court observed in distinguishing these two decisions: [H]ere, the locale did not transform innocent behavior. H.M. was not stopped and frisked merely because he was in gang territory, or as a matter of routine procedure. To the contrary, as we have discussed, H.M.s curious activities strongly suggested criminal activity was afoot, leading an experienced officer to conclude H.M. might well be armed. These circumstances distinguish this case from cases such as [Perrusquia] and [Medina]. In Perrusquia, factors unrelated to the defendantthe nature of the location and a recent string of robberiesformed the primary basis for the officers detention of the defendant. [Citation.] In Medina, an officer stopped the defendant for driving with a broken taillight. Although there wasnt anything specific about Medina that led the officer to conclude he might be armed, the officer patsearched him as a matter of standard procedure because they were in a high-gang location at night. [Citation.] Medina concluded that, although Medina was lawfully stopped, the frisk violated the Fourth Amendment because minor traffic offenses do not reasonably suggest the presence of weapons. [Citation.] In contrast to these cases, [the suspicions of the officer] were aroused based on factors directly related to H.M., i.e., his suspicious behavior and his prior contacts with police. (H.M., supra, 167 Cal.App.4th at pp. 147-148.)

As noted above, before defendant was detained, defendant was seen leaving a known problem house with a man known to have prior police contacts. In addition, defendant was in a high-crime area and behaving erratically, especially when the officer mentioned drug activity in the area. The officers observations gave rise to a reasonable suspicion that criminal activity was afoot. Officer Traynham properly reached this conclusion based on his training and experience regarding narcotics activities, his knowledge of prior drug activity in the area, and his observations of defendants actions and demeanor. In view of these factors, the detention of defendant was appropriate.

4. Pat-down Search

Defendant next claims that the officers did not have reasonable suspicion to conduct a pat-down search.

Law enforcement officers may conduct a pat-down search incident to a detention under circumscribed conditions. An officer may conduct a pat-down search to determine if a person is carrying a weapon after he or she observes suspicious behaviorprompting reasonable suspicionindicative of someone who is armed and dangerous to the officer or others. (Terry, supra, 392 U.S. at p. 24.) The officers pat-down search is justified by the need to pursue [an] investigation without fear of violence, not to unearth evidence of a crime. (Adams v. Williams (1972) 407 U.S. 143, 146.) Before a police officer places a hand on the person of a citizen in search of anything, he [or she] must have constitutionally adequate, reasonable grounds for doing so. (Sibron v. New York(1968) 392 U.S. 40, 64.) If the search extends beyond what is necessary to determine if the suspect is armed, it exceeds the allowable parameters of a Terry stop, resulting in suppression of the fruits of the search. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)

Officer Traynhams purported pat-down search of defendant did not violate defendants Fourth Amendment protection from unreasonable searches. The underlying circumstances, in conjunction with defendants behavior, justify the constitutionality of the officers pat-down search to ensure that defendant was not armed and dangerous. We rely on the same justifications that supported the finding of a legal detention: (1) defendants presence in a high-crime area; (2) defendants departure from a known problem house for narcotics and other illegal activities; (3) defendants association with an individual known to have prior police contacts; (4) defendants demeanor while speaking with the officers; and (5) defendants actions in moving his hands all around. These circumstances surpass the requisite threshold of reasonable suspicion to warrant a pat-down search for weapons incident to a legal detention.

Defendant again relies on Medina, supra, 110 Cal.App.4th 171. In that case, the court held that, even if the legal traffic stop occurs in a high-crime area late at night, the time and location of an encounter are insufficient by themselves to cast reasonable suspicion on an individual, which would justify a pat-down search. (Id. at p. 177.) As we have discussed, the pat-down search in this case was based on more. The totality of these circumstances justified the officers reasonable apprehension of danger and justified the limited search Officer Traynham purported to conduct before defendant broke loose of the officers grasp and fled.

Based on the foregoing, we find that the trial court properly denied defendants suppression motion.

B. Sufficiency of the Evidence

In a related claim, defendant also asserts, had the officers not illegally detained [him], [he] would not have had the opportunity to resist the officers, he would not have discarded the drugs, he would not have made any statements regarding the drugs, and the officers would not have arrested him. He further contends without the above evidence, there was insufficient evidence to support the jurys finding that he had possessed methamphetamine and resisted a peace officer. Because we find the trial court properly denied defendants suppression motion for the reasons stated above, we reject defendants attempt to reargue the suppression issues in the guise of an insufficiency of the evidence claim.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] The reporters transcript and the verdict forms show the charge as Penal Code section 11377, subdivision (a). The minute order indicates the correct charge, i.e., Health and Safety Code section 11377, subdivision (a).

^[2] Because the issues raised in this appeal essentially relate to the denial of the suppression motion, the factual background will be taken from the suppression hearing.

^[3] Defendant shut the door to the vehicle, but never placed the keys in the ignition.

^[4] Officer Traynham later testified that it might have been him who asked defendant to step out of the vehicle or it might have been both of them.

^[5]Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

^[6] At trial, Officer Traynham testified that defendant admitted the drugs were his.