P. v. Kleemeyer

Filed 1/21/10 P. v. Kleemeyer CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

INTRODUCTION

After his motion to suppress evidence (Pen. Code, 1538.5)[1] was denied, defendant Adam Thomas Kleemeyer pleaded no contest to conspiracy to commit burglary and robbery ( 182, subd. (a)(1), 459, 460, subd. (a), 211, 212.5, subd. (a)), receiving stolen property ( 496, subd. (a)), misdemeanor carrying a concealed firearm in a vehicle ( 12025, subd. (a)(1)), and misdemeanor carrying a loaded firearm ( 12031, subd. (a)(1)). The court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. Defendant filed a notice of appeal challenging the trial courts denial of his motion to suppress. ( 1538.5, subd. (m).)[2]

On appeal, defendant contests the validity of the detention and search of his person by officers on February 5, 2008. Defendant also argues that the officers were not justified in searching the vehicle in which he had been a passenger. As we find the searches and seizures were reasonable under the Fourth Amendment, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by first consolidated information with conspiracy to commit burglary and robbery ( 182, subd. (a)(1), 459, 460, subd. (a), 211, 212.5, subd. (a); count 1), receiving stolen property ( 496, subd. (a); count 2), misdemeanor carrying a concealed firearm in a vehicle ( 12025, subd. (a)(1); count 3), and misdemeanor carrying a loaded firearm ( 12031, subd. (a)(1); count 4).[3] He filed a motion to suppress evidence that officers obtained on February 5, 2008, on the grounds that his detention and arrest were unreasonable and in violation of the United States and California Constitutions. The testimony at the hearing on the motion on June 27, 2008, was as follows.

Santa Clara County Deputy Sheriff Jon Seaton was patrolling Willard Avenue in the Burbank district of unincorporated San Jose on the morning of February 5, 2008, when he observed a silver Volkswagen Jetta traveling westbound on Douglas Street and turning left onto Willard Avenue. Because it was standard for the deputy to check for license plates and registration stickers on vehicles passing him, he observed from his left-side rear-view mirror that there were no registration stickers on the Jettas rear license plate. The deputys immediate thought upon seeing a license plate with no stickers was that either the license plate or the vehicle might be stolen. The deputy testified that, based on his experience patrolling there for the previous two-and-a-half years, the Burbank district was a high-crime area, as he had handled numerous assault-with-a-deadly-weapon, burglary, and robbery calls from the area while on duty.

Deputy Seaton decided to follow the Jetta with the intention of stopping it for having no registration stickers. He made a three-point turn to get behind the Jetta, which turned right onto Scott Street shortly thereafter. The deputy sped up to follow the Jetta. The Jetta made another right turn onto Mayellen Avenue before parking in a residential neighborhood. At that point, three men in dark clothing exited the Jetta. Deputy Seaton testified that if a vehicle makes a series of right turns, [it] can indicate possibly evasion. The deputy activated his patrol cars red and blue emergency lights when the men were outside the Jetta. He also requested backup because it was unusual and an officer safety concern if three men exit a vehicle that is the subject of a traffic stop.

Deputy Seaton asked the driver, Travis Eugene Altman, to come towards him. All three men approached the deputy. Deputy Seaton asked Altman for his name and drivers license. Altman told the deputy that his name was Zack Smith and that the Jetta was owned by a woman named Robin, but he did not present a drivers license, other identification, or the vehicles registration. Thus, the deputy was not able to resolve the vehicle registration problem by talking to Altman. The deputy asked for and received valid identification from defendant and Brandon Alan Fraser, the second passenger of the vehicle. The deputy kept this identification for the duration of the encounter because all passengers in a stolen vehicle were possible parties to the theft. As they were in a residential neighborhood, the deputy asked the three men what their plans were for the morning. One of the three men stated that they were going to see a man named Dan Harris, but none of them was able to satisfactorily tell the deputy where Dan Harris lived.

Approximately three minutes after Deputy Seaton requested backup, Sergeant Frechette arrived at the scene. Shortly thereafter, Deputy Plett arrived, followed by Deputy Chaeff. Altman, defendant and Fraser were asked to sit on the curb. Deputy Seaton asked Altman for consent to search him, and he consented. Deputy Plett found a two-way walkie-talkie radio and a legal Benchmade folding knife in Altmans right-front pocket. Deputy Seaton then asked defendant if they could search him, but defendant said, No. Deputy Seaton asked why not, and defendant said, Because I have a weapon on me. Defendant was ordered to stand up. He stood up and reached with his right hand toward his hip, at which point Deputy Chaeff stopped him from doing so. A holster containing a handgun was seized from defendants right hip. The officers also located pepper spray, a pry bar, a knife, blood coagulant and two-way walkie-talkie radios on defendant.

Deputy Chaeff also testified that, based on his nearly 15 years of experience patrolling in and around the area, the Burbank district was our highest crime area. The three men were sitting on the curb when he arrived in response to Deputy Seatons call for back up on February 5, 2008. He saw Altman being searched and he heard Deputy Seaton ask defendant for permission to search him. Defendant did not consent to a search. He said that he had a gun and that it was on his right hip. Deputy Chaeff grasped defendants hand when defendant appeared to be showing where the gun was located. The deputy took both the gun and a holster from defendants right hip. The deputy also found pepper spray on defendant.

During their arguments to the court, the parties concur[red] with the courts initial assessment that defendant was detained when he was demanded to sit on the sidewalk and his license [w]as confiscated from him. After the matter was submitted, the trial court denied defendants motion to suppress, stating: All right. So, first of all, I will make a finding that I did find the testimony of both of the deputies to be credible.

After viewing the totality of the circumstances in this case, the court does find that the deputy had sufficient articulable facts to detain the defendant who was a passenger in the subject vehicle. Specifically, because the incident took place in a high-crime area, the car had the vehicle in question had no tags whatsoever. Its an important distinction. We are not simply talking about an expired registration; we are talking about no tags whatsoever, which certainly raised the deputys index of suspicion. And, then, you also have a driver with no I.D.

Viewing the totality of the circumstances, it was reasonable for Deputy Seaton to believe that the vehicle might have been stolen. And accordingly, the officers actions were lawful.

And the court will make a further finding that the detention was not unduly prolonged. The officers that were called to assist arrived shortly after the call was made. Accordingly, the defendants rights were not violated, and the motion is denied.

Although Deputy Seaton was not questioned about it at the hearing on the motion to suppress, he testified at the preliminary examination that the Jettas back license plate was duct taped to the car and was different from its front license plate.[4]Fraser testified at the preliminary examination that, after seeing what was found during the searches of defendant and Altman, he told Deputy Chaeff that he thought defendant and Altman were going to break into a house. A license plate matching the cars front license plate was found under the passenger seat of the car, along with duct tape, a balaclava ski mask, two pairs of gloves, two screwdrivers, a flashlight, a cell phone, a black shirt, a baseball cap with the word police on it, and a bandanna.

On December 17, 2008, the date set for trial, defendant pleaded no contest to conspiracy to commit burglary and robbery ( 182), receiving stolen property ( 496, subd. (a)), carrying a concealed firearm in a vehicle ( 12025, subd. (a)(1)), and carrying a loaded firearm ( 12031, subd. (a)(1)), based on the courts offer of probation with a 12-month top jail sentence. On January 5, 2008, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that defendant serve 12 months in county jail.

DISCUSSION

Defendant contends that Deputy Seatons actions in detaining and searching him were in violation of the Fourth Amendment. He argues that Deputy Seaton lacked reasonable suspicion to justify a stop of the Jetta, and to justify the detention and search of the Jettas passengers. The Attorney General contends that no traffic stop occurred and that, even if it did, Deputy Seaton articulated several facts that justified his detention of defendant as a passenger in the Jetta.

The standard of review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser), citing People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler (1973) 9 Cal.3d 156, 160.)

The Initial Detention

The test for whether a person has been seized within the meaning of the Fourth Amendment is if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554, fn. omitted.) For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police contacts or interactions with individuals, ranging from the least to the most intrusive. First, there are . . . consensual encounters, [citation], which are those police-individual interactions which result in no restraint of an individuals liberty whatsoever . . . and which may properly be initiated by police officers even if they lack an objective justification. [Citation.] Second, there are what are commonly termed detentions, seizures of an individual which are strictly limited in duration, scope and purpose . . . [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individuals liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. [Citation.] (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, citing Florida v. Royer (1983) 460 U.S. 491.)

The Fourth Amendment . . . prohibits seizures of persons, including brief investigative stops, when they are unreasonable. [Citations.] (People v. Souza (1994) 9 Cal.4th 224, 229.) Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. [Citations.] In making our determination, we examine the totality of the circumstances in each case. [Citations.] (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 (Wells); accord Whren v. United States (1996) 517 U.S. 806, 809-810.)

Reasonable suspicion is a lesser standard than probable cause . . . . But to be reasonable, the officers suspicion must be supported by some specific, articulable facts that are reasonably consistent with criminal activity. [Citation.] The officers subjective suspicion must be objectively reasonable, and an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.] [Citation.] But where a reasonable suspicion of criminal activity exists, the public rightfully expects a police officer to inquire into such circumstances in the proper exercise of the officers duties. [Citation.] [Citation.] (Wells, supra, 38 Cal.4th at p. 1083; see also Glaser, supra, 11 Cal.4th at p. 363; United States v. Arvizu (2002) 534 U.S. 266, 273-274.)

In this case, the Jetta had voluntarily pulled over to the curb and parked, and its three occupants had exited it before Deputy Seaton displayed any gesture of authority by activating his red and blue emergency lights. Thus, there was no restraint of defendants liberty at that time. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1237-1238.) The deputy then asked only the driver of the Jetta, Altman, to approach him. The deputy had seen that the Jettas rear license plate had no registration tags on it, so he had an articulable and reasonable suspicion that the automobile was not properly registered. (See Veh. Code, 5204, subd. (a).) It was therefore reasonable under the Fourth Amendment for the deputy to detain Altman in order to check his drivers license and the registration of the vehicle. (Delaware v. Prouse (1979) 440 U.S. 648, 663; Pennsylvania v. Mimms (1977) 434 U.S. 106, 109.)

Defendant was free to leave at that time, but he voluntarily approached the deputy along with Altman. Thus, defendants initial encounter with the deputy was consensual. The deputy asked for and received defendants identification, but did not ask him to sit on the curb until after the deputy was not able to resolve the vehicle registration problem by talking with Altman. [I]interrogation relating to ones identity or a request for identification does not, by itself, constitute a Fourth Amendment seizure. (INS v. Delgado (1984) 466 U.S. 210, 216.) Altman had not presented any identification or the vehicles registration, and he told the deputy that the car was owned by somebody other than the three men there. Although they were in a residential neighborhood and one of the three men told the deputy that they were going to visit a man named Dan Harris, none of the men was able to satisfactorily tell the deputy where Dan Harris lived. And, prior to stopping and parking, it appeared to the deputy that the driver of the Jetta was making successive right turns in an attempt to be evasive in a high crime area. An areas reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. [Citations.] (People v. Souza, supra, 9 Cal.4th at p. 240; see also Illinois v. Wardlow (2000) 528 U.S. 119, 124.) At this point, the deputy had an articulable and reasonable suspicion that the vehicle was stolen and that all three men were involved in the theft. It was therefore reasonable under the Fourth Amendment for the deputy to detain defendant for investigatory purposes when he asked him to sit on the curb.

The Search of Defendants Person

A pat search for officer safety reasons, based on specific and articulable facts that suggest a person is armed and presently dangerous, is constitutionally permissible when conducted incident to an investigative detention. (Terry v. Ohio (1968) 392 U.S. 1, 24, 27; Knowles v. Iowa (1998) 525 U.S. 113, 118.) The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. (Adams v. Williams (1972) 407 U.S. 143, 146.)

Defendants own statements and conduct provided justification for the search of his person. Defendant was asked for consent to a pat search, but he refused. When defendant was asked why he refused, he told the officers he had a weapon. He was asked to stand up. He did so and reached for his hip, appearing to indicate where the weapon was located. A reasonably prudent officer in these circumstances would be warranted in the belief that his safety or that of others might be in danger. Defendants statement and conduct entitled the officers to take reasonable precautions to ensure their safety by searching defendant for any weapons. (Terry v. Ohio, supra, 392 U.S. at p. 24; Knowles v. Iowa, supra, 525 U.S. at p. 118.)

The Search of the Automobile

Defendant asserts that the search of the Jetta incident to his arrest was in violation of the Fourth Amendment, citing the recent United States Supreme Court case of Arizona v. Gant (Apr. 21, 2009) ___ U.S. ___ [129 S.Ct. 1710] (Gant). Defendant did not contest the automobile search in his motion to suppress in the trial court. We address this claim because it presents a pure question of law and the factual basis for the claim is fully set forth in the record of the hearing on the motion to suppress.

As a general rule, an appellate court will not consider claims of error that could have been but were not raised in the trial court. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) In the context of a motion to suppress, the rule has been applied to prevent a party from asserting new theories for the first time on appeal to support or contest the admissibility of evidence. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the purpose of Penal Code section 1538.5 and discourage parties from presenting all arguments relative to the question when the issue of admissibility of evidence is initially raised].) In Lorenzana, the Peoples new theory of inevitable discovery was not supported by the record made at the hearing and would have necessitated the taking of considerably more evidence.

However, the rule is not automatically applied whenever a claim is made for the first time on appeal. There is a limited exception to this rule: If a question of law only is presented on the facts appearing in the record, the change in theory may be permitted by the reviewing court. [Citation.] [Citation.] (Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 942; see, e.g., People v. Robles (2000) 23 Cal.4th 789, 800-801, fn. 7 [addressing the Peoples theory of inevitable discovery raised for the first time on appeal because the factual basis for the theory was fully set forth in the record]; Green v. Superior Court (1985) 40 Cal.3d 126, 138 [same].)

[W]hen there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search. [Citations.] (People v. Chavers (1983) 33 Cal.3d 462, 468; accord, California v. Acevedo (1991) 500 U.S. 565, 570, 580.) In Gant, the United States Supreme Court clarified prior authority regarding searches incident to a lawful arrest and held that the police are authorized to search a vehicle incident to a recent occupants arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. (Id. at p. 1719, fn. omitted.) Although the possibility of access did not authorize the search of the car in this case, it was reasonable for the officer to believe that the car was stolen, and therefore the search was authorized.

The officer reasonably detained Altman, the driver of the car, in order to check his drivers license and the registration of the car because the car had no registration tags. Altman did not produce identification or the cars registration, and he indicated that the car was owned by somebody other than the three individuals there. One of the three men stated that they were going to see a man named Dan Harris, but none of them was able to satisfactorily indicate where Dan Harris lived, even though they had voluntarily stopped and parked in a residential neighborhood. The officers found a legal folding knife and a two-way walkie-talkie on Altman during a consensual search, and a gun, knife, pepper spray, a pry bar, and another walkie-talkie on defendant. Based on our review of the record, we agree with the trial court that, [v]iewing the totality of the circumstances, it was reasonable for Deputy Seaton to believe that the vehicle might have been stolen. Thus, the search of the Jetta did not violate the Fourth Amendment.

DISPOSITION

The judgment is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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Mcadams, J.

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duffy, J.

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[1] All further unspecified statutory references are to the Penal Code.

[2] Section 1538.5, subdivision (m) provides in relevant part: A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.

[3]The information included similar charges against Travis Eugene Altman, who is not a party to this appeal.

[4]Defendant did not ask the court to consider, and the court stated that it did not consider, the transcript of the preliminary examination for purposes of the motion to suppress. We include the information here in order to show a factual basis for defendants no contest pleas.