P. v. Gee

Filed 5/27/10 P. v. Gee CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Paul Gee appeals from a judgment entered after he pleaded no contest to one count possession of a controlled substance for sale (Health & Saf. Code, 11378, and admitted one strike prior and two prison priors. (Pen. Code, 1170.12, subd. (c)(2); 667.5 subd. (b).)[1] The trial court imposed the stipulated term of 8 years in prison and granted credit for 794 days. On appeal defendants counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Based on this courts review of the record on appeal, we asked counsel for defendant and respondent to submit further briefing on the question of whether the trial court erred in denying the section 1538.5 motion to suppress evidence. In his supplemental brief, defendant concedes that his detention was legal. However, he contends that the trial court erred in denying the motion, because the detention became a de facto arrest not based on probable cause. Finding no error, we will affirm the judgment.

Factual and Procedural History

Around 2:30 p.m. on September 21, 2006, Detectives Pete Ramos and Brian Pickens of the Monterey County Sheriffs Department, dressed in plain clothes and driving an unmarked car, saw a 1996 Chevrolet Cavalier proceed down Palma Avenue in Salinas. Although the report of the incident did not note that the Cavalier was speeding, Detective Ramos testified at the suppression motion that the vehicle was traveling between 35 to 40 miles per hour in a school zone where the speed limit was 25.[2] As the car, occupied by appellant Paul Gee and a female passenger, drove by, Detective Pickens testified that based on his instincts, he decided to run a check on the license plate by calling the records division using his cell phone. Detective Ramos testified that he heard Detective Pickens make the call. According to the detectives testimony, the check revealed that despite the current 2007 tabs on the license plate, the registration had expired on April 2, 2006. Subpoenaed cell phone records show that no such a call was made from Detective Pickens cell phone. The detectives also testified that they followed the Cavalier at rates of speed exceeding 40 miles per hour as children were leaving school at the end of the day. This fact does not appear in the report either. As the unmarked police car followed, the Cavalier came to a stop still in the roadway, about three feet from the curb.

Both detectives testified that the stop occurred at or about 14:37. Detectives Ramos and Pickens approached the Cavalier without activating their emergency equipment; Detective Ramos went to the drivers side and Detective Pickens stood back by the rear wheel on the passenger side. According to the communications printout (or CAD), which logs the time of the detectives actions, such as requests for information from dispatch, Detective Pickens called in the license plate at 14:37:28. Detective Ramos approached on the drivers side, identified himself and asked defendant for his drivers license and registration. Defendant did not comply, but instead asked why the detectives had stopped him. Detective Ramos responded that he was merely doing a vehicle check, due to him being parked the distance from the curb; and also, that the vehicle registration was expired, and it had a current tab on it. After defendant failed to produce a drivers license and registration despite a second and third request, Detective Ramos asked defendant to step out of the car. Defendant complied after a second request.

As defendant got out of the vehicle, he continued to be argumentative and placed both hands in his pockets. Because Detective Pickens felt that defendant was unable to stand still and was making sudden jerking movements, he concluded that defendant was  tweaking, or somebody who is under the influence of methamphetamine. He recommended that Detective Ramos put handcuffs on defendant for officer safety. Detective Ramos agreed and informed defendant that because of defendants actions and the failure to produce an ID, he was going to place handcuffs on defendant and then conduct a pat search for safety reasons. He advised defendant that he was not under arrest, but merely detained. The pat search produced nothing.

Meanwhile, after defendant was handcuffed and no longer presented an immediate threat, Detective Pickens turned his attention to the female passenger who he observed hiding a glass methamphetamine pipe in the back seat. Detective Pickens, intending to place the passenger under arrest, ordered her to get out of the car and to empty her pockets. She removed a wad of cash and a cellophane bag of methamphetamine from her pockets. At this point Detective Pickens approached defendant and asked him if he had anything like that on his person? Defendant responded affirmatively. Detective Pickens asked if he could remove it, and defendant motioned him to do so.

Neither of the detectives could recall how and when they got the defendants drivers license. However, the CAD shows that Detective Pickens relayed the California drivers license numbers for both defendant and his passenger to dispatch at 14:39:23. Detective Pickens testified that this call, made a mere two minutes after the initial 14:37:23 call on the plates, occurred after the drugs had already been found.

After defendant was arrested, the district attorney filed a criminal complaint alleging unlawful possession of a controlled substance (Health & Saf. Code, 11378, (count 001), transportation of a controlled substance Health & Saf. Code,  11379, subd. (a)) (count 002), and possession of a controlled substance (Health & Saf. Code, 11377, subd. (a) (count 003). The complaint also alleged a strike prior and two prison priors. (Pen. Code 1170.12, subd. (c)(2); 667.5 subd. (b).)

Defendant entered a plea of not guilty and waived a preliminary hearing. Subsequently, defendant filed a motion to suppress pursuant to Penal Code 1538.5. The trial court held a hearing and allowed supplemental briefing before denying the motion. In ruling, the trial court held that based upon the Courts review of the facts and the totality of the circumstance[s], the court respectfully denies the motion to suppress, finding there was a justification of each of the actions of the officers, and that there is not a violation that rights to the a [sic] 4th Amendment violation or a necessity to have the evidence suppressed. Thereafter, the defendant agreed to plead no contest to count one in exchange for a stipulated prison term of 8 years. After judgment was entered, the defendant filed a timely notice of appeal.

On appeal, defendants appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. Pursuant to our obligation to review the record on appeal, we asked counsel to brief the question of whether the trial court erred in denying the motion to suppress. We have received a supplemental opening brief as well as a respondents brief. We now consider the contentions on the merits.

Discussion

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. (People v. Hoyos (2007) 41 Cal.4th 872, 891.) We review the trial courts denial of defendants section 1538.5 motion by presuming that the factual determinations of the superior court were correct and upholding the courts express or implied findings if they are supported by substantial evidence. (People v. Ramos (2004) 34 Cal.4th 494, 505.) We exercise independent judgment in resolving whether, on the facts found, the search was unreasonable within the meaning of the Constitution. (People v. Hoyos, supra, 41 Cal. 4th at p. 891.)

The Initial Detention was Lawful

The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures. An investigative stop of a vehicle constitutes a seizure for purposes of the Fourth Amendment. (U.S. v. Sharpe (1985) 470 U.S. 675, 682 An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion [citation] . . . . (Ornelas v. U.S. (1996) 517 U.S. 690, 693.) In Terry v. Ohio, 392 U.S. 1, 30, the United States Supreme Court held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be occurring. (U.S. v. Sokolow (1989) 490 U.S. 1, 7.) The officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. [Citation.] (Ibid.) However the articulable facts can be based on the totality of the circumstances (U.S. v. Cortez (1981) 449 U.S. 411, 417.) This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. [Citation.] (U.S. v. Arvizu (2002) 534 U.S. 266, 273-274.)

In this case, both detectives testified that they initially began surveillance of and followed the defendant because 1) they knew he had expired tabs, 2) because he was speeding, 3) and because he parked his vehicle unlawfully. Defendant concedes that each of these factors, individually, is sufficient to articulate the requisite reasonable suspicion. Even though we question whether substantial evidence supports a factual finding on the first two,[3] we must agree that defendants unlawful parking of his vehicle provided a reasonable suspicion to initially detain him.

The Subsequent Detention and Use of Handcuffs was Justified and Lawful

Despite the validity of the initial detention, defendant contends that the detention was unreasonably prolonged; that the detectives should have cited him for the identified traffic violations and then released him. The facts do not support defendants claim.

The evidence regarding the length of the detention is ambiguous at best. The CAD tends to support a conclusion that the entire detention lasted around two minutes. However, both detectives questioned the validity of that fact on cross-examination.

While the record before us does not clearly establish how long the detention actually lasted, the question is whether the detention was too long under the circumstances here? Although an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop (Florida v. Royer (1983) 460 U.S. 491, 500), defendant fails to recognize that his own conduct, subsequent to the initial detention, justified further precautions and actions by the detectives. Detective Ramos approached the defendant and asked for his license and registration. Defendant failed to comply with the detectives repeated requests for his ID, despite a statutory obligation to do so. (Veh. Code, 4462, subd. (a), 12951, subd. (b); People v. Saunders (2006) 38 Cal.4th 1129, 1137.) His refusal gave the detectives authority to make a custodial arrest, either for failing to possess the required documents (Veh. Code, 40302, subd. (a); People v. McKay (2002) 27 Cal.4th 601), or for willfully delaying the detectives in the performance of their duties. ( 148, subd. (a).) If an arrest were authorized, certainly a slightly prolonged detention was equally reasonable under the circumstances.

Additionally, defendants erratic and argumentative demeanor, which Detective Pickens observed, provided an independent basis for an extension of the detention to ascertain the basis for his behavior. Detective Pickens testified that, based on his experience, he believed defendant to be tweaking or under the influence of methamphetamine. This observation justified the continuation of defendants detention to ascertain his sobriety.

Finally, defendant contends that the use of handcuffs converted the detention into an arrest which was not supported by probable cause. The use of handcuffs does not necessarily convert a lawful detention into an arrest. (People v. Celis (2004) 33 Cal.4th 667, 675.) Handcuffs may be used when reasonably necessary to effectuate a detention. (People v. Stier (2008) 168 Cal.App.4th 21, 27.) Here, the detectives testified that defendant was resistant, argumentative, erratic and appeared to be under the influence of a stimulant. Under these circumstances, the detectives concern for their safety was reasonable and the use of handcuffs was a reasonable and necessary step to assure their safety.

Even if the use of handcuffs had transformed the detention into an arrest, probable cause existed for such an arrest. The detectives had probable cause to arrest the defendant for a multitude of offenses, including driving with registration tabs not issued for his vehicle (Veh. Code, 4462, 4463), delaying an officer in the performance of his duties (Pen. Code, 148, subd. (a)), and driving under the influence of a controlled substance. (Veh. Code, ,23152, subd.(a).) Therefore, the use of handcuffs was constitutionally permissible.[4]

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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

[2] Because there was neither a preliminary hearing nor trial in this matter, the factual account is taken from the evidence presented at the motion to suppress.

[3]Detective Pickens cell phone records establish that he did not make a call to records on his cell phone prior to pulling up behind defendant, as he and Detective Ramos testified. The only evidence showing that the detectives learned the registration was expired is the CAD showing that they got this information from dispatch after they had already stopped behind him. Therefore, there is no evidence that their decision to follow him was based on anything other than an impermissible hunch. (U.S. v. Sokolow,supra, 490 U.S. at p. 7.) Detective Pickens admitted as much when he testified that something about the car just triggered his instinct. Similarly the second basis, violation of the speed law, is unsupported by substantial evidence. The police report failed to mention that defendant had been speeding, and neither detective could testify to the actual speed the defendant was driving. During Cross-examination, both were reluctant to state that defendant was speeding.

[4] Because we find the detention and / or arrest to be lawful, we need not address the defendants fruit of the poisonous tree argument.