P. v. Trotter
Filed 1/17/13 P.
v. Trotter 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Calaveras)
THE
PEOPLE,
Plaintiff and
Respondent,
v.
CHRISTOPHER
JOHN TROTTER,
Defendant and
Appellant.
C068633
(Super. Ct. No. 10F4986 10F4939)
In case No. 10F4986, after his
motion to suppress was denied, defendant entered a plea of no contest to
driving under the influence of alcohol (DUI), having previously been convicted
three or more times of DUI within 10 years, and admitted violating probation in
case No. 10F4939, in exchange for a stipulated state prison sentence of two
years eight months and the dismissal of the remaining counts and
allegations. The court sentenced
defendant accordingly.
Defendant appeals, challenging the
denial of his suppression motion. We will affirm.
BACKGROUND
At the suppression hearing, Deputy
Sheriff Jim Moser testified that in the evening on November 6, 2010, while on patrol, he saw defendant driving an
older-model white car at a four-way stop at the intersection of Tom Bell Road and Main Street in Murphys. The deputy began following defendant and
attempted to close in to check the car’s registration but was never able to do
so. Defendant drove into a gas station
and the deputy parked across the street and watched for 10 minutes while
defendant and his passenger, later identified as his son, pumped some gas and
went inside the store. Deputy Moser was
unable to see who drove the white car away from the gas station.
Deputy Moser followed the white
car. About an eighth of a mile later,
the car turned down a street off of Highway 4 but the deputy did not follow
because it was a short, dead-end street.
Instead, the deputy proceeded on Highway 4 but turned around and as he
drove past the dead-end street, the car was approaching the stop sign. The car turned onto Highway 4 but Deputy
Moser was unable to turn around and follow because of traffic. Deputy Moser radioed Deputy Sheriff Chad
Poortinga reporting that he believed the white car’s driving pattern was
suspicious and an attempt to avoid him.
Deputy Moser had not made any attempt to stop the white car.
About 10:00
p.m., Deputy Poortinga saw a white car which matched Deputy Moser’s
description. By the time Deputy
Poortinga turned around to follow the white car, it appeared to have “gained
more distance†than he would have expected.
Without signaling, the car turned into a closed business, the Sam Berri
Tow yard. Deputy Poortinga said he was
about one-quarter of a mile behind and the traffic was very light. The deputy pulled into the tow yard and saw
the car parked in the parking lot with its lights off. The deputy had been on patrol in the area for
two years and it was suspicious to see cars parked at the tow yard at that time
of night. The deputy did not attempt a traffic
stop - he never activated his red lights or siren.
Deputy Poortinga spotlighted the car
and saw defendant and his son walking away from the car, towards a grass
field. They were a few yards away from
the car. The deputy thought it was
unusual and suspicious that a car would quickly park and turn its lights out at
a closed business, and the occupants walk away in a dark parking lot. Defendant turned around and walked back
towards his car with his hands in his pockets.
The deputy directed defendant to remove his hands from his pockets and
to approach the patrol car. Defendant
and his son complied. The deputy
patsearched defendant “[t]o make sure he didn’t have any weapons or anything
dangerous on him.†Defendant said that
he and his son were hitchhiking to Sheep Ranch.
When Deputy Moser arrived shortly
thereafter, defendant was acting agitated, irate, and upset. According to Deputy Poortinga, he and Deputy
Moser determined that defendant had been drinking alcohol and contacted the
California Highway Patrol (CHP). CHP
Officer Rod McNally arrived within 30 minutes and arrested defendant for DUI.
In his written motion, defendant
argued “Deputy Poortinga had no probable cause to stop or detain the occupants
of the vehicle†and that defendant had done nothing to warrant his
detention. Defendant claimed neither
deputy “witnessed any criminal activity on the part of the defendant.†He asserted that all evidence obtained as a
result of his unlawful detention must be suppressed as “fruit of the poisonous
tree.†He also asserted that “all
evidence seized as a result of the arrest which followed from his unlawful
detention is inadmissible as fruit of the poisonous tree.â€
In its written response, the
prosecution asserted that defendant’s detention was reasonable, arguing that
there was no traffic stop of defendant’s car and that Deputy Poortinga observed
a traffic violation (turning without signaling), had a report from Deputy Moser of
suspicious driving, and made his own observations, which justified the
detention.
At the hearing, the prosecutor
argued that Deputy Moser’s observations of the car led him to suspect the car
was trying to avoid him and radioed Deputy Poortinga. The prosecutor stated that Deputy Poortinga
saw the car turn without signaling into a closed business’s parking lot, park,
turn its lights off, and saw the occupants walk away from the car. The prosecutor argued that it was reasonable
for the deputy to briefly investigate, so he put the spotlight on the two who
were walking away. Deputy Poortinga said
nothing to either person but defendant turned and walked back towards the
deputy with his hands in his pockets. At
that point, Deputy Poortinga called defendant to the patrol car and told him to
take his hands out of his pockets. The
deputy conducted a patdown for weapons.
The prosecutor argued that the deputy’s actions were reasonable and that
the CHP who was then called concerning a possible DUI arrested defendant.
Defense counsel argued that Deputy
Moser profiled defendant’s car and radioed Deputy Poortinga but there had not
been any criminal activity, that Deputy Poortinga detained and patsearched
defendant but there had not been any criminal activity, and that it became a
prolonged detention when the deputies called the CHP officer who took 30
minutes. Defense counsel also argued
that the CHP officer did not testify concerning probable cause for defendant’s
arrest, that is, field sobriety tests, a preliminary alcohol screening (PAS)
device test, or a blood test.
Citing the statement of facts in
defendant’s suppression motion, the prosecutor responded that defendant had
challenged the initial detention and had not challenged his arrest or the
determinations of CHP Officer Rod McNally.
Defense counsel stated it was not
his intent to mislead by his factual statement in the motion but that he was
seeking to suppress “anything and everything.â€
The prosecutor stated that he did not question what defendant wanted
suppressed but did question the grounds and reiterated that defendant had only
argued the detention.
The court queried, “[O]nce the
defendant had been . . . patted down and nothing was found, what justifies the
continued detention between that time and the time the CHP officer got there,
that is the question I have.†Defense
counsel agreed with the court, stating, “[T]hat is exactly why we brought this ADDIN BA xc <@rec> xl 10 s
BOODHY000020 l "motion. I" motion. I believe they needed Officer McNally here to
put that evidence on. They didn’t call
him today, so they have not met their burden, Your Honor.†Although stating it was not yet ruling, the
court commented that the initial detention appeared to be justified but there
was no evidence justifying the continued detention. Over defense counsel’s objection, the court
granted the prosecutor’s request to reopen.
Deputy Moser was recalled to
testify. After talking with defendant,
the deputy determined that defendant had been driving under the influence of
alcohol. The deputy described his
experience and training with identifying persons under the influence of
alcohol. He noticed that defendant
smelled of alcohol. He and the other
deputy called CHP to the scene to conduct a further evaluation. While waiting for the CHP officer, Deputy
Moser put the handcuffed defendant into Deputy Poortinga’s patrol car for
officer safety reasons. Deputy Moser
also looked into the white car and saw unopened alcoholic beverage
containers. At some unspecified time,
but “later,†Deputy Moser searched the white car. He then testified that he believed that he
did not conduct a search.
The court determined that Deputy
Moser’s initial observations and Deputy Poortinga’s observation that the car
gained some distance from him were subjectively indicative of suspicious
activity as well as consistent with lawful activity. The court found that an investigative
detention was justified when the car turned into the darkened, closed business
without signaling, turned its headlights off, and the occupants walked away
from the car. Although the conduct may
have been completely innocent, the court determined that such conduct was
“indicative of something criminal going on.â€
The court found defendant was detained when the deputy asked defendant
to take his hands out of his pockets and to approach the patrol car. Under the circumstances, the court found
Deputy Poortinga’s detention and patdown of defendant was reasonable and based
on specific and articulable facts. The
court found the continued detention and subsequent arrest of defendant was
justified when the deputy noticed the “odor of alcohol on [defendant’s]
breath.â€
ANALYSIS
In reviewing a ruling on a motion to
suppress, we defer to the trial court’s express or implied factual findings
when supported by substantial evidence and, based thereon, determine
independently whether the search or seizure was reasonable under the ADDIN BA xc <@con> xl 16 s
BOODHY000021 l "Fourth Amendment" Fourth
Amendment. ( ADDIN BA xc <@cs>
xl 43 s BOODHY000001 xhfl Rep xpl 1 l "People v. Glaser (1995)
362 ( ADDIN BA xc <@$cs> xl 6 s BOODHY000001 xpl 2 Glaser); ADDIN BA xc <@cs> xl 45 s
BOODHY000002 xhfl Rep xpl 1 l "People v. Leyba (1981)
596-597.)
“A detention occurs ‘[o]nly when
[an] officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen . . . .’â€
( ADDIN BA xc <@cs> xl 41 s BOODHY000003 xhfl Rep xpl 1 l
"
562.) “A detention is reasonable
under the ADDIN BA xc <@$con> xl 16 s
BOODHY000021 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.†( ADDIN BA xc <@cs>
xl 41 s BOODHY000004 xhfl Rep xpl 1 l "People v. Souza (1994)
231 ( ADDIN BA xc <@$cs> xl 5 s BOODHY000004 xpl 2 Souza); ADDIN BA xc <@cs> xl 44 s
BOODHY000005 xhfl Rep xpl 1 l "People v. Wells (2006)
1083.) Further, “‘[t]he possibility
of an innocent explanation does not deprive the officer of the capacity to
entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police]
investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or illegal . . .
.’ [Citation.]†( ADDIN BA xc <@$id>
xl 13 s ID xhfl Rep xpl 1
The
reasonable
suspicion requirement is measured by an objective standard, not by the
officer’s subjective suspicion. ( ADDIN BA xc <@cs>
xl 64 s BOODHY000006 xhfl Rep xpl 1 l "Graham v. Connor (1989)
L.Ed.2d 443, 456]" Graham v. Connor
(1989) 490 U.S. 386, 397 [104 L.Ed.2d 443, 456].)
Thus, the circumstances known or apparent to the officer “must be such
as would cause any reasonable police officer in a like position, drawing when
appropriate on his training and experience [citation], to suspect the same
criminal activity and the same involvement by the person in question.†( ADDIN BA xc <@cs>
xl 44 s BOODHY000007 xhfl Rep xpl 1 l "In re Tony C.
(1978)
ADDIN BA xc <@cs> xl
79 s BOODHY000008 xhfl Rep xpl 1 l "United States v. Arvizu (2002)
U.S. 266, 273-274 [151 L.Ed.2d 740, 749-750]" United States v. Arvizu (2002) 534 U.S. 266, 273-274 [151 L.Ed.2d 740,
749-750]; ADDIN BA xc <@$cs> xl 38 s
BOODHY000004 xhfl Rep xpl 1 Souza,
supra, 9 Cal.4th at pp. 230-231.)
The trial court found defendant was detained within the meaning
of the ADDIN BA xc <@$con>
xl 16 s BOODHY000021 Fourth Amendment when
Deputy Poortinga directed defendant to approach the patrol car and to take his
hands out of his pockets. Defendant contends his initial detention was not supported by
reasonable suspicion that he was about to commit a crime. Assuming for the sake of argument that what
happened here was a detention rather than a consensual encounter, we conclude
that the trial court properly determined that it was reasonable under the
totality of the circumstances.
Based on defendant’s driving
pattern, Deputy Moser believed defendant was attempting to avoid the
deputy. When Deputy Poortinga turned to
follow the white car, the car had gained more distance than he would have
expected. “[F]light from police is a
proper consideration -- and indeed can be a key factor -- in determining
whether in a particular case the police have sufficient cause to detain.†( ADDIN BA xc <@$cs>
xl 33 s BOODHY000004 xhfl Rep xpl 1
turning, without signaling, into a dark parking lot of a closed business,
parking, turning the headlights off, and walking away from the car towards a
field. The turning without signaling,
whether a ADDIN BA xc <@ost> xl
12 s BOODHY000022 l "Vehicle Code" Vehicle
Code violation or not and whether defendant was cited for the same or not,
was a factor to consider in the totality of the circumstances. The parking lot was dark and it was unusual,
in Deputy Poortinga’s experience, for anyone to park there at that time of
night. Further the occupants were walking
away from the car, towards the field. While each of these factors can be
explained away individually, considered together they warranted a brief detention of defendant to ascertain his intentions
at the closed business, notwithstanding that his presence in the area may have
been entirely innocent and lawful. ( ADDIN BA xc <@$cs>
xl 33 s BOODHY000004 xhfl Rep xpl 1
BOODHY000009 xhfl Rep xpl 1 l "People v. Foranyic (1998)
(1998) 64 Cal.App.4th 186, 189.)
The trial court properly determined
that defendant’s conduct, although consistent with innocent behavior, did not
negate the existence of reasonable suspicion of criminal activity. It was reasonable for the officer to
investigate defendant’s intentions at the closed business. ( ADDIN BA xc <@cs>
xl 56 s BOODHY000010 xhfl Rep xpl 1 l "People v. Letner
and Tobin (2010)
Cal.4th 99, 145-149"
Cal.4th 99, 145-149.)
Defendant challenges the patsearch,
arguing there was no basis for believing he was armed or could destroy
evidence. Defendant concedes that
nothing was obtained as a result of the patsearch and thus “there was no
prejudice.†He raises the point “to
demonstrate that each step taken by these deputies was unlawful.â€
ADDIN BA xc <@cs> xl 48 s
BOODHY000011 xhfl Rep l "
L.Ed.2d 889] ( ADDIN BA xc <@$cs>
xl 5 s BOODHY000011 xpl 1 Terry)
held that an officer has the authority to conduct a patdown search for weapons
where that officer has reason to believe a suspect is armed and dangerous. The test is “whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that
of others was in danger.†( ADDIN BA xc <@$id>
xl 12 s ID xhfl Rep xpl 1 Id. at
p. 27; see also ADDIN BA xc <@cs> xl 52 s
BOODHY000012 xhfl Rep xpl 1 l "People v. Castaneda (1995)
Cal.App.4th 1222, 1230.) “‘“The
purpose of this limited search is not to discover evidence of crime, but to
allow the officer to pursue his [or her] investigation without fear of violence
. . . .†[Citation.]’†( ADDIN BA xc <@cs>
xl 46 s BOODHY000013 xhfl Rep xpl 1 l "People v. Limon (1993)
524, 534.) “The judiciary should not
lightly second-guess a police officer’s decision to perform a patdown search
for officer safety. The lives and safety
of police officers weigh heavily in the balance of competing ADDIN BA xc <@$con> xl 16 s
BOODHY000021 Fourth
Amendment considerations.†( ADDIN BA xc <@cs>
xl 47 s BOODHY000014 xhfl Rep xpl 1 l "People v. Dickey (1994)
952, 957.)
Deputy Poortinga did not stop
defendant’s car. Instead, the deputy pulled
into the parking lot and spotlighted the car.
Before the deputy could say anything, defendant walked back towards his
car with his hands in his pockets. The
deputy was investigating reports (by Deputy Moser) and observed suspicious
driving by defendant. Deputy Poortinga
was alone in the dark parking lot with two detainees one of whom had had his
hands in his pockets. The deputy was
reasonably justified to conduct a brief patdown search of defendant for weapons
for officer safety reasons in order to pursue his investigation without fear of
violence. ( ADDIN BA xc <@$cs>
xl 63 s BOODHY000011 xhfl Rep xpl 1 Terry, supra, 392 U.S. at pp. 24-27 [20 L.Ed.2d at pp.
907-909].) As defendant acknowledges, no
evidence was obtained.
Defendant’s continued detention was
justified by his misleading statement that he was hitchhiking to Sheep Ranch,
his agitated state, and the fact that both deputies smelled alcohol on
defendant. Based on his training and
experience in the past with drivers who had been under the influence of
alcohol, Deputy Moser considered defendant to have been driving under the
influence of alcohol after having seen him driving, talked to him, and smelled
the odor of alcohol coming from his person.
Also, defendant was agitated, irate, and upset. Defendant’s continued detention was
reasonable under the circumstances.
Defendant contends he was arrested
without probable cause when Deputy Moser handcuffed him and put him in the
patrol car. Defendant was not arrested
at that time but was instead further detained.
“[T]he length of the detention is only one circumstance [and] its
brevity weighs heavily in favor of a finding of reasonableness.†( ADDIN BA xc <@$cs>
xl 35 s BOODHY000001 xhfl Rep xpl 1
to arrive and conduct a further evaluation before formally arresting
defendant. The CHP officer arrived
within 30 minutes and arrested defendant for DUI. Deputy Moser’s opinion of defendant’s
intoxication and his pursuit of confirmation by CHP justified defendant’s
continued detention. ( ADDIN BA xc <@cs>
xl 53 s BOODHY000015 xhfl Rep xpl 1 l "People v. Gorak (1987)
1032, 1037-1038.)
Defendant also contends the deputies
illegally searched his car and found unopened alcoholic beverage containers
which did not constitute “evidence to support any charges.†He claims he raises the issue “to demonstrate
that every step taken by these deputies violated [defendant’s] ADDIN BA xc <@$con> xl 16 s
BOODHY000021 Fourth
Amendment rights against unreasonable search and seizure.†This ground was not raised in the motion or
argued at the suppression hearing and cannot be raised for the first time on
appeal. ( ADDIN BA xc <@cs>
xl 49 s BOODHY000016 xhfl Rep xpl 1 l "People v.
Williams
(1999)
119, 129-131.) In any event, we find
no constitutional violation. Deputy
Moser testified he “later†searched the car and found unopened alcoholic
beverage containers. He also testified
he looked into the car and saw these containers which suggests they were in
plain view. He then testified he did not
believe he conducted a search. While
this testimony is ambiguous, a search of the vehicle incident to defendant’s
arrest for DUI was valid because it was reasonable to believe that evidence
relevant to his crime might be found in the car. ( ADDIN BA xc <@cs>
xl 77 s BOODHY000017 xhfl Rep xpl 1 l "Arizona v. Gant (2009)
L.Ed.2d 485, 491, 496]"
335, 343-344 [173 L.Ed.2d 485, 491, 496]; ADDIN BA xc <@cs> xl 47 s
BOODHY000018 xhfl Rep xpl 1 l "People v. Evans (2011)
735, 750; ADDIN BA xc <@cs> xl 53 s
BOODHY000019 xhfl Rep xpl 1 l "People v. Nottoli (2011)
531, 551-554.) Although unopened,
there were alcoholic beverage containers in the car, evidence relevant to
defendant’s DUI offense.
Finally, defendant contends that the
prosecutor failed to call the CHP officer who arrested defendant to establish
probable cause for the arrest. Defendant
claims he raised the issue of his illegal arrest, citing a statement in his
written motion under the section, “Items to be Suppressed.†The statement provides that defendant sought
to suppress “[a]ny and all evidence†which was the “fruit of the defendant’s
arrest.†(Italics added.) He did not state “illegal arrest†as he suggests in his reply brief. Further, this language appears under the
heading of items to be suppressed, not the grounds for suppression. He did not specify as a ground that there was
not any probable cause for his arrest.
Further, he had asserted under the grounds that “all evidence seized as
a result of the arrest which followed from his unlawful detention is
inadmissible as fruit of the poisonous tree.â€
Defendant also cites the discourse
at the hearing in support of his claim that he raised an illegal arrest as a
ground. We disagree.
The discourse between counsel and
the trial court reflects that defense counsel believed the evidence was
insufficient for the prolonged detention.
The prosecutor recalled Deputy Moser who testified that based on his
training and experience, he determined that defendant had been drinking and
driving, the CHP officer was contacted to further evaluate, and that defendant
was arrested for DUI by the CHP officer.
The specific ground of probable
cause for his arrest was not raised in defendant’s written motion as the
prosecutor complained or at the
an issue. ( ADDIN BA xc <@$cs>
xl 42 s BOODHY000016 xhfl Rep xpl 1
129-131.)
To forestall an ineffective assistance
of counsel claim, defendant cannot demonstrate prejudice from counsel’s failure
to raise probable cause to arrest as a ground.
CHP Officer McNally testified at the preliminary hearing that he arrived
at the scene at about 10:10 p.m. and concluded that defendant appeared to be
under the influence. Defendant had red,
watery eyes and a significant odor of alcohol on his breath. Defendant was too agitated to understand the
field sobriety tests. Although he
admitted he had been drinking, he claimed he was not driving and that he had
walked to the tow yard to get his car.
His speech was slurred and “labored.â€
Defendant was arrested. A search
of his person revealed the keys to the car.
A subsequent blood sample revealed defendant’s blood alcohol content to
be 0.21 percent. Any deficient
performance on counsel’s part was clearly harmless.
DISPOSITION
The judgment is affirmed.
BLEASE ,
J.
We
concur:
RAYE ,
P. J.
HULL ,
J.
