P. v. Escobedo
Filed 1/24/13 P. v. Escobedo CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ESCOBEDO,
Defendant and Appellant.
B242749
(Los Angeles County
Super. Ct. No. LA069934)
APPEAL
from a judgment of the Superior Court of
County, Susan M. Speer, Judge. Affirmed.
Stacie
R. Halpern for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews,
Deputy Attorney General, for Plaintiff and Respondent.
Defendant Jose
Escobedo appeals from his conviction by plea to a felony narcotics
offense. The plea was entered pursuant
to a plea bargain which occurred after defendant’s Penal Code section 1538.5
motion to suppress was denied by the magistrate and his Penal Code section 995
motion to set aside the information was denied by the trial judge. The sole issue on appeal is whether these
motions should have been granted on the ground that the evidence against
defendant was the product of a Fourth Amendment violation. We conclude that there was no violation of
defendant’s constitutional right to
be free of unreasonable search and seizure, and that the rulings of the
magistrate and the trial judge are amply supported. We shall affirm the judgment of
conviction.
The
Los Angeles Police Department had received information from an anonymous
informant that an Asian man, in his late 30’s or early 40’s, was selling
narcotics from an alley behind a particular address: 18056 Roscoe Avenue. Officers Valdovinos and Williams, members of
the West Valley Narcotics Enforcement Detail,
received this information and proceeded to the address to
investigate.
They arrived at
the location in an unmarked police vehicle at about 3:45 in the afternoon.
They parked their vehicle and proceeded to observe the area. They observed a Chrysler 300 vehicle parked
behind the Roscoe Avenue
address. They were about 40 yards—120 to
125 feet—from the Chrysler. They
observed a Asian man, who appeared to be in his 30’s or 40’s, emerge from the
residence at 18056 Roscoe and walk over to the Chrysler. He was holding money in his hand. When he reached the driver’s side of the car,
the driver thrust out his hand and the man made contact with it, after which
the driver withdrew his outstretched hand.
There was a brief conversation
between the two men. The Asian male then
walked around the car to the passenger’s side.
At that point the passenger extended his hand and dropped a small
plastic baggy into the palm of the man’s outstretched hand. There was a brief conversation between the
two men, following which the Chrysler drove off and the Asian male returned to
the residence.
The officers
followed the Chrysler as it exited the alley.
They stayed about two car lengths behind the Chrysler. The Chrysler then engaged in what the
officers described as anti-surveillance driving. It would proceed at the speed limit, then
slow down so that other vehicles would pass it, and would then speed up so that
any following cars that did the same would be observed. The vehicle also turned onto small streets in
residential neighborhoods, then re-emerged onto the principal street and
continued. The purpose of this evasive
driving is to enable the occupants of the vehicle to see if they were being
observed by law enforcement officers or, possibly, by other narcotics
dealers.
The Chrysler came
to a location near the intersection of Winnetka and Sherman Way, where it was
forced to stop by several unmarked police vehicles. There were five police vehicles, and six
officers. Among the six were the two
officers who had surveilled the Roscoe address and followed the Chrysler. Some of the officers, including Officer
Valdovinos, had their weapons drawn.
Officers directed the two men in the car to exit and place their hands
in the air so that the officers could see them.
The driver, Miguel Gomez (who later was a codefendant at the preliminary
hearing proceedings) promptly complied.
The passenger, defendant Escobedo, did not. Instead he leaned over in the front seat and
made arm movements that indicated that he was trying to hide or retrieve some
object. After about 10-15 seconds,
defendant exited the car and raised his hands, as ordered.
In response to a
question by Officer Williams, Gomez consented to a search of his person and the
vehicle. The searches of Gomez and
defendant were justified, by reasons of officer safety as well as consent. Narcotics dealers are known to hide
contraband and weapons. No narcotics
were found on Gomez or in the vehicle, but money (in bill form) was found on
the console in the front seat of the vehicle, and more was found in Gomez’s
wallet. Altogether, the amount found was
a little over $1,000. Officer Valdovinos
asked defendant if he would consent to be searched and he did. Officer Williams conducted that search
(because Valdovinos is a female officer who was not permitted to conduct a
search of a male suspect absent exigent circumstances). Officer Williams directed defendant to remove
his shoes and, when he did, Officer Valdovinos examined the shoes. Inside one of them she found a bag containing
a substance resembling methamphetamine.
Later, counsel stipulated for purposes of the preliminary hearing that
this container held 7.03 grams of that substance. Officer Williams described that as a “fairly
good amount.â€
Both officers
testified to their training and experience in narcotics investigations. Officer Williams testified that, based on his
training and experience, the exchange he observed at the Roscoe location was a
drug sale.
Following the
preliminary hearing examination, the magistrate denied the Penal Code section
1538.5 motion to suppress, found probable cause to believe that the charged
narcotics offenses had been committed and that defendant (and Gomez) had
committed them, and so held them both to answer the felony charges, violation of
Health and Safety Code sections 11378 and 11379, subd. (a). The trial judge agreed with the magistrate
and denied the Penal Code section 995 motion to dismiss the charges.
Later, defendant
pled guilty to the Penal Code section 11378 charge pursuant to a plea
agreement, and was sentenced. He filed a
timely notice of appeal.
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DISCUSSION
Defendant argues
that the search which yielded the narcotics found in his shoe was the product
of an illegal arrest, because the officers lacked probable cause to arrest
prior to the search. Defendant also
argues that even if he was only detained rather than arrested, the officers
lacked a reasonable suspicion to detain him.
He also argues that his consent to the search was the product of
coercion, and hence invalid. The People
take the opposite position on each of these issues, arguing that defendant was
detained, not arrested; that there was sufficient basis for the officers’
actions in any case (i.e., whether defendant was detained or arrested), and
that his consent to the search was voluntary and not coerced.
Respondent has the
better of the arguments on these issues.
There is an
abundance of decisions discussing the distinction between an arrest and a
detention. Sometimes the distinction is
difficult and close. (See
675, 685.) The amount of police
intrusion, the significance of the facts known to the officers, what was
reasonably necessary, and other circumstances, all play a role. Here, some officers had drawn their guns,
although the record is not clear as to exactly at what point this
occurred. But even a stop at gunpoint
does not necessarily make the stop an arrest rather than a detention. (See People
v. Celis (2004) 33 Cal.4th 667, 675, and authority cited.)
An examination of
reasonableness, the principal concern for accessing the validity of the
officers’ actions, indicates the legitimacy of what occurred. First, the officers set up their surveillance
as the result of an anonymous tip. The
tip was detailed: it stated a specific
residential location and described the occupant who allegedly was dealing drugs
from that location. It was more than
corroborated by what the officers saw, and is legitimately considered in
assessing the issue of probable suspicion or cause. (People
v. Butler (2003) 111 Cal.App.4th 150, 161.)
The officers went to that location and observed a person who matched the
information identifying the alleged dealer.
What they next observed could only have confirmed their suspicion. The person proceeded to a car parked in an
alley behind the residence and, from the officers’ observations, passed money
to the driver, then walked to the other side of the car and received a baggy
dropped into his hand by the passenger.
The officers were reasonably close to these events, which occurred in
broad daylight. The vehicle immediately
drove off. It strains credulity to
believe that anything other than a hand-to-hand purchase and sale of narcotics
had taken place.
What followed
confirmed the officers’ belief that this is what happened. The vehicle engaged in anti-surveillance
driving. Rather than proceed on a direct
route to wherever it was headed, it slowed, then sped up, repeatedly changed
lanes, and drove off the main road into and out of side streets in several
residential neighborhoods. It is not
claimed that the occupants had spotted the unmarked police vehicle, which if
this had been the case would indicate consciousness of guilt. Instead, according to the officers’
testimony, it was a common precautionary measure taken by drug traffickers to
determine whether they are being followed.
When the Chrysler
was finally forced to stop by the police vehicles, officers directed the
occupants to exit and raise their hands.
This, obviously, was a measure taken in the interests of officer
safety. The officers intended to at
least frisk the occupants, something that would be difficult to do while they
were in the vehicle. At the time the
officers did not know whether the occupants were armed or not, but it is not
uncommon that drug dealers are armed when engaged in their trade. The direction then was justified by officer
safety.
Finally,
defendant’s actions in failing to promptly obey the officers’ directions (as
his companion had done) and instead leaning over and appearing to move his
hands around the adjacent floor area of the vehicle, as though to hide or
retrieve an object, added to the officers’ suspicion.
Taken together,
these circumstances justified the frisk.
Even if the officers’ conduct amounted to an arrest, the circumstances
justified the officers’ conduct.
That takes us to
the consent to search. The officers did
not demand to search defendants’ persons; they asked each man if he would
consent to being searched. There is no showing
that these requests were accompanied by a pointed gun or any other threat. Gomez was not carrying a weapon or
contraband. Defendant may have hoped the
officers would not search his shoes, and would be compelled to release
him. In any event, he did consent, and
under the circumstances we conclude that the court rulings that the consents
were voluntary is supported by the record.
(See People v. Ratcliff (1986)
41 Cal.3d 675, 686.)
For these reasons,
we conclude that the magistrate did not err in denying defendant’s motion to
suppress, nor did the trial court err in denying his motion to set aside the
information, based on the same grounds as the suppression motion.
The judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN,
P.J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
notwithstanding the guilty plea. (Pen.
Code, § 1538.5, subd. (m).)
