P. v. Porter























Filed 2/21/13
P. v. Porter CA5









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM PORTER, Defendant and Appellant.

F063717 (Super. Ct. No. SF016100A) O P I N I O N

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County. Lee P. Felice, Judge.

John K.
Cotter, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond
L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following
the denial of his motion to suppress
evidence (Pen. Code, § 1538.5), appellant, William Porter, pled no contest
to possession of methamphetamine (Health & Saf. Code, § 11377, subd.
(a)). The court placed appellant on
Proposition 36 probation, i.e., probation under the Substance Abuse and
Crime Prevention Act of 2000, enacted by the voters as Proposition 36 (Pen.
Code, § 1210 et seq.).

On appeal,
appellant’s sole contention is that the court erred in denying his suppression
motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prior Motion

Appellant
has made two suppression motions in the instant case, the second of which is
the subject of this appeal. The court
granted appellant’s first such motion following a hearing on February 16, 2011
(first hearing), based on the People’s failure to comply with what is commonly
called the Harvey-Madden rule.href="#_ftn2" name="_ftnref2" title="">^[1] Immediately thereafter, the People
announced their intention to refile, and did so on February 28, 2011. Appellant again moved to suppress evidence
and a hearing was conducted on the second suppression motion on October 5,
2011.

Factshref="#_ftn3"
name="_ftnref3" title="">^[2]>

Officer
Stacy Parra of the City of Shafter Police Department (SPD) testified to the
following: On Saturday, December 4, 2010
(December 4), at approximately 3:00 p.m., she was on patrol, doing a security
check of a certain construction site (the site) in Shafter when she saw a white
pickup and two persons on the site. One
person was standing on top of a large bin, “handing some sort of item down to
the second [person] on the ground.”
Officer Parra became suspicious because she did not expect to see any
workers on the site on a weekend day, and, in fact, she saw no other workers on
the site. Officer Parra called the SPD
communications center and reported to the dispatcher, Rene Camacho, what she
had seen.

Camacho
testified that after receiving a call from Officer Parra at approximately 3:05
p.m. on December 4, he “immediately logged onto” a video camera that was
providing a “live feed” of the site, and saw “two subjects loading items onto a
white pickup,” at which point he called Officer Joseph Hayes to come up to the
communications center.

Officer
Hayes testified that after receiving a call from Camacho at approximately 3:05
p.m. on December 4, he went to the communications center where, on a live video
feed of the construction site, he saw a white pickup “loaded down with a high
number” of “items” he could not identify.href="#_ftn4" name="_ftnref4" title="">^[3] Camacho told Officer Hayes he (Camacho) had
seen two persons “loading items into [the pickup].”

Officer
Hayes determined the matter required further investigation because the SPD had
received information that tools and vehicles had been stolen from the site at
night and on weekends. After speaking to
Camacho and observing the video feed, he ran to his patrol car and drove to the
area of the site. He was alone. As he drove, he was in contact with Camacho,
who “continued to broadcast the vehicle’s direction of travel to [Hayes].”

After driving for approximately
five minutes, Officer Hayes saw a white pickup, “weighted down” with various
items in the bed, including metal poles and a stop sign. Suspecting that he “was dealing with a grand
theft,” the officer effected a stop of the pickup. Prior to doing so, the officer “observed a
Vehicle Code violation,” viz., driving with an “unsafe load,” i.e., a load that
“was not tied down in any … manner” and was a “hazard.”href="#_ftn5" name="_ftnref5" title="">^[4]

After stopping the pickup, Officer
Hayes walked up to the driver’s side of the vehicle. Appellant was the driver, and there was one
other person in the vehicle. Officer
Hayes made contact with appellant and observed that he was “speaking rapidly,”
he “wasn’t able to really sit still,” and “he just appeared to be
stimulated .…”

Officer Hayes asked appellant to
step out of the vehicle. Appellant did
so. Appellant was still speaking rapidly
and he “was unable to stand still.”
Hayes, based on his training and experience which included an “800-hour
POST academy,” training from SPC “field-training officers,” and contacts with
“numerous” methamphetamine users, knew that the signs of being under the
influence of methamphetamine included rapid speech, constant motion and an
inability to stand still. The officer
“formed the opinion that [he] was dealing with a methamphetamine user.”

Appellant “had on a lot of
clothes,” including several t-shirts, and because his clothes were “so thick,”
Officer Hayes “wasn’t able to see all of the bulges that [he] would normally be
able to see,” so he could not tell if appellant had a gun, knife or some other
kind of weapon. Out of concern for his
(the officer’s) safety, Hayes asked appellant to consent to a “weapons pat-down
search.” Appellant refused, and
thereafter also refused the officer’s request to interlock his fingers behind
his head and face away from the officer.
At that point, the officer “ordered” appellant to place his hands behind
his head, and appellant complied.

Officer Hayes then began
“conducting a search of [appellant’s] outer clothing” by moving his (the
officer’s) hand “down [appellant’s] right thigh.” As he did so, he felt, in appellant’s pocket,
a “soft lump” that he (the officer) believed, based on his training and
experience, to be a bindle of methamphetamine.
The officer then moved his head so he could see appellant’s pocket and
saw “a piece of clear plastic” that he “immediately recognized … as a bindle of
narcotics.”

As Officer Hayes held appellant’s
hands, Sergeant Milligan, who had just arrived on the scene, removed the bindle
from appellant’s pocket. The bindle
contained a chunky, white crystalline substance that Officer Hayes believed to
be methamphetamine.

Ruling

At the
close of the hearing, the court took the matter under submission. Subsequently, at the time scheduled for the
readiness conference, the court stated:
“ … the Court previously did hear the motion to suppress …,
took it under submission .… [T]he
motion is denied, at this time.”

DISCUSSION

Appellant contends the seizure of
evidence on December 4 was the product of (1) an unlawful detention, and
(2) an unlawful patdown search, and therefore the court erred in denying the
instant suppression motion. We
disagree. We first set forth the
applicable principles of the standard of review, and then address, in turn,
appellant’s challenges to the detention and the patdown search.

Standard of Review

In reviewing
the denial of a suppression motion, “‘the power to judge the credibility
of the witnesses, resolve any conflicts in the testimony, weigh the evidence
and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise
of that power, and the trial court’s findings on such matters, whether express
or implied, must be upheld if they are supported by substantial
evidence.’” (In re Arturo D. (2002) 27 Cal.4th 60, 77.) “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.)

The Detention

Governing
Principles

“The Fourth Amendment to the United
States Constitution, made applicable to the states by the Fourteenth Amendment,
guarantees the right to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend.; .…)” (People
v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A “brief investigative stop[]” of a person,
commonly referred to in the case law as a detention, is a seizure within the
meaning of the Fourth Amendment. (>People v. Souza (1994) 9 Cal.4th 224,
229 (Souza).) “Ordinary traffic stops are treated as … detentions .…” (In re
Raymond C. (2008) 45 Cal.4th 303, 307.)


“To justify … [a] detention, the circumstances known or apparent
to the officer must include specific and articulable facts which, viewed
objectively, would cause a reasonable officer to suspect that (1) some
activity relating to crime has taken place or is occurring or about to occur,
and (2) the person the officer intends to stop or detain is involved in
that activity. [Citations.] This reasonable suspicion requirement is
measured by an objective standard, not by the particular officer’s subjective
state of mind at the time of the stop or detention.” (People v. Conway (1994) 25
Cal.App.4th 385, 388.) “Accordingly, the
circumstances known or apparent to the officer must be such as would cause a
reasonable law enforcement officer in a like position, drawing when appropriate
on his or her training and experience, to suspect that criminal activity has
occurred, is occurring, or is about to occur and that the person to be stopped
or detained is involved in the activity.”
(Id. at p. 389.) “The corollary to this rule is that an
investigative stop or detention predicated on circumstances which, when viewed
objectively, support a mere curiosity, rumor, or hunch is unlawful, even though
the officer may be acting in good faith.”
(>Ibid.)


“The
touchstone of our analysis under the Fourth Amendment is always ‘the
reasonableness in all the circumstances of the particular governmental invasion
of a citizen’s personal security.’” (Pennsylvania
v. Mimms (1977) 434 U.S. 106, 108-109.)
“Reasonable suspicion cannot be reduced to a neat set of legal
rules, but must be determined by looking to ‘the totality of the
circumstances—the whole picture.’” (>U.S. v. Jordan (5th Cir. 2000) 232 F.3d 447, 449, quoting >United States v. Sokolow (1989) 490 U.S.
1, 7-8.) Under this standard, a
detention requires only a “minimal level of objective justification” (>Illinois v. Wardlow (2000) 528 U.S. 119,
120 (Wardlow), and an officer may
initiate one “based not on certainty but on the need to ‘check out’ a
reasonable suspicion” (United States v.
Clark (D.C. Cir. 1994) 24 F.3d 299,
303 (Clark)). Moreover, “we ‘judge the officer’s conduct in light of common sense and
ordinary human experience,’ [citation], and we accord deference to an officer’s
ability to distinguish between innocent and suspicious actions.” (U.S.
v. Williams (10th Cir. 2001) 271 F.3d 1262, 1268.) “[W]hen circumstances are ‘“consistent with
criminal activity,” they permit—even demand—an investigation .…’ [Citation.]
A different result is not warranted merely because circumstances known
to an officer may also be “‘consistent with lawful activity.”’ [Citation.]
… ‘The 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 .…’”
(Souza, >supra, 9 Cal.4th at p. 233.)

Analysis

Appellant argues that the detention—the stop of the vehicle he was
driving—was constitutionally unreasonable because the circumstances known or
apparent to Officer Hayes were not sufficient to give rise to a reasonable
suspicion that appellant had committed a “‘traffic violation.’” He bases this claim, in turn, on two
factors. First, he argues there was “no
evidence that any traffic violations actually took place” and “no specific
violation of the law was stated or even suggested in the record.” Second, he asserts there were multiple
“discrepancies” in Officer Hayes’s testimony at the first hearinghref="#_ftn6" name="_ftnref6" title="">^[5] and at the second hearing, and in the police
report he prepared. For example,
appellant states, Officer Hayes testified at the second hearing that appellant
committed a violation of the Vehicle Code, but made no mention of traffic
violations in his first hearing testimony or in the police report. These “discrepancies,” appellant argues, “are
so gaping” that the officer’s testimony at the second hearing is not worthy of
belief and does not constitute substantial evidence supporting the order
denying the motion. Appellant’s claims
are without merit.

First, appellant’s assertions
regarding so-called discrepancies in Officer Hayes’s testimony constitute, in
essence, a claim that we must reweigh the evidence. As demonstrated above, this claim must be
rejected. (>In re Arturo D., supra, 27 Cal.4th at p. 77.)

Second,
appellant’s claim that there was no evidence appellant committed any traffic
violations is belied by the record. As
also demonstrated above, Officer Hayes testified that prior to effecting the
stop of the pickup he observed that the vehicle was carrying a “hazard[ous],”
“unsafe load” that was “not tied down in any … manner.” This evidence was sufficient to establish
that a reasonable officer could suspect that the driver of the pickup was
committing a violation of the law—Vehicle Code section 23114, subdivision
(a)—and that therefore the detention was justified. (In re
Raymond C., supra, 45 Cal.4th at
p. 307.)

In addition, based on evidence that
thefts had occurred at the site on weekends, and that the occupants of the
pickup were observed removing property from the site on a Saturday when no one
else was present, a reasonable officer could suspect that the occupants of the
vehicle had just committed theft. This
provides a separate and independent basis for the vehicle stop.

Appellant suggests that the
detention may not be justified on suspicion-of-theft grounds because the People
did not argue this point below. (See >People v. Williams (1999) 20 Cal.4th
119, 137 [“‘[T]he scope of
issues upon review must be limited to those raised during argument .… This is an elemental matter of fairness in
giving each of the parties an opportunity adequately to litigate the facts and
inferences relating to the adverse party’s contentions’”].) Again, the record establishes otherwise. The People urged this point both in their
moving papers and in argument at the second hearing. On this record, the People met their burden
of justifying the detention.

The Patdown Search

Appellant also argues that even assuming the detention was
lawful, the court erred in denying the suppression motion because evidence was
seized as a result of a subsequent unlawful patdown search. Again, we disagree.

Where a vehicle has been stopped, “a driver, once outside
the stopped vehicle, may be patted down for weapons if the officer reasonably
concludes that the driver might be armed and dangerous.” (Arizona
v. Johnson (2009) 555 U.S. 323, 331 (Johnson).) “The sole justification of [a patdown]
search … is the protection of the police officer and others nearby, and it must
therefore be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of the police
officer.” (Terry v. Ohio (1968) 392 U.S. 1, 29 (Terry).) The “officer must
be able to point to specific and articulable facts which, taken together with
rational inferences from those facts” which reasonably support a suspicion that
the suspect is armed and dangerous. (>Id. at p. 21.) However, “[t]he officer need not be
absolutely certain that the individual is armed; the issue 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.” (Id.
at p. 27.) The “critical question” in assessing whether a patdown for
weapons is permissible is whether this is “the kind of confrontation in which
the officer can reasonably believe in the possibility that a weapon may be used
against him” or her. (>People v. Superior Court (1972) 7 Cal.3d
186, 204 [routine traffic stop, without
more, does not justify patsearch for weapons].) A court looks to the totality of the
circumstances in determining the reasonableness of a challenged search. (Terry,
supra, 392 U.S. at
pp. 24, 27.)

We turn now to an examination of the facts of the instant
case in light of the foregoing principles.
We find two factors especially significant. First, it is reasonably inferable from
Officer Hayes’s testimony that upon making contact with appellant he (the
officer) formed the opinion, based on his extensive training and experience,
that appellant was under the influence of methamphetamine. Second, Officer Hayes also testified that
appellant was wearing multiple layers of clothing that could have obscured a
bulge caused by the presence of a weapon.
These factors were sufficient to give rise to a reasonable suspicion
that appellant was armed. On this point
we find instructive People v. Collier
(2008) 166 Cal.App.4th 1374 (Collier).

In Collier, a
sheriff’s deputy, upon making a lawful vehicle stop and approaching the vehicle
on foot, smelled a strong odor of marijuana.
The deputy asked the defendant, one of the two occupants of the vehicle,
to exit the vehicle. The defendant
complied and the deputy saw he was wearing “baggy clothing [that] led [the
deputy] to believe that the defendant might be concealing an otherwise bulging
item, perhaps a weapon.” (>Collier, supra, 166 Cal.App.4th at p. 1376.)
The deputy patted the defendant down for weapons, and discovered a
loaded handgun in the defendant’s pants pocket.


In upholding the patdown search, the court stated: “… appellant’s presence in the car” from
which the odor of marijuana had been emanating “furnished a rational suspicion
that he may have been in the possession and transportation of drugs. [Citation.]
[¶] The trial court correctly and reasonably ruled that there were
specific and articulable facts to conduct a limited patdown based on officer
safety and the presence of drugs. As the
Fourth Circuit Court of Appeals has observed; ‘guns often accompany
drugs.’ (U.S. v. Sakyi (4th Cir. 1998) 160 F.3d 164, 169.) ‘[I]n connection with a lawful traffic stop
of an automobile, when the officer has a reasonable suspicion that illegal
drugs are in the vehicle, the officer may, in the absence of factors allaying
his safety concerns, order the occupants out of the vehicle and pat them down
briefly for weapons to ensure the officer’s safety and the safety of others.’ [Citation.]”
(Collier, supra, 166 Cal.App.4th at pp. 1377-1378.) The court further stated, “Our opinion should
not be read as allowing the police carte blanche to pat down anyone wearing
baggy clothing. But the wearing of baggy
clothing, coupled with other suspicious circumstances, here, being in a car
which reeks of marijuana, furnishes the requisite facts to support a patdown
for weapons so that the search of the car could be safely performed.” (Id.
at p. 1377, fn. 1.)

Here (1) the fact that appellant appeared to be under the
influence of methamphetamine, like the evidence of the presence of marijuana in
Collier, gave rise to a reasonable
inference that appellant was in possession of and/or transporting illegal
drugs, and (2) appellant, like the defendant in Collier, was wearing clothing that could have concealed a
weapon. As in Collier, these factors, considered together, constituted specific
and articulable facts sufficient to justify a patdown search for weapons. This conclusion is supported by the evidence
that Officer Hayes, who was alone, was outnumbered by the two occupants in the
vehicle. (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230 [fact that
officer who had effected vehicle stop was alone with two detainees was a
relevant factor in determining “whether a reasonably prudent man … would be
warranted in the belief that his safety … was in danger”]; see >Maryland v. Wilson (1997) 519 U.S. 408,
414 [The “danger to an officer from a traffic stop is likely to be greater when
there are passengers in addition to the driver in the stopped car”].)

The United States Supreme Court “has recognized that
traffic stops are ‘especially fraught with danger to police officers.’” (Johnson,
supra, 555 U.S. at p. 330.) “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 Fourth Amendment
considerations.” (People v. Dickey (1994) 21 Cal.App.4th 952,
957.) On this record, we uphold the
trial court’s implied finding that the patdown search did not violate
appellant’s Fourth Amendment rights. The
court did not err in denying appellant’s suppression motion.

DISPOSITION

The judgment is affirmed.