P. v. Parker
Filed 1/30/14 P. v. Parker CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent,
v.
FREEMAN MARKUS PARKER,
Defendant and
Appellant.
A137756
(San
Francisco County
Super. Ct. No. 12017296)
Appellant Freeman Parker entered
into a plea agreement that resulted in
his conviction of a misdemeanor charge of possessing more than 28.5 grams of
marijuana. (
subd. (c).) The plea was entered
after a motion to suppress evidence of
the marijuana was denied. On appeal,
Parker argues that the motion was wrongly denied because the marijuana was
obtained incident to an unlawful arrest. We disagree and affirm.
I.
Factual and Procedural
Background
In the afternoon of July 2, 2012, a police officer was conducting surveillance of an area around Jones
and Market Streets in the Tenderloin neighborhood of San Francisco. The officer was looking out an open window in
a building approximately 80 feet from the intersection, using binoculars to
magnify his unobstructed view. He saw a
man walk up to Parker and give him a “fist pump.†The men walked approximately 20 feet, and the man
gave Parker “cash, U.S. currency,†which the officer recognized because of its shape. Parker took the cash, produced a glass or plastic
bottle, and handed the man some items from the bottle. The man put the items in a plastic bag and
handed Parker more money.
The officer believed he had just
witnessed an illegal drug sale. He based
his belief on “years of experience of watching individuals sell narcotics. I base it on the area, I base it on the fact
that one person gave the other person money and the other person gave him
something from a bottle. It’s just
basing it on experience.†The officer
instructed an arrest team to detain the suspected buyer to “make sure he did,
indeed, buy marijuana.†A plastic baggie
containing marijuana was seized from the man. Parker was then arrested, and a search
incident to his arrest revealed a corked bottle containing marijuana.
A felony complaint charged Parker with
various drug offenses, including the sale and possession of marijuana. (Health & Saf. Code, §§ 11360, subd
(a), 11359.) Parker filed a
subd. (m)),
title="">[1] alleging that the evidence
of the marijuana was obtained in violation of the Fourth Amendment. A hearing on the suppression motion was heard
concurrently with the preliminary hearing.
At the hearing, the officer who had
witnessed the transaction testified as an expert in the identification and
recognition of marijuana and in the possession of marijuana for sale. He testified that he had made thousands of
narcotics arrests and hundreds of arrests for marijuana in the 12 years he had worked
at the local police station. He reported
that he had bought marijuana more than 100 times while working undercover, and that
he had spent many hours conducting surveillance of drug dealers and users. He also
discussed his familiarity with how marijuana is packaged and testified that he
had seen marijuana in glass and plastic bottles and in plastic bags. He testified that people sell marijuana
“pretty much 24 hours a day, seven days a week†on the corner of Jones and
Market.
In his motion to suppress, Parker
argued that this evidence was insufficient to establish probable cause for his
arrest and that the marijuana confiscated from him was therefore obtained
illegally and was inadmissible. The trial
court denied the motion without comment, and an information was filed. Parker subsequently moved to set aside the
information under section 995, and this motion was also denied. He then entered into a plea agreement in which
he pleaded no contest to one misdemeanor count of possessing more than 28.5
grams of marijuana under Health and Safety Code section 11357,
subdivision (c), and the original charges were dismissed. The court suspended imposition of Parker’s
sentence and placed him on probation. This
timely appeal followed.
II.
Discussion
The sole issue on appeal is whether there was probable cause for Parker’s
arrest. If there was, the marijuana was obtained
lawfully as part of a search incident to the arrest. (People v. Diaz
(2001) 51 Cal.4th 84, 90.) If there was not, the marijuana was obtained illegally,
and Parker’s motion to suppress should have been granted. We conclude that the police had probable
cause to arrest Parker and that the marijuana was therefore obtained lawfully.
A.
The Standard of Review
We begin by discussing the
applicable standard of review. “On
appeal from a section 995 review of the denial of a defendant’s motion to
suppress, we review the determination of the [trial court] at the preliminary
hearing. [Citations.] We must draw all presumptions in favor of the [trial
court]’s factual determinations, and we must uphold the [trial court]’s express
or implied findings if they are supported by substantial evidence.†(People
v. McDonald (2006) 137 Cal.App.4th 521, 529.) We exercise our independent judgment in determining
whether, on the facts found by the trial court, the search or seizure was
reasonable. (Ibid.)
B.
The Police Had Probable Cause to Arrest Parker
The Fourth
Amendment, applicable to the states through the Fourteenth Amendment,
guarantees “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.†(U.S. Const., 4th Amend.;
[federal prohibition against unreasonable searches and seizures and
exclusionary rule applies to the states].)
“[S]earches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions.†(
347, 357, fns. omitted.)
One of these exceptions is a search
incident to a valid arrest. (
“Such a search is valid, and its evidentiary fruits admissible, only if
incident to a lawful arrest predicated on probable cause.†(Cunha
v. Superior Court (1970) 2 Cal.3d 352, 356 (Cunha).) “ ‘To constitute probable cause for arrest, a state of facts
must be known to the officer that would lead a man of ordinary care and
prudence to believe, or to entertain a strong suspicion, that the person arrested
is guilty.’ †(Ibid.) “No exact formula
tells us how to decide whether there was probable cause to arrest. Instead, we look to the totality of the
surrounding circumstances and decide each case on its own facts.†(People
v. Guajardo (1994) 23 Cal.App.4th 1738, 1742.)
In
arguing that the police lacked probable cause to arrest him, Parker relies on
2 Cal.3d 352 and Remers v. Superior
Court (1970) 2 Cal.3d 659 (Remers),
which were filed around the same time. In
Cunha, the petitioner was arrested on
suspicion of selling drugs in a neighborhood known for narcotics trafficking. (Cunha,
at p. 357.) The police
testified that two suspects looked around as if nervous about being seen, and
then one of them “appeared to extract an object [from his pocket]—although [the
arresting officer] could not actually see an object—while petitioner extracted
what appeared to be money.†(
petitioner’s activities nor the location of his arrest provided probable cause
for arrest.†(Id. at p. 357.)
In
neighborhood in Cunha arrested a
woman after they observed her looking over both shoulders, removing a tinfoil
package from her purse, and motioning to a companion to go inside a restaurant. (Remers,
supra, 2 Cal.3d at p. 662.) The
court held that the woman was arrested unlawfully because the neighborhood’s reputation
could not convert her “innocent-appearing activities†into a sufficient basis
for probable cause. (
Parker
contends that his case cannot be distinguished from Cunha and Remers and that
we are bound by them. (
(1962) 57 Cal.2d 450, 455.) He argues
that Cunha and Remers hold that an arrest is unlawful if it is based on activity
that is as consistent with innocence as it is with criminality and that the
notoriety of a neighborhood and an officer’s experience and knowledge are insufficient
to establish probable cause. (
supra, 2 Cal.3d at pp. 664-666.)
We conclude, however, that these
decisions do not control the outcome of this case because more recent authority
has undermined their analytical underpinnings and because the facts here are distinguishable
in any event.
We first
discuss the analytical underpinnings of Cunha
and Remers. The court in Remers held that “an arrest and search based on events as
consistent with innocent activity as with criminal activity are unlawful.†(Remers,
supra, 2 Cal.3d at pp. 664-665.) This holding was
derived from Irwin v. Superior Court
(1969) 1 Cal.3d 423 (Irwin), which relied
on People v. Moore (1968) 69 Cal.2d
674, 683 (Moore). Irwin and
a detention, and Cunha and
context of probable cause for an arrest.
(Irwin, at p. 428;
Since Cunha
and Remers, however, our Supreme
Court has withdrawn from an expansive interpretation of the holdings in
894, the court characterized the language in Irwin as dicta and held that circumstances consistent with criminal
activity can support reasonable
suspicion even if those circumstances
are also consistent with innocence. (
also People v. Souza (1994) 9 Cal.4th
224, 233 [flight from police considered when determining sufficient cause to
detain even though action could merely reflect innocent desire to avoid police].) In doing so, it explained that the rule in
it cited, i.e., Moore, supra, 69 Cal.2d at
page 683—the same section of Moore that both Cunha and
otherwise innocent activity cannot be the basis for establishing probable cause
for an arrest.
title="">[2] (Cunha,
supra, 2 Cal.3d at p. 357;
Because Tony C. concludes that
conduct that is as consistent with innocent behavior as with criminal behavior
reasonable cause to detain, we conclude that it cannot be categorically ruled
out as a possible factor that may support probable cause for an arrest. (Tony C.,
at p. 894; see also United States v.
Arvizu (2002) 534 U.S. 266, 274 [criticizing Ninth Circuit’s Fourth
Amendment analysis that placed “ ‘no weight’ †on behavior observed
by officer that had possible innocent explanation].)
Cunha and Remers
also suggested that a neighborhood’s notorious reputation cannot transform otherwise
“innocent behavior†into behavior establishing probable cause. (Cunha,
supra, 2 Cal.3d at p. 357; Remers,
supra, 2 Cal.3d at pp. 665-666.) But again, more recent authority has clarified
that a neighborhood’s characteristics
totality of circumstances in determining whether probable cause existed. (People
v. Nonnette (1990) 221 Cal.App.3d 659, 668.) This authority includes the passage of
Proposition 8 in 1982.
name="_ftnref3" title="">[3] “We recognize that California courts
have traditionally been skeptical of the ‘high crime factor’ in determining
probable cause. [Citations.] However, after the passage of Proposition 8
in 1982, we must resolve search and seizure issues by determining whether the
evidence should be excluded under federal standards. [Citation.] Under federal law, ‘[t]he reputation of an
area for criminal activity is an articulable fact upon which a police officer
may legitimately rely.’ †(
at p. 240 [appropriate to consider area’s reputation for criminal activity
in assessing reasonableness of investigative detention].) Thus, a neighborhood’s reputation contributes
to probable cause “if it is relevant to the officer’s belief that the suspect
is involved in criminal activity.†(
can properly take into account that the officer’s suspicions partly arose
because the transaction he observed occurred in a neighborhood notorious for drug
sales and on a street corner where individuals sold marijuana “pretty much 24
hours a day, seven days a week.†(
Not only have the analytical underpinnings of the holdings in
here are distinguishable from the facts in those cases. Although it is true that there are obvious
factual similarities, there are also some noteworthy differences. First, the officer’s observations here were
far more precise. He clearly saw Parker
take items out of a bottle and hand them to the other man immediately after he
accepted cash from that person. This is
in contrast with Cunha, where the
defendant only appeared to take an
object out of his pocket, but the officers did not actually see it. (Cunha,
supra, 2 Cal.3d at p. 355.) Here,
the officer’s observations were detailed enough to conclude not simply that a “ ‘narcotic
transaction had been made’ †(ibid.),
but also that the items sold were marijuana (the officer deployed an arrest team
to “make sure [the man] did, indeed, buy marijuanaâ€). In Cunha,
the officers’ observations were less specific and led the court to characterize
the incident as merely an “apparent exchange†or “some sort of
transaction.†(Id. at pp. 355, 357.)
In addition to directly observing the objects in the bottle, the
officer here also saw a clear exchange of money. He saw that the suspected buyer had “cash, U.S.
currency†in his hand, which he then handed to Parker. The officer recognized the money because of
its elongated shape. He also observed
the man give Parker more cash after placing the items he received in a plastic
bag. Conversely, in Cunha, the officers only saw defendant extract what “appeared†to
be money, before the two suspects “placed their hands together in an apparent
exchange.†(Cunha, supra, 2 Cal.3d at
p. 355.) The officers could not confidently
assess whether money had been exchanged for an unseen item because all they saw
were two suspicious people put their hands in their pockets and then put their
hands together. (Ibid.)
officers saw a suspicious tinfoil package, neither money nor the package was
exchanged. (Remers, supra, 2 Cal.3d
at pp. 662-663.) Here, the officer
saw every step of the transaction—he saw the cash in the man’s hand as the man
passed it to Parker, he saw Parker give the man items out of a bottle, he saw the
man place those items in a plastic bag, and he saw the man give more money to
Parker.
We agree with the Attorney General that the present case is similar
to People v. Garrett (1972) 29
Cal.App.3d 535, where an officer observed “all the elements of a completed sale—preliminary
negotiation, a delivery of paper currency, and a reciprocal delivery of a
suspicious package.†(
the officer’s observations, the court in Garrett
remarked, “It is difficult to imagine what further visual evidence of a street
sale of narcotics could be required to establish reasonable cause for an
arrest, for here the officer observed each element in the sale carried out
before his eyes.†(Garrett, at p. 539; see also People v. Mims (1992) 9 Cal.App.4th 1244, 1250 [“Based on the
totality of the circumstances confronting [the officer], one wonders what
activity appellant was engaged in, other than an attempted drug dealâ€].)
We likewise reject Parker’s argument that the bottle and plastic bag
that the officer observed during the transaction were meaningless in determining
that there was probable cause to arrest Parker. The officer was asked on direct examination
whether he could “explain why . . . these objects were in a
bottle,†and he replied, “No, I can’t. I
can’t explain why they are in a bottle.â€
Parker apparently would have us believe that this testimony means that the
officer placed no particular significance on the presence of the bottle during
the suspected transaction. But the officer
went on to testify that marijuana is generally sold in sealed containers to
avoid detection based on smell and that he had seen drugs being sold
marijuana is to place it in little plastic bags.
Parker relies on People v.
Huntsman (1984) 152 Cal.App.3d 1073 and People v.
Knisely (1976) 64 Cal.App.3d 110 to argue that there was nothing
particularly incriminating about the containers observed here. Huntsman
held that where probable cause to search is based on an officer’s observation
of the defendant holding a container that is commonly used for innocent
purposes (such as a plastic bag), the People must present evidence indicating
the specific basis for the officer’s suspicion that the container holds
contraband or evidence of a crime. (
likewise held that placing a small item in a cigarette pack could not be
considered a suspicious circumstance when there was no evidence presented that
cigarette packs are commonly used to hide contraband. (Knisely,
at pp. 116-117.) This argument, however,
overlooks the testimony here that the officer knew containers such as the ones
he observed were used to hold marijuana and to conceal the drug’s pungent odor.
Moreover, recent cases have relaxed the evidentiary requirement for establishing
that certain containers are used to carry contraband. (E.g., People v.
Guajardo, supra, 23 Cal.App.4th
at p. 1743, fn. 3 [“we cannot in this day and age (at least in Los Angeles
County) give serious consideration to the holding in People v. Knisely[, supra,
64 Cal.App.3d at p. 117] that, in the absence of some evidence
showing a cigarette pack is a common hiding place for narcotics, the fact that
a small object is placed in the pack is not a suspicious circumstanceâ€];
524, 537-538 [possession of small “hide-a-key†container supported finding of probable
cause, despite fact that officer had only seen narcotics in one other key
container, because container gained additional significance in light of other
suspicious circumstances observed by officer].)
Parker argues that People v.
Guajardo, supra, 23 Cal.App.4th 1738,
is distinguishable because there, in addition to seeing the defendant use a
container known to be a common receptacle for drugs, police had the additional
information that the defendant had been arrested in the past month for selling
narcotics, and he appeared nervous before the arrest at issue. (Id.
at p. 1743 & fn. 3.)
But the officer here also had additional factors upon which to rely in
determining there was probable cause to arrest Parker. The totality-of-the-circumstances test
“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.’ †(United
States v. Arvizu, supra, 534 U.S.
at p. 273; People v. Mims,
in both the identification and recognition of marijuana and the possession of marijuana for sale. He worked at the Tenderloin police station
for approximately 12 years and was in a plain-clothes capacity for
approximately 10 of those years. He had
made thousands of narcotics arrests and hundreds of arrests for marijuana. The officer bought marijuana while working
undercover more than 100 times. He was
familiar with how marijuana is packaged and knew the popular methods used for
its transport and sale. The officer was
entitled to rely on his knowledge and experience in forming the belief that Parker
was guilty of selling marijuana.
Taken together, the facts that were established at the preliminary
hearing were enough to find probable cause for Parker’s arrest. When looking at the totality of the
circumstances, a person of ordinary care and prudence could believe, or
entertain a strong suspicion, that Parker was guilty of a crime. (Cunha,
and the motion to suppress the marijuana confiscated incident to that lawful
arrest was properly denied.
III.
Disposition
The trial court’s order placing
Parker on probation is affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo,
P. J.
_________________________
Rivera, J.
indicated.
name="_ftn2" title="">[2] Moore, supra, 69 Cal.2d
674, 683 was overruled on another ground in People v.
Thomas (1977) 19 Cal.3d 630, 641, fn. 8.
