P. v. Watkins

Filed 10/23/06 P. v. Watkins CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Charles Pfister, Judge.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Curtis Watkins pled guilty to carrying a loaded and concealed firearm (Pen. Code, § 12031, subd. (a)(2)(F)). The court suspended imposition of sentence and placed appellant on three years’ probation, one of the conditions of which was that he serve one year in county jail.

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

FACTUAL AND PROCEDURAL BACKGROUND

Facts

At approximately 1:15 a.m. on September 25, 2005, City of Bakersfield Police Officer Aaron Stringer was on duty, in a police patrol car, when he received a call from the police dispatcher that a person reported what she “believed” was, “or possibly what sounded like,” a “firearm [being] cocked.”^[1] The informant, who refused to identify herself, further reported that there was a black male wearing a white T-shirt and blue jeans “in the 1000 block of Valhalla,” and that she (the informant) “had no clue what was going on . . . .”

Officer Stringer drove to the 1000 block of Valhalla, “a residential area consisting of several apartment complexes,” arriving at 1:17 a.m. Upon arriving, he saw three people: a white male, wearing “all gray clothing,” on the sidewalk, and, approximately 45 feet north of that person and also on the sidewalk, a black male, whom the officer identified in court as appellant, wearing “a white shirt and black jeans,” accompanied by a female.

Officer Stringer got out of his patrol car and approached appellant and his companion, who were walking toward the officer. Appellant spoke first; he said, “ ‘We are leaving.’ “ Officer Springer responded, “ ‘I need to talk to you.’ “ Appellant responded that he did not want to speak to the officer. Officer Springer “asked . . . a second time . . . [to] speak to [appellant].”

As appellant and the officer continued to walk toward each other, appellant “turned with his arm around the female and placed her between [appellant and the officer] . . . .” Next, appellant, with his left arm around the female, moved his right hand “to his waistband,” and “it appeared . . . he grabbed ahold of his waistband.” Officer Stringer, concerned for his safety because of the “baggy clothes” appellant was wearing, the fact that the dispatch had indicated the possibility of the presence of a firearm, the fact that Officer Stringer was the only police officer present,^[2] and appellant’s act of moving his companion to a position between himself and the officer, told appellant to “show his hands.” Appellant responded, “ ‘I don’t have to. I have civil rights.’ “ As the officer “began to explain why [he] was there and what was going on,” appellant “began to lift his shirt.”

At that point, Officer Stringer “grabbed ahold of” appellant’s right hand. Appellant broke away from the officer’s grasp, “pushed the female into [the officer]” and “began running.” The officer gave chase, yelling at appellant to stop. Appellant, after going approximately 30 feet, tripped and fell to the ground. As appellant tried to get up, Officer Stringer tried to grab his right hand “to place a control hold on him,” but appellant was able to get to his feet. “A short struggle” ensued, and the officer was able to position appellant face down on the ground.

Appellant had his left arm underneath him at this point. Officer Stringer ordered appellant several times to “bring out” his left hand. At first, appellant refused to comply, but eventually he “withdrew his left hand and threw a firearm underneath [a nearby] parked car . . . .” At about that time, a second officer arrived on the scene, and the two officers were able to take appellant into custody.

Procedural Background

In his moving papers, appellant argued for the suppression of evidence on the grounds “the searches and seizures without a warrant were constitutionally unreasonable” because he was unlawfully detained and evidence was seized as a result of that detention. In their opposing papers, the People countered that appellant was not detained until after appellant “threw the firearm,” at which point, the People implied, seizure of the gun did not violate appellant’s Fourth Amendment rights, and therefore, “the gun should not be suppressed.”

At the hearing, the prosecutor reiterated the arguments stated in the People’s opposing papers, stating appellant was “[not] actually detained prior to the gun being actually discarded,” at which point “there [was] reasonable suspicion to . . . detain him . . . .” Appellant argued that Officer Stringer did not have “reasonable cause” to detain him. He further argued that the detention occurred at the point appellant told the officer “he was leaving” and that he did not want to talk to the officer, and the officer responded, “no, he needs to stop and talk to him.” Alternatively, appellant argued that the detention occurred subsequently, at the point the officer “repeated[ly] order[ed] . . . Mr. Watkins to show him his hands . . . .” As a final alternative, appellant argued he was detained at the point the officer grabbed his hand.

The court ruled as follows: at the point Officer Stringer first approached appellant, the “information available to [the officer] . . . was not sufficient to justify a detention”; at the point appellant “is lifting his shirt, going to his waistband,” it was “perfectly legitimate” for the officer to “order” that appellant show his hands; a detention occurred when “the officer did try to grab his hand”; and “the detention at that particular point in time is valid . . . .”

DISCUSSION

“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.) Appellant argues that he was unlawfully detained; evidence, including a firearm, was discovered and seized as a result of this detention; and therefore such evidence should have been suppressed. We disagree.

A detention is reasonable under the Fourth Amendment when “based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity.” (People v. Souza, supra, 9 Cal.4th at p. 230.) The detaining officer “must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ‘ of criminal activity.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124 [120 S.Ct. 673] (Wardlow).) The officer must be able to “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.” (People v. Souza, supra, 9 Cal.4th at p. 231.)

“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” (Wardlow, supra, 528 U.S. at p. 123), 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). “ ‘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 . . . .’ “ (People v. Souza, supra, 9 Cal.4th at p. 233.)

The determination of the reasonableness of an intrusion on any Fourth Amendment-protected interest “requires the courts to identify the government interest allegedly justifying the intrusion and to balance ‘ “the need to search [or seize] against the invasion which the search [or seizure] entails.” ‘ “ (People v. Glaser (1995) 11 Cal.4th 354, 363.) Officer safety is among the government interests that may be considered in determining whether a detention is reasonable under the Fourth Amendment. (Id. at p. 364.) “The privacy protections of the Fourth Amendment must not be construed so as to compromise the safety of those who serve and protect the public.” (People v. Hart (1999) 74 Cal.App.4th 479, 490.) And as the United States Supreme Court has explained in a slightly different Fourth Amendment context, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving . . . .” (Graham v. Connor (1988) 490 U.S. 386, 396-397 [109 S.Ct 1865].)

“The People have the burden to prove the detention was justified.” (People v. Benites (1992) 9 Cal.App.4th 309, 320.) In reviewing the denial of a suppression motion, “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. 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, supra, 11 Cal.4th at p. 362.)

As indicated above, the major premise of appellant’s challenge to the denial of his suppression motion is the claim that he was unlawfully detained. Specifically, he argues that Office Stringer “had insufficient information on which to make a proper detention” because the description provided to the officer by the dispatcher was so general that it “could [have] fit probably 5,000 people within a mile of the place [appellant] was seized,” and there was nothing about appellant’s “movements” or “appearance” that “justified [the officer] in detaining and frisking [sic]^[3] appellant . . . .”

In addressing appellant’s claim that he was unlawfully detained, we must determine (1) whether a detention occurred and, if so, (2) whether the detention was supported by reasonable suspicion. And, as is also indicated above, in order to make the latter determination, we must also determine what information was available to the officer prior to the detention. Therefore, if a detention occurred, it is necessary to determine when it occurred. In his opening brief, appellant contends Officer Stringer detained him but he takes no position as to when the detention occurred. However, in his reply brief he asserts “[he] was detained, at the latest, when the officer grabbed his right arm,” and he does not challenge the trial court’s determination that no detention occurred until that point. Therefore, our inquiry must focus on the point at which the officer grabbed appellant’s hand and we must ask (1) whether that act constituted a detention and, if so, (2) whether at that point the information available to the officer was sufficient to establish an objectively reasonable suspicion that appellant had engaged in, was engaged in or was about to engage in unlawful conduct.

With regard to the first of these questions, the People contend no detention occurred until well after the officer’s physical contact with appellant, after appellant discarded the firearm. We disagree. “The word ‘seizure’ [as used in the Fourth Amendment] readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (‘She seized the purse-snatcher, but he broke out of her grasp.’)” (California v. Hodari D. (1991) 499 U.S. 621, 626 [111 S.Ct. 1547].) Therefore, the officer detained appellant, i.e., seized him within the meaning of the Fourth Amendment, at the point the officer grabbed appellant’s hand.

We turn now to the second question posed above. The record here shows the following. Officer Stringer received information that an informant heard a firearm being cocked. He went to the 1000 block of Valhalla at 1:17 a.m., where he was the only police officer on the scene and where he observed three persons, only one of whom, viz., appellant, met the general description provided by the informant. Subsequently, when the officer confronted appellant, appellant physically moved his companion to a position between himself and the officer, in a manner that could have suggested appellant was using his companion as a shield, and moved his right hand toward his waistband, a place where a firearm could have been concealed in appellant’s baggy clothing. The officer at that point directed appellant to make his hands visible, but appellant refused and began to lift his shirt.

The foregoing situation is admittedly ambiguous. Appellant’s conduct could have been entirely innocent, or it could have been the prelude to an armed assault. The question before us is, in essence, whether, under the Fourth Amendment, the officer was required to resolve the ambiguity by standing by and letting events unfold. We conclude he was not. Under the circumstances, appellant’s conduct was sufficient to give rise to more than an “inchoate and unparticularized suspicion or ‘hunch’ “ that appellant was reaching for a gun. (Wardlow, supra, 528 U.S. at p. 124.) When we balance the important governmental interest of officer safety against the intrusion on appellant’s person, and consider the totality of circumstances summarized above and the inference from the evidence that the officer had only a split-second in which to decide whether to halt the progress of appellant’s hand toward a place where a gun could be concealed, we conclude Officer Stringer’s act of grabbing appellant’s hand did not violate the Fourth Amendment.

Appellant also argues, as best we can determine, that because the People, in their written opposition to the motion, did not counter appellant’s contention that appellant was unlawfully detained at the point the officer grabbed his hand, the court was precluded from finding that appellant was lawfully detained at that point. Appellant asserts, “If the People fail to argue issues in their moving papers, they should be deemed to have waived those issues, and no longer entitled to benefit from justifications [for the warrantless search and/or seizure] they did not raise.” There is no merit to this contention.

“ ‘[T]he scope of issues upon review [of the denial of a suppression motion] must be limited to those raised during argument . . . .’ “ (People v. Williams (1999) 20 Cal.4th 119, 136.) Appellant was able, in the proceeding below, to fully litigate his contention that he was unlawfully detained before he discarded the gun. That the People chose to argue that no detention took place until that point did not preclude the court from rejecting appellant’s arguments.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Kane, J.

^[1] The factual summary is taken from Officer Stringer’s testimony at the suppression motion hearing.

^[2] Officer Stringer testified he “had an Explorer riding with [him],” but he did not have another officer with him.

^[3] As best we can determine, appellant contends the officer’s act of grabbing appellant’s hand constituted “frisking.”