Filed 12/11/17 P. v. Arevalo CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN OSWALDO AREVALO,

Defendant and Appellant.
D072867



(Super. Ct. No. RIF1200473)

APPEAL from a judgment of the Superior Court of Riverside County, Charles J. Koosed and Irma Poole Asberry, Judges. Affirmed.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Marvin Oswaldo Arevalo guilty of two counts of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (counts 1 & 2); one count of unlawfully possessing a firearm and ammunition by a prohibited person (id., § 30305, subd. (a)) (count 3); two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (counts 5 & 6); and possession of drug paraphernalia (id., § 11364) (count 7). Counts 5 and 7 were based on law enforcement's discovery of drugs and drug paraphernalia during a search of Arevalo's person after detaining him on March 18, 2014. The remaining counts were based on contraband that law enforcement found during a search of Arevalo's residence on January 19, 2012. The trial court sentenced Arevalo to a term of three years four months in prison.
Arevalo seeks reversal of the conviction on counts 5 and 7, contending that the trial court erred in denying his motion to suppress the evidence discovered by the law enforcement officers during their search of his person on March 18, 2014. According to Arevalo, the officers did not have a lawful basis to detain him and conduct a patdown search for weapons, which led to the discovery of the contraband. We conclude that Arevalo's argument lacks merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
As Deputy Sheriff Jacob Jensen testified during the suppression hearing that forms the basis for this appeal, on March 18, 2014, at 1:44 a.m., he responded to a call dispatching him to the Morongo Casino in Cabazon in response to a report from casino security that a customer possibly had a gun. Before Deputy Jensen arrived, dispatch told him that the suspect was named Marvin Arevalo and was an Hispanic male between 35 and 40 years old, along with giving a description of the suspect's clothing. Upon arrival at the casino, Deputy Jensen used his mobile computer to run a name search, and he located a Marvin Arevalo who fit the description. Deputy Jensen noted that Arevalo was on probation for "a drug case out of Riverside County."
Deputy Jensen then spoke to casino security, who told him that Arevalo was currently seated at a gaming table, "had made mention about having a gun in his hotel room, being on probation, and being a gang member." Casino security also told Deputy Jensen that Arevalo had made threats "along the lines of nobody moving . . . when he was talking about having a gun."
Deputy Jensen was informed that security personnel were conducting surveillance on Arevalo to track his movements. Specifically, security personnel told Deputy Jensen that at the present time Arevalo was being observed exiting the casino and going into the parking lot, near a white Ford Expedition.
Accompanied by several casino security guards, Deputy Jensen walked in the direction of the parking lot to locate Arevalo. Deputy Jensen caught sight of Arevalo in the parking lot, where he was quickly walking away from the Ford Expedition and back toward the casino. Deputy Jensen and the casino security guards told Arevalo to stop several times, but Arevalo continued walking. At that point, according to Deputy Jensen, he feared that Arevalo might have a firearm because of the information he had received and because of Arevalo's demeanor in walking quickly toward the casino. When Arevalo refused to stop, Deputy Jensen pointed a firearm at him and told him to get on the ground. Arevalo was slow to comply, but he eventually went to the ground and was handcuffed.
Deputy Jensen asked Arevalo to identify himself, but Arevalo refused, saying "You know who I am." Although Arevalo did not identify himself, Deputy Jensen believed that the person he encountered in the parking lot was Arevalo because "surveillance normally tracks somebody when they identify somebody, and they continue to track that person." Further, the only person in the parking lot who met the description of the suspect was Arevalo.
Deputy Jensen testified that "based on believing [Arevalo] possibly had a weapon, I conducted a patdown search of him for weapons." While conducting the patdown search, Deputy Jensen felt an object in Arevalo's right pants pocket, over his clothes, which Deputy Jensen believed to be a methamphetamine pipe. Deputy Jensen removed the object, confirming that it was a methamphetamine pipe, and then put Arevalo under arrest for possession of drug paraphernalia.
Pursuant to arrest, Deputy Jensen continued to search Arevalo's person, where he discovered methamphetamine in Arevalo's pants pocket, along with a significant amount of money. At that point, Deputy Jensen believed that Arevalo had also committed the crime of possession of methamphetamine for sale. Eventually, Deputy Jensen also searched Arevalo's vehicle where he located a large amount of money hidden in a speaker box.
Arising from the contraband found on Arevalo's person on March 18, 2014, an amended information charged in count 5 that Arevalo possessed methamphetamine for sale (Health & Saf. Code, § 11378), and in count 7 that Arevalo possessed drug paraphernalia (id., § 11364). As to count 5, it was further alleged that Arevalo committed the offense while released from custody pending trial for a felony offense (Pen. Code, § 12022.1).
The remaining counts in the amended information were based on prohibited items found during a law enforcement search of Arevalo's residence on January 19, 2012, in an incident that is not relevant to this appeal. Based on the search that occurred in 2012, the amended information alleged the following counts: two counts of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (counts 1 & 2); one count of unlawfully possessing a firearm and ammunition by a prohibited person (id., § 30305, subd. (a)) (count 3); transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)) (count 4); and possession of methamphetamine (id., § 11377, subd. (a)) (count 6).
Arevalo filed a motion to suppress the contraband discovered in the course of Deputy Jensen's search, contending that the detention and search were conducted in violation of Arevalo's Fourth Amendment rights. Specifically, as relevant here, Arevalo argued that Deputy Jensen did not have reasonable suspicion to detain him and conduct a patdown search.
After holding an evidentiary hearing at which Deputy Jensen testified and at which the trial court took judicial notice of the file in the case on which Arevalo was on probation at the time of the search, the trial court denied the suppression motion. The trial court gave two independent bases for its ruling. First the trial court concluded that the search was legal because Arevalo was on probation and subject to terms allowing warrantless searches. Second, the trial court stated that even without the fact that Arevalo was on probation, based on "the dangerousness of the situation" and the fact that Arevalo matched the description of the suspect, Deputy Jensen properly detained Arevalo and conducted a patdown search.
At trial, the jury returned a not guilty finding on count 4, and on count 5, it found Arevalo guilty of the lesser included offense of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). As to all the other counts, the jury found Arevalo guilty as charged.
The trial court sentenced Arevalo to a term of three years four months in prison.
II.
DISCUSSION
The issue presented on appeal is whether the trial court erred in denying Arevalo's suppression motion.
A. Standard of Review
" 'In reviewing a suppression ruling, "we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found." ' [Citation.] [¶] Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court." (People v. Tully (2012) 54 Cal.4th 952, 979.) Further, "[o]n appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 (Letner).) "[T]he trial court's ruling must be upheld if there is any basis in the record to sustain it." (People v. Marquez (1992) 1 Cal.4th 553, 578.)
B. Applicable Legal Standards
1. The Fourth Amendment Permits a Detention Supported by the Officer's Articulation of Facts Creating Reasonable Suspicion of Criminal Activity

" 'The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] "A detention is reasonable under the 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." ' " (Letner, supra, 50 Cal.4th at p. 145.) "[T]he Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity ' "may be afoot." ' " (United States v. Arvizu (2002) 534 U.S. 266, 273.)
In making a reasonable suspicion determination, courts "must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing. [Citation.] This process 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.' " (Arvizu, supra, 534 U.S. at p. 273.) "The 'reasonable suspicion' necessary to justify such a stop 'is dependent upon both the content of information possessed by police and its degree of reliability.' " (Navarette v. California (2014) 572 U.S. __ [188 L.Ed.2d 680, 686, 134 S.Ct. 1683, 1687] (Navarette).) In determining whether an officer had reasonable suspicion, we keep in mind that "[p]olice officers are required to make 'swift, on-the-spot decisions' and the Fourth Amendment does not require us to ' "indulge in 'unrealistic second-guessing' " ' of the officer's conduct." (People v. Brown (2015) 61 Cal.4th 968, 984.)
2. An Officer May Conduct a Patdown Search for Weapons During a Legal Detention When the Officer Has a Reasonable Belief the Suspect Is Armed

With respect to a patdown search for weapons during a detention, as first established in Terry v. Ohio (1968) 392 U.S. 1 (Terry), the Fourth Amendment permits an officer to conduct a "reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." (Id. at p. 27.) "The 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." (Ibid.) "Reasonable suspicion must be based on 'commonsense judgments and inferences about human behavior.' " (In re H.M. (2008) 167 Cal.App.4th 136, 143 (H.M.).) "The touchstone for justifying a patdown search under Terry . . . is that the officer must have a reasonable belief or suspicion that the suspect is armed." (People v. Sandoval (2008) 163 Cal.App.4th 205, 213 (Sandoval).)
When justified in conducting a patdown search for weapons under Terry, the officer "is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Terry, supra, 392 U.S. at p. 30, italics added.) Further, as relevant here, "police officers may seize nonthreatening contraband detected during a protective patdown search" "so long as the officers' search stays within the bounds marked by Terry." (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)
C. The Detention and Patdown Search Were Lawful
Arevalo contends that neither the initial detention that occurred when he was handcuffed on the ground, nor the subsequent patdown search for weapons that took place immediately thereafter, was lawful under the Fourth Amendment. We consider each contention in turn.
1. The Initial Detention Was Lawful
Based on the legal principles set forth above, in assessing whether Deputy Jensen's initial detention of Arevalo was lawful, the fundamental inquiry is whether Deputy Jensen identified articulable facts to provide some objective manifestation that Arevalo may be involved in criminal activity. (Letner, supra, 50 Cal.4th at p. 145.)
Here, Deputy Jensen testified that he received information from speaking to security personnel upon his arrival at the casino that Arevalo "had made mention about having a gun in his hotel room, being on probation, and being a gang member," and that Arevalo had made certain threats while talking about having a gun. Deputy Jensen confirmed that Arevalo was on probation by running a computer check, and Deputy Jensen indicated during his testimony that he knew the crime for which Arevalo was on probation was a felony. Based on this information, Deputy Jensen could reasonably suspect that Arevalo was committing the crime of being a felon in possession of a firearm in violation of Penal Code section 29800 when he encountered Arevalo in the parking lot.
Arevalo contends that Deputy Jensen did not have reasonable suspicion to detain him in the parking lot based on a belief that he was committing a crime because Deputy Jensen could not have reasonably identified Arevalo as the person who was the subject of the dispatch call and the subject of the concerns raised by casino security. Specifically, Arevalo argues that because he did not identify himself when asked to do so, Deputy Jensen could not have reasonably believed that he was detaining the person who was alleged to be a felon in possession of firearm and who was making threats in the casino. According to Arevalo, Deputy Jensen detained him based on nothing more than "a vague description of race and age" and based on "speculation about who [Arevalo] was."
We reject the argument. As Deputy Jensen explained during his testimony, although Arevalo refused to identify himself, he reasonably believed that the person he detained in the parking lot was Arevalo based on two considerations. First, he believed that Arevalo was the person he encountered in the parking lot based on information from casino security personnel, who had been continuously conducting surveillance of Arevalo as he moved through the casino property and into the parking lot. Second, Arevalo was the only person in the parking lot who met the description that Deputy Jensen had been given. Under those circumstances, Deputy Jensen could reasonably believe that he was detaining the suspect who was the subject of the dispatch call to the casino and who had been described to him by casino security personnel.
Arevalo also contends that the information possessed by Deputy Jensen was too unreliable to form the basis for Deputy Jensen's belief that Arevalo had committed a crime. Arevalo contends that because Deputy Jensen obtained information by speaking with casino security personnel who themselves were likely relying on reports from other individuals about Arevalo's conduct, the instant situation is analogous to Florida v. J. L. (2000) 529 U.S. 266 (J. L.), which concluded that an anonymous tip lacked sufficient reliability to provide reasonable suspicion for an investigatory stop. Specifically, J. L. concluded that police lacked reasonable suspicion to detain and frisk the defendant based on an anonymous telephone tip claiming a young Black man in a plaid shirt standing at a particular bus stop was carrying a gun. (Id. at pp. 272-274.) J. L. explained that "[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L." (Id. at p. 271.)
We find J. L. to be inapposite. Deputy Jensen's identification of Arevalo was not based on an anonymous tip. Instead, it was based on information from casino security personnel, whose job it is to monitor the casino for suspicious activity, and who had been conducting surveillance on Arevalo. In carrying out their duties, casino security learned that Arevalo had made statements about having a gun and had made threatening comments while talking about having a gun, and they relayed that information to Deputy Jensen when he arrived at the casino. Information from casino security personnel about the statements and threats made by Arevalo while in the casino was sufficiently reliable to serve as a basis for Deputy Jensen's formulation of reasonable suspicion that Arevalo had a firearm and thus, as a felon on probation, may be committing the crime of being a felon in possession a firearm. (Cf. Navarette, supra, 572 U.S. at p. ___ [134 S.Ct. at p. 1688] ["under appropriate circumstances," even an anonymous tip "can demonstrate 'sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop' "].)
2. The Patdown Search for Weapons Was Lawful
Having determined that Deputy Jenson acted properly in detaining Arevalo, the next issue is whether the patdown search of Arevalo was legally permissible. In analyzing that issue, we inquire whether Deputy Jensen had a reasonable belief that Arevalo was armed. (Sandoval, supra, 163 Cal.App.4th at p. 213.)
As we have explained above, Deputy Jensen received sufficiently reliable information from casino security personnel that Arevalo had claimed to have a weapon and that Arevalo was making threats while talking about having a weapon. Under those circumstances, in which Arevalo himself reportedly claimed to have a weapon, Deputy Jensen could reasonably suspect that Arevalo might be armed and dangerous when he encountered Arevalo in the parking lot. Further, supporting a reasonable suspicion that Arevalo may be armed, Deputy Jenson was informed by casino security personnel that Arevalo had claimed to be a gang member. "It is . . . common knowledge that members of criminal street gangs often carry guns and other weapons." (H.M., supra, 167 Cal.App.4th at p. 146.)
Accordingly, based on the information known to Deputy Jensen when encountering Arevalo in the parking lot, Deputy Jensen properly conducted a patdown search to determine whether Arevalo was armed.
In sum, having determined that Deputy Jensen's detention of Arevalo and his patdown search of Arevalo were both within the bounds of the Fourth Amendment, we conclude that the trial court properly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.


IRION, J.

WE CONCUR:




NARES, Acting P. J.




DATO, J.