P. v. Dawkins

Filed 3/19/07 P. v. Dawkins CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael S. Luros, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant George Richard Dawkins appeals from the judgment entered following his plea of no contest to petty theft with a prior (Pen. Code, 666),[1] made after the trial court denied his suppression motion ( 1538.5). The trial court sentenced Dawkins to a prison term of two years. It further imposed a restitution fine, a suspended parole revocation fine, a court security assessment, and a crime prevention fee.

Dawkins contends the trial court erred by denying his suppression motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 14, 2005, an information was filed charging Dawkins with commercial burglary ( 459) and petty theft with a prior ( 666). The information also alleged that Dawkins had suffered seven prior convictions for petty theft with a prior and one prior conviction for burglary, and had served eight prior prison terms within the meaning of section 667.5, subdivision (b).

Dawkins moved to suppress evidence. A suppression hearing was conducted, at which the following evidence was adduced. On October 16, 2005, at approximately 12:45 p.m., Los Angeles Police Officers Brian Hun and his partner were on patrol when they observed Dawkins riding his bicycle against traffic in violation of the Vehicle Code. Hun decided to stop Dawkins for a traffic violation and possibly issue him a citation . . . . Because of the officers location in traffic, they were unable to immediately stop Dawkins. They observed him approach a Mobil gas station, place his bicycle against the wall, and enter the Mobil station. He remained inside for three to five minutes. He then exited the store, looked around, immediately went back into the store again. Dawkins again exited the store, got on his bicycle, and rode away on the sidewalk, also a violation of the Vehicle Code.

The officers, who were at that point able to get through traffic, approached Dawkins. Hun saw some large object sticking out of [Dawkins] back from his rear waistband. Hun believed the bulge could have been a weapon. Based on Dawkinss attire, Hun believed he was a transient. In Huns experience, [a] lot of transients carry weapons to defend themselves because they live on the streets. The bulge could have been a large knife, machete, could have been a stick . . . . Hun believed that if the item was a weapon, Dawkins could have taken it out and attacked us. Hun also thought Dawkins might have robbed the Mobil station because no other persons had entered the market while Dawkins was there.

Hun immediately handcuffed Dawkins and lifted his shirt to determine what the protrusion was. Hun found not a weapon, but several unopened bags of beef jerky. Hun asked where Dawkins had obtained the beef jerky. Dawkins could not answer. Dawkins had no identification with him. Hun then searched Dawkinss pockets looking for any identification or a receipt for the beef jerky. He discovered a pipe.[2] Hun explained that, once he found the beef jerky, it wasnt just a traffic stop anymore. Dawkinss possession of brand new bags of beef jerky, after he had just left the gas station, made Hun curious as to where he got those items from.

At the suppression motion, no evidence was adduced regarding what the officers did with the beef jerky after discovering it. The preliminary hearing transcript, however, reveals that the day of the incident, Hun took the beef jerky to the Mobil station, where he spoke with the cashier and determined that some of the beef jerky possessed by Dawkins was from the Mobil station and had not been paid for.

The officers did not cite Dawkins for the bicycle violation.

The basis for Dawkinss written suppression motion was not entirely clear. Although the motion discussed the legal principles relevant to illegal detentions, pat searches, and seizures, the motion never discussed how those principles applied in Dawkinss case. At the hearing, defense counsel argued that the search was unjustified because no specific facts suggested Dawkins was armed; and that in any event, once officers discovered Dawkins was not armed, the officer should have written the citation and let Mr. Dawkins go . . . . Dawkins did not expressly argue that seizure of the beef jerky violated the Fourth Amendment.

The trial court denied the motion. It observed that a custodial arrest for a bicycle violation does not violate the Fourth Amendment. Thus, there was inevitable discovery. Taking him into custody [the officer] would have discerned the beef jerk[y] . . . because you have to make sure that anyone whos placed in a police car is not carrying contraband in the patrol car or the jail.

Subsequently, pursuant to a plea bargain, Dawkins pleaded no contest to petty theft with a prior and admitted the prior conviction allegations. He was sentenced to the midterm of two years in prison. Count 1, for commercial burglary, was dismissed. Dawkins appeals. ( 1538.5, subd. (m).)

DISCUSSION

Dawkinss theory on appeal is not entirely congruent with his argument below. On appeal, he asserts that while the stop and pat search were constitutional, the officers lacked probable cause to prolong the detention and seize the beef jerky. Dawkins urges, As soon as it became clear that the jerky was not a weapon, the Fourth Amendment required the police to return the jerky to appellant, decide whether or not to issue a traffic citation and release him without undue delay.

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. Camacho (2000) 23 Cal.4th 824, 829-830; People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) Our review of issues related to the suppression of evidence derived from police searches and seizures is governed by federal constitutional standards. (People v. Camacho, supra, at p. 830; People v. Bradford (1997) 15 Cal.4th 1229, 1291; People v. McKay (2002) 27 Cal.4th 601, 605, 607-608.) After the passage of Proposition 8, our state Constitution forbids exclusion of evidence as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution. (People v. Camacho, supra, at p. 830; People v. McKay, supra, at p. 608.)

On review of the trial courts denial of a suppression motion, we defer to the trial courts express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (People v. Camacho, supra, 23 Cal.4th at p. 830; People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Gallegos, supra, 96 Cal.App.4th at p. 622; People v. Russell (2000) 81 Cal.App.4th 96, 102.)

As Dawkins concedes, the officers lawfully stopped him for riding his bicycle against traffic. (Veh. Code, 21650.1.) Dawkins likewise acknowledges that the officers search of his waistband area was a permissible protective search. When an officer has reason to believe that he is dealing with an armed and dangerous individual, he or she may conduct a reasonable search for weapons, even if there is not probable cause to arrest the suspect for a crime. (Terry v. Ohio (1968) 392 U.S. 1, 27.) Officer Hun observed a protrusion from Dawkinss waistband, which could have been a knife, machete, or other weapon. Hun believed, based on Dawkinss clothing, that Dawkins was a transient. Hun knew, based on his experience, that transients are often armed. These specific and articulable facts, together with rational inferences drawn therefrom, reasonably supported a suspicion that Dawkins was armed and dangerous. (See generally id. at p. 27; People v. Dickey (1994) 21 Cal.App.4th 952, 956.) Thus, lifting Dawkinss shirt to determine the nature of the protrusion was a reasonable and limited search that did not violate the Fourth Amendment.[3] (See generally Terry v. Ohio, supra, 392 U.S. at p. 29.)

Given that both the stop and the search leading to the discovery of the beef jerky were concededly constitutional, the question before us is whether, after officers found the beef jerky, they were justified in continuing to detain Dawkins to investigate a potential robbery of the Mobil station, and seizing the beef jerky to use in that investigation. We conclude that they were.

The People urge that because Dawkins could have been arrested for the vehicle code violation, the beef jerky would have been seized in any event. (See Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [ If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. [Citation.]]; People v. McKay, supra, 27 Cal.4th at p. 607.)

The flaw in the Peoples argument, however, is that the record suggests officers did not arrest, or intend to arrest, Dawkins for the bicycle violation. Officer Hun testified that he stopped Dawkins for a traffic violation and possibly issue him a citation . . . . In Knowles v. Iowa (1998) 525 U.S. 113, the Supreme Court held that when an officer stops a motorist for a traffic violation, but decides to issue a citation rather than arrest the individual, a full search of the motorists vehicle violates the Fourth Amendment. (Id. at p. 114; see also People v. McKay, supra, 27 Cal.4th at p. 613, fn. 6 [Knowles held that the exception for searches incident to custodial arrest could not be applied when no custodial arrest had occurred].) Analogously, we do not believe the seizure of the beef jerky can be justified as incident to an arrest that did not occur.

That does not end our inquiry, however. An investigatory stop exceeds constitutional bounds when it extends beyond what is reasonably necessary under the circumstances that made its initiation permissible. (People v. Russell, supra, 81 Cal.App.4th at p. 101.) However, it is well settled that [c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention. (Id. at p. 102.) An officers seizure of a person for an investigative detention need not in all cases be justified by probable cause to arrest. (People v. Souza (1994) 9 Cal.4th 224, 230.) Such an investigative detention is reasonable under the Fourth Amendment when the officer can point to specific, articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the detainee may be involved in criminal activity. (Id. at pp. 230-231 [the temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on some objective manifestation that criminal activity is afoot and that the person to be stopped is engaged in that activity]; Terry v. Ohio, supra, 392 U.S. at p. 21.) The reasonable suspicion necessary to justify such an investigative stop is obviously less demanding than that for probable cause and can be established by considerably less than proof of wrongdoing by a preponderance of the evidence. (People v. Souza, supra, at p. 230, citing United States v. Sokolow (1989) 490 U.S. 1, 7; see also People v. Clark (1989) 212 Cal.App.3d 1233, 1239-1240.) There is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests; instead, each case must be decided on its own facts to determine whether officers diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available. (In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.)

Here, as we have observed, the initial search disclosing the beef jerky did not violate the Fourth Amendment. Once Officer Hun discovered the beef jerky, the totality of the circumstances strongly suggested Dawkins may have been involved in criminal activity. Officers had seen Dawkins enter the Mobil station and remain inside for three to five minutes. Dawkins then exited the store, looked around, and immediately went back into the store. During Dawkinss visit to the market, no other persons or vehicles entered the store or station. These facts suggested Dawkins was casing the store and ensuring no other persons were about to enter, giving him the opportunity to shoplift. When Dawkins rode off on his bicycle, a protrusion was visible from his back waistband, which we may infer was not present before. The beef jerky packets were stuffed in Dawkinss waistband, an unusual method to carry foodstuffs. The beef jerky was not in a Mobil bag, as one might expect had he purchased them at the market, and Dawkins did not have a Mobil receipt. While these facts might have been consistent with innocent behavior, the totality of the circumstances thus provided an objective manifestation that Dawkins had stolen the beef jerky from the store. The circumstances provided reasonable suspicion to justify the extension of the original, lawful stop and investigation into whether the beef jerky had been stolen. Further, the detention was limited and it appears the officers investigation was brief, diligent, and reasonably designed to dispel or confirm their suspicions quickly.

Assuming arguendo that Dawkinss motion and argument below were sufficient to preserve his appellate challenge to the seizure of the beef jerky, we discern no violation of the Fourth Amendment. When the initial intrusion that brings officers within plain view of an item is supported by one of the recognized exceptions to the warrant requirement, as was the case here, the warrantless seizure of an item is legal if the police have probable cause to believe (rather than merely a reasonable suspicion) that the items are related to a crime. (People v. Bradford, supra, 15 Cal.4th at p. 1290.) The incriminating nature of the item is immediately apparent when the police have probable cause to believe it is contraband or evidence of a crime; officers need not know, to a near certainty, that the item is evidence of a crime. [Citations.] [P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief, [citation], that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required. [Citation.] [Citation.] (People v. Gallegos, supra, 96 Cal.App.4th at p. 623.) Probable cause is a  fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules. [Citation.] (Maryland v. Pringle (2003) 540 U.S. 366, 370-371.)

Here, at least at the point when Dawkins was unable to explain where he had obtained the beef jerky, this development, viewed in totality with the other circumstances, provided probable cause to seize the beef jerky to determine whether it had been stolen from the Mobil market. The totality of the circumstances established a fair probability that Dawkins had stolen the beef jerky from the Mobil market. As noted, officers may seize items that are in plain view if the incriminating character of the items as contraband or evidence of a crime is immediately apparent. (People v. Kraft (2000)23 Cal.4th 978, 1041, 1043.) Because the officers had lawfully stopped Dawkins and discovered the beef jerky, they were lawfully located in the place from which they viewed the items. (See People v. Bradford, supra, 15 Cal.4th at p. 1295.)

In summary, the initial stop and detention of Dawkins was lawful because Dawkins had committed a traffic violation, i.e., riding his bicycle against traffic; the discovery of the beefy jerky was made during a lawful protective search incident to the detention; the discovery of the beef jerky, coupled with the totality of the circumstances, gave rise to a reasonable suspicion which permitted the officers to prolong the detention and further investigate; when Dawkins was unable to explain where he had gotten the beef jerky, this fact, viewed in the totality of the circumstances, created probable cause to seize the beef jerky as evidence of a crime. Because no unlawful search or seizure occurred, the motion to suppress evidence was properly denied.

Although the trial courts ruling was based on the inevitable discovery doctrine,   No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. [Citations.] (People v. Brown (2004) 33 Cal.4th 892, 901.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] Dawkinss motion referred to the items sought to be suppressed as Items 1, 2, and 3 in DR # 0503-31839, all officers observations. The record does not expressly state the nature of items 1, 2, and 3, but the parties assume these items were three packages of beef jerky. As no charges were brought regarding the pipe, we assume it was not the subject of the suppression motion.

[3] Dawkinss argument that Officer Hun was motivated to make the initial stop because he wished to go on an impermissible fishing expedition is not persuasive. The validity of a search does not turn on the actual motivations of the individual officers. (Whren v. United States (1996) 517 U.S. 806, 813.)