P. v. Flores

Filed 9/29/06 P. v. Flores CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.

After the court denied a motion to suppress evidence (Pen. Code, § 1538.5),^[1] Lamberto Flores entered a negotiated guilty plea to being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced him to a stipulated 32 months in prison: double the 16-month lower term for possessing a firearm with a prior strike. Flores contends the trial court erred in denying the motion to suppress evidence based on an illegal patdown search.FACTS

During the afternoon of July 13, 2005, the Chula Vista Police Department received a telephone call to check on the welfare of two individuals who appeared to be passed out in a car. Officers Lumb, Coulson, and Craft responded about one hour and 40 minutes later, and saw a convertible car, with the top up, parked on the street. Inside, they observed two men with tattoos who were wearing gang-type clothing and who were sleeping and sweating profusely. The man sitting in the driver's seat was later identified as Flores. Officer Lumb noticed that one of Flores's tattoos depicted a gun. The officers also noticed that the convertible top looked like it had been broken into and the ignition was damaged. The back window of the car had been pushed in, and the canvas top of the vehicle had a three- to four-inch tear in the fabric, large enough to allow someone to reach in and open the vehicle. There was a key in the ignition, and another key attached to the key ring. The plastic housing on the ignition was "all damaged and broken out."

Given the condition of the car, the officers suspected the car had been stolen. Officer Craft went to his nearby patrol car and, using his radio, checked the license plate number, obtained the address of the registered owner, and learned that the vehicle had not been reported stolen. However, Officer Craft was suspicious that the car had been stolen but not yet reported because the car was not parked directly in front of the registered owner's home, the ignition was "broken out," the men were sleeping in the car during the day, and the convertible top was damaged.^[2] Officer Craft also thought the men might be under the influence of drugs, given the unusual situation of them sleeping in a car in the middle of the day when the temperature was in the 90's.

While Officer Craft was receiving the information from the license plate check, Flores began to "stir about" but then went back to sleep. Believing the situation could get out of hand and that "anything could happen," and knowing the officers were in the midst of a possible felony investigation and needed to take control of the situation, Officer Craft opened the passenger door and ordered the passenger out of the car. Because of the suspicion that the men were gang members and that the vehicle was stolen, the officers believed the men could be armed. The officers also considered that a weapon could have been used to create the tear in the convertible top. Officer Lumb patted the passenger down and found a fighting-type knife^[3] designed for "cutting and slashing" in his pocket. Officer Lumb then ordered Flores from the car, handcuffed him, patted him down, and found a loaded firearm in his pocket. In 2003, Flores had been convicted of attempted robbery, a prior strike.

DISCUSSION

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. 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. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Flores argues he was unlawfully detained and the patdown search denied him his Fourth Amendment right to be free of an unreasonable search.

The Fourth Amendment requires suppression of evidence obtained during an unreasonable detention. However, not every encounter between a police officer and a citizen is a detention. Police may approach citizens for the purpose of crime prevention such as investigatory stops, without any "objective justification." (United States v. Mendenhall (1980) 446 U.S. 544, 553-554.) Whether an encounter with a police officer is consensual or a detention and seizure for Fourth Amendment purposes depends on whether "'a reasonable person would have believed he was not free to leave.' [Citation.]" (Florida v. Royer (1983) 460 U.S. 491, 501-502.)

Here, Officers Lumb, Craft, and Coulson responded to a report that two suspects were passed out inside a vehicle. The officers approached the parked car and looked inside the vehicle to check on the occupants' welfare. At this point, no detention had occurred. In plain view from a place the officers had a right to be (see Harris v. United States (1968) 390 U.S. 234, 236), they saw two men with tattoos, wearing gang-type clothing and sleeping in the car on a hot afternoon; a tear through the vehicle's convertible top large enough to place an arm through; and the rear window pushed in. When Officer Craft noticed that the ignition had been damaged, he suspected the car was stolen and went to the patrol car to conduct a radio check. Officer Lumb, who was a certified auto theft expert, also believed the car may have been stolen.

When Officer Craft received information from the dispatcher that the car had not been reported stolen and that the registered owner lived nearby, he believed there was a possibility the owner had not yet reported the vehicle stolen. Just as he was receiving this information, Flores, who was in the driver's seat, began to move. Believing that this created a potential danger, and knowing that he and his fellow officers had encountered two possible gang members who may have stolen the car and may be under the influence of drugs, Officer Craft believed it necessary to take control of the situation. He told the passenger to get out of the car and Officer Lumb ordered Flores, the driver, out. In the subsequent patdowns, the officers discovered a fighting knife in the passenger's pocket and a loaded gun in Flores's pocket. At this point, the occupants of the car were obviously not free to leave and were detained.

A police officer may detain an individual when the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio (1968) 392 U.S. l, 21.) The specific and articulable facts must be such as to cause a reasonable police officer in a like position, drawing on his training and experience, to believe activity relating to a crime has taken place, is occurring or is about to occur, and the person he intends to detain is involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.)

The damaged ignition, together with the tear in the convertible top, were adequate specific and articulable facts to justify the officers' detention of Flores and his companion until the officers completed their investigation of possible auto theft. Although the officers received the dispatcher's report that the car had not been reported stolen, this did not eliminate their cause to detain Flores and his companion. Based on prior experience, they had reason to believe the car may not yet have been reported stolen and were entitled to fully investigate the possible offense. The detention was reasonable.

Likewise, when an officer has sufficient cause to detain a suspect and the officer reasonably believes the suspect is armed and a threat to the officer's safety, the officer may pat down the suspect. (Terry v. Ohio, supra, 392 U.S. at p. 28.) The test for a patdown search 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 officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous." (People v. Dickey (1994) 21 Cal.App.4th 952, 956.)

Before the police conducted the patdown search of Flores, they found a fighting-type knife in Flores's companion's possession. We need not consider whether the patdown search of Flores's companion was permissible because Flores had no reasonable expectation of privacy in his companion's person and thus could not challenge the use of the evidence derived from that search. (See People v. Llamas (1991) 235 Cal.App.3d 441, 445-446; People v. Madrid (1992) 7 Cal.App.4th 1888, 1895-1898; People v. Badgett (1995) 10 Cal.4th 330, 353; People v. Ayala (2000) 23 Cal.4th 225, 254-255, and fn. 3.) Once the police found that Flores's companion was armed--combined with the other circumstances including the possibility the men had stolen the vehicle, were gang members, and were under the influence of drugs--the police had specific, articulable facts justifying a patdown search of Flores for weapons. The police could also reasonably consider that the damage to the ignition and particularly to the convertible top may have been made by using a weapon, and the fact that Flores had a gun tattooed on one of his arms. The totality of the circumstances provided the officers with a reasonable suspicion that Flores might be armed. Thus, the patdown search of Flores was permissible.

Flores discusses at length the fact that the call reporting the men sleeping in the car was an anonymous call, and that there was no showing the anonymous caller was reliable. This is irrelevant to the validity of the search. While the officers initially investigated the car and its occupants in response to an anonymous report regarding the welfare of men sleeping in a car, it was their own plain view observations that caused them to change their focus from a check on the occupants' welfare to a possible stolen vehicle investigation. The officers were lawfully detaining the occupants of the car when they conducted the patdown searches.

Relying on People v. Hester (2004) 119 Cal.App.4th 376, Flores argues that his possible gang membership did not justify the patdown search. In People v. Hester, the reviewing court held that "[m]ere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention." (Id. at p. 392.) Here, as discussed above, the facts showed more than a mere suspicion of gang membership, but included the discovery of the knife on Flores's companion, and the possibility that Flores and his companion may have stolen a vehicle, may have used a weapon to gain access to the vehicle, and may have been under the influence of drugs. These circumstances, considered in their totality, supported both the detention and the patdown search of Flores.

DISPOSITION

The judgment is affirmed.

HALLER, J., Acting P.J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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

^[2] When formulating his suspicion that the car was stolen, Officer Lumb also considered that vehicle owners typically have more than two keys on their key rings and he was aware that car thieves use "shaved" keys employable in multiple ignitions.

^[3] The knife was encased in a plastic sheath and had a sharp hook to the blade, as well as a finger hole.