P. v. Rocha

Filed 10/19/06 P. v. Rocha 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Tulare County. Darryl B. Ferguson, Judge.

Matthew Alger, 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, Carlos A. Martinez and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant was sentenced to nine years in prison after pleading guilty to transportation for sale of cocaine (Health & Saf. Code, § 11352), transportation of methamphetamine (Health & Saf. Code, § 11379), possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of a smoking device (Health & Saf. Code, § 11364) and possession of ammunition by a felon (Pen. Code, § 12316, subd. (a)(1)). Defendant also admitted the special allegation he was armed with a firearm (Pen. Code, § 12022, subd. (c)) and had a prior narcotics conviction (Pen. Code, § 1203.07, subd. (a)(11) & Health & Saf. Code, § 11370.2). He appeals from the denial of his suppression motion contending that law enforcement officers were not justified in detaining him. (Pen. Code, § 1538.5, subd. (m).) We affirm.

FACTS

On May 26, 2004, Kings County Sheriff’s Deputies were searching for a suspect in room 210 of the Tagus Inn Motel located near Tulare. Tulare County law enforcement authorities were contacted and an Inter-Agency Narcotics Task Force Team responded, arriving at the motel at approximately 9:00 a.m. They contacted occupants of several motel rooms. Search warrants were obtained and served. Laboratory material for manufacturing methamphetamine was discovered in a motor home associated with one of the rooms. Quantities of methamphetamine, cocaine, heroin, pseudoephedrine tablets and cash were found in four of the rooms. Also found were scales and weapons. Officers were informed that a man had rented one of the rooms, placed narcotics inside and arranged for someone else to sell the narcotics from the room. The man who actually rented the room was not present.

The occupant of one room where narcotics had been found had a brother who arrived at the motel during the narcotics investigation. His vehicle was stopped and found to contain narcotics and money. Two other vehicles also arrived with narcotics. There was a large quantity of red phosphorous in one of those vehicles.

After the searches were completed, several task force officers remained at the motel and waited for a state Department of Justice crew to arrive to remove the hazardous material from the motor home. It was anticipated that people wanting to purchase narcotics would come to the motel and that a suspect who had been staying in one of the rooms might also arrive.

At 11:35 p.m., a gray Mazda 626 automobile pulled into the motel’s parking lot and drove past room 223, a room where narcotics had been found. The agents were dressed in plain clothes but had their badges on cords draped around their necks. The car approached Tulare County Sheriff’s Investigator, Lance Heiden, with its headlights on.

When he saw the vehicle, Heiden intended to contact the occupants in order to determine whether they had any connection with the motel rooms in which narcotics had been found. Deputies Heiden and Benitez walked up to the Mazda and Benitez announced, “Sheriff’s Department.” The vehicle then made an abrupt U-turn to exit the parking lot. The driver’s U-turn caused Heiden to believe the driver realized the deputies were police officers and heightened his suspicions of the vehicle’s occupants.

Sheriff’s Detective Hallun stepped toward the front of the Mazda and told the driver to stop. The vehicle then stopped. As the officers approached the car, Sheriff’s Sergeant McElhaney stated that defendant, who was driving, made a furtive movement as if he was putting something underneath the seat. Defendant was asked to step out of the car at which time Heiden noticed a glass methamphetamine smoking pipe between the two front seats. A search of defendant’s car revealed a loaded handgun under his seat, a methamphetamine smoking pipe, methamphetamine, a digital scale, pay-owe sheets with dollar and narcotic amounts, an illegal rifle, ammunition, a set of lug chains, packaging material commonly used for drugs and a $27,763 tax refund check believed stolen from an innocent third party.

A search of defendant revealed a large amount of cash and a vial of methamphetamine. During the search, officers answered defendant’s cell phone. The first caller asked for defendant by name and an “eight-ball.” A second caller asked for a “twenty.”^[1] During a search of defendant’s residence on July 17, 2004, police found 10.8 grams of methamphetamine, a digital scale, video surveillance cameras and a methamphetamine smoking pipe.

Defendant was charged in a first amended complaint with the commission of 10 felony counts relating to the possession for sale and transportation of narcotics, receiving stolen property, possession of a short-barreled shotgun, possession of a sap and possession of a firearm by a convicted felon. It was also alleged that he was armed with a firearm and had a prior narcotics conviction.

Defendant filed a motion to suppress the evidence against him pursuant to Penal Code section 1538.5. The magistrate denied the motion. He was held to answer at a preliminary hearing. An information was filed adding felony charges of possession of ammunition and carrying a loaded firearm by a convicted felon and a misdemeanor count of possession of a device for smoking a controlled substance. The possession for sale of cocaine and receiving stolen property charges alleged in the first amended complaint were not included in the information. Defendant pled not guilty and denied the allegations alleged in the information.

Defendant filed a renewed motion to suppress which was also denied. The trial court gave an indicated maximum term of nine years. Defendant entered a change of plea. At sentencing he was denied probation and sentenced to nine years in prison. He filed a timely notice of appeal from the denial of the motion to suppress.

DISCUSSION

Defendant contends that he was unjustifiably “detained” by the officers, resulting in an unconstitutional search and seizure. The People contend that the police did no more than attempt a “consensual encounter” but, even if it was a detention, it was justified.

Police contacts with citizens can take three forms: consensual encounters, detentions or arrests. Consensual encounters do not implicate an individual’s liberty interests because the citizen is free to leave, refuse to answer questions or decline to act in a manner requested by police. (Wilson v. Superior Court (1983) 34 Cal.3d 777.) A consensual encounter becomes a detention when “a reasonable person would have believed he was not free to leave.” (United States v. Mendenhall (1980) 446 U.S. 544, 554 (plur. opn. of Stuart, J.); Wilson, supra, 34 Cal.3d at p. 790.)

Defendant contends that Detective Hallun stopped him with a show of authority amounting to a seizure within the meaning of the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1; United States v. Mendenhall, supra, 446 U.S. 544.) Defendant argues that there was a detention when the two officers walked toward him and one stated, “Sheriff’s Department.” The lower court concluded that there was a detention after the car made a U-turn and the officers told the driver to stop, a conclusion with which the People agree. Thus, it is not necessary to decide whether there was a detention when the officers approached defendant’s vehicle and announced who they were, because there clearly was a detention after they ordered the car to stop. The evidence was seized thereafter. In other words, at the time of the search and seizure, a detention had occurred. The question then becomes whether the officers were justified in detaining defendant after he made the U-turn.

In reviewing a trial court’s ruling on a suppression motion, the appellate court defers to the trial court’s factual findings that are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Camacho (2000) 23 Cal.4th 824, 830.) The trial court sits as a finder of fact with the power to judge credibility, weigh evidence and draw inferences. (People v. Needham (2000) 79 Cal.App.4th 260, 265.) Whether a search is constitutionally reasonable, however, is a legal question upon which the court exercises independent judgment. (People v. Hughes, supra, at p. 327.) 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. (People v. Souza (1994) 9 Cal.4th 224, 231; United States v. Sokolow (1989) 490 U.S. 1, 7 [“the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause”]; United States v. Cortez (1981) 449 U.S. 411, 417 [“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”].) The reasonableness of a detention is determined based upon the totality of the circumstances. (United States v. Arvizu (2002) 534 U.S. 266, 273.)

We conclude the officers were justified in stopping defendant’s car and detaining defendant. A detention requires only a “minimal level of objective justification.” (Illinois v. Wardlow (2000) 528 U.S. 119.) At the time of defendant’s detention, the following circumstances existed that were known to the officers: at 11:30 p.m. defendant drove to a motel location where officers discovered a methamphetamine manufacturing and distribution operation involving three rooms and a motor home; some of the participants had not yet been captured or identified; several vehicles had driven to the same location earlier and narcotics were discovered in those vehicles; and, upon seeing the officers and after they verbally identified themselves as “Sheriff’s Department,” defendant attempted to leave the scene by making a sudden U-turn. Under the totality of these circumstances, the officers had a reasonable articulable suspicion that defendant might be involved in criminal activity. (People v. Souza, supra, 9 Cal.4th at p. 231.)

Defendant argues that his conduct was consistent with noncriminal behavior and therefore his detention was unreasonable. Yet, defendant concedes that the possibility of an innocent explanation does not necessarily defeat the existence of reasonable cause to detain. (People v. Glasier (1995) 11 Cal.4th 354, 373; In re Tony C. (1978) 21 Cal.3d 888, 894.) Flight alone is not a sufficient indication of involvement in criminal conduct (People v. Souza, supra, 9 Cal.4th at p. 239), but the possibility of an innocent explanation for a person’s flight from a police officer does not mean that the flight is irrelevant in determining reasonable cause to detain. (Id. at p. 233.) Here, the officers had more than flight upon which to base their suspicion that defendant might be engaged in criminal activity.

The officers had discovered a sizeable methamphetamine operation at this location. They had observed and arrested persons who drove to the location. They knew there were others involved who had not yet been identified or located. Defendant drove to the very location where the illegal narcotic activity had been discovered by officers earlier that day. The officers approached the vehicle, announced who they were and defendant made an abrupt U-turn before he was stopped. The officers’ suspicions that defendant was involved in criminal activity is supported by an articulable level of reasonable suspicion based on the totality of the circumstances presented.

DISPOSITION

The order denying defendant’s motion to suppress is affirmed.

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

^[1] The facts are taken from the hearing on defendant’s first motion to suppress.