P. v. Smith

Filed 3/22/07 P. v. Smith CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Hank M. Goldberg and Ann I. Jones, Judges. Affirmed.

Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Kevin Bernard Smith, Jr., challenges his possession of cocaine base and marijuana convictions on the ground the trial court erred by denying his suppression motion. We conclude the search of appellants pockets was incident to a lawful arrest, and the trial court properly denied the motion.

BACKGROUND AND PROCEDURAL HISTORY

Los Angeles Police Department Officer Pablo Soto and his partner observed appellant urinating on a wall. When questioned, appellant admitted that he possessed marijuana. Soto searched appellant and recovered 0.60 grams of marijuana and 8.47 grams of rock cocaine.

A jury convicted appellant of possession of cocaine base for personal use, as a lesser included offense of possession for sale, and misdemeanor possession of marijuana. Appellant admitted he had suffered one prior serious or violent felony conviction and served a prior prison term within the scope of Penal Code section 667.5, subdivision (b). The trial court granted appellants Penal Code section 1118.1 motion with respect to a misdemeanor charge of urinating in public. Appellant was placed on formal probation under the terms of Proposition 36.

DISCUSSION

Prior to trial, appellant moved to suppress the cocaine base and marijuana on the ground they were the product of an unconstitutional search.

At the hearing on the motion, Soto testified that he and his partner were patrolling in the vicinity of Congress Avenue and 25th Street at about 8:30 p.m. when they saw two men standing on the sidewalk facing each other. Appellants back was towards the officers, and the other man appeared to be talking to appellant. As the officers car approached the pair, the other man nodded his head up and down, turned around, and walked away. Appellant turned his back towards the officers and began urinating on a wall. Soto and his partner got out of their car and walked up to appellant. They did not have their guns out. Soto asked appellant What do you think you are doing? Appellant said he was just taking a leak and asked if he could do that. Soto said, not really. After appellant finished, Soto asked him if he had anything on him that Soto needed to be aware of. Appellant said he had a little weed in his pocket. Soto told appellant to turn around and put his hands atop his head. After appellant complied, Soto reached into appellants pocket, recovered the marijuana, and continued to search appellant. He found a large amount of rock cocaine in a different pocket.

Appellant testified that when he saw the police car come around the corner without its lights on, he already knew they were going to violate [his] rights. Before the officers even got out of their car, he told them his name and that he was not on parole or probation. He was facing the wall. They told him to put his hands on the wall. He complied, and they searched him and found the drugs. Appellant did not tell them he had marijuana.

The court stated it found Soto entirely credible. It further found as follows: [I]ts a high crime area. Defendant in fact, upon seeing the officers, moved away with his back turned towards the officers. That constituted a sufficient factual suspicion to support the initial stop. A consensual encounter ensued. The defendant was questioned with regards to whether or not he had any illegal narcotics on his person. He answered in the affirmative.  [] . . . []  With regards then to once [Soto] is told defendant has marijuana, that does create probable cause to arrest. All subsequent searches conducted by this officer or his partner . . . is [sic] a search pursuant to arrest. The court therefore denied the suppression motion. The court also concluded that whether or not the defendant was urinating in this instance is of no moment because the search didnt occur as a result of the urinating.

Appellant contends his motion to suppress was erroneously denied. He argues Sotos testimony was not credible, and the officers questions about contraband and his parole or probation status demonstrate that the encounter was not consensual. Instead, the encounter was a detention, because a reasonable person would not have felt he was free to leave.

A warrantless search is presumed to be illegal. (Mincey v. Arizona (1978) 437 U.S. 385, 390.) The prosecution always has the burden of justifying a warrantless search or seizure by proving that it fell within a recognized exception to the warrant requirement. (People v. Williams (1999) 20 Cal.4th 119, 130; In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128.)

In ruling upon a motion to suppress, the trial court evaluates the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. On review, we will uphold the trial courts express and/or implied findings on such matters if they are supported by substantial evidence, but we independently review the application of the relevant law to the facts. (Peoplev.Alvarez (1996) 14 Cal.4th 155, 182.)

The court expressly found Sotos testimony credible. We are bound by this determination, and appellants arguments to the contrary are unavailing. The jurys implicit determination that the cocaine base was not possessed for sale is irrelevant. The jury clearly believed the officers to the extent they testified about finding marijuana and cocaine base on appellant, and the jurys selection of a lesser included offense was not before the trial court at the time of the suppression motion. Because nothing in Sotos testimony was inherently implausible or impossible, we analyze the propriety of the courts denial of the motion on the basis of the version of events to which Soto testified.

The officers did not get out of the car or question appellant until they saw him urinating in public. Urinating in public violates Los Angeles Municipal Code section 41.47.2. The officers observation provided them with probable cause to arrest him. Nonetheless, they merely spoke to appellant, and asked him what he was doing, whether he was on probation or parole, and whether he possessed anything they should know about. They did not touch appellant, draw their guns, or place him in handcuffs. It appears that the status of the interaction remained a consensual encounter, which police officers need not justify. (People v. Hughes (2002) 27 Cal.4th 287, 327.) Even assuming, as appellant argues, that the nature of the officers questions about parole, probation and possessions transformed the encounter into a detention or arrest, appellants act of public urination provided the officers with probable cause to arrest him.

Appellants admission to Soto that he possessed marijuana provided the officers with additional probable cause to arrest him. Sotos ensuing order to appellant to turn around and place his hands on his head indicates Soto intended to arrest appellant at that time. A lawful custodial arrest justifies a contemporaneous warrantless search of the person arrested and the area into which he or she might reach to retrieve a weapon or destroy or conceal evidence. (Chimelv. California (1969) 395 U.S. 752, 762-763.) Accordingly, the search of appellants pockets--areas into which he could readily reach for a weapon or evidence--was constitutionally justifiable as incident to his lawful arrest for public urination and possession of marijuana.

The trial court therefore properly denied appellants motion to suppress.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

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