P. v. Wright

Filed 3/7/07 P. v. Wright CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee Phillip Felice, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.

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Following the trial courts denial of appellants motion to suppress, he pled no contest to forcibly resisting arrest in violation of Penal Code section 69. He was sentenced to a three-year prison term. He appeals contending that the trial court erred in denying his motion to suppress. (Pen. Code,  1538.5, subd. (m).)

FACTS^[1]

On August 8, 2005, at about 6:30 p.m., Officers Hatcher and Jones, assigned to the Gang Unit, were patrolling in a marked police vehicle on Clyde Street. From a distance of 50 to 75 feet, Officer Hatcher saw appellant walking away from the duplex at 214 Clyde Street in the west alley. This area was known for high narcotic activity and gang activity. When appellant walked around a fence and bushes he saw the officers, stopped and turned around. He then immediately began running back toward the complex at 214 Clyde.

The officers exited the vehicle. Officer Jones pursued appellant telling him to Stop, Police. Officer Hatcher called in the incident and then joined the chase. Appellant entered the apartment at 214 Clyde, apartment B. During the chase appellant was told several times to stop which he failed to do.

Appellant entered the apartment after knocking and being let in. Officer Jones tried to enter the apartment but the door was pushed shut causing Jones to fall back. Jones subsequently pushed the door open and told Officer Hatcher that appellant was running into the bathroom. Hatcher pursued appellant and eventually forced entry into the bathroom where appellant was located. Officer Hatcher believed appellant was attempting to discard narcotics. On entering the bathroom, he observed appellant standing over the toilet dumping a clear plastic baggie with what he believed to be cocaine into the toilet. Officer Hatcher attempted to retrieve the items from the toilet and a struggle ensued with appellant. Appellant was arrested.

Sam Stewart lived with his girlfriend at 214 Clyde Street at apartment B. It was Mr. Stewart who let appellant into the apartment that day. Sam Stewart and appellant went to high school together and have known each other about 15 years. Appellant visited Stewarts apartment about once a week and stayed overnight about once every two weeks. Appellant kept a few outfits and some toiletries at his apartment. Appellant did not have a key to the apartment and had to be let in by Stewart or his girlfriend.

CONTENTIONS

Appellant contends that the motion to suppress should have been granted because the officers lacked probable cause to be in the apartment, exigent circumstances did not exist and the resisting arrest charge was the fruit of the illegal entry and arrest.

Respondent contends that appellant lacked standing to bring the motion to suppress. The initial detention of appellant was justified and his flight from the officers gave them probable cause to arrest him for violating Penal Code section 148. Their hot pursuit of appellant rendered their entry into the apartment lawful.

DISCUSSION

In reviewing a trial courts order on a motion to suppress, the appellate court must uphold the trial courts express or implied findings of fact if they are supported by substantial evidence. (People v. Loewen (1983) 35 Cal.3d 117, 123.)

In denying the motion to suppress, the court ruled that appellant did not have standing to object to the officers search of the apartment, including the bathroom; the officers were justified in attempting to detain defendant; and the officers were authorized to pursue him into the apartment.

Appellant contends that he has standing, there was an unlawful detention and therefore there was an unlawful pursuit into the apartment. Respondent claims appellant lacks standing. Respondent also contends the detention was lawful and therefore the pursuit into the apartment was justified. Respondent also notes that even if appellant had standing the apartment search was justified as a search incident to a lawful arrest. (Rawlings v. Kentucky (1980) 448 U.S. 98, 109-111.) This court intends to address the latter point first because it is dispositive and makes unnecessary any discussion about standing.

Law enforcement officers may detain persons for the purpose of investigating possible criminal activity. Before a lawful detention may be undertaken, there must be a rational suspicion that something out of the ordinary has taken place, that the activity is related to a crime and that the person detained is connected to the activity. The circumstances justifying the detention do not need to rise to the level of probable cause to make an arrest. The test is whether the circumstances are such as to indicate to a reasonable person that such a course is necessary to the proper discharge of the officers duties. (People v. Podesto (1976) 62 Cal.App.3d 708, 716; Terry v. Ohio (1968) 392 U.S. 1, 22.) Unparticularized suspicions or hunches of criminal activity are insufficient to justify a detention. (Terry, supra, at p. 27.)

In Illinois v. Wardlow (2000) 528 U.S. 119, defendant fled upon seeing police officers patrol an area known for heavy narcotics trafficking. Two officers stopped him and conducted a pat-down search for weapons, discovering a .38 caliber handgun. The court concluded that the detention did not violate the fourth amendment because the officers conduct was based on reasonably objective circumstances justifying a reasonable suspicion that criminal activity was afoot. Those circumstances were that the stop occurred in a high crime area and that the defendant fled upon seeing police officers. While noting that an individuals presence in an area of expected criminal activity is not enough by itself to support a reasonable particularized suspicion that the person is committing a crime, the court emphasized that defendants presence in an area known for heavy narcotics trafficking coupled with his headlong flight (id. at p. 120) upon seeing the officers satisfied the Terry standard that the officers have a reasonable articulable suspicion that criminal activity is afoot.

The instant case is similar to Wardlow in that the officers testified that the place where they encountered appellant was an area known for its gang and high narcotic activity and upon seeing the officers, appellant turned around and fled. These circumstances justified detaining appellant. Appellant concedes this point but argues that the officers did not have probable cause to arrest appellant simply for fleeing in a so-called high-crime area. Appellant was not arrested simply for fleeing in a so-called high-crime area. He was arrested because he failed to cooperate with officer commands that he stop incident to an unlawful detention. While it is true that the officers did not have probable cause to arrest appellant at the time he began his flight because at that time they only had a reasonable suspicion that he might be involved in criminal activity which would justify detention, his refusal to comply with their demands to stop pursuant to an unlawful detention gave them probable cause to believe that appellant was committing the crime of resisting arrest in violation of Penal Code section 148.

People v. Abes (1985) 174 Cal.App.3d 796 is instructive. There police were summoned to an apartment building to investigate possible PCP drug activity. Because he detected the odor of ether, which is flammable and explosive, he began evacuating tenants. When defendant Luna was ordered to evacuate, she did not move and as the officer approached her, she looked in his direction, turned and fled into an apartment closing the door. The officer then forced entry and arrested her. The defendant argued that People v. Ramey (1976) 16 Cal.3d 263, 276 [warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances] supported her motion to suppress the evidence. The magistrate held that Ramey did not apply. The appellate court agreed declaring that a suspect does not possess the right to resist lawful detention. The court also cited United States v. Santana (1976) 427 U.S. 38 in which the Supreme Court held an arrest and search to be valid where defendant stood in the open doorway of her home and then retreated into her home as the police approached and identified themselves. The officers continued through the open door and arrested her. The court held that defendant could not defeat an otherwise proper arrest by retreating into her house. The Abes court held that the very presence of exigent circumstances, namely a hot pursuit, rendered Ramey inapplicable. (People v. Abes, supra, 174 Cal.App.3d at p. 807.)

People v. Lloyd (1989) 216 Cal.App.3d 1425 (Lloyd) is directly applicable. There the court reasoned:

In this case Calvin was outside and had just gotten out of his car and locked it when the uniformed officer requested his drivers license and registration. This detention, adequately justified by the traffic violations committed in the officers presence (People v. Podesto, [supra,] 62 Cal.App.3d 708, 715), clearly began in a public place. Calvin refused to comply with the identification request, quickly walked away from the officer and proceeded first into a neighbors house and then into his own. With no right to resist this lawful detention (People v. Superior Court (Bowden) [(1976)] 65 Cal.App.3d at p. 523), Calvins conduct in quickly walking away from the officer rather than complying with the demand for identification provided the officer with probable cause to arrest him. (Pen. Code,  148.) Under the circumstances, the officers hot pursuit into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement. (United States v. Santana, supra, 427 U.S. at p. 43; People v. Abes, supra, 174 Cal.App.3d at pp. 806-807.) (Lloyd, supra, 216 Cal.App.3d at p. 1429.)

The Lloyd opinion also noted that the mere fact that the offenses justifying the initial detention arrest were misdemeanors was of no significance in determining the validity of the entry into a home without a warrant. (Lloyd, supra, 216 Cal.App.3d at p. 1430.)

In summary, the record establishes and appellant concedes that the police had reasonable suspicion to detain appellant under Illinois v. Wardlow, supra, 528 U.S. 119. Appellant refused to comply with the officers demands to stop. This gave the officers probable cause to arrest him. (Lloyd, supra, 216 Cal.App.3d at p. 1429.) Appellants escape into a residence during a hot pursuit qualifies as an exigent circumstance exception to the general rule that warrantless arrests within the home are unreasonable. (People v. Abes, supra, 174 Cal.App.3d 796.) And finally, a suspect may not defeat an otherwise lawful arrest by escaping into a private place. (United States v. Santana, supra, 427 U.S. 38.) Thus, the officers presence in the apartment was lawful.

The motion to suppress was properly denied.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Wiseman, J. and Kane. J.

^[1] The facts are taken from the evidence received at the suppression hearing on November 16, 2005.