P. v. Bradford

Filed 5/31/07 P. v. Bradford CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Darnell Dwayne Bradford appeals from a judgment entered upon his plea of no contest to possessing cocaine base for sale. He challenges the trial courts denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, subdivision (i).[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented at the combined preliminary and motion to suppress hearing established that at 12:47 a.m. on August 20, 2005, California Highway Patrol Sergeant Roland Rogers, with 26 years of experience, was on duty parked in his patrol car in East Palo Alto. The officer heard a radio broadcast concerning the pursuit of a car by an East Palo Alto police officer. The fleeing car was described as a silver Pontiac with a Support Our Troops ribbon on the rear of the car with four black adult male occupants.

As Rogers made a turn at a nearby intersection, he saw a silver Pontiac coming towards him, and then pass by in excess of 80 miles per hour. Rogers only saw the front of the vehicle, which had a red dealer placard instead of a license plate. Because the car went by so fast, Rogers did not have a chance to see the rear of the car. Rogers concentrated on looking at the driver, a black male, and did not notice if the car had any other occupants. Several seconds later, Rogers saw an East Palo Alto police car, with its siren on, passing his location. Rogers did not join in the pursuit and he later learned that the chase had ended because of the high speed.

Four days later, on August 24th, at about 8 p.m., Rogers was again on duty in East Palo Alto, when he saw appellant pumping gas into a silver Pontiac Grand Am at a gas station. Turning his car so that he could see the rear of the Pontiac, Rogers saw a Support Our Troops ribbon attached to the left rear of the car. Although the Pontiac had license plates and no red dealer placard on its front, Rogers still believed that the car was the same one he had seen four days earlier because license plates are easily installed and removed, and they are frequently used by people committing crimes to conceal the identity of the vehicle. Rogers, however, had no other reason to believe that the plates on the Pontiac had been switched.

Believing the Pontiac was the same car that he had seen on August 20th, Rogers called the East Palo Alto police dispatch to see if the officer involved in the earlier incident was available to identify the car. Rogers was told the officer was not on duty that evening. Rogers also gave the dispatcher the license plate number on the Pontiac, and was told that there were no wants on it.

After speaking with the police dispatcher, Rogers moved his car into the gas station and parked alongside the Pontiac. Rogers got out of his car and approached appellant, who was then walking back from the cashier to the Pontiac. Appellant asked the officer what the problem was. Rogers said that the Pontiac matched the description of a car involved in a pursuit a few days earlier. Appellant replied that he had not been involved in the incident. Rogers again stated that the Pontiac matched the description, including the sticker on the rear. Appellant replied that the car belonged to his girlfriend and he had not been involved.

At that point, Rogers asked appellant for identification. When appellant moved very quickly to get into his car, Rogers thought that appellant might be leaving, and told him, Hey, hey, hold on, dont go anywhere, I need to see some identification. Appellant removed his wallet from the cars glove compartment, and got out of the car at Rogerss request. By that time, two other highway patrol officers, Officers Hiatt and Novosel had arrived at the scene. Those officers parked their car more or less behind Rogerss car. The officers got out and stood near appellant.

Rogers checked appellants identification and called in his name to the police radio dispatcher, who informed Rogers that appellant was on active parole but he had no active warrants. When Rogers turned around, he saw that appellant was becoming increasingly nervous, looking around the area. And then at that point he put both of his hands into the pockets at the front of his sweatshirt. Believing that appellant might be retrieving a weapon, Rogers placed both his hands over the sweatshirt and grabbed appellants clinched hands, telling him not to move. Rogers asked appellant to unclench his hands and remove them. Appellant opened his right hand and Rogers removed it from inside the sweatshirt, but appellant failed to open his left hand, which remained inside the sweatshirt. After Rogers repeated the request that appellant relax his hand, appellant ran to his left. Rogers retained his grasp on appellants sweatshirt pocket, which stretched and tore, allowing appellant to break free of the officers grasp. The other officers ran after appellant, and tackled and subdued him about 15 yards to the rear of the Pontiac. After a short struggle, appellant was restrained and handcuffed by Rogers. Rogers found two clear plastic baggies lying on the ground at the left side of appellants car where appellant had been standing when he spoke with the officer. The officer had not seen the baggies before appellant ran away. The parties stipulated that the baggies contained 30.47 grams of a substance of which 6.27 grams was analyzed and found to contain cocaine base, which was a usable amount possessed for sale. After his arrest, and without prompting, appellant apologized and asserted that he was just delivering the two baggies. After he was taken to the police station and waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant told the police that he had received $70 from an unnamed person to deliver the cocaine.

The parties stipulated that if called as a witness, East Palo Alto Police Officer Frayer would testify that in the early morning hours of August 20, he was chasing a silver Pontiac Grand Am that had a yellow Support Our Troops sticker on the rear of the car, but that the officer could not recall the number of occupants in the car. The parties also stipulated that Frayer did not transmit the color of the sticker, but it was broadcasted that there were multiple subjects in the car that was being pursued for a traffic infraction.

Following argument by counsel, the magistrate[2] held appellant to answer after denying his motion to suppress having listened to the testimony, certainly mindful of the arguments of counsel, and having reviewed the documentation in question.[3]

The District Attorney filed an information charging appellant with possessing cocaine base for sale (Health & Saf. Code,  11351.5), transporting or attempting to transport cocaine base (Health & Saf. Code,  11352), resisting arrest ( 148, subd. (a)(1)), and alleging several sentence enhancements based on prior convictions. Appellant filed a combined renewed motion to suppress under section 1538.5, subdivision (i) and a motion to dismiss the information under section 995 based on the denial of his suppression motion at the preliminary hearing. At the hearing on appellants motions, the prosecutor recalled Sergeant Rogers to testify regarding whether or not the officer had reasonable suspicion to detain appellant.

Rogers testified regarding his activities in the early morning hours of August 20. He recalled hearing a broadcast regarding a police pursuit of a silver Pontiac, that had a Support Our Troops ribbon on the back of the vehicle. The officer did not recall if the color of the ribbon was broadcast, and no particular Pontiac model was provided in the dispatch. About 20 to 30 seconds after the radio dispatch, Rogers saw a silver Pontiac Grand Am, and several seconds later he saw a police vehicle, with its reds activated and its sirens going. The front of the Pontiac had a dealer placard with no numbers on it. Although the broadcast indicated that there were multiple people in the fleeing car, Rogers concentrated on looking at the driver so he did not notice if there were other people in the car. Rogers did not join the pursuit because it was cancelled at that point because of the high speed. Rogers did not know if the driver of the car on August 20 was ever apprehended. Rogers knew that evading a police officer could be a felony offense. The officer later learned that the initial reason for the police officers attempt to stop the fleeing vehicle was a traffic matter.

Rogers described in greater detail the driver of the Pontiac he had seen on August 20. According to Rogers, the driver was a [b]lack male in his mid-twenties, early thirties, with close-cropped hair and medium build. Rogerss view of the driver was limited to the drivers head and the top of his shoulders and he did not know what the driver was wearing or his height. Rogers described appellants appearance at the hearing as a little over six feet tall, more than 170 pounds in weight, and his age as mid-twenties, early thirties.

Rogers also testified regarding his activities on August 24. Rogers saw a silver Pontiac Grand Am at a gas station that was located just a couple of blocks from where the officer had seen the Pontiac four days earlier. The car had a blue Support Our Troops sticker affixed to the rear. When asked the significance of seeing the Pontiac at the gas station, Rogers replied that the Pontiac exactly matched the description of the vehicle that had been involved in a pursuit. Although the officer did not know the model year of the cars he had seen on August 20 and August 24, both cars were late models. However, at the gas station, the Pontiac had front and rear license plates that came back clear in that there were no wants, and match[ed] the car. The officer did not recall whether the plate check indicated that the cars owner was male or female. Nor did the officer recall the registration year. As a normal practice, when the officer checked a license plate, he was not told when the plate was issued, but if he had asked for that information it could be provided. The license plates on the Pontiac were affixed with a couple of screws that were easily removed.

Rogerss conduct was not affected by the fact that Pontiac he saw on August 24 did not have a dealer placard. Rogers knew from his experience that license plates are usually changed, switched, removed, to conceal the identity of vehicles. He thought he might have the car that was involved in the earlier pursuit and appellants appearance was consistent with the individual he had seen driving the Pontiac on August 20. In response to defense counsels questioning, Rogers indicated that he had seen a cars legitimate license plate changed to a dealers plate. But, he could not say that he had ever seen a car involved in a pursuit with presumably dealer plates switched to issued license plates. Rogers did not have a specific reason to think that the Pontiacs plates had been switched, but just [knew] it was a possibility.

Rogers again testified regarding his initial encounter with appellant. As the officer approached him, appellant asked the officer what was going on. Rogers explained that the Pontiac in the gas station matched the description of the car involved in a pursuit that had occurred earlier, but appellant replied, It wasnt me, and that the car belonged to his girlfriend. Rogers was somewhat skeptical of appellants responses because the car exactly matched the description. It was a silver Grand Am with a Support Our Troops ribbon on the back. And, appellant generally matched the description of the driver the officer recalled seeing on August 20th.

Rogers asked to see appellants identification, which was standard procedure for the officer in that situation. Appellant responded by very quickly getting into the drivers seat of the Pontiac; Rogers did not recall that appellant said anything at that time. Believing that appellant was going to leave, Rogers told appellant to stop and informed him that he was not to go anywhere. The officer detained appellant at that point because he believed appellants car was the same car that had been involved in the pursuit four days earlier, despite that the license plates did not match. The officer also believed appellant matched the description of the driver of the car on August 20th because appellant was a black male of the same age, range, and of the same general build.

The trial court[4] noted that it had reviewed the preliminary hearing transcript and defense counsels memorandum of points and authorities. It denied appellants motion to suppress, finding that Sergeant Rogers had reasonable suspicion to detain appellant for an investigative detention, because he had a subjective belief that [appellant] had been involved in wrongdoing, and that it was objectively reasonable for the officer to entertain that suspicion. The court also denied appellants motion to dismiss the information.

Following the denial of his motions, appellant pleaded no contest to possessing for sale cocaine base, and he admitted to five sentence enhancement allegations; the other charges and sentence enhancement allegations were dismissed. The court imposed the middle term of four years on the possession count to be served consecutively to three years imposed on the sentence enhancement allegation, with credit for time served of 445 days. The court stayed the other enhancement allegations for purposes of sentencing. This appeal ensued.

DISCUSSION

The rules of review of denial of a motion to suppress are well established. This court reviews the explicit and implicit factual findings to determine if they are supported by substantial evidence. [Citation.] We then exercise our independent judgment to determine if the facts found by the trial court establish a seizure in violation of the Fourth Amendment. [Citation.] (People v. Hester (2004) 119 Cal.App.4th 376, 385.)[5]

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; see Terry v. Ohio (1968) 392 U.S. 1, 22; In re Tony C. (1978) 21 Cal.3d 888, 893, superseded by constitutional amendment on another point.) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [the] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . . (In re Tony C., supra, 21 Cal.3d at p. 894.) Because  each case [involving detention for questioning or limited investigation] must be decided on its own facts . . . [t]he guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution . . . is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. [Citation.] [Citation.] (In re James D. (1987) 43 Cal.3d 903, 913-914.) [W]here a reasonable suspicion of criminal activity exists, the public rightfully expects a police officer to inquire into such circumstances in the proper exercise of the officers duties. [Citation.]  (People v. Wells (2006) 38 Cal.4th 1078, 1083.)

Appellant argues that when Sergeant Rogers detained him requesting his identification, the officer did not have a reasonable suspicion that appellant and the car he was driving on August 24 were involved in the incident on August 20 because the facts known to the officer were too general and speculative to confer a reasonable suspicion. Given the discrepancy in license plates and the generic nature of the drivers description, appellant contends that Rogers acted on only a hunch, albeit in good faith, instead of the specific and articulable facts required by the Fourth Amendment. We disagree.

The information both personally known to Sergeant Rogers and broadcast by the East Palo Alto police dispatcher regarding the car and driver involved in the August 20th incident was sufficient to give rise to reasonable suspicion justifying Sergeant Rogerss initial stop of appellant to question him about the earlier incident. The discrepancy in the license plates of the cars did not preclude the officer from stopping to investigate whether the Pontiac at the gas station might have been involved in the earlier incident. (See People v. Saunders (2006) 38 Cal.4th 1129, 1136 [the possibility of an innocent explanation does not preclude an officer from effecting a stop to investigate an ambiguity].) Further, that appellant appeared to match the description of the driver seen by Sergeant Rogers four days earlier, although not by [itself] enough to support an ultimate charge of complicity, w[as] enough to arouse a rational suspicion of complicity sufficient to justify, if not to require, detention and further investigation, in that it included, rather than excluded, appellant from being the possible driver. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1092-1093.) The cases cited by appellant do not warrant a contrary conclusion.

Sergeant Rogerss request for identification from appellant did notby itselfescalate the encounter to a detention. [Citations.] (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) Believing that appellant was going to drive away, the officer asked appellant to stop and submit his identification to the officer. While the officers action at that point constituted a detention, he was merely being diligent in his investigation. (See United States v. Sharpe (1985) 470 U.S. 675, 686.) Even if appellant was not attempting to elude the officer when he returned very quickly to the Pontiac, appellants conduct made it necessary for the officer to tell him to stop so that the officer could see his identification. (See Id. at p. 688, fn. 6.) Appellants argument that it is highly unlikely that a person would try to jump into a car and flee with three officers so close by is not persuasive. The officers police cars were not blocking appellants car and all three officers were outside their cars at the time that appellant very quickly returned to his car.

Also, we are not persuaded by appellants argument that the circumstances confronting Sergeant Rogers when he saw the Pontiac parked at the gas station had neither the certainty nor urgency of potential harm warranting detention. The issue is not urgency of potential harm or certainty but rather whether the officer had reasonable suspicion to detain appellant while he investigated appellants potential involvement in the earlier pursuit. On this record, we conclude that appellants detention was not predicated on mere curiosity, rumor, or hunch, but rather on specific and articulable facts as required by the Fourth Amendment. Accordingly, the trial court properly denied appellants motion to suppress evidence.

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Parrilli, J.

_________________________

Pollak, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

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

[2] The combined preliminary and motion to suppress hearing was held before the Honorable H. James Ellis.

[3] The court admitted into evidence a photograph of the rear of the silver Pontiac impounded by the police on August 24, photographs of the baggies found by Sergeant Rogers, and a photograph of the area where the two baggies were found on the ground, one being directly next to the left rear tire of the Pontiac.

[4] The hearing on appellants renewed motion to suppress and his motion to dismiss the information was held before the Honorable Thomas McGinn Smith.

[5] In passing on a renewed motion to suppress, the defendant is entitled to review of the magistrates legal conclusion on the suppression motion and to a de novo determination on any new evidence presented in the superior court. ( 1538.5, subd. (i).) In a [section] 995 proceeding, the court merely reviews the evidence. It does not substitute its judgment as to the weight thereof or the credibility of the witnesses who testified at the hearing nor does it resolve conflicting factual contentions. [Citations.] The function is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a judgment and involves the determination of a legal issue only. [Citation.] On appeal concerning a renewed motion to suppress, it is the de novo determination of the superior court that is reviewed; on appeal concerning a section 995 review of a motion-to-suppress denial, it is the determination of the magistrate at the preliminary hearing that is reviewed. [Citation.] (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)