P. v. Thevenot
Filed 7/29/13 P. v. Thevenot CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER
THEVENOT,
Defendant and Appellant.
A135811
(Solano
County
Super. Ct.
No. FCR290498)
Defendant
Christopher Thevenot was convicted, following a jury trial, of one count of
facility (Pen. Code, § 4573.6
name="_ftnref1" title="">
(§ 667.5, subd. (b).) He raises only one
issue on appeal—the denial of his motion to suppress. He contends he was detained without
reasonable suspicion in violation of the Fourth
Amendment, and therefore the marijuana found during a subsequent body
cavity search should have been suppressed.
We conclude the detention was lawful, and affirm the judgment.
and Procedural Background
We
recite only the facts pertinent to the issue on appeal. On January
25, 2012, at around 5:29 p.m.,
Fairfield Police Department Community Service Officer Cathy Ramblas saw a White
male exit and enter a white 1992 Honda Civic parked in front of a house at 2014
Plum Tree Drive.
She called dispatch when, based on the license plate number, she
recognized the car as having been reported stolen. She reported seeing two White males occupying
the car, one wearing baggy shorts, whom she later identified as defendant.
Police
Officers Aaron Bertsch and his partner, Officer Burney, were assigned a rear
perimeter position one street east, at 2015 Orange Tree
Drive, which was in back of 2104 Plum Tree.
After knocking and receiving no response, Bertsch heard the side gate
being swung open with enough force to make a loud “bang.†He then saw defendant walk out from the backyard
at a “fairly quick pace.†Because
defendant matched the “general description†of the car theft suspect, the
officers drew their weapons and ordered defendant to the ground. Bertsch handcuffed defendant, identified him
by his Department of Corrections identification card, and contacted dispatch,
which reported there was an outstanding arrest warrant for a parole
violation. Bertsch then had dispatch
confirm the warrant, which it did.
Bertsch testified it took about two minutes for dispatch to confirm the
warrant. The “CAD†printout indicated
Bertsch’s first contact with dispatch occurred at 5:50 p.m., and at that point he was reporting he had taken
a suspect into custody. There was a
second contact at 6:07 p.m. by
Officer Ponce making a specific inquiry about defendant. The record does not contain the CAD printout,
nor was there any further testimony about the timing of the sequence of
events.
Defendant
was arrested and taken to the
County jail for processing, where he was strip searched. During the search, the correctional officer
directed defendant to spread his buttocks with his hands, squat and cough
twice. A small object, a wrapped bundle
with a green leafy substance inside, fell out of defendant’s rectum. Defendant later told an interviewing officer
the bundle contained marijuana.
Criminalist Denise Lyons tested the recovered material and found it to
be 0.59 grams of marijuana, a usable amount.
The
Solano County District Attorney filed an information on February 15, 2012, charging
defendant with one count of possession of illegal substances in a jail facility
(§ 4573.6) and further alleging three prior prison terms (§ 667.5, subd.
(b)).
Defendant
moved to suppress the marijuana found during the strip search. Following a hearing, the trial court ruled
the “brief investigatory detention . . . appear[ed] to be supported by the
facts under the circumstances.†Given
the report of a possible felony in progress, the close proximity to where the
car was parked, and defendant’s opening of the gate in a “manner that was not
typical, certainly enough to heighten the officer’s level of suspicion,†the
court found the detention was “reasonable.â€
“[W]hether it be one minute or 15 minutes, it does appear they did
determine not only was there an outstanding parole warrant, there was indeed
probable cause to arrest for the underlying car theft . . . .†The court accordingly denied the
Following
his conviction of the possession charge and a finding the three prison priors
were true, the trial court suspended imposition of judgment and placed
defendant on three years’ formal probation, subject to various terms and
conditions.
“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.†(People v. Glaser (1995) 11 Cal.4th
354, 362.) In cases where the facts are
essentially undisputed, we independently determine the constitutionality of the
challenged search or seizure. (People
v. Balint (2006) 138 Cal.App.4th 200, 205.)
“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.) The standard
for reasonable suspicion is less than for probable cause. Moreover, the observed conduct need not be
inherently criminal. “[W]holly lawful
conduct might justify the suspicion that criminal activity was afoot.†(Reid
v. Georgia (1980) 448 U.S. 438, 441.)
Defendant
maintains there was no reasonable suspicion to detain him and he was detained
solely on the basis of his race and gender—“[a] vague description [that] does
not, standing alone, provide reasonable grounds to detain all persons falling
within that description.†(
220 Cal.App.3d 372, 381–382.) He
relies principally on In re Tony C. (1978)
21 Cal.3d 888, 896–898,
name="_ftnref3" title="">[3]
there was no reasonable suspicion to detain two Black males walking at noon in
an area where burglaries had occurred, on the basis of their race alone.
Here,
however, Officer Bertsch did not detain defendant solely on the basis of his
race and gender. Rather, the officer
took into account a number of circumstances, including that the Orange Tree
house was behind the Plum Tree house, defendant acted in an atypical manner in
banging open the gate at the side of the Orange Tree house and walking away at
a “fairly quick pace,†defendant’s temporal and geographic proximity to
reported criminal activity, and the fact he was the only person in the
immediate area matching the description provided by the reporting officer,
which included race and gender. This
information, collectively, provided ample basis for a detention. That it appears 20 minutes elapsed between
Officer Ramblas’s report to dispatch and Officer Bertsch’s detention of
defendant is not an unreasonable time period and does not detract from the
sufficiency of the information known to the officers to establish reasonable
suspicion. Nor did the fact it may have
taken another 17 minutes to confirm the validity of the arrest warrant render
the detention unduly prolonged.
“[T]he
possibility that the circumstances are consistent with lawful activity does not
render a detention invalid, where the circumstances also raise a reasonable
suspicion of criminal activity. The
public rightfully expects a police officer to inquire into such circumstances;
indeed the principal function of the investigative stop is to resolve that
ambiguity.†(People
v. Dolliver (1986) 181 Cal.App.3d 49, 56; see also In re Tony C., supra,
21 Cal.3d at p. 894.)
We
therefore find nothing improper about Officer Bertsch’s detention of defendant,
and conclude the trial court did not err in denying his motion to
suppress. We therefore need not, and do
not, reach defendant’s argument that the officers’ subsequent discovery there
was a warrant out for his arrest did not dissipate the taint of the allegedly
unlawful detention, or the Attorney General’s argument that even if the
detention was unlawful, that conduct was too attenuated to the discovery of the
marijuana to justify suppressing it.
The
judgment is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
further statutory references are to the Penal Code unless otherwise indicated.
count of receiving stolen property, motor vehicle (§ 496d, subd. (a)), which
was later dismissed on the motion of a district attorney.
