Filed 5/24/17 P. v. Mielke CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
SAMUEL ROBERT MIELKE,
Defendant and Appellant.

A148026

(Sonoma County
Super. Ct. Nos. SCR-648223, SCR-652400)


Appellant Samuel Mielke was twice stopped in a rural area of Sonoma County and found to be a felon in possession of a firearm and ammunition. He moved in the trial court to suppress the evidence seized from him during those stops, but the trial court denied the motions, and Mielke pleaded no contest to the charges against him. In this appeal, he challenges the trial court’s refusal to suppress evidence seized during one of the stops, arguing that the law enforcement official lacked sufficient grounds to stop him. We disagree and affirm his conviction.
I.
FACTUAL AND PROCEDURAL
BACKGROUND

Mielke’s grandfather is part owner of an approximately 360-acre ranch in rural Sonoma County and allows hunting on his property, which is open, undeveloped, wooded land. The ranch is accessible from Pine Flat Road, a paved, single-lane road that runs about 11 to 12 miles starting from Highway 128 to a locked gate at the ranch. Deputy Preston Briggs, a deputy sheriff with the Sonoma County Sheriff’s Office, had permission to hunt and “recreationally shoot” on the ranch, and he also helped to maintain the roads there.
In December 2013, Deputy Briggs was about to go hunting when he encountered Mielke at the ranch. Deputy Briggs had never seen Mielke before and asked him if he planned to hunt. Mielke told Deputy Briggs that his grandfather was the owner of the property and that he was there to walk his dog. (There was later a dispute over whether Mielke in fact had permission to be at the ranch.) Around three months later, Deputy Briggs started noticing “strange incidents occurring up on the ranch,” including ammunition rounds left “all throughout the property” (not limited to the designated shooting area), targets left on the shooting range, garbage left on the property, “hundreds” of rounds left at the single cabin on the property, and the cabin left in disarray. Deputy Briggs conducted a records check on Mielke and learned that he had a felony conviction.
On April 23, 2014, Deputy Briggs went to the ranch with another sheriff’s deputy to go shooting. They were off-duty and out of uniform but carried firearms and had their badges. As they were preparing to shoot, they saw a silver Toyota Tacoma truck they had never seen before on the ranch driving on a dirt road. Concerned about the recent sightings of “ammunition being all over the property” and also aware that it was the start of the marijuana-growing season, the deputies got in their own personal (unmarked) truck and followed the Toyota for about a half mile. After the Toyota crested a hill, it parked, and Deputy Briggs saw Mielke get out and walk toward the deputies with a “large bulky item in his sweatshirt pocket” as he loaded a pistol magazine. Deputy Briggs told the other officer that Mielke was a convicted felon, and they got out of their own vehicle. Deputy Briggs showed his badge and firearm to Mielke, told him they were both off-duty deputies, directed Mielke to put his hands on his head, and asked Mielke if he was carrying a firearm in his sweatshirt. Deputy Briggs searched Mielke and found a loaded firearm, several loaded magazines, and approximately 400 rounds of ammunition. Mielke was arrested and charged with one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition. We will refer to the incident giving rise to this complaint as the April stop
Two months later, around 10:45 p.m. on June 24, 2014, Sonoma County Sheriff’s Deputy Michael Yoder was in the Larkfield area of Santa Rosa when he received a dispatch reporting that “numerous” shots had been fired in the area at the top of Pine Flat Road, “which is 11 miles up,” and that a vehicle was heard leaving the area. Deputy Yoder was aware that people went shooting in the area, but “not normally late at night like that.” He drove his sheriff’s office patrol vehicle to the area. He knew there was “a very wind[ing] road” to the area, and he “expedited” his response because he knew it would take whoever was in the area some time to come down. On his way to Pine Flat Road, Deputy Yoder spoke with Deputy Briggs, who told him about arresting Mielke in the same area in April. Deputy Briggs provided Deputy Yoder with Mielke’s name and described Mielke’s silver Toyota Tacoma truck.
Deputy Yoder arrived at Pine Flat Road, drove about two miles up the road toward the ranch, and had been driving for around 25 minutes when he passed a vehicle that was “very similar” to the one Briggs had described. Deputy Yoder turned around and tried to catch up with the truck (the only vehicle he had encountered on the road), but it took about a mile to do so because it appeared that the truck had sped up after passing Deputy Yoder. Once Deputy Yoder had caught up, he described the truck to dispatch and reported that it was “paper plated,” meaning it had no license plates. Deputy Briggs then told him that the truck matched Mielke’s truck. Deputy Yoder continued to follow the truck and stopped it after a second deputy arrived to provide backup. Deputy Yoder later explained that he pulled over Mielke’s truck “[b]ecause he was coming from the area of the reported gunfire, then coupled with the information I got from the other deputy of the type of vehicle and the prior incident. When I saw it, I assumed it was most likely connected to the shooting.”
After the truck pulled over, Deputy Yoder shouted at its two occupants to get out of the vehicle one at a time and to keep their hands where he could see them. Mielke, who had been driving the truck, and a female passenger got out of the vehicle, and police handcuffed both of them. Deputy Yoder walked to the truck to make sure no one else was inside. From the driver’s side door, Deputy Yoder saw “a fully loaded drum style rifle magazine” on the driver’s side floorboard. Deputy Yoder confirmed with dispatch that Mielke was a convicted felon. Deputy Yoder placed Mielke under arrest for being a felon in possession of ammunition. He then conducted a more thorough search of Mielke’s truck and found around 1,243 rounds of rifle ammunition “scattered all throughout the whole vehicle,” a rifle, and four magazines carrying various amounts of rounds. At some point Mielke’s passenger said that Mielke had thrown a firearm out of the truck when he saw the sheriff’s deputies, and the deputies found a revolver on the road around where Deputy Yoder had first seen Mielke’s truck. Mielke was charged in connection with this stop in a separate case with several offenses. We will refer to the incident giving rise to these charges as the June stop
Mielke filed motions to suppress evidence obtained during both his April and June stops under Penal Code section 1538.5. A magistrate judge held preliminary hearings together with hearings on both motions to suppress, and sheriff’s deputies who participated in Mielke’s arrests testified. The trial court denied Mielke’s motion to suppress evidence gathered during the April stop, and Mielke does not challenge that ruling on appeal. But he does challenge the court’s denial of his motion to suppress evidence gathered during the June stop. In the trial court, Mielke argued that the June stop was unlawful because police had insufficient information tying his truck to the report of shots having been fired between a half hour and an hour earlier. In denying the motion to suppress, the court found that the stop was reasonable under the totality of the circumstances, and it noted that before stopping Mielke’s truck, Deputy Yoder had confirmed that it matched the description of a truck that previously had been on the property and belonged to a felon.
Mielke was charged by consolidated felony information, which as later amended charged him with one felony count of being a felon in possession of a firearm (§ 29800, subd. (a)(1)—count 1) and one felony count of being a felon in possession of ammunition (§ 30305, subd. (a)(1)—count 2) in connection with the April stop; and two counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1)—counts 3, 5), one count of being a felon in possession of ammunition (§ 30305, subd. (a)(1)—count 4), and one misdemeanor count of destruction of evidence (§ 135—count 6) in connection with the June stop. Mielke sought to dismiss the information under section 995 and also renewed his previous suppression motions with the trial court. The court denied these motions.
Mielke pleaded no contest to all charges and admitted enhancement allegations. The trial court placed Mielke on three years of formal probation along with other terms, including six months in local custody.
II.
DISCUSSION
A. Deputy Yoder Had a Reasonable Suspicion Sufficient to Justify Stopping Mielke’s Truck.
Mielke challenges the trial court’s denial of his motion to suppress evidence gathered during the June stop. He argues that all evidence seized during this stop should have been suppressed because the sheriff’s deputies lacked a reasonable suspicion to detain him. He is mistaken.
The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures,” and “its protections extend to brief investigatory stops of . . . vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual’s right to personal security[]’ [citation] tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘ “may be afoot.” ’ ” (United States v. Arvizu (2002) 534 U.S. 266, 273, italics omitted.) In making reasonable-suspicion determinations, reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrong doing.” (Ibid.)
“Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, ‘the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.’ [Citation.] ‘We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.’ ” (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)
A seizure occurs for purposes of the Fourth Amendment whenever police restrain a person’s liberty, “either by physical force or an assertion of authority, to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave.” (People v. Hester (2004) 119 Cal.App.4th 376, 385.) Here, there is no dispute that Mielke was detained when Deputy Yoder pulled him over. The reasonableness of such a detention is determined by what Deputy Yoder knew before he acted, that is, whether he could “ ‘point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that [Mielke] may be involved in criminal activity.’ ” (Id. at p. 386.) Mielke claims that Deputy Yoder lacked such articulable facts and instead acted on a “hunch” because he “had no information connecting Mielke or his vehicle to the potential offense.” But undisputed evidence was presented to the contrary. This evidence indicates that Deputy Yoder did not pull over the truck until after he confirmed with Deputy Briggs that it matched the description of a truck of a felon who had been arrested in the area a few months earlier for unlawfully possessing a gun. This information was objective manifestation that the truck may have been involved in the activity giving rise to the report of shots having been fired in the area.
Mielke makes much of the fact that the report of shots having been fired lacked specificity, such as the exact location, the number of people involved, or a description of the vehicle heard leaving the area. But the information is sufficient to satisfy the reasonable-cause standard, which is “ ‘obviously less demanding than that for probable cause’ and can be established by ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ ” (People v. Souza (1994) 9 Cal.4th 224, 230.) “ ‘[R]easonable suspicion’ as a standard [is] less demanding than probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ ” (Id. at pp. 230-231, quoting Alabama v. White (1990) 496 U.S. 325, 330, italics added; see also United States v. Arvizu, supra, 534 U.S. at p. 273.)
For similar reasons, we reject Mielke’s argument that the report of shots having been fired did not establish that any illegal activity had necessarily occurred. For purposes of finding reasonable suspicion, it is sufficient that Deputy Yoder suspected that criminal activity “ ‘may be afoot.’ ” (United States v. Arvizu, supra, 534 U.S. at p. 273, italics added.) Deputy Yoder testified that it was unusual for shooting to take place in the area late at night, suggesting possible criminal activity. “[W]hile there are doubtless some reasonable explanations which might be conjured up, ‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.’ ” (People v. Foranyic (1998) 64 Cal.App.4th 186, 189, quoting In re Tony C. (1978) 21 Cal.3d 888, 894.) This is especially true given that the stop took place late at night, a time when less is required to support a finding of reasonable suspicion than the same activity done during the day. (People v. Foranyic, at pp. 189-190 [reasonable for police to detain someone on a bicycle with an ax at 3 a.m.].)
Mielke relies on the wrong standard in characterizing as “stale” the information Deputy Yoder obtained that the truck had been on the property a few months earlier by citing to cases that analyzed the standard used to determine whether affidavits supporting search warrants provided probable cause (as opposed to reasonable suspicion). (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393 [information provided by informant in affidavit was over a year old and did not support finding of probable cause]; People v. Hulland (2003) 110 Cal.App.4th 1646, 1648, 1652-1653 [where police officer purchased drugs from defendant but waited 52 days to seek search warrant, information was too stale to provide probable cause because there was “no information” on any prior or subsequent criminal activity or “any evidence of such activity ever taking place at [defendant’s] residence”].)
We disagree with Mielke’s argument that there “was no evidence, or even opinion, in the record from which a rational inference could be drawn that the vehicle traveling on Pine Flat Mountain [sic] Road well after the reported shots fired was the same vehicle heard leaving the area.” A review of the testimony about the road’s characteristics flatly contradicts this contention. Pine Flat Road is the only paved road to the area where shots were fired, and although there are other dirt roads nearby, it is the primary way to access the property. Deputy Yoder testified that “knowing th[e] area,” he “knew it would take a[]while” for someone to drive down the road. The road led from a remote and uninhabited area, and the truck Deputy Yoder pulled over was the first vehicle he had seen on the road. Taken together, these facts support an inference that a lone truck driving down Pine Flat Road at night could be connected with reports of shots fired at the top of the road.
In denying Mielke’s motion to suppress, the trial court acknowledged that “the call to dispatch would not be enough, by itself, to constitute reasonableness to stop this vehicle,” but that additional factors Deputy Yoder learned supported the reasonableness of detaining the truck Mielke was driving. We agree that the entirety of the circumstances gave Deputy Yoder a reasonable suspicion sufficient to stop the vehicle. And because we agree that there was reasonable suspicion to detain Mielke, we reject his argument that the searches that followed were unlawful fruits of the poisonous tree. (E.g., People v. Brendlin (2008) 45 Cal.4th 262, 268-269.)
B. The Trial Court Did Not Abuse Its Discretion in Denying Mielke’s Pitchess Motion.
Mielke also asks that we review the sealed transcript of an October 2, 2014 hearing held under Pitchess v. Superior Court (1974) 11 Cal.3d 531 to determine whether the personnel files of two deputies should be produced to Mielke. The Attorney General counters that Mielke failed to preserve his Pitchess claim because he did not challenge the magistrate’s denial of his motion in the superior court. We will assume that the claim was preserved, but we will reject it on the merits. Having reviewed the sealed transcript, we conclude that the trial court did not abuse its discretion in refusing to disclose the contents of the deputies’ personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
III.
DISPOSITION
The judgment is affirmed.

 

_________________________
Humes, P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.
















People v. Mielke A148026