Filed 5/30/17 P. v. Vaughn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
LEON VAUGHN,
Defendant and Appellant.

A148602

(City & County of San Francisco
Super. Ct. No. SCN221820)


Leon Vaughn appeals from a judgment following his guilty plea to one count of possessing heroin for sale. He contends the trial court erred when it denied his motion to suppress and that a probation condition prohibiting his use or possession of drugs is unconstitutionally vague. We disagree and affirm.
BACKGROUND
San Francisco Police Officers Juarez and Peachey were on patrol in the Tenderloin, an area known for a high incidence of drugs and crime, when Officer Juarez saw Vaughn and another man “half crouching, kind of half hidden” behind a couch “right in the middle of the sidewalk.” The men were “kind of crouching and talking, kind of furtive movements and talking closely like they were trying to hide something.” Juarez suspected possible illegal activity, so he decided to make contact and investigate. His suspicion was based on “a posture, a nervousness. There’s a looking up and glancing around and kind of being close together, huddled, and behind an obstacle. In this case it was a couch. It could have been a vehicle; it could have been a green utility box. I’ve seen it many times before. So it leads me to believe that something is occurring that is illegal. And given the neighborhood and the block itself where I have made many, many arrests, I got out to investigate to see if there was anything illegal going on.”
The officers got out of their marked patrol truck and Juarez approached Vaughn. Vaughn looked toward the officer and began to walk away. Officer Juarez said “[s]top; police,” but Vaughn looked back, shoved his hands in his pockets and kept walking. When Officer Juarez repeated his command Vaughn sped up, walked into the middle of the street and started to run. Officer Juarez ran after him and radioed for assistance. Juarez heard over the radio that Vaughn discarded a phone as he ran. As other officers converged, Vaughn ran back toward Juarez and Peachey. Juarez believed Vaughn’s flight indicated “some sort of criminal activity or conduct that is occurring and he does not want to get caught.”
As Vaughn tried to run past them, Officers Juarez and Peachey “physically had to take him to the ground” to detain him. Continuing to ignore the officers’ commands, Vaughn pinned his hands under his body, arched his back, flailed his head about and “basically, every part of his body that he could move, he was moving in an effort not to submit to the detention.” The violent intensity of his resistance led Juarez to believe Vaughn was armed.
During the struggle, Juarez saw that Vaughn was chewing a plastic bag containing what appeared to be narcotics. One of the officers performed a “mastoid pain compliance technique” to open Vaughn’s mouth and remove the bag. It was found to contain methamphetamine, heroin, crack cocaine, Oxycodone, and numerous other pills that had been chewed and, consequently, could not be identified.
Vaughn initially pleaded not guilty to numerous drug offenses and moved to suppress the evidence against him. After the motion was denied he changed his plea to guilty to one count of possessing heroin for sale. The court dismissed the remaining charges, suspended imposition of sentence and placed Vaughn on three years’ probation. This timely appeal followed.
DISCUSSION
I. The Detention Did Not Violate Defendant’s Rights
Vaughn contends his Fourth Amendment right to be free from unreasonable search and seizure was violated because the officers lacked sufficient reason to detain him. We agree with the trial court that the detention and search were legal.
A. Legal Principles
A detention is constitutionally reasonable if the circumstances known or apparent to the detaining officer include “specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. . . . [T]he facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C. (1978) 21 Cal.3d 888, 893; People v. Daugherty (1996) 50 Cal.App.4th 275, 285.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.] [¶] . . . The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where 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 officer’s duties.” ’ ” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
“ ‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’ ” (People v. Letner (2010) 50 Cal.4th 99, 145.)
B. Analysis
The court correctly determined the circumstances confronting Officer Juarez supported the detention. The detention occurred in a high-crime area. While a person’s mere presence in a high crime area at night does not alone justify an investigative stop, it is “among the relevant contextual considerations in a Terry analysis.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) Vaughn and his companion were crouching partially hidden behind the couch, gesturing furtively “like they were trying to hide something.” Vaughn looked toward Juarez when the officers approached, then walked away. When Juarez ordered him to stop he looked back and ran. “Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (Ibid.; see also People v. Souza (1994) 9 Cal.4th 224, 242 [high-crime area, evasive conduct and sudden flight justified detention].) Officer Juarez then heard that Vaughn discarded a cell phone as he ran. We have no difficulty concluding the officers had reasonable cause to detain him.
Vaughn focuses on each of the circumstances that contributed to Officer Juarez’s decision to stop him in isolation and argues that independently, each of them does not support the reasonable suspicion required for an investigative detention. The United States Supreme Court has expressly repudiated this sort of “divide-and-conquer analysis” and made clear that factors that when taken by themselves are perfectly susceptible to an innocent explanation may, when taken together, support reasonable suspicion. (United States v. Arvizu (2002) 534 U.S. 266, 274.) He also argues his retreat from the officers did not justify the detention because Officer Juarez could not “confirm” that his flight was in response to the officers’ approach or that Vaughn heard the command to stop. No matter. “ ‘[T]he 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 his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.’ ” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1241.) The question for the trial court was whether the circumstances taken as a whole supported Officer Juarez’s reasonable suspicion that Vaughn was engaged in unlawful activities. The court correctly found they did.
II. The Officers Properly Removed Contraband from Vaughn’s Mouth
Vaughn contends the officers’ search of his mouth was unconstitutional. It was not.
“The police may, in order to prevent the destruction of evidence, reach into a person’s mouth to recover evidence if there is sufficient probable cause to believe a crime is being, or has been, committed. [Citation.] The mouth is not a ‘sacred orifice’ and ‘there is no constitutional right to destroy or dispose of evidence.’ ” (People v. Cappellia (1989) 208 Cal.App.3d 1331, 1336.) “At the same time, police officers may not ‘use brutal or excessive force to recover evidence. [Citation.]’ [Citations.] Rather, they ‘must act reasonably and use only that degree of force which is necessary to overcome defendant’s resistance.’ ” (People v. Fulkman (1991) 235 Cal.App.3d 555, 562.)
“In deciding whether the challenged conduct was reasonable, the reviewing court considers: ‘(1) whether there was probable cause to conduct the search, (2) whether the procedure used “may threaten the safety or health of the person,” and (3) whether the search would damage the individual’s sense of “personal privacy and bodily integrity. [Citation.]” [Citation.] Against these individual interests, the court must weigh ‘the community’s interest in fairly and accurately determining guilt or innocence.’ ” (People v. Fulkman, supra, 235 Cal.App.3d at p. 563.)
Here, Officer Juarez’s testimony established probable cause to search Vaughn’s mouth. Officer Juarez saw part of a plastic bag protruding from Vaughn’s mouth while he was attempting to subdue him. “[Y]ou could see the plastic—some plastic was still out of his mouth. It wasn’t fully in his mouth, and there was chewing motions. He was starting to flail his head again. And it got to the point that we had [to] again go back to the ground. And at this point it was an effort to extricate the plastic bag for his safety and what I believe were narcotics inside, because he was chewing, and it didn’t look like vitamins or anything.” “So we could see that there was stuff. He was trying to keep his mouth shut, but it would open during the course of—because it was very strenuous, and it’s very difficult to breathe through the nose when you’re fighting; your mouth comes open. . . . I saw it myself; the plastic bag in there.”
There was also no evidence that the officers compromised Vaughn’s individual interests through use of excessive force to remove the bag from Vaughn’s mouth or that its extraction in any way threatened his health or safety. To the contrary, Juarez testified the officers were obligated to extricate the bag for Vaughn’s safety. Finally, “a search of the mouth does not damage a person’s sense of personal privacy and security. Just as a blood test is a routine part of ordinary life [citation], so is an oral examination.” (People v. Cappellia, supra, 208 Cal.App.3d at p. 1338; People v. Fulkman, supra, 235 Cal.App.3d at p. 563.) The search was within constitutional constraints.
III. The Arrest Was Lawful
Vaughn next asserts his detention was a de facto arrest because police used excessive force, and the arrest was unlawful because it was unsupported by probable cause. Again, we disagree. Assuming arguendo that the detention was an arrest, Vaughn’s flight provided probable cause to arrest him for resisting arrest in violation of Penal Code section 148. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759; People v. Superior Court (2005) 132 Cal.App.4th 1525, 1528, 1530–1531; People v. Allen (1980) 109 Cal.App.3d 981, 986–987; In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [“physical resistance, hiding, or running away from a police officer have been found to violate section 148”].) Vaughn’s insistence that the officers used unlawful force to detain him is immaterial to whether his flight after being ordered by police to stop provided probable cause for his arrest. (See People v. Allen, supra, 109 Cal.App.3d at pp. 986–987.)
In any event, his claim of excessive force is unpersuasive. The use of excessive force by law enforcement officers is analyzed under the Fourth Amendment’s objective reasonableness requirement for a seizure of the person. (People v. Brown (2016) 245 Cal.App.4th 140, 157.) “The question is whether a peace officer’s actions were objectively reasonable based on the facts and circumstances confronting the peace officer. [Citation.] The test is ‘ “highly deferential to the police officer’s need to protect himself and others.” ’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527.) Here Vaughn attempted to flee past Officers Juarez and Peachey and did not heed their verbal commands, so they “physically had to take him to the ground” to detain him. Vaughn responded intensely and violently with “basically every part of his body that he could move . . . in an effort not to submit to the detention.” The officers’ use of force to restrain Vaughn and remove the suspected narcotics from his mouth was an appropriate response due to his resistance.
IV. The Drug Condition Is Not Unconstitutionally Vague
Vaughn contends that a probation condition prohibiting the use or possession of drugs is unconstitutionally vague because it fails to define “drugs” or specify that a violation requires knowledge of the contraband’s presence and restricted nature. Not so. Although the minute order states that Vaughn “shall not possess any drugs without prescription,” the court’s oral pronouncement specified that he was “not to possess any controlled or unlawful drugs without a valid prescription.” “ ‘[T]he modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.’ ” (In re D.H. (2016) 4 Cal.App.5th 722, 725.) We conclude the oral pronouncement controls in this case because there is no clear indication that the court intended to impose the abbreviated version stated in the minute order. So interpreted, the meaning of “controlled or unlawful drugs” is not unconstitutionally vague. As to Vaughn’s scienter argument, in People v. Hall (2017) 2 Cal.5th 494 the Supreme Court clarified that such probation conditions “implicitly include a knowledge requirement already, rendering them sufficiently precise to afford [the probationer] fair notice of what is prohibited.” (Id. at p. 500.) Accordingly, no modification is required.
DISPOSITION
The judgment is affirmed.
 


_________________________
Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.























People v. Vaughn, A148602