Filed 1/31/18 P. v. Proctor CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

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Defendant James Edward Proctor contends the trial court erred when it refused to suppress evidence of his unlawful drug and weapon possession obtained when officers stopped him for parking his vehicle illegally. He claims the stop was unreasonable because officers mistakenly concluded he was parked illegally.

We disagree and affirm the trial court’s ruling. Substantial evidence in the record supports the court’s finding that defendant was parked illegally. That violation justified the officers stopping defendant.

FACTS

At approximately 4:00 a.m. on May 30, 2014, Officer Steve Fahrney of the Yreka Police Department was searching for possible burglary suspects from an earlier incident when he noticed a vehicle parked in an alley. The vehicle was parked in violation of the Yreka Municipal Code. Officer Fahrney drove up to the vehicle and illuminated it with his headlights and spotlight. He exited his car, walked up to the vehicle on the driver’s side, and noticed a man, defendant, sleeping in the front seat. Officer Fahrney announced he was from the police department. Startled, defendant looked up. He was cradling a white blanket or towel on his chest.

At about this time, Sergeant Mark Gilman of the Yreka Police Department arrived at the scene. He approached defendant’s car on the passenger side and stood by the passenger window. He, too, noticed defendant was holding a towel or something on his chest, and he thought it looked odd.

Officer Fahrney advised defendant his vehicle was blocking an alley in violation of the city code. Defendant said he had delivered medication to a friend’s house, and he pointed to a nearby backyard. Officer Fahrney asked defendant for identification. Defendant gave him his name and looked around his car to find his identification.

Defendant opened the glove compartment. Sergeant Gilman shined his light at the glove compartment and inside saw a green-wrapped fuse on a silver cylinder. Four weeks earlier, he had completed a bomb recognition course, so he instantly recognized the fuse and saw it was inserted into a cylinder. He told Officer Fahrney what he saw.

Believing the fuse was attached to an explosive device, Officer Fahrney asked defendant to step out of the car for safety reasons. Sergeant Gilman could tell defendant was holding something on his chest in a position that looked like he was concealing something. He told that to Officer Fahrney for his safety. Defendant opened the door. As he started to exit the car, he set the cloth he had been clutching down onto the driver’s seat. Officer Fahrney directed him to the back of the car.

Sergeant Gilman retrieved the cylinder—about the size of a toilet paper tube—with the fuse from the glove compartment. Defendant said it was a smoke bomb. Sergeant Gilman also noticed there was something in the towel defendant had placed on the driver’s seat. Concerned that it might be another explosive device, he moved the corner of the towel and found underneath a full-size hunting knife with a roughly 10-inch blade. He told Officer Fahrney what he found.

Officer Fahrney informed defendant he was detaining him to investigate his possession of a dirk or dagger, and he handcuffed him and searched him. He found on defendant a cut piece of straw with a small clear baggie and several other baggies containing a white substance consistent with methamphetamine.

Asked if there were other weapons, defendant informed Officer Fahrney he had a taser and a BB gun inside the car. Officer Fahrney secured defendant in his patrol car, and he joined Sergeant Gilman in searching defendant’s car. They found the taser and the BB gun, as well as a digital scale, calibration weight, a glass smoking pipe, shot glasses with white crystalline residue, and multiple pills in small plastic baggies.

Officers later searched defendant’s home pursuant to a search warrant. They found methamphetamine and drug paraphernalia. They also found a gun safe containing ammunition and five unloaded rifles.

PROCEDURAL HISTORY AND MOTION TO SUPPRESS

The prosecutor charged defendant with various drug, weapon and ammunition crimes. Defendant pleaded not guilty and moved to suppress the evidence obtained from the search of his person and his car pursuant to Penal Code section 1538.5. Of relevance here, defendant asserted two arguments why his initial detention was unlawful. First, he argued the prosecution failed to establish he was parked that morning in violation of the city code. Chapter 10.32.090 of the Yreka Municipal Code, the ordinance Officer Fahrney stated defendant had violated, prohibits parking on narrow streets that have been posted as no parking areas. The prosecution did not introduce any evidence showing the alley where defendant had parked was posted as a no parking area.[1]

Second, defendant claimed his initial detention was unlawful because it did not qualify as an investigatory stop under Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (Terry). He argued the prosecution failed to introduce any evidence showing Officer Fahrney reasonably believed defendant was, or was about to be, engaged in criminal activity.

Following an evidentiary hearing, the trial court denied the motion to suppress. It determined the initial detention was reasonable under the circumstances. Officer Fahrney suspected the vehicle was parked illegally and might have been related to ongoing criminal activity in the immediate vicinity. The People’s evidence did not affirmatively show whether defendant’s vehicle was in fact parked in a zone posted as a no parking zone, “but there was testimony of an experienced officer with the Yreka Police Deparment that this particular vehicle was parked unlawfully. And that reasonably infers that such signage existed, in any event whether or not such signage existed and the evidence didn’t speak to that.”

The “overarching factor” that persuaded the court was Officer Fahrney knew of criminal activity in the area, “and its attendant suspicion regarding this particular vehicle clearly justified the temporary detention of the defendant as was suspected by the officer’s initial approach in getting the defendant’s attention.”

The court also held the extended length of the detention was reasonable, and probable cause supported the searches.

Defendant subsequently pleaded no contest to one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378), and one count of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). The trial court suspended imposition of sentence for three years pending successful completion of probation.

DISCUSSION

Defendant contends the trial court erroneously denied his motion to suppress. He argues his original detention was unreasonable under the circumstances because (1) Officer Fahrney made a mistake of law believing defendant was parked illegally; and (2) insufficient evidence supported any other type of detention valid under Terry. We conclude Officer Fahrney reasonably detained defendant because substantial evidence shows defendant was parked illegally and a stop under those circumstances was reasonable. Because we reach this conclusion, we do not discuss defendant’s second argument.

In reviewing the trial court’s denial of a motion to suppress evidence pursuant to Penal Code section 1538.5, we consider the record in the light most favorable to the trial court’s disposition and defer to the trial court’s factual findings, whether explicit or implicit, if supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979; People v. Weaver (2001) 26 Cal.4th 876, 924.) Any conflicts in the evidence are resolved in favor of the trial court’s order. (People v. Limon (1993) 17 Cal.App.4th 524, 529.) We exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment of the federal Constitution. (Tully, supra, at p. 979.) We affirm the trial court’s ruling if it is correct on any theory of applicable law, even if for reasons different than those given by the trial court. (People v. Evans (2011) 200 Cal.App.4th 735, 742.)

Under Fourth Amendment jurisprudence, a police officer may conduct an investigatory traffic stop without ordinary probable cause or a warrant if the officer reasonably suspects a particular person has committed or is about to commit a traffic violation. (Whren v. U.S. (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 95]; People v. Bennett (1998) 17 Cal.4th 373, 386-387.) Parking violations are a species of traffic violations and provide law enforcement officers with reasonable suspicion to conduct an investigatory stop. (People v. Bennett (2011) 197 Cal.App.4th 907, 917; U.S. v. Choudhry (9th Cir. 2006) 461 F.3d 1097, 1098.)

The stop of defendant was reasonable. Officer Fahrney and Sergeant Gilman testified defendant was parked in violation of the city ordinance prohibiting parking on narrow streets. Officer Fahrney detained defendant because he was parked illegally. Based on this testimony, the trial court found defendant was in fact parked illegally for purposes of determining whether the officers had sufficient cause to stop him. Substantial evidence supports this finding.

Defendant, however, contends the prosecution failed to establish he was in fact parked illegally, and that a stop based on such a mistake of law is unlawful. The city ordinance relied upon by Officer Fahrney prohibited parking on narrow streets only when official signs or markings prohibiting parking were posted on those streets. Defendant asserts the prosecution failed to establish the street where he parked was posted with signs prohibiting parking. From that, he concludes Officer Fahrney mistakenly stopped him for violating a parking ordinance, and he asserts a mistake of law renders the stop unlawful.

We disagree with defendant’s argument. We are not here concerned with defendant’s guilt of violating chapter 10.32.090 of the Yreka Municipal Code. “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred” (Whren v. U.S., supra, 517 U.S. at p. 810), or where they can at least “ ‘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. Logsdon (2008) 164 Cal.App.4th 741, 744.) A suspected parking violation is a specie of traffic violation that provides law enforcement officers with reasonable suspicion to conduct an investigatory stop.

Defendant made no effort before the trial court to establish the facts that he asserts here are unassailable. Defendant never impeached Officer Fahrney’s or Sergeant Gilman’s testimony that he was parked illegally. Defendant presented no evidence that the alleyway was without no parking signs. Because defendant was not on trial for parking in a no parking zone, there was no occasion to question the officers specifically about sign posting. The testimony of the officers that he was illegally parked may be taken not only as a conclusion of law or, as argued by defendant, a statement of the officers’ subjective beliefs; it was a declaration that defendant was parked in violation of chapter 10.32.090 of the Yreka Municipal Code which requires the posting of a sign to render his parking illegal. In declaring that defendant was illegally parked, by necessary implication the officer declared the factual predicate for such a violation—the alleyway was properly posted—was met, and thus his suspicion of a parking violation was reasonable.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.*

We concur:

RAYE , P. J.

BLEASE , J.