P. v. Averill

Filed 1/29/07 P. v. Averill CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

The People appeal the trial courts granting of a motion to set aside the information pursuant to Penal Code section 995 (hereafter section 995) filed by defendants David Steven Averill and Jacob Earl Johnson (collectively defendants) on the ground that the information was based on illegally seized evidence. The People contend we should uphold the magistrates finding that the detention of Johnson and another suspect was reasonable as well as the magistrates denial of defendants motion to suppress evidence (Pen. Code,  1538.5, subd. (m)) (hereafter section 1538.5). We agree and reverse the dismissal order.

Procedural History

On June 14, 2005, the prosecution filed a complaint (case No. 05-65702) charging defendants with possession of a controlled substance for sale (Health & Saf. Code,  11378), transportation of a controlled substance (Health & Saf. Code,  11379, subd. (a)), false personation (Pen. Code,  529), misdemeanor carrying a loaded firearm in a vehicle (Pen. Code,  12031, subd. (a)(1)), and misdemeanor carrying a concealed weapon in a vehicle (Pen. Code,  12025, subd. (a)(1).) The complaint also contained the special allegation that the controlled substance offenses were committed while being armed with a firearm (Pen. Code,  12022, subd. (c).) Averill was additionally charged with being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)), with special allegations that he was previously convicted for violating Health and Safety Code sections 11379, subdivision (a) and 11378, within the meaning of Penal Code section 1203.07, subdivision (a)(11).

On June 22, 2005, the prosecution filed a second complaint (case No. 05-65802) charging defendants with obtaining and using anothers personal identifying information (Pen. Code,  530.5, subd. (a)), false personation (Pen. Code,  529) and 14 counts of receiving stolen property (Pen. Code,  496, subd. (a).)

Johnson filed a motion to suppress evidence in both cases and Averill filed a joinder in that motion. The parties stipulated that the motion to suppress would be deemed to be heard at the preliminary hearing in both cases. The magistrate denied the motion to suppress and defendants were held to answer in both cases. Thereafter, the prosecution filed an information in case No. 05-65702 on the original charges, and an information in case No. 05-65802 on the 14 counts of receiving stolen property.

Subsequently, the trial court granted the motion by Johnson, joined by Averill, to set aside the information in both cases ( 995), and ordered the cases dismissed.

Factual Background^[1]

At about 6:50 p.m. on June 11, 2005, Hopland Gaming Commission gaming supervisor James McClellan saw a pickup truck speed through the employee parking lot of the Hopland Shokawah Casino.^[2] The truck parked and three people got out and began transferring objects from the bed of the truck into the cab, which McClellan did not consider too irregular. At 7:25 p.m., two people returned to the pickup truck and another casino security officer focused a security camera on the truck. At about 8:05 p.m., while watching the casino security camera, McClellan saw what appeared to be . . . illegal activity, drug activity. Thereafter, the casino security officers were dispatched to the scene, and McClellan contacted Hopland Tribal Police Officer Steve Mascherini and requested his response to the casino regarding what appeared to be suspicious -- or illegal activity, drug activity. Im not exactly sure what exact terms I used. McClellan was unsure if he described the activity hed observed to Mascherini and testified that Its not something that we regularly practice to go into too much detail.

According to Mascherini, he received a dispatch relayed from casino security that referred to suspicious or possible drug activity regarding two men in a pickup truck in the casino parking lot.^[3] McClellan then contacted Mascherini and pointed out the pickup truck. As Mascherini approached the truck in his patrol car, McClellan continued to watch the scene through the surveillance camera.

When Mascherini arrived at the parking lot he saw two men sitting inside the pickup truck. As Mascherini parked his patrol car, the two men exited the vehicle. Mascherini, armed and in full police uniform, approached the men as they approached him. Mascherini told them the casino surveillance had viewed them possibly involved in suspicious drug activity, but the men denied this. Both men consented to Mascherinis pat searching them; the searches turned up no weapons or drugs. Thereafter, Mascherinis casino security supervisor arrived and Mascherini ran a warrants check on both men. The suspects had no identification, and identified themselves as Anthony Michael Johnson (later identified as defendant Johnson) and Robert Carol Ross,^[4]respectively. Mascherini was advised by dispatch that there were no outstanding warrants for either suspect. By then, between five and eight minutes had elapsed since the initial contact between the officer and the suspects. Mascherini admitted that at that point he had not observed anything suspicious or illegal. McClellan then radioed Mascherini and told him to come to the security office to review the security videotape. Mascherini did so, leaving Johnson and Ross at the scene with other casino security officers. Mascherini informed Johnson and Ross that they could not leave until he reviewed the videotape.

When Mascherini reviewed the security videotape he saw Johnson seated in the drivers seat moving his head in a downward motion with [a] straw to his nose and then he moved his head back up. The videotape also depicted Ross throwing something down. Based on Mascherinis training and experience, he suspected that Johnson may have been using drugs. After watching the surveillance tape for approximately 10 to 15 minutes, Mascherini returned to the scene and placed Johnson in custody. Mascherini then searched the pickup truck for drugs or drug paraphernalia while security personnel led Johnson into the casino to find the driver of the pickup truck. The search of the pickup turned up an upside-down laptop computer, papers, clothing, a blank check rolled up like a straw, and a loaded .357 magnum in a holster.

Mascherini detained Ross and went inside the casino where he found Johnson and brought him back to the truck. A third man who identified himself as Dominic Anthony Portelli, later identified as Averill, approached and indicated he was connected with the pickup truck and Mascherini did a safety pat search for weapons. Averill denied knowing anything about the revolver found in the truck, but acknowledged he was the driver. Mascherini detained Averill and turned him over to Mendocino County Sheriffs Deputy Cliff Byrnes. Thereafter, Mascherini continued searching the truck and found blank checks and identification documents belonging to several different people. He informed the sheriffs department of the items found. A subsequent search of the truck by a sheriffs deputy turned up a bottle which appeared to contain methamphetamine,^[5]a digital scale, checkbooks, checks, check printing software, and printed or copied United States currency. Averill and Ross were then arrested for possession for sale and transportation of a controlled substance. The truck did not belong to any of the three suspects.

In denying defendants motion to suppress, the magistrate concluded that the dispatch received by Mascherini provided him with objective, articulable facts supporting a reasonable suspicion of criminal activity in the pickup truck that justified the initial detention. The magistrate also found that defendants were detained for approximately 20 minutes, from the time of the pat search until the surveillance camera observation gave the officers probable cause that drug activity was taking place. The magistrate concluded the detention was reasonable and not unduly prolonged.

Discussion

The People contend the section 995 motion was erroneously granted because the detention of Johnson and Ross was supported by reasonable suspicion that respondents were involved in drug activity and the detention was not unduly prolonged.

I. Scope and Standard of Review

A defendant whose motion to suppress evidence ( 1538.5, subd. (m)) is unsuccessful at the preliminary hearing, may raise the search and seizure issue before the trial court in a section 995 motion to dismiss the information. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) On appeal from a section 995 review of the denial of a defendants motion to suppress, we review the determination of the magistrate at the preliminary hearing. [Citations.] We must draw all presumptions in favor of the magistrates factual determinations, and we must uphold the magistrates express or implied findings if they are supported by substantial evidence. (Ibid.) Where as here, the facts regarding the challenged detention are undisputed, we exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. (People v. Lenart (2004) 32 Cal.4th 1107, 1118; People v. Pitts (2004) 117 Cal.App.4th 881, 884-885.)

II. The Detention Was Reasonable

  [I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must 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. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the 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. The corollary to this rule, of course, is that 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.   (People v. Pitts, supra, 117 Cal.App.4th at p. 885.) The officers suspicion is measured by what the officer knew before he or she acted. (People v. Hester (2004) 119 Cal.App.4th 376, 386.)

An investigatory detention exceeds constitutional limits when it extends beyond what is reasonably necessary under the circumstances that made its initiation permissible. (People v. McGaughran (1979) 25 Cal.3d 577, 586; People v. Russell (2000) 81 Cal.App.4th 96, 101.) However, circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. (Russell, at p. 101.) There is no set time limit for a permissible detention; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. (United States v. Sharpe (1985) 470 U.S. 675, 686-688 [20-minute stop not unreasonable when the police have acted diligently and suspects actions contribute to the added delay]; People v. Gomez (2004) 117 Cal.App.4th 531, 537-538; Russell, at p. 101.)  The fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable. [Citations.] The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it. (Sharpe, at p. 687.)

The Peoples argument is two-fold: First, they argue that Mascherinis initial five to eight minute detention of Johnson and Ross during which he pat searched them with their consent and ran a warrants check was objectively reasonable based on the dispatch he received regarding respondents suspicious drug activity. Second, they argue that the additional 10- to 15-minute detention of Johnson and Ross, while Mascherini left the scene to review the surveillance videotape, was not unreasonable. Defendants respond that Mascherini lacked reasonable suspicion to detain Johnson and Ross and unreasonably prolonged the detention.

According to Mascherini, the dispatch he received prior to his initial detention of Johnson and Ross referred to suspicious drug activity. Defendants argue that neither the dispatch nor Mascherinis conversation with and pat search of Johnson and Ross provided any specific, articulable facts, providing objective evidence of criminal activity. Johnsons argument is even more focused, asserting that McClellans dispatch was more akin to a tip that without independent corroboration, did not supply reasonable suspicion.

We first note that a court need only determine whether there was reasonable suspicion to approach and detain a suspect if the encounter is classified as a seizure. (United States v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1406.) A seizure occurs either when a suspect is physically forced to stop or when the suspect submits to the officers show of authority. (Ibid.) There is no seizure and thus no Fourth Amendment violation by a police officer who approaches a person in a public place and asks him questions, if the person is willing to listen and to answer. (United States v. Espinosa (9thCir. 1987) 827 F.2d 604, 608.) Thus, contact between a police officer and an individual will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. (In re Gilbert R. (1994) 25 Cal.App.4th 1121, 1125.)

The record reflects that Mascherini approached Johnson and Ross as they approached him and he told them the casino surveillance had viewed them possibly involved in suspicious drug activity, which the two men denied. Both men then consented to Mascherini pat searching them, which turned up no weapons or drugs. Nothing in the record suggests that Mascherinis initial contact with Johnson and Ross, his statement to them, their response and their consent to be pat searched was anything but consensual in nature. To that point there had been no seizure sufficient to trigger Fourth Amendment scrutiny.

The focus of our inquiry is on Mascherinis contact with Johnson and Ross after the consensual pat search turned up no evidence of criminal conduct. Following the pat search, Mascherini ran a warrants check that came up empty and then informed Johnson and Ross that they could not leave the scene while Mascherini left to view the surveillance videotape. There is no dispute that this 10- to 15-minute period of time was no longer consensual and, therefore, constituted an investigatory detention. The question is whether, during this time Mascherini diligently pursued a means of investigation that was reasonably designed to confirm his suspicions promptly. We believe he did.

Mascherini initially relied on the dispatch report of suspicious drug activity involving the pickup truck in the casino parking lot. Mascherini testified that McClellan was the original source of the dispatch. In essence, McClellan, a gaming supervisor with no law enforcement training, acted as a citizen informant, who alerted the police to an emergent situation. It is well established that citizen informants who are witnesses to a criminal act are presumptively reliable unless the circumstances cast doubt on their information. (People v. Boissard (1992) 5 Cal.App.4th 972, 979.) In this case, no evidence was presented which cast doubt on the reliability of McClellans information.

When the initial contact failed to produce evidence of drug use, Mascherini and McClellan spoke again and McClellan informed the officer for the first time that there was a videotape of the original observations. It was not unreasonable for Mascherini to decide to view that tape, which he knew was located nearby. Further, the detention of Johnson and Averill for 10 to 15 minutes while Mascherini confirmed McClellans information was not unreasonable.

III. Use of the Surveillance Video

For the first time on appeal, Johnson argues that using the zoom capabilities of the surveillance video camera was an illegal search and the images produced by the video cameras zoom lens could not be used to justify defendants prolonged detention or search of their truck. At oral argument, Johnsons counsel conceded that this issue was not raised in the trial court. As a general rule, theories not raised in the trial court may not be asserted for the first time on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) [] 8:229, p. 8‑135.) However, a new theory pertaining only to questions of law on undisputed facts may be raised for the first time on appeal. (Id. at [] 8:237, p. 8‑137.) In terms of the nature and scope of review, the function of an appellate court is substantially the same in civil and criminal appeals. (Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1339, fn. 3.) Resolution of Johnsons claim necessarily involves resolution of factual issues related to his and Averills exact location in the casino parking lot and the technological methods utilized by the casino and law enforcement personnel in viewing defendants conduct within the truck. Consequently, the exception to the general rule does not apply and we decline to consider Johnsons contention.

Disposition

The order of dismissal is reversed.

SIMONS, Acting P. J.

We concur.

GEMELLO, J.

BRUINIERS, J.^*

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^[1] The facts are derived from the preliminary hearing transcript.

^[2] On cross-examination, McClellan admitted he had no training in law enforcement.

^[3] On cross-examination Mascherini paraphrased the dispatch as, We have got a vehicle, suspicious drug activity, we would like you to check out.

^[4] Ross was a codefendant but is not a party to this appeal.

^[5] Mendocino County Sheriffs Department special agent Darren Brewster testified that 16.2 grams of methamphetamine was found in the truck and opined that it was possessed for sale.

^* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.