P. v. Avalos

Filed 3/14/07 P. v. Avalos CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael S. Luros, Judge. Affirmed.

A. William Bartz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

________________

After his motion to suppress evidence was denied, appellant Robert Avalos pleaded nolo contendere to one count of having a concealed firearm in a motor vehicle in violation of Penal Code section 12025, subdivision (a)(1).[1] Because of a prior conviction within the meaning of the three strikes law, the trial court doubled appellants midterm sentence of two years and sentenced him to four years in state prison.

Appellant appeals on the grounds that: (1) the trial court committed reversible error when it denied his motion to suppress evidence based on an erroneous finding that appellant lacked standing to challenge the search, and (2) the California Supreme Court wrongly decided People v. Brendlin (2006) 38 Cal.4th 1107 (Brendlin) when it held that passengers in a car pulled over by police are not seized. We affirm.

FACTS

We consider only the facts presented at the hearing on appellants motion to suppress evidence. Deputy Paulo Cruz of the Los Angeles County Sheriffs Department testified that on June 30, 2005, he was on patrol in East Los Angeles at approximately 4:00 a.m. An Officer Nieves of the Santa Ana Police Department accompanied Deputy Cruz as a ride along. Deputy Cruz noticed a vehicle, a Suburban, double parked with its headlights extinguished. He decided to contact the driver and warn him that he was violating Vehicle Code section 24250, which Deputy Cruz believed to prohibit driving or having a vehicle double parked on the street with its lights off at night.[2]

As he drove toward the Suburban, Deputy Cruz directed his spotlight on the front of the car and illuminated the interior, revealing a female driver and a male passenger, later identified as appellant. The driver and passenger turned around to look at the patrol car. The driver, who was not wearing a seat belt, quickly drove a few feet north and made a left turn into the driveway of a home. Deputy Cruz thought that the driver was attempting to elude him, and he therefore followed the Suburban and blocked the driveway. He and Officer Nieves then approached the Suburban on foot.

Deputy Cruz began approaching the driver while Officer Nieves approached the passenger side of the car. When he arrived at the rear of the Suburban, Deputy Cruz saw the passenger crouch down. Deputy Cruz ordered the occupants of the Suburban to sit up and put their hands on the dashboard. Appellant sat straight up and complied. Deputy Cruz asked appellant more than once if there were any firearms in the car and appellant did not answer. Deputy Cruz noted that appellant looked around in surprise when he asked the question. Because he had seen appellant crouch down, Deputy Cruz suspected appellant had a gun or other kind of contraband in the car. Based on that suspicion, he ordered appellant to leave the car. Deputy Cruz detained the driver and appellant in the backseat of the police car. Deputy Cruz asked Officer Nieves to check the floorboard of the passenger area of the Suburban, and Officer Nieves found a weapon.

Deputy Cruz testified that the type of behavior displayed by appellant reminded him of two previous incidents where he had recovered firearms in vehicles after the occupants had attempted to hide them from him. Also, when appellant sat straight up against the back of the seat, he looked around both shoulders as if to see from which direction the officers were approaching. Appellant appeared nervous as he kept looking back and forth over each shoulder, and Deputy Cruz did not find that behavior to be typical. Deputy Cruz knew the particular area of the stop to be the focus of several gang shootings caused by rival gang activity.

Appellant called Gina Rodarte (Rodarte) to the stand. Rodartes cousin, Cynthia Morales (Morales), was the driver of the Suburban and Rodarte and Morales lived in the house whose driveway Morales entered. Rodarte slept in the front of the house and was awakened when Moraless car was backed out of the driveway with the headlights on. In a matter of minutes she saw the car pull in the driveway again with its headlights on. She acknowledged on cross-examination that she wrote a letter to appellants first attorney stating that Moraless cruising lights were on. She did not state that the headlights were on. She wrote the letter after the deputy told her that her cousin was being cited for not having headlights on. On redirect, she stated that she meant both sets of lights were on because they go on at the same time.

Morales testified that she had her headlights on prior to being stopped. She said that the lights automatically came on in her car when she turned the ignition.

DISCUSSION

I. Argument

Appellant argues that he was unlawfully seized, and the seizure occurred as soon as Deputy Cruz exited his vehicle and started to approach the Suburban. Appellant was seized not as a result of a traffic stop, but as a result of Deputy Cruzs hunch that appellant might be in possession of contraband or a gun. Appellant contends there were no specific and articulable facts indicating that appellant was involved in any criminal activity. Simply because appellant crouched down toward the floorboard, without more, did not meet the test of reasonableness for his seizure. Therefore, his motion to suppress evidence should have been granted.

II. Relevant Authority

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

The guiding principle for evaluating the actions of the police officers is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. (Terry v. Ohio (1968) 392 U.S. 1, 19 (Terry).) [A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. (Id. at p. 22.) There must be specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. (Id. at p. 21, fn. omitted; People v. Glaser, supra, 11 Cal.4th at p. 363.)

On appeal, a correct decision must be affirmed even if the trial court based its ruling on an erroneous reason. (People v. Thompson (1990) 221 Cal.App.3d 923, 940, fn. 4; People v. Hobbs (1987) 192 Cal.App.3d 959, 963.)

III. Proceedings Below

After all witnesses had testified, the prosecutor argued that the vehicle stop was legitimate because the Suburban did not have its headlights on, and the officers investigated because of the circumstances described by the deputy. The prosecutor asserted that the deputy described facts in addition to the furtive movement, and the totality of the facts supplied reasonable suspicion. The prosecutor also argued that appellant had no legitimate expectation of privacy.

The defense argued that appellant had a legitimate expectation of privacy in the vehicle even though he was merely a passenger, and he could challenge the validity of the stop. Counsel also contended that the Suburban did have its headlights on, and the Vehicle Code section that Deputy Cruz used was inapplicable to the circumstances. Counsel argued that appellant was detained unlawfully because the deputy had no reasonable suspicion of criminal misconduct. The deputy relied on a furtive movement by appellant, which, on its own, does not justify a detention of a passenger.

The trial court found that a traffic violation had unquestionably occurred and that the illumination of the vehicle did not cause a detention because Morales proceeded to drive away. The court then cited U.S. v. Pulliam (9th Cir. 2005) 405 F.3d 782 (Pulliam) for the principle that a passenger has no reasonable expectation of privacy so as to challenge illegal conduct by police that leads to the discovery of evidence. The court also cited the Pulliam court for the concept that, although a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as fruit of the defendants illegal detention. A defendant must show that, but for the illegal detention, the evidence in the car would not have been found.

Defense counsel argued that the detention of appellant was immediately related to the fact that the gun was found, since it was appellants actions that caused the deputy to search the car. The prosecutor contended that if the stop was legitimate appellant had no legitimate expectation of privacy.

In making its ruling the trial court stated that there was no causal connection between the actions of appellant and the search of the car. Therefore, only Morales had a Fourth Amendment interest in the car. The only reason appellant was on trial was because he admitted that the gun was his, like the defendant in Pulliam.

IV. Appellants Fourth Amendment Rights Were Implicated

Although the trial court found that Pulliams holding prevented it from granting a suppression motion that it apparently had been disposed to grant, we conclude that Pulliam supports a finding that appellants Fourth Amendment rights were implicated. We also conclude that Brendlin is not on point with the circumstances surrounding the detention of the passenger (appellant) in the instant case. Because we do not rely on Brendlins holding, we therefore need not address appellants argument that it was wrongly decided.

In Pulliam, a lawful traffic stop led to the illegal detention of the cars driver and passenger, Pulliam, and an illegal search of the car. (Pulliam, supra, 405 F.3d at pp. 783, 785.) The search yielded a gun, and Pulliam was charged with being a felon in possession of a firearm after he admitted to owning the gun. (Id. at p. 784.) The district court granted Pulliams suppression motion. (Id. at p. 785.) In reversing, the Ninth Circuit applied two well-established principles limiting the extent of the exclusionary rule. (Ibid.) The first is that [a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third persons premises or property has not had any of his Fourth Amendment rights infringed. [Citation.] (Id. at pp. 785786.) In other words, the person had to have suffered an infringement of his reasonable expectation of privacy. (Id. at p. 786.)

The second principle applied was that suppression is not justified unless the evidence is in some sense the product of illegal governmental activity. [Citation.] (Pulliam, supra, 405 F.3d at p. 786.) Pursuant to this basic principle of causation, evidence will not be excluded as fruit unless the illegality is at least the but for cause of the discovery of the evidence. [Citation.] (Ibid.)

The court stated categorically that Pulliam had no reasonable expectation of privacy in the car or in the area under the passenger seat where the gun was found, and that his claim of ownership of the gun did not grant him a reasonable expectation of privacy. (Pulliam, supra, 405 F.3d at p. 786.) The court found that Pulliam did, however, have standing to contest the legality of his own detention and could have contested the lawfulness of his own detention and sought to suppress evidence found in the vehicle as the product of that detention.[3] (Id. at p. 787.) Pulliam could have shown, for example, that statements he made or evidence found on his person during his detention prompted the officers to search the car or enable them to find evidence in it that otherwise would have remained hidden. (Id. at p. 787.) Pulliam failed, however, to demonstrate that the gun was the product of his detention and to show that, but for the detention, the evidence in the car would not have been found.[4] (Ibid.) The court stated that when a stop is lawful, but a passenger is unlawfully detained after the stop, he can of course seek to suppress evidence that is the product of that invasion of his own rights. (Id. at pp. 788789.)

Pulliam was careful to emphasize that the detention of the car and the detention of its occupants are discrete police actions that must be analyzed separately. (Pulliam, supra, 405 F.3d at p. 790.) Since Pulliam had not argued that the detention of the car amounted to a de facto detention of his person, he had to show that the [evidence] would never have been found but for his, and only his, unlawful detention. [Citations.] (Ibid.) In sum, a passenger must show the indispensable causal connection between his detention and discovery of the gun in order to suppress evidence seized from the car. (Id. at p. 791.) Pulliams detention simply did not contribute or lead to the guns discovery. (Ibid.)

We conclude that under the circumstances of this case, appellants detention, unlike Pulliams, was the but-for cause of the discovery of the gun. As the facts show, Deputy Cruz initiated a traffic stop based on the Suburbans lack of headlights, and he began approaching the driver, presumably to issue a citation or warning. When he arrived at the back end of the Suburban, however, he saw appellant crouch down toward the floorboard. At that moment, before speaking to the driver, the deputy ordered the occupants to sit up and place their hands on the dashboard, and both persons were seized at that point. The detained individuals were moved to a police car, and Deputy Cruz then told Officer Nieves to search the car in the specific area of the passenger-side floorboard. Therefore, appellants case is distinguishable from Pulliams, and appellant can challenge the search of the car because it was the result of his detention.

The concepts discussed in Pulliam are supported by prior decisions of the United States Supreme Court involving passengers. In Rakas v. Illinois, supra, 439 U.S. 128,the court stated that the question of whether a defendant has standing to challenge a search is a question of whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. (Id. at p. 140.) In other words, in order to challenge a search or seizure, the defendant must first establish the search or seizure infringed an interest of the defendant which the Fourth Amendment was designed to protect. (Ibid.) Appellant could therefore seek to have the evidence of the gun excluded as the fruit of his detention, which he claimed was unlawful because Deputy Cruz lacked a reasonable suspicion appellant was engaged in criminal activity.

Brendlin is not at odds with Pulliam. Although Pulliam appeared to leave open the issue of whether a passenger can claim he was detained when the car in which he is riding is stopped (Pulliam, supra, 405 F.3d at pp. 786 & fn. 1, 789790), the California Supreme Court held in Brendlin that a vehicles passenger was not automatically seized when a police officer made a traffic stop of the drivers vehicle without any indication that the passenger (Brendlin) was the subject of the officers investigation or show of authority. (Brendlin, supra, 38 Cal.4th at p. 1123.) In that case, the court emphasized that the deputys flashing lights were directed at the driver and not the passenger, and there was no evidence police were even aware there was a passenger in the car. (Id. at p. 1118.) The deputy approached the drivers side without blocking the defendants exit or making any intimidating movements towards him. Under these circumstances one cannot say that defendant was the subject of the deputys investigation or show of authority prior to the time the deputy ordered him out of the vehicle. (Ibid.) The court added, [w]e emphasize that passengers who are in vehicles subjected to unjustified traffic stops are not without constitutional protection. Once the vehicle has been stopped, the passenger may not be detained thereafter without reasonable suspicion the passenger is involved in criminal activity. (Id. at p. 1123.)

Significantly for the instant case, the court noted that defendant Brendlin claimed only that the traffic stop itself constituted a seizure; therefore, the Supreme Court did not have to consider whether the defendant passenger was seized when the deputy asked him to identify himself or whether, if he was seized at that point, the seizure was justified by the deputys reasonable suspicion that the defendant was a parolee at large. (Brendlin, supra, 38 Cal.4th at p. 1123.) In the instant case, we must address precisely those questions the Brendlin court did not address. Appellant does not argue that he was seized at the moment of the traffic stop, but rather when Deputy Cruz ordered him to place his hands on the dash and sit up straight.

As previously stated, we agree with appellant on this point. A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the persons liberty [citations]; the police conduct communicated to a reasonable innocent person that the person was not free to decline the officers request or otherwise terminate the encounter [citation]; and the person actually submitted to that authority [citation] for reasons not independent of the official show of authority [citation]. (Brendlin, supra, 38 Cal.4th at p. 1118; see also California v. Hodari D. (1991) 499 U.S. 621, 628 [whether the individual perceived he was being ordered to restrict his movement is not the test for the presence of a show of authority; rather it is whether the officers words and actions would have conveyed that to a reasonable person].) A reasonable person in appellants situation would clearly have felt the need to submit to Deputy Cruzs show of authority when he ordered the occupants of the Suburban to sit up and place their hands on the dashboard. Therefore, appellant was seized and can challenge the lawfulness of his seizure and the evidence found as a fruit of that seizure.

V. Appellants Seizure was Lawful

We conclude that appellants seizure was lawful. Ordinarily, the Fourth Amendment prohibits the warrantless search of a car during a routine traffic stop. (People v. Miranda (1993) 17 Cal.App.4th 917, 927.) However, during such a stop, a police officer may search areas in a car that might contain a weapon where the officer has reasonable grounds to believe that the cars occupants are armed and dangerous or may gain immediate control of weapons. (Ibid.; Michigan v. Long (1983) 463 U.S. 1032, 1049.) The degree of suspicion necessary for a protective search of a cars passenger compartment is the same as that required for a protective search of a suspect under Terry, supra, 392 U.S. at page 21. (See Knowles v. Iowa (1998) 525 U.S. 113, 117118 [officers may conduct a Terry patdown of the passenger compartment of a vehicle if they have reasonable suspicion an occupant may gain control of a weapon]; Michigan v. Long, supra, 463 U.S. at p. 1049.) This standard requires that the officer possess a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. (Michigan v. Long, supra, 463 U.S. at pp. 10491050.) Few statements in the law are as often repeated: [A]n 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.] (People v. Durazo (2004) 124 Cal.App.4th 728, 731.)

Under the Fourth Amendment, reasonableness is determined by balancing the need to search against the invasion that the search entails. (Terry, supra, 392 U.S. at pp. 2021.) It is also well established that due to the pervasive regulation of vehicles, individuals have a reduced expectation of privacy while driving on public roadways. (In re Arturo D. (2002) 27 Cal.4th 60, 68.) In Maryland v. Wilson (1997) 519 U.S. 408, the Supreme Court stated that the presence of more than one occupant in a car increases the sources of possible danger to officers. (Maryland v.Wilson, supra, at pp. 413414.)

The United States Supreme Court has stated that reasonable suspicion is not a finely tuned standard and is not the equivalent of absolute certainty. (Ornelas v. United States (1996) 517 U.S. 690, 695696; New Jersey v. T.L.O. (1985) 469 U.S. 325, 346.) Furthermore, [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 [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . . (People v. Souza (1994) 9 Cal.4th 224, 233.) It is the totality of the circumstances as understood by those versed in the field of law enforcement that makes a suspicion a reasonable one. (Id. at p. 240, quoting from United States v. Cortez (1981) 449 U.S. 411, 418.)

Deputy Cruz testified that it was approximately 4:00 in the morning when he pulled in behind the Suburban in the driveway, and his intent was to warn the driver that headlights were required at night. The deputy exited his car and began to walk toward the driver. As he arrived at the rear end of the vehicle, he saw appellant crouch down toward the floorboard area of the passenger side, and appellants hands disappeared at that time. Deputy Cruz saw appellant continuously glancing nervously over both shoulders as the police approached, and the deputy did not find appellants nervousness to be typical. Deputy Cruz was aware that there had been several incidents of rival gang shootings in the area. He also recalled his own prior experiences where individuals had tried to hide a gun from him in the same fashion. Deputy Cruz asked appellant more than once if he had any guns, and appellant did not respond. Deputy Cruzs suspicion that appellant might have hidden a gun, which is a clear indication of criminal activity, was a reasonable one. (See U.S. v. Brown (7th Cir. 1999) 188 F.3d 860, 865 [display of nervousness and fact that stop occurred in high crime area must be considered, and whether a reasonable suspicion exists is based on the totality of circumstances even if each individual indicator would not by itself justify an intrusion]; U.S. v. Evans (7th Cir. 1993) 994 F.2d 317, 319321 [a limited protective search of car for weapons during traffic stop is justified where the driver made a furtive gesture, the stop occurred at 6:30 p.m., and the motorist stopped in front of a well-known drug house in a high crime area]; U.S. v. Nash (7th Cir. 1989) 876 F.2d 1359, 1361 [a protective search of a car was justified when the defendant, in response to being pulled over by police, raised himself up from car seat, began reaching toward the floor, and made a furtive gesture]; People v. Souza, supra, 9 Cal.4th at pp. 240241 [fact that search occurred in a high crime area at night and officers saw the driver bend down as they approached were pertinent factors in determining whether there was reasonable suspicion].) Moreover, as appropriate to the reasonable suspicion standard, the search of the Suburban was extremely limited in scope to the area that caused concern, and no exploratory search took place. (Terry, supra, 392 U.S. at pp. 19, 29; U.S. v. Nash, supra, 876 F.2d at p. 1361.)

Although the prosecutor did not specifically elicit from Deputy Cruz that officer safety was one of his concerns in verifying whether there was a gun in the car, one might argue that it was self-evident despite the absence of the words protective search or officer safety being uttered by Deputy Cruz. Officer safety is clearly an ever present issue in police contacts in traffic stops. [R]oadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. (Michigan v. Long, supra, 463 U.S. at p. 1049.) Although [t]he threat to officer safety from issuing a traffic citation . . . is a good deal less than in the case of a custodial arrest, officer safety nevertheless remains a concern during traffic stops. (Knowles v. Iowa, supra, 525 U.S. at p. 117.) And as noted previously, the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. (Maryland v.Wilson, supra, 519 U.S. at p. 414.)

Even if the concern for officer safety is regarded as a new theory, appellate courts will not confine a party on appeal to the theories advanced below if the new theory raises only a question of law based on undisputed facts. Generally, a judgment or order will be affirmed on appeal if it is correct on any theory, regardless of the trial courts reasons. Therefore, a respondent may assert a new theory to establish that an order was correct on that theory unless the appellant would be prejudiced by being deprived of the opportunity to litigate an issue of fact. If a question of law only is presented on the facts appearing in the record, the change in theory may be permitted by the reviewing court. [Citation.] (Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 942.) In this case, both the prosecutor and the defense argued the lawfulness of the detention and search, in addition to the issue of standing. It is clear that both parties were satisfied that the facts of the case had been fully developed.

We conclude that when appellants diminished privacy interests are balanced against Deputy Cruzs concern that appellant had a gunpossession of which constituted criminal activity in addition to the danger it posed to the officers and othersappellant suffered no Fourth Amendment violation. His motion to suppress was properly denied. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. (People v. Zapien (1993) 4 Cal.4th 929, 976.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

__________________, P. J.

BOREN

__________________, J.

DOI TODD

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Vehicle Code section 24250 provides: During darkness, a vehicle shall be equipped with lighted lighting equipment as required for the vehicle by this chapter.

[4] The detectives who stopped the car admitted they were looking for a pretext to stop the car. They knew the driver and Pulliam were inside and suspected there was a gun in the car or that Pulliam was a wanted criminal. (Pulliam, supra, 405 F.3d at p. 784.)