P. v. Coons

Filed 3/19/07 P. v. Coons CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Barry Taylor, Judge. Affirmed.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

The sole issue in this appeal is the legality of the search of appellant John Coons. We find no error and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Appellant was charged with one count of unlawful possession of cocaine for sale. (Health & Saf. Code, 11351.) He entered a no contest plea after his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. We take our factual summary from the hearing on the suppression motion.

On the night of March 14, 2006, Los Angeles Police Officer Brenda Nix was in uniform, patrolling in a marked black and white police vehicle. Her assignment was narcotics in Van Nuys. Officer Nix had 40 hours of narcotics training at the police academy, and had worked as an undercover officer in narcotics enforcement, including cases involving rock cocaine. She had been involved in 100 narcotics transactions and had made numerous arrests for narcotics, especially in the area of Vanowen and Sepulveda. Before becoming a police officer, she had worked in a drug rehabilitation program at a Veterans Administration hospital dealing with drug users, buyers, and sellers.

She knew the area around the intersection of Vanowen and Sepulveda to be an area frequented by buyers and sellers of narcotics. She described it as a highly known narcotic area. Officer Nix had observed narcotics transactions at that location. She had interviewed numerous arrestees who told her that it was very easy to walk around that area and not be stopped by patrol officers because the narcotics traffickers had learned to conceal narcotics so they would not be discovered in a patdown search.

On March 14, Officer Nix and her partner were involved in a traffic stop at the corner of Vanowen and Sepulveda at 9:10 p.m. She saw appellant in a parking lot, walking and looking up and down the street as if he was waiting for something. Officer Nix told her partner she wanted to keep an eye on appellant because of his behavior. When they finished the traffic stop, the officers moved their vehicle to a location which gave Officer Nix a clear view of appellant. He walked around the corner. At one point appellant acted as if he had seen somebody and walked quickly across the street as though going towards someone. When appellant walked past the police vehicle, Officer Nix moved the car so she could continue to watch him.

Officer Nix saw appellant meet with a man at an east/west alley next to an apartment complex. Appellant had his hands in front of him, although Officer Nix could not see them because appellant had his back to her. Both men had their hands out and appellant began looking up and down the alley, moving his head. She could see appellants elbows moving. Officer Nix said both men were hunched over, moving their heads back and forth, and appeared to be exchanging something. Appellant walked by the police vehicle alone, heading back to the same corner at Vanowen and Sepulveda. He was looking in all directions. Appellant returned to the same parking lot and started circling his head as if waiting for someone again.

Appellant then walked westbound and met a man in a dark area next to a building and some pay phones. Officer Nix saw appellant with his hands in front of him, close to his body so she could not see if anything was passed between the men. Officer Nix could not see appellants hands. She saw furtive movements and then after a very brief meeting, the men split up. Appellant walked eastbound and the other man walked westbound.

Based on her training and experience, Officer Nix formed the opinion that appellant was loitering for the purpose of either selling or buying narcotics. When appellant returned to the corner, she placed him under arrest for loitering in violation of Health and Safety Code section 11532.

The trial court denied appellants motion to suppress the evidence seized following his arrest. Appellant pled no contest and was sentenced to a negotiated term of three years. This appeal followed.

DISCUSSION

Appellant argues that Officer Nix did not have probable cause for the arrest and search and that the trial court erred in denying his suppression motion. He concedes that his conduct was sufficiently suspicious to justify a temporary detention, but argues the higher standard for probable cause for arrest was not met. Appellant argues that furtive movements alone cannot amount to probable cause. Respondent contends that appellants furtive conduct, coupled with the high incidence of narcotics transactions in the area, provided sufficient probable cause.

[S]ince voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. [Citations.] Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court. [Citation.] (People v. Camacho (2000) 23 Cal.4th 824, 830.)

Probable cause exists when the facts known to the arresting officer would persuade someone of reasonable caution that the person to be arrested has committed a crime. [Citation.] [P]robable cause is a fluid conceptturning on the assessment of probabilities in particular factual contexts . . . . (Illinois v. Gates (1983) 462 U.S. 213, 232 [76 L.Ed.2d 527, 103 S.Ct. 2317].) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 [157 L.Ed.2d 769, 124 S.Ct. 795].) The substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that belief must be particularized with respect to the person to be . . . seized. (Ibid.) (People v. Celis [(2004)] 33 Cal.4th [667,] 673.) (People v. Thompson (2006) 38 Cal.4th 811, 818.)

In People v. Guajardo (1994) 23 Cal.App.4th 1738, 1741, the court applied the principle that [i]n this post-Proposition 8 era, relevant evidence which may have been unlawfully seized under pre-Proposition 8 California law is nevertheless admissible unless exclusion is required by the United States Constitution. After observing that there is no exact formula to determine whether there was probable cause, the Guajardo court said it must look to the totality of the surrounding circumstances and decide each case on its own facts, taking into account such things as (1) the officers experience (which may render suspicious that which appears innocent to a layman); (2) the officers prior contacts with the suspect; (3) the officers awareness that the area is one known for street drug transactions; (4) the defendants conduct (such as a covert or secretive display, transfer or exchange); (5) a caching of an object given or received in a peculiar receptacle designed for a different, specialized purpose; (6) some indication by the defendant of a consciousness of guilt; and so on. [Citations.] (People v. Guajardo, supra, 23 Cal.App.4th at p. 1742.)

In Guajardo, the arresting officer, who had substantial experience and training in narcotics violations, saw the defendant hand a small object to a companion in an area known by the officer to have a high level of narcotics activity. The defendant looked around in a nervous manner as he approached the patrol car. The officer had arrested the defendant one month earlier for the sale of narcotics. The Court of Appeal concluded that there was probable cause based on the high rate of drug transactions in the area, the conduct of the defendant, and the earlier arrest. In addition, the court concluded that the defendant had demonstrated consciousness of guilt by looking around as he approached the patrol car, and appearing nervous and anxious to leave the area. (People v. Guajardo, supra, 23 Cal.App.4th at pp. 1742-1743.)

Appellant argues that Officer Nix placed him under arrest because of a preconceived notion that furtive movements in this known narcotics trafficking area indicated he was buying or selling drugs. The fact that Officer Nix did not see an actual exchange of drugs and money between appellant and either man did not deprive her of probable cause. The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. (People v. Souza (1994) 9 Cal.4th 224, 233, quoting In re Tony C. (1978) 21 Cal.3d 888, 894.)

The reputation of the area for narcotics transactions, which appellant dismisses as a preconceived notion, is relevant to the probable cause determination. In People v. Mims (1992) 9 Cal.App.4th 1244, a police officer experienced in narcotics enforcement had previously observed street level drug transactions on the same block on which appellant was arrested. In addition, the officer twice had found illegal drugs on the execution of search warrants at the residence to which appellant retreated upon the approach by police. The Mims court concluded that the officer was entitled to buttress his observations and rely upon his personal knowledge that this was an area of high drug activity . . . . (People v. Nonnette (1990) 221 Cal.App.3d 659, 668 [271 Cal.Rptr. 329].) (Mims, supra, at p. 1248.)

Appellant was not arrested for a sale of drugs or for possession of drugs for sale in violation of Health and Safety Code section 11350 et seq. Instead, he was arrested for a violation of Health and Safety Code section 11532, loitering in a public place in a manner and under circumstances manifesting the intent to commit a narcotics violation as defined in Health and Safety Code sections 11350 et seq. and 11400 et seq. Subdivision (b) of section 11532 defines the circumstances that may be considered in determining whether a person has the requisite intent to engage in drug-related activity. These include trying to conceal himself or any object that reasonably could be involved in an unlawful drug-related activity. (Health & Saf. Code, 11532, subd. (b)(3).) Other relevant conduct occurs when the defendant [r]epeatedly . . . engages in conversations with passersby, whether on foot or in a motor vehicle, indicative of summoning purchasers of illegal drugs; or [r]epeatedly passes to or receives from passersby, whether on foot or in a motor vehicle, money or small objects. (Health & Saf. Code, 11532, subd. (b)(5), (6).) Subdivision (c) of section 11532 provides: The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for unlawful drug use and trafficking, . . .

We conclude the trial court properly denied the motion to suppress because there was probable cause for the arrest. Officer Nix observed appellant engage in the same pattern of furtive behavior with two men in a short period of time at 9:00 oclock in the evening. Appellant admits that he engaged in suspicious activities. He waited on a street corner known to be in a high narcotics trafficking area; went to a more secluded place to meet someone; stood with his back to the police officers while moving his arms and hands and looking around; and hunched over toward the other man. Based on Officer Nixs experience in drug transactions and knowledge of the area, this was sufficient probable cause for arrest for a violation of Health and Safety Code section 11532.

DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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