Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County Nos. TA108724, TA103843, Kelvin D. Filer, Judge.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Defendant Jonathan Bradley, who was on probation following his conviction for corporal injury to a spouse/cohabitant (Pen. Code, § 273.5, subd. (a)), was charged with possession of an assault weapon (§ 12280, subd. (b)) and three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). After his motion to suppress evidence under section 1538.5 was denied, he entered a plea of nolo contendere to the first count (possession of an assault weapon), and was sentenced to a three-year prison term on that count, plus a concurrent three-year term for his probation violation. He appeals, arguing that the trial court erred by denying his suppression motion. We affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
In January 2009, Bradley entered a plea of nolo contendere to one count of infliction of corporal injury to a spouse or cohabitant in case No. TA103843. Imposition of sentence was suspended, and Bradley was placed on formal probation for a period of five years.
At 8:30 p.m. on September 30, 2009, Deputy Penelope Armstrong of the Los Angeles County Sheriff’s Department gang enforcement team was working with her partners Danny Martinez and Rick Cordero near the Clover Motel in Lynwood on a matter unrelated to Bradley or this case. Deputy Armstrong had made several arrests for narcotics, burglaries, robberies, and prostitution in the area around the motel, which was a known gang area. As she was standing on the sidewalk, backing up her partners, she saw a man walking out of the driveway of the motel. The man was holding his waistband as though he was concealing a weapon. When he looked up and saw the uniformed deputies he looked startled, stopped suddenly, and turned to walk in the opposite direction. Believing that the man might be concealing a weapon, Deputy Armstrong detained him for a pat down search.
As she was patting him down, she asked him for his name. He hesitated, and said his name was Franklin Monte. She continued the pat down while she asked for his birth date and whether he was on probation or parole. He hesitated again, then gave a birth date and said he was not on probation. She relayed the information to Deputy Cordero, who was in the patrol car, and he entered the information into the computer. Although the name came up on the computer, the birth date was different, so she asked him to repeat his name and birth date several times. Each time she asked, he hesitated before answering, and the birth date was a little off. She continued to ask him questions, including his address, but the information he provided was always different than the computer records.
While Deputy Armstrong was asking him questions, one of her partners asked him if he was staying at the motel. He said he was, so Deputy Cordero went to the motel office and got a photocopy of the man’s identification. When Deputy Armstrong confronted him with the photocopy, the man admitted that he was Jonathan Bradley, and said that he did not give his real name because he had an outstanding warrant and did not want to go to jail. He told the deputies that there were citations in his room, and gave them permission to search the room. During the search, the deputies found four guns, including an Uzi, and several rounds of ammunition. Bradley admitted that the guns were his. The detention, from the time Deputy Armstrong saw Bradley until the deputies searched his motel room, lasted about 30 minutes.
Bradley was charged by information in case No. TA108724 with one count of possession of an assault weapon (§ 12280, subd. (b)) and three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). Bradley moved under section 1538.5 to suppress evidence related to the guns and ammunition, on the ground that there was no legally sufficient reason for the deputies to stop and detain him, and even if the detention initially was lawful, it was illegally prolonged. Based upon Deputy Armstrong’s testimony at the suppression hearing, the trial court denied Bradley’s motion. The court then held a probation violation hearing in case No. TA103843 immediately following the suppression hearing, and found that Bradley had violated his probation.
The next day, Bradley entered a nolo contendere plea to the first count in case No. TA108724, possession of an assault weapon. The court sentenced him to the upper term of three years on that count and dismissed the remaining counts. The court then sentenced him to the mid-term of three years in case No. TA103843, to be served concurrently with the sentence in case No. TA108724. Bradley timely filed a notice of appeal in both cases, and the trial court issued a certificate of probable cause.
DISCUSSION
On appeal, Bradley challenges the denial of his suppression motion, arguing that his initial detention was unlawful because there were insufficient facts to give rise to a reasonable suspicion that he was concealing a weapon, and that even if the detention was lawful at its inception, it became unlawful when it extended beyond that which was necessary to determine that he was not concealing a weapon. We disagree.
“A suspect may be detained if an officer has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. [Citation.] The officer ‘“must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant”’ [her] action. [Citation.] This is a totality of the circumstances evaluation, in light of the officer’s training and experience. [Citation.]” (People v. Osborne (2009) 175 Cal.App.4th 1052, 1058.) And, “[w]hen an officer reasonably suspects that an individual whose suspicious behavior he or she is investigating is armed and dangerous to the officer or others, he or she may perform a patsearch for weapons. [Citations.]” (In re H.M. (2008) 167 Cal.App.4th 136, 143.)
In denying Bradley’s motion, the trial court found that Deputy Armstrong articulated specific facts that gave rise to her reasonable suspicion that criminal activity was afoot and that Bradley was armed. The court pointed to Deputy Armstrong’s testimony that the area around the motel was a high crime gang area, that Bradley appeared startled when he saw the deputies and turned to avoid contact with them, and that Bradley was holding his waistband. The court concluded that, under these circumstances, Deputy Armstrong reasonably was concerned for her safety, which justified her pat down of Bradley. The court also found that Bradley’s hesitancy in answering Deputy Armstrong’s questions about his name, birth date, and probation status during the pat down search and the fact that he gave her incorrect identification information justified his further detention while Armstrong’s partner sought to verify his identity. Finally, the court concluded that the 30-minute detention was not prolonged and that Bradley’s consent to the search of his room was voluntary in light of all these circumstances. Therefore, the court denied Bradley’s motion to suppress the evidence resulting from the search.
When reviewing the trial court’s denial of a suppression motion, we defer to the trial court’s express or implied factual findings supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search was reasonable under the Fourth Amendment. (People v. Maury (2003) 30 Cal.4th 342, 384.) Bradley argues that the initial detention was unreasonable because his behavior -- turning away from the deputies when he saw them, and holding his hand on his waistband -- “would not lead Deputy Armstrong to ‘reasonably believe in the possibility that a weapon may be used against [her].’” (Quoting People v. Dickey (1994) 21 Cal.App.4th 952, 956.) While Bradley is correct that the mere fact that a person appears nervous or attempts to avoid contact with a police officer is insufficient to justify a detention (see, e.g., People v. Bower (1979) 24 Cal.3d 638, 648), in this case the trial court found, supported by substantial evidence, that Deputy Armstrong observed Bradley holding his waistband in such a manner that caused her to believe he was concealing a weapon. At that point, Deputy Armstrong “acquired sufficient grounds to justify a temporary detention to check for weapons.” (People v. Rosales (1989) 211 Cal.App.3d 325, 330.)
Bradley argues, however, that even if the initial detention was justified, his further detention became impermissible once Deputy Armstrong conducted the pat down search and found no weapons. There is no question that “‘an investigatory detention exceed[s] constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.’” (See, e.g., People v. McGaughran (1979) 25 Cal.3d 577, 586.) But it is also true that “[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention.” (People v. Russell (2000) 81 Cal.App.4th 96, 102.) And in this case, Bradley’s hesitancy and inconsistency in answering questions concerning his identity during the pat down search, and the inconsistency between the information he provided and the results of the computer search, raised further suspicion and justified prolonging the detention for the short time needed to determine his real identity by obtaining his registration information from the motel office. Thus, the trial court correctly found that the detention was reasonable and properly denied Bradley’s motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., SUZUKAWA, J.