Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC647455
Premo, J.
Defendant Vincent Patrick Gaeta pleaded no contest to charges of possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a)(1)), and possession of a firearm by a felon (id. § 12021, subd. (a)(1)). He was sentenced pursuant to his plea bargain to two years and eight months in prison. On appeal, defendant challenges only the denial of his motion to suppress evidence under Penal Code section 1538.5. We shall affirm.
I. Factual and Procedural Background
Our recitation of the facts is taken from the evidence presented at the preliminary hearing.
On or about October 24, 2006, San Jose Police Lieutenant Santiago Trejo was informed by his captain that neighbors in the Tennant Avenue area of San Jose had complained about what they thought was drug-sales activity at 86 Tennant Avenue. Trejo was familiar with the complainants through his work with the area neighborhood association. In a series of e-mails, the complainants described multiple visits to 86 Tennant Avenue by persons in vehicles and on foot. Each visitor approached the garage door and appeared to make contact with the resident by way of a cell phone. The garage door would roll up and the visitor would enter and a short time later the same visitor would depart, again by way of the garage door. According to the neighbors, it was “[a]lways the same pattern.” In passing along this information to Trejo, Trejo’s captain stated that “this particular residence has come up often and we need to take care of this problem residence.” In addition to the report of suspected drug activity at 86 Tennant, Trejo also knew that there had been auto burglaries in the neighborhood and problems with people hanging out in front of the park and sitting in cars drinking.
Around 11:17 p.m. on October 31, 2006, Trejo, who was in uniform and driving a marked patrol car, turned east down Tennant Avenue. Trejo observed a car about two or three blocks down the street, parked on the north side of the street facing west, with its amber directional signal blinking. As he approached, the car’s headlights went on as did the brake lights. It looked as if the driver had started the car although Trejo did not hear the engine. Trejo saw a man in the driver’s seat and a woman on the passenger side. The occupants looked at Trejo as he drove by. Trejo made a U-turn and pulled up behind the car, which, by then, had extinguished its lights. As Trejo pulled up, defendant emerged from the driver’s side door and a woman, later identified as Olga Rios, got out the other side and both began walking toward the house at 86 Tennant, across the street from where the car was parked. Trejo noticed that the car was parked near a fire hydrant.
Trejo got out of his car and hailed the pair, illuminating them with his flashlight. He asked if they lived in the neighborhood and both said no. Rios appeared nervous. Defendant was holding a ringing cell phone in his right hand. When Trejo asked what they were doing in the neighborhood, defendant responded that he was visiting his cousin, pointing to the house at 86 Tennant. Trejo asked the pair to stand closer to the front of one of the vehicles, out of the way of traffic coming around the corner. When Rios began drifting away, out of Trejo’s field of vision, Trejo told her to get back where he could see her. At some point Rios asked why she could not just go see her cousin.
Meanwhile, Trejo had asked defendant for his identification and defendant said that he did not have it but gave Trejo a California driver’s license number and birth date. Trejo also asked defendant if he was on probation and defendant said that he was not. Using his shoulder radio, Trejo verified defendant’s driver’s license information and then asked if defendant had a PFN, which would indicate that defendant had been arrested in the past. Police communications responded (in less than one minute), reporting that defendant did have a PFN and that he was on probation. Trejo asked whether defendant’s probation conditions would allow a search. The response, which came in less than three minutes, was affirmative. The transcript of the communications recording shows that the time from Trejo’s first call to his receipt of the information that defendant had a probation search condition was five minutes and 27 seconds.
As we understand it, a PFN is a unique number assigned to all persons who have been arrested in Santa Clara County.
While Trejo was speaking with defendant and Rios, Officer Robert McNamara arrived. He observed Trejo speaking with the couple, and noticed that defendant and Rios were “shifting nervously back and forth” and “looking around kind of suspiciously.” McNamara also observed that the car next to which the group was standing was parked too close to a fire hydrant. Rios beckoned McNamara aside and told him that she had given Trejo a false name and that she was a parolee at large. McNamara noticed that Rios was unable to remain still, that her pupils were dilated, and that her pulse was rapid. He arrested her and placed her in the back of his vehicle.
After learning that defendant was subject to a probation search condition, the police officers searched his car, recovering 27.78 grams of methamphetamine from beneath defendant’s wallet in the driver’s side door, razors from the center console, and a 12-gauge sawed-off shotgun from the trunk. Defendant was arrested and charged with possession of methamphetamine for sale, possession of a short-barreled shotgun, and possession of firearm by a felon.
Prior to the preliminary hearing, defendant filed a motion to suppress the evidence found in the car. (Pen. Code, § 1538.5.) The magistrate denied the suppression motion and held defendant to answer. In denying the motion to suppress, the magistrate found: “Based on the facts here, I’m satisfied that there was a reasonable investigation, that if there was a detention, it was not prolonged, and that the search and seizures were reasonable and comport with the Fourth Amendment. [¶] Indeed, if the officers had done anything else, they would have been derelict in their duties.”
An information was filed, charging defendant with the drug and weapons crimes listed above and alleging several sentence enhancements. Defendant filed a motion pursuant to Penal Code section 995, again seeking to suppress the evidence against him. The trial court denied the motion, finding the detention, search, and seizures to have been lawful. Thereafter, defendant changed his plea to no contest in exchange for a specified sentence and dismissal of the sentence enhancements. The only issue on appeal is whether the search of defendant’s car was constitutionally impermissible such that the evidence obtained thereby should have been suppressed.
II. Discussion
A. Standard of Review
“When we review the denial of a motion to suppress, we view the record in the light most favorable to the trial court’s ruling. We defer to the trial court’s findings of fact, whether express or implied, if those findings are supported by substantial evidence. We independently determine what legal principles are relevant, and apply those principles to the facts. We determine as a matter of law whether the search or seizure was unreasonable.” (People v. Aguilar (1996) 48 Cal.App.4th 632, 637.)
B. Contentions
Defendant maintains that he was unlawfully detained because Trejo had no specific, articulable facts upon which to base a suspicion that defendant was involved in criminal activity. The fact that he was parked across from and intending to visit the residence at 86 Tennant does not, he says, link him to the drug activity Trejo suspected was taking place there. Defendant also argues that neither his car’s location near a fire hydrant nor his failure to produce a driver’s license were sufficient grounds for a detention. Finally, defendant argues that, even if these Vehicle Code violations were sufficient reason to detain him, Trejo impermissibly prolonged the detention by continuing his investigation after he learned that defendant had a valid driver’s license. Defendant maintains that since Trejo learned of defendant’s probation search condition while defendant was being unlawfully detained, the search of the car was illegal.
The Attorney General takes issue with each of defendant’s contentions, arguing that if the encounter was a detention it was lawful because Trejo reasonably suspected defendant of illegal activity.
C. Reasonable Suspicion to Detain
Supposing that defendant was detained, the detention was constitutionally permissible. Detentions are limited seizures of the person and require an articulable level of suspicion to justify them. (In re Manuel G. (1997) 16 Cal.4th 805, 821; Florida v. Bostick (1991) 501 U.S. 429, 434-435.) “The law is well-established that ‘in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him [or her] 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. . . . 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. Loewen (1983) 35 Cal.3d 117, 123.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ (Terry v. Ohio[ 1968] 392 U.S. [1,] 19; see In re Tony C.[ 1978] 21 Cal.3d [888,] 892.) In making our determination, we examine ‘the totality of the circumstances’ in each case.” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) Thus, in analyzing defendant’s detention we examine the totality of the circumstances as known to Lieutenant Trejo at the time.
Trejo had specific and articulable facts causing him to suspect that some activity relating to crime had taken place or was about to occur in or around 86 Tennant Avenue. Trejo saw the blinking turn signal on defendant’s car parked across the street from 86 Tennant Avenue. Trejo knew that there had been car burglaries in the area and that car thieves often worked in the dark and “sometimes they hit the turn signals.” He also knew that neighbors had described activity consistent with illegal drug sales taking place at 86 Tennant and that the address had been the subject of prior complaints. Defendant argues that uncorroborated information provided by an untested informant is considered unreliable and does not establish probable cause. (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved in part on another ground in People v. Camarella (1991) 54 Cal.3d 592; accord People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264.) Citing Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1112-1114, defendant also maintains that reports of “heavy foot traffic” do not amount to probable cause in the absence of police corroboration of the suspicious drug activity. Neither argument supports his position. The informant in this case was not anonymous or untested but was a person known to Trejo through Trejo’s participation in the neighborhood association. And heavy foot traffic, which alone may not necessarily signal criminal behavior, is one indicator of possible narcotics transactions. (Id. at p. 1112, citing People v. Kershaw (1983) 147 Cal.App.3d 750 and People v. Terrones (1989) 212 Cal.App.3d 139.) More to the point, the question is not whether Trejo had probable cause to arrest defendant. The question is whether he had objective information that reasonably raised a suspicion that criminal activity was afoot. The objective information Trejo had about car burglaries, car burglars, and the activity observed at 86 Tennant amounted to specific facts upon which to base a suspicion that crimes were being or were about to be committed in the area of 86 Tennant.
Trejo also had objective facts to support his suspicion defendant was involved in these crimes. Defendant claims that his mere presence in the area was not enough to connect him to the criminal drug activity. “But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) We stress that Trejo did not need probable cause to detain defendant. “An investigative stop or detention may be justified by circumstances not amounting to probable cause to arrest [citations], just as probable cause to arrest does not require proof of guilt beyond a reasonable doubt [citations]. ‘ “[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 his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal--to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ ” ’ ” (People v. Long (1987) 189 Cal.App.3d 77, 83.) “[I]n the course of training and in the exercise of their duties, experienced officers develop an ability to perceive the unusual and suspicious which is of value in the performance of their task of protecting the rights and safety of law abiding citizens. Indeed the failure of an officer to investigate conduct suggestive of criminal activity based upon his expertise acquired by training and experience would constitute a breach of his obligation to properly discharge the duties of an officer of the law.” (People v. Peterson (1978) 85 Cal.App.3d 163, 168-169.)
In the present case, it was rather late at night when Trejo observed defendant’s parked car with the turn signal on. The blinking directional signal on the parked car, in an area known to suffer car burglaries, was suspicious. Defendant and Rios added to the suspicious circumstances when, after apparently recognizing Trejo as a police officer, they immediately exited the vehicle, and, in Trejo’s words, “tried to put some distance between themselves and the vehicle.” After questioning the pair about where they were headed, Trejo observed that Rios looked nervous. And defendant, who had been sitting in the driver’s seat, was unable to produce a driver’s license. Altogether, these objective facts support a reasonable suspicion that defendant might have been burglarizing the car.
Other specific facts linked defendant to the criminal activity Trejo suspected was taking place at 86 Tennant. Defendant had parked the car across the street from 86 Tennant. When he got out of the car he admitted that he was, indeed, intending to visit someone at that address. Defendant was carrying a cell phone in his hand, which might have been for the purpose of calling himself into the garage as the neighborhood informant had seen others doing.
Trejo’s further investigation was to ask defendant for identification and whether he was on probation. Defendant failed to produce any identification and denied being on probation. Less than a minute after learning that defendant had a valid driver’s license Trejo learned that defendant was indeed on probation and, therefore, that he had lied. Knowing that, one might reasonably have suspected that defendant was also lying about visiting his “cousin” at 86 Tennant, which would justify Trejo’s subsequent investigation into whether defendant’s probation conditions would allow a search. There was nothing unduly prolonged in the detention, which lasted less than five and one-half minutes.
Under the totality of the circumstances, we conclude that Lieutenant Trejo knew facts which, viewed objectively, would cause a reasonable officer to suspect that criminal activity involving defendant was afoot so as to justify detaining defendant for the purpose of resolving any ambiguity. Given our conclusion, we need not consider whether possible Vehicle Code violations would also have warranted detention.
Since we conclude that defendant was lawfully detained when Trejo learned he had a probation search condition, the subsequent search of his vehicle was proper.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.