Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00553
ROBIE, J.
Defendant Xavier Cleveland Jones pled no contest to possession of cocaine base for sale. On appeal, he challenges the trial court’s denial of his motion to suppress evidence. He contends the trial court erred by admitting evidence seized as a result of an illegal patdown search of his person and an illegal search of his car. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Tired of watching two men deal drugs in front of her downtown Sacramento apartment all day, a woman called the police department around midnight in January 2007 to complain. The woman said the two men had parked the car, a white four-door, in front of her apartment. She described the men as African-American males, about 5 feet 10 inches tall, in their mid-20’s, with one wearing “a black jacket with red stripes[,] a red shirt underneath, black pants, and a black beanie,” and the other wearing all black. She said the man in the black jacket with red stripes kept the drugs in his mouth.
Officer Paul Fong and his partner were dispatched and had the description given by the woman displayed on their patrol car’s computer screen. The officers arrived at the location, which Officer Fong knew to be a narcotics trafficking area, but saw nothing matching the description, so they went to clear another call on the other side of town. About 20 minutes later, Officer Fong’s partner called the woman who gave the description and she said the two men were back.
The officers pulled onto the street named by the woman and saw a white four-door car and two men who fit the description standing about 20 to 40 feet from the car. This was the first time the officers noticed a car matching the description. The two men walked away from the white car as they noticed the patrol car approaching. Officer Fong drove past the men and pulled into an alleyway in front of them and ordered them to stop. Defendant -- the man in the black jacket with red stripes -- “started to take off.”
Officer Fong’s partner swung the passenger door of the patrol car open, jumped out, grabbed defendant, and began to struggle with him. Officer Fong got out of the patrol car to help detain defendant and then detained the other man, who had continued to walk away during the scuffle.
The officers conducted a thorough search of both men, looking in their mouths, patting down the outside of their clothing, and checking inside their pockets. The officers conducted a patdown search because from their experience drug dealers often carry weapons to protect themselves. The searches uncovered no drugs, drug paraphernalia, or weapons, but Officer Fong’s partner pulled some car keys from defendant’s pocket. The officers placed the two men in the patrol car. Officer Fong ran the registration on the white car and found it was registered to defendant. From Officer Fong’s experience, he knew that drug dealers often hide drugs nearby, and that drugs are often kept in vehicles. The officers unlocked defendant’s car and found cocaine base in the ashtray and glove box.
In a complaint filed in May 2007, the People charged defendant with two counts of possessing cocaine base for sale. Defendant moved to suppress all evidence seized as a result of the search of his person and his car. At the suppression hearing, defendant argued there was no reasonable suspicion to detain him or conduct a patdown search and the search of the car was not supported by probable cause. The People contended there was “probable cause for each aspect of the detention” and subsequent searches, but at no point did they argue that defendant was or could have been arrested for resisting, delaying, or obstructing a peace officer. When cross-examined, Officer Fong testified the two men were not under arrest when the officers detained them. Defense counsel also questioned Officer Fong about whether defendant actually fled when the patrol car pulled into the alleyway or, as Officer Fong’s partner had indicated, had “simply shuffled two steps to his left.”
The trial court concluded the woman’s description gave the officers reasonable suspicion to detain the two men but not probable cause to arrest them. After defendant attempted to flee and the officers detained him, the trial court found a patdown search appropriate because “people who are involved in drug sales . . . carry weapons for defensive purposes.” The trial court also found that defendant was essentially arrested once placed in the patrol car.
The trial court then focused on the search of the car: “So the real issue is, is th[ere] . . . probable cause based upon the officer’s information to go ahead and search the [defendant’s] vehicle[?] [T]hey are in a high drug area. [The officer] has an allegation by a citizen [who] was seeing people wearing the same clothing, doing an activity that the complaining witness describes as drug sales, [and] the officer knows that people will store drugs off a distance from where they are selling, sometimes in their vehicle. [¶] [The officer] knows that this vehicle . . . isn’t too far away. [The officer knows] it belonged to . . . [defendant] here. It does appear to the Court that the officer did have sufficient probable cause to go ahead and look in that vehicle for rock cocaine. [¶] So based on that analysis, respectfully, I’m going to deny [defendant’s] motion to suppress.” Defendant subsequently pled no contest to the charges and was sentenced to 270 days in county jail and five years’ probation.
DISCUSSION
I
Standard Of Review
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.” (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
II
The People May Raise A New Theory Justifying The Search Of Defendant’s Person As A Search Incident To Arrest For Resisting, Delaying, Or Obstructing A Peace Officer Because No Further Evidence Could Have Negated Probable Cause To Arrest On That Ground
As a threshold matter, the People contend they may rely on a theory justifying the search of defendant’s person not raised before the trial court during the suppression hearing.
“Ordinarily, the prosecution cannot justify a search or seizure on appeal on a theory that was not presented to the trial court. [Citations.] Indeed, not even the appellate court itself can raise a new Fourth Amendment theory sua sponte. [Citations.] [¶] This rule is subject to exceptions, however. It does not apply if the considerations that give rise to it are absent. . . . Thus, a theory which assumes illegal police conduct but nevertheless sustains the search or seizure, such as inevitable discovery, may be raised for the first time on appeal. . . . [¶] Moreover, the rule does not apply ‘where there does not appear to be any further evidence that could have been introduced to defeat the theory in the trial court and therefore the question of application of the new ground to a given set of facts is a question of law.’” (People v. Watkins (1994) 26 Cal.App.4th 19, 31.)
The People specifically contend they may rely on the theory that the officers had probable cause to arrest defendant (and, as we discuss below, search him incident to arrest) for attempting to flee from the officers and then physically resisting a lawful detention. The People argue that since Officer Fong testified at the suppression hearing that “[defendant] began to run in the opposite direction of the patrol car when [the officers] ordered [him] to stop” and struggled with Officer Fong’s partner during the detention, and Officer Fong was cross-examined by defense counsel about whether defendant’s actions could accurately be characterized as flight, the People may raise their new theory under the “no other evidence” exception to the general rule precluding new justifications on appeal. We agree.
Defendant concedes the officers had a reasonable suspicion to conduct an investigatory stop and we agree.
Since “probable cause” is only a fair probability that a person has committed a crime, when the introduction of other conflicting evidence cannot negate that probability, the People may raise a new theory on appeal based on probable cause. (See People v. Gorak (1987) 196 Cal.App.3d 1032, 1039-1040.) In Gorak, a police officer made a traffic stop of a vehicle with no license plate lights and, upon looking into the passenger compartment, noticed an air compressor in the backseat that leaked water and had “electrical and air lines [that] appeared to have been broken off because the ends of the lines were frayed and jagged.” (Id. at p. 1035.) The driver appeared to be under the influence of a controlled substance. (Ibid.) Suspecting the air compressor was stolen but not knowing if any air compressors had been reported stolen, the officer entered the car, removed the compressor, ran its serial number, and took it to the police station. (Id. at p. 1036.) The driver moved to suppress evidence of the compressor, but the People argued the search and seizure was justified on the basis of inventory search, safekeeping, and inevitable discovery theories. (Ibid.) The driver appealed after the trial court denied his motion to suppress. (Ibid.)
On appeal the People raised a new theory that the officer had probable cause to believe the compressor was stolen. (People v. Gorak, supra, 196 Cal.App.3d at p. 1036.) The driver contended the People were precluded from making the argument for the first time on appeal, reasoning that since the officer’s knowledge of air compressors was never litigated, the “no other evidence” exception to the general rule was inapplicable. (Id. at pp. 1036, 1037, 1039.) The court disagreed: “We hold that the fact that [the officer] did not have knowledge of any thefts of air compressors or any special knowledge of air compressors in general would not have defeated the theory that the search was based on probable cause given application of a commonsense approach to the facts known to [the officer] at the time of the search.” (Id. at p. 1040.)
We find the present case analogous to Gorak. Flight from an officer during a lawful investigatory stop is a “garden variety” violation of section 148, subdivision (a)(1) and is sufficient for probable cause to arrest. (In re Andre P. (1991) 226 Cal.App.3d 1164, 1169.) Defendant’s flight, combined with his physical resistance to a lawful detention, was more than enough to give the officers probable cause to arrest him for violating section 148, subdivision (a)(1). At the suppression hearing defense counsel cross-examined Officer Fong about whether defendant’s conduct could accurately be characterized as flight, a factor which also supports the conclusion the “no other evidence” exception applies. (See Green v. Superior Court (1985) 40 Cal.3d 126, 137-138 [reasoning that exception to general rule was applicable in part because defendant had the opportunity to, and actually did, cross-examine a key witness regarding the facts supporting the new theory raised by the People for the first time on appeal].) Even if defendant could introduce other evidence conflicting with Officer Fong’s testimony, while such evidence might affect an ultimate factual finding, it would not negate the “commonsense,” fair probability standard of probable cause to arrest. (See People v. Gorak, supra, 196 Cal.App.3d at pp. 1039-1040.)
Defendant contends the “no other evidence” exception should not apply because during the suppression hearing defense counsel “had no opportunity nor indeed, any reason, to cross-examine [Officer Fong] on the theory of search incident to arrest, especially of [the] search of a car 20 to 40 feet away from [defendant].” Contrary to defendant’s assertion that the trial court based its conclusion regarding the validity of the search of the car on Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685], which defines the boundaries of what can be considered within a person’s “immediate control,” we read the trial court’s decision as to the validity of the search of the car as resting squarely on probable cause to believe the car contained narcotics.
The only new theory the People raise on appeal is that the officers could lawfully conduct a full search of defendant’s person as a search incident to arrest for violating section 148, subdivision (a)(1) under the bright-line rule set out in United States v. Robinson (1973) 414 U.S. 218, 235 [38 L.Ed.2d 427, 440-441] instead of being limited to the patdown search for weapons (see Minnesota v. Dickerson (1993) 508 U.S. 366, 372 [124 L.Ed.2d 334, 343-344]). Since none of the unlitigated facts defendant focuses on tend to defeat this theory that the People raise for the first time on appeal, we conclude the People may rely on their new theory. (See People v. Gorak, supra, 196 Cal.App.3d at pp. 1039-1040.)
III
Probable Cause Supported The Search Of Defendant’s Person And Car
A
Probable Cause To Arrest Defendant For Resisting A Lawful Detention Justified A Full Search Of Defendant’s Person Incident To Arrest
Relying on their new theory, the People contend the full search of defendant’s person -- and the resulting seizure of defendant’s car keys from his pocket -- were legitimately conducted incident to arrest for resisting, delaying, or obstructing a peace officer. We agree.
“[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (United States v. Robinson, supra, 414 U.S. at p. 235 [38 L.Ed.2d at p. 441].) The full search of a person incident to arrest may precede that person’s formal arrest so long as there was probable cause to make the arrest before the search. (People v. Simon (1955) 45 Cal.2d 645, 648 [“it has been held that it is not significant whether the search precedes or follows the arrest”].)
“[A]n arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause [to arrest]. [Citations.] . . . As [the United States Supreme Court] ha[s] repeatedly explained, ‘“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. . . .”’ ‘[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.’” (Devenpeck v. Alford (2004) 543 U.S. 146, 153 [160 L.Ed.2d 537, 545].)
Here, other than the facts accessible to him, Officer Fong’s subjective intent as to whether he was detaining or arresting defendant is irrelevant. (Devenpeck v. Alford, supra, 543 U.S. at p. 153 [160 L.Ed.2d at p. 545].) As we concluded above, the officers had probable cause to arrest defendant when he attempted to flee and then physically resisted a lawful detention. The officers were thus entitled to conduct a full search of defendant’s person incident to arrest before they placed him in the patrol car and therefore the car keys taken from defendant’s pocket were lawfully seized.
B
Information From A Citizen Informant, Combined With The Officers’ Observations And Experience, Gave The Officers Probable Cause To Search Defendant’s Car
Defendant contends the officers searched his car without probable cause because “[t]hey saw no criminal activity involving it or near it,” they found no evidence of criminal activity when they searched defendant’s person, and the informant never mentioned to them that defendant retrieved anything suspicious from the car but said he kept the drugs in his mouth. Defendant argues Officer Fong’s testimony “that in his experience those who sell drugs often keep them hidden nearby, ‘in the ground, among weeds, in a tree, in their car, different places’” gave rise to no more than a hunch, not the specific and articulable facts needed for probable cause to search his car. We disagree.
Carroll v. United States (1925) 267 U.S. 132, 153-154 [69 L.Ed. 543, 551-552] recognized the “automobile exception” to the warrant requirement applicable today: “[T]he guaranty of freedom from unreasonable searches and seizures by the 4th Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. [¶] Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. . . . [T]hose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”
Whether there is probable cause to search a car is governed by the same standard as any other probable cause determination: could a neutral and detached magistrate make a practical, commonsense decision that, given the totality of the circumstances, “including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of crime will be found in a particular place[?]” (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527 548].)
A California court has found probable cause to search a person’s car when a reliable informant provides information to the police that the person is conducting a drug transaction outside, the police officers subsequently do not find drugs on the person, the person exhibits behaviors consistent with consciousness of guilt, and the police officers find car keys on the person that unlock a nearby car registered in that person’s name. (People v. Carrillo (1995) 37 Cal.App.4th 1662.) In Carrillo, a confidential informant named the defendant, gave a physical description, noted he drove a “‘Toyota-type’” car, and said he distributed large amounts of cocaine and heroin in the area. (Id. at p. 1664.) A “separate confidential reliable informant” later told the police the address where defendant was and said he “would soon be delivering a quantity of cocaine” at a nearby gas station. (Id. at pp. 1664-1665.)
Police officers set up surveillance at the address given by the informant and saw the defendant walk to the gas station. (People v. Carrillo, supra, 37 Cal.App.4that p. 1665.) An officer approached the defendant while standing in a parking lot and asked if he was “carrying any guns.” The defendant admitted he was, and the officer placed him under arrest for carrying a concealed weapon. (Ibid.) A search incident to arrest uncovered no drugs on defendant’s person but the officer “found a single automobile key in [his] pants pocket.” (Ibid.) When asked where his car was, the defendant denied owning a car and said he “received a ride from someone else.” (Ibid.) Using the key, the officers eventually found defendant’s car in a “vacant lot across the street from the apartment building” identified by the reliable informant. (Id. at pp. 1665-1666.) The officers ran the registration and found it was registered in the defendant’s name but the defendant continued to deny ownership. (Id. at pp. 1666, 1669.) A search of the car uncovered cocaine in the glove box and under the passenger seat. (Id. at p. 1666.)
The defendant appealed after the trial court denied his motion to suppress, arguing that the officers lacked probable cause to search the car. (People v. Carrillo, supra, 37 Cal.App.4that p. 1667.) The court noted that “[b]ecause the confidential informant told the [officer defendant] was delivering narcotics [in the] area, and no narcotics were found on his person, [the officer] reasonably believed the narcotics would be in [the defendant]’s vehicle.” (Id. at 1669.) Thus, the court disagreed with the defendant’s contention, reasoning that the defendant’s “statements [denying ownership of the car] evidencing consciousness of guilt related directly to the vehicle and what it contained. The false exculpatory statements served to reinforce the information from the two confidential informants. That information, the fact [the defendant] had a concealed firearm and disclaimed ownership of the car registered in his name, provided enough probable cause to search the vehicle.” (Ibid.)
We conclude this case is analogous to Carrillo. Like the officers in Carrillo, Officer Fong and his partner received information from a reliable informant of drug activity at a particular location. (See People v. Carrillo, supra, 37 Cal.App.4that p. 1664.) Similarly, upon arriving at the location, the officers in both cases saw persons who fit the description the informant had given. (See id. at pp. 1664-1665.) In both cases a lawful search incident to arrest did not turn up any drugs but the officers found car keys, which gave rise to the reasonable belief drugs were kept in the car. (See id. at pp. 1665-1666, 1669.) In Carrillo the defendant exhibited consciousness of guilt by denying ownership of the car, while in this case defendant exhibited consciousness of guilt by walking away from the car, attempting to flee, and physically resisting, delaying, or obstructing a police officer making a lawful detention. (See id. at p. 1669.) Finally, in both cases the officers did not search the defendants’ cars until confirming that the cars were registered in their names. (See id. at p. 1666.)
While we recognize the woman described defendant dealing drugs from his mouth, not his car, what we consider significant is that she personally observed defendant arrive in the car and conduct drug transactions. Furthermore, read in a light favorable to the judgment below, as we must, Officer Fong’s testimony that he did not see defendant’s car until the second time they drove past supports the reasonable inference defendant and the other man had left and returned in the car, therefore suggesting defendant had recently been in the car. As the court recognized in the slightly different context of the search of a car incident to arrest, “[i]n view of the nexus between the car, defendant, and his companion, their accessibility to the car and its contents, [and] the [citizen] informant’s report the two men were trying to sell drugs,” (People v. Boissard (1992) 5 Cal.App.4th 972, 983), we conclude probable cause constitutionally justified the officers’ warrantless search of defendant’s car.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, Acting P.J., BUTZ, J.
The People cite to Penal Code section 148, subdivision (a)(1), which provides, in relevant part: “Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
All further statutory references are to the Penal Code unless otherwise indicated.