Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA065590. Arthur H. Jean, Jr., Judge.
Peter N. Priamos, 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, Senior Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Jesus Osbaldo Martinez appeals following a court trial that was heard simultaneously with his motion to suppress evidence. The court found him guilty of possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a).) Allegations of a prior strike and two prior prison terms were found true. The court denied appellant’s motion to strike the strike allegation and sentenced him to the low term of two years in state prison, doubled to four years for section 11360, subdivision (a) and a concurrent low term of 16 months in state prison, doubled to 32 months for section 11359, to be served concurrent to any other time appellant was serving. The only issue presented on appeal is the legality of the search. Concluding the trial court properly denied the motion to suppress, we shall affirm the judgment.
The court dismissed the prior prison term finding(s).
STATEMENT OF FACTS
The People and appellant agreed to a court trial with a condition that if there was an adverse decision, appellant would remain out on bond while the case in on appeal. They stipulated there was no arrest or search warrant.
Appellant sought to suppress any evidence discovered after he was detained and handcuffed. He claimed there were no grounds to detain, handcuff and arrest him, much less to seize him and take him to the scene of the shooting and that, without a warrant and without his permission to search the car, the evidence was the “fruit of a poisonous tree” and must be suppressed. The parties stipulated for the purpose of the motion and trial that Detective Fragoso recovered items later booked from a Nissan Maxima bearing license plate number 4CTJ457. Moreover, a criminalist was deemed to have been called and testified as to the weights of various amounts of marijuana, including 40.9 pounds (Item 3-A).
Detectives Timothy Everts and Dennis Harter testified. The officer who initially was with appellant did not testify and appellant did not testify or present a defense. On February 24, 2005, Detectives Everts, Nydell and Fragoso of the Gangs and Violent Crimes Division were dispatched to 6875 Long Beach Boulevard regarding a shooting at that location. Twenty-five to thirty rounds had been fired. Many people called and the information was that there were possibly numerous shooters and/or victims. The detective was told there were two male Hispanic subjects at 6974 Long Beach Boulevard, only half a block away; the calling party stated they appeared to be hiding from the police and they told the calling party they had been shot at.
The detectives arrived at the 6974 address and saw eight to ten young children, ages five to twelve years old. The children pointed easterly in the apartment complex. As the detectives walked in that direction, two male Hispanics walked out of a hallway alcove between two apartments and walked past the detectives. As they did so, the children motioned at the two men, indicating they were the people they had seen running into the apartment. One of the children pointed at the subject, trying to let the detectives see him pointing, but not letting the two subjects see him.
Detective Everts initially detained Mr. Dominguez, who was sweating and looking around right and left. Not knowing if the men were victims or suspects, he patted down Dominguez, who finally told Everts he had been shot at. Because of Dominguez’s reluctance and his having passed the detectives without saying he had been shot at, for officer safety Everts handcuffed him while they were still in the very, very preliminary stages of the investigation and placed him in the back seat of the police car. After being advised of his Miranda rights, Dominguez eventually told Everts that he had gone to the location with appellant. Dominguez admitted middling a marijuana deal between appellant and someone named Ruben. Dominguez told Everts that he and appellant went up to the apartment and the shooting occurred; both ran because they thought they were going to be shot.
The police had separated the two men “right off the bat” and Detective Nydell had been talking to appellant. Nydell handcuffed appellant; they seated him in the back seat of the police vehicle and drove the two suspects to the shooting scene address. About fifteen minutes elapsed between the initial detention and taking the two men to the location of the possible shooting. Some of that time was taken with Detective Everts’ search for any possible discarded weapons and some with his questioning Dominguez.
Everts did not know exactly when appellant was handcuffed. It was “possible” he was already handcuffed when Dominguez was handcuffed.
Everts gave appellant his Miranda warnings about ten to fifteen minutes after the initial contact, while appellant was in the back seat of the police car at the actual shooting scene. Appellant agreed to waive those rights. When Everts told appellant what he had found in Dominguez’s car, including some marijuana, packaging materials, and various casings in the location he came from, appellant took all the blame and said Dominguez had called appellant and told him he had someone with $10,000 who wanted 50 pounds of marijuana. Appellant could come up with 25 pounds and agreed to the deal. Dominguez and appellant met and traveled to the back parking lot at the shooting scene. The person who met them at the assigned apartment pulled a gun, took appellant’s gun and started shooting at appellant and Dominguez, who fled.
The different casings from three different kinds of bullets indicated to Everts that there were at least three shooters and the police had not recovered any guns.
Appellant told Everts he drove the marijuana to the scene in a Nissan Maxima, bearing license plate number 4CTJ457, which was found a half city block from where appellant was detained. Appellant gave no consent to search the vehicle, which was opened by a city tow driver with a slim jim. The car was searched because Everts believed it was used in a crime, contained marijuana, and appellant was going to be arrested for his part in the potential and attempted sales of marijuana. Moreover, the investigation was still ongoing regarding who were the shooters, so the detectives were going to tow both cars, the only two with possible suspects. Even if the car had not been searched at that point, it would have been towed and an inventory search would have been conducted.
$1085 in cash was recovered from appellant’s left pants pocket when he was booked. Two cell phones and registration papers indicating the car belonged to appellant were found in the vehicle. Based on the amount of marijuana involved, Detective Harter testified the marijuana was possessed for sale.
The motion to suppress was denied, and appellant was found guilty. The court explained its rationale: “The police are called to the scene where there is was what appears to be, at least from the phone calls reported by Detective Everts, a horrendous shooting within a residential shooting apartment structure, multiple shots. Male Hispanics were at least suspected. They arrive at the scene.
“Mr. Martinez, Mr. Dominguez are seen coming from an apartment structure. Kids in the area are pointing to them, or at least one child is pointing to them in a surreptitious fashion. It would have been foolish and a dereliction of duty not to stop them or make an initial investigation. And 15 or 20 minutes, a half hour is hardly something that is a terrible detention, given the nature of the event of the case. This is, after all, not just a traffic ticket.
“And within a very short time, Mr. Dominguez is saying, yeah, this is a drug deal gone bad. And I am the broker and Mr. Martinez is the carrier. That’s in my view probable cause to arrest right then and there and probable cause to search the vehicle once it is pointed out. After all, what were they to do? The vehicle is a movable thing. It could have been moved. They have no obligation to just sit on that vehicle and go get a warrant.
“So having searched it and found what they found, I think that clearly [appellant] was arrestable and the search was a fair one.”
This appeal follows.
CONTENTION ON APPEAL
Appellant contends that the detention, handcuffing and arresting of appellant and taking him to the scene of the shooting violated his Fourth Amendment rights and the evidence seized, i.e., his incriminating statements and contents of his car, is the fruit of the poisonous tree and the denial of his section 1538.5 motion should be reversed.
DISCUSSION
1. Standard of review
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.] In this case, the facts are largely undisputed.” (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.)
2. The trial court did not err in denying appellant’s motion to suppress.
Our Supreme Court in People v. Dolly (2007) 40 Cal.4th 458, 463, recently reiterated the “‘guiding principle in determining the propriety of an investigatory detention [as] “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” [Citations.] In making our determination, we examine “the totality of the circumstances” in each case.’ ([People v.] Wells [(2006)] 38 Cal.4th [1078] at p. 1083; see also People v. Souza (1994) 9 Cal.4th 224, 227, 230 [36 Cal.Rptr.2d 569, 885 P.2d 982].) ‘Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.’ (Wells, supra, 38 Cal.4th at p. 1083.)”
Looking at the “totality of the circumstances” in the case at bench, the detention of appellant was reasonable. Police had just received multiple 911 calls regarding numerous shoots fired at a nearby apartment. Children in the area had seen people running to an area from which appellant emerged. When officers arrived, the children indicated the area to which the suspects fled and, as appellant and Dominguez emerged from that area, surreptitiously pointed them out as people who would interest the police. Without the information from the children or some other reason for the investigation, stopping two Hispanic men walking half a block from the scene of the shooting would be problematic. With that information, there was ample reason to stop the two men and question appellant and his companion Dominguez.
If appellant’s handcuffing and placement in the police car before any information was obtained from Dominguez was an “arrest” without probable cause, there is another potential Fourth Amendment problem. However, our Supreme Court in People v. Celis (2004) 33 Cal.4th 667, 675, explained that such action does not necessarily convert a lawful stop or detention into an arrest. “With regard to the scope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest. (See People v. Soun (1995) 34 Cal.App.4th 1499, 1517 [40 Cal.Rptr.2d 822] [detention when the defendant ‘was removed from the car at gunpoint by a large number of police officers, was forced to lie on the ground, was handcuffed and placed in a patrol car, was transported from the site of the stop a distance of three blocks to a parking lot,’ where he was held for 30 minutes]; In re Carlos M. [(1990)] 220 Cal.App.3d [372] at p. 384 [detention when the defendant was handcuffed and transported to hospital for identification by rape victim; 30-minute duration]; Haynie v. County of Los Angeles (9th 2003) 339 F.3d 1071, 1077 [‘A brief . . . restriction of liberty, such as handcuffing, during a Terry stop is not a de facto arrest’]; Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 991 [driver stopped at gunpoint and ordered out of his truck, handcuffed and held in a patrol car for between 45 and 60 minutes was detained, not arrested]; United States v. Alvarez (9th Cir.1990) 899 F.2d 833, 838-839 [investigative detention when the defendant forced at gunpoint to get out of his car]; United States v. Buffington (9th Cir.1987) 815 F.2d 1292, 1300 [no arrest when driver was stopped at gunpoint, ordered out of car and forced to lie on the ground]; United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289 [handcuffing did not convert detention into arrest]; but see People v. Campbell (1981) 118 Cal.App.3d 588, 595-596 [173 Cal.Rptr. 442] [the defendant functionally under arrest when police at an airport stopped him at gunpoint, handcuffed him, and took him to an office for questioning; restraint went beyond that ‘reasonably necessary for a detention’].)”
The Celis court, supra, 33 Cal.4th 667, 675-676, distinguished a routine traffic stop from a stop of someone suspected of felonious activity. “Of significance too are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity. [Citations.] (Florida v. Royer [(1983)]460 U.S. [491] at p. 500; In re Carlos M. [(1990)] 220 Cal.App.3d [372] at p. 384.) Although a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony.” (Italics added.)
Moreover, “[w]hether an individual has been unreasonably seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues. (United States v. Kim (9th Cir. 2002) 292 F.3d 969, 976.) To resolve the detention issue, courts examine whether handcuffing the defendant met the Fourth Amendment reasonableness standard. . . . Thus, courts look to the reasonableness of the officer’s actions to determine whether handcuffing exceeded the scope of the detention and transformed it into a de facto arrest.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1405-1406.)
“In contrast, Fifth Amendment Miranda custody claims do not examine the reasonableness of the officer’s conduct, but instead examine whether a reasonable person would conclude the restraints used by police were tantamount to a formal arrest.” (People v. Pilster, supra, 138 Cal.App.4th 1395, 1405-1406.)
The officers’ actions in the case at bench were reasonable. Even if appellant was handcuffed and placed in the police car before or while Dominguez was providing probable cause for the arrest of both men for the botched marijuana sale, that conduct is appropriate pursuant to People v. Celis, supra, 33 Cal.4th 667, 675. The tree was thus not poisonous, and the fruit was admissible.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.