Opinion
B187910
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. CONRAD W. SOWASH, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, appellant Conrad W. Sowash pleaded no contest to one count of sale, transportation, or offering to sell a controlled substance (cocaine base) in violation of Health and Safety Code section 11352, subdivision (a). The trial court placed appellant on three years of formal probation and limited his incarceration to time served.
Appellant appeals on the ground that there was insufficient probable cause to arrest him for the narcotics transaction involving the passenger in his vehicle because the narcotics were in the sole and exclusive possession of the passenger.
FACTS
Since appellants motion to suppress was based on testimony given at his preliminary hearing, we recite the facts related at that hearing. At approximately 9:05 p.m. on July 9, 2005, Officers Romeo Rubalcava, Michael Saragueta, and approximately 25 other officers of the Los Angeles Police Department participated in an undercover operation to purchase cocaine. Officer Rubalcava was wearing a one-way transmitter as he approached Robert Coaker (Coaker) and a woman, a Ms. Laredo (Laredo), in an area known for narcotics sales. Officer Rubalcava asked Laredo for a "dub," which meant $20 worth of narcotics in street vernacular. Officer Rubalcava gave Laredo a prerecorded $20 bill that Laredo handed to Coaker.
Coaker left the area on a bicycle and Officer Rubalcava waited with Laredo. During that time he saw a black Mustang drive by twice before Coaker returned. When Coaker returned he handed Officer Rubalcava an off-white solid resembling rock cocaine, which later tested positive for cocaine base. Officer Rubalcava gave a predetermined signal to advise the other officers that a transaction had taken place.
Officer Saragueta had followed Coaker when he left Officer Rubalcava and Laredo. Officer Saragueta saw Coaker approach the passenger side of a parked vehicle several blocks away. Coaker tapped on the window of a black Mustang, and the car was moved forward several car lengths. Coaker then reapproached the car and handed money to the passenger. Officer Saragueta did not see any exchange between the passenger and the driver. The passenger handed Coaker an item. After the transaction the Mustang left, and Officer Saragueta radioed his fellow officers to stop the vehicle pending the narcotics investigation.
After the car was stopped, Saragueta saw three persons from the car being taken into custody and searched. The person in the backseat was a male Hispanic. The driver and passenger were the Sowash brothers. Officer Saragueta could not distinguish between appellant and his brother, Anthony, at the hearing because they are twins. He stated that one of them was the passenger and one of them was driving the Mustang.
DISCUSSION
I. Argument
Appellant contends that his mere presence at the time of the narcotics transaction between his brother and Officer Rubalcava did not constitute probable cause to arrest him for the sale of cocaine or for any offense, since there was no evidence that appellant knew of the nature of the transaction or that he assisted in the transaction.
II. Relevant Authority
"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
It is well settled that "[a]n arrest is valid if supported by probable cause. Probable cause to arrest exists if the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037; see also Saucier v. Katz (2001) 533 U.S. 194, 207; Beck v. Ohio (1964) 379 U.S. 89, 96; People v. Price (1991) 1 Cal.4th 324, 410.) There is no exact formula for determining probable cause which therefore must be decided on the facts and circumstances presented to the officers at the time they had to act. (People v. Ingle (1960) 53 Cal.2d 407, 412.)
III. Motion Properly Denied
We note that, as respondent points out, there was no testimony at the preliminary hearing that definitively established appellant was the driver and Anthony was the passenger of the black Mustang. Assuming for the sake of argument that appellant was the driver, we conclude there was probable cause to justify his arrest.
Appellant inappositely cites In re Justin B. (1999) 69 Cal.App.4th 879 for the proposition that a passengers mere presence in a car that contained evidence of criminal activity did not constitute probable cause to arrest the passenger for the apparent crimes. (In re Justin B., supra, at p. 883.) In that case, Justin B. was riding in a car that contained what appeared to be stolen property and burglary tools. (Id. at pp. 883-884.) The court reversed the denial of Justin B.s motion to suppress, stating there were no facts supporting a finding of probable cause to arrest Justin B. for vehicle burglary and receiving stolen property. (Id. at p. 887.) In the instant case, appellant was not a "mere passenger," but rather the driver. Justin B. "was simply a passenger" and "did not say or do anything suspicious," whereas appellant was in control of the vehicle from which the drug sale was made. (Id. at p. 887.) The evidence showed that the Mustang was apparently driven around the area and parked at intervals. When Coaker first approached the Mustang, the car moved forward several car lengths. Then Coaker was obliged to approach the passenger window again to complete the transaction. This shows that the driver was well aware of and participating in the drug transaction taking place at the passenger-side window. The driver was seated next to the passenger and could not help but observe everything that occurred, whereas in the case of Justin B. there were no facts from which the court could infer that Justin B. knew of the presence of the incriminating items in the car. (Ibid.)
It was not necessary for the driver of the black Mustang to hand anything to the passenger in order for the driver to be an active participant in the drug transaction. At a minimum, appellant was an aider and abettor as provided for in Penal Code section 31, which states that "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." "In order for one to be charged as a principal for aiding and abetting it must be shown that he counseled, encouraged or assisted in the commission of a crime with knowledge that a crime was being committed." (In re Michael T. (1978) 84 Cal.App.3d 907, 910.) Ones mere presence at the scene of a crime, when that presence does not in itself assist in commission of the crime, does not constitute aiding and abetting. (Id. at p. 911.) Neither does the mere knowledge that a crime is being committed accompanied by the failure to prevent the crime. (Ibid.)
The facts of the instant case show that appellant, in his role as the driver of the car, actively assisted in the commission of the crime rather than passively failed to prevent its occurrence. Like the court in People v. Ingle, supra, 53 Cal.2d 407, we find no merit in appellants contention that the only reason for his arrest was that he happened to be in the car with a known (or, as in this case, observed) seller of drugs. (People v. Ingle, supra, at p. 413.) The facts and circumstances of the arrest in that case, which included a series of undercover buys linked to the person with whom Ingle was sitting in the car, were deemed to constitute probable cause to arrest Ingle. (Id. at pp. 413-414.) As stated in People v. Ingle, the strong belief that citizens should not be subject to unreasonable treatment at the hands of those enforcing the law must be tempered with a reasonable appreciation of "`the facts of life" and the difficulties encountered by police officers in their efforts to protect the community from the pernicious effects of narcotics trafficking. (Id. at p. 414.) We conclude that the police acted reasonably and had probable cause to arrest appellant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
We concur:
BOREN, P. J.
CHAVEZ, J.