Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF115548A. Lee Phillip Felice, Judge.
James Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., Kane, J.
Appellant, Thomas Vasquez, pled no contest to transportation of methamphetamine (count I/Health & Saf. Code, § 11379, subd. (a)), possession for sale of methamphetamine (count II/Health & Saf. Code, § 11378), and driving without a valid license (count IV/Veh. Code, § 12500, subd. (a)). He also admitted a weight enhancement in counts I and II (Pen. Code, § 1203.073, subd. (b)(2)). On January 29, 2007, the court sentenced Vasquez to a three-year term. On appeal, Vasquez contends the court erred when it denied his motion to suppress. We will affirm.
FACTS
On July 29, 2006, a surveillance team from the Kern County Sheriff’s Department observed Vasquez and Kathleen Alfaro seemingly engaged in a drug transaction in a convenience store parking lot. After Vasquez left his car in a restaurant parking lot and was driven to another location, the deputies arrested Vasquez for driving without a license. Officers from the surveillance team searched Vasquez’s car and found one pound of methamphetamine.
On October 27, 2006, Vasquez filed a motion to suppress alleging that the search and seizure of his person and car were unreasonable and violated his rights under the Fourth, Fifth and Sixth Amendments.
At a hearing on this motion on November 16, 2006, Kern County Sheriff’s Deputy Kenneth Smith testified regarding his extensive experience in investigating narcotics cases. Smith also testified that within 30 days prior to July 29, 2006, he received information that Vasquez and Alfaro were involved in sales of methamphetamine and that Alfaro drove a black Pontiac Sunfire.
On July 29, 2006, deputies involved in an undercover narcotics investigation of Alfaro and Vasquez observed Alfaro arrive at a 7-Eleven in a black Pontiac Sunfire, exit her car, and enter the back of a gold Chrysler LHS driven by Vasquez with Eddie Valenzuela as a passenger. Alfaro stayed in the LHS a few minutes before returning to her vehicle and driving off at a high rate of speed, preventing the officers from following her.
Three officers followed the LHS from the 7-Eleven until they saw the car engage in counter-surveillance driving. A short time later, Deputy Smith, who was positioned near Alfaro’s second story apartment on Auburn, saw the Sunfire arrive there followed a short time later by the LHS.
Valenzuela stayed in the car and looked around the apartment parking lot while Vasquez walked up to Alfaro’s apartment carrying a black bag that was rolled up. A few minutes later, Alfaro hastily came out of the apartment, got into her car, and drove off rapidly. She returned approximately 15 minutes later and ran back up to her apartment. A few minutes later, Vasquez came out of the apartment carrying the black bag, unrolled, by some straps, accompanied by Alfaro and another woman. Vasquez got into the LHS and drove off. Meanwhile, Alfaro and the other woman scanned the apartment parking lot as if they were looking for someone conducting surveillance. According to Smith, Alfaro’s conduct was consistent with that of people who sell drugs because drug dealers commonly are paranoid.
As members of the Sheriff’s surveillance team followed Vasquez’s car, a patrol car was going to stop Vasquez’s car but was unable to because Vasquez made a right turn from a lane for traffic going straight or turning left, then two quick right turns, and parked in a Carl’s Junior Restaurant parking lot.
Smith drove to a nearby business and observed Vasquez and Valenzuela through binoculars seated in the Carl’s Junior Restaurant. Vasquez and Valenzuela kept looking out of the restaurant windows between the posters and frames to the parking lot and the road as if they were looking for surveillance units. Smith also saw one of them walk to the west side of the restaurant and look out to the roadway and Valenzuela walk out to the LHS twice. Each time Valenzuela went to the car, he sat on the driver’s seat, leaned over, and appeared to be doing something underneath the seats or between them. Two undercover deputies who entered the restaurant saw Vasquez acting agitated as he made a call from his cell phone and looked around and outside the restaurant.
Eventually, Vasquez and Valenzuela walked out of the restaurant and down the block to the front of La Mina Restaurant. There they walked back and forth for a while before walking to a parking lot behind the restaurant. A white Kia soon arrived and picked them up. Officer Smith followed the Kia to some apartments where he and another deputy detained Vasquez and Valenzuela as they stood outside the car. Smith noticed that Valenzuela appeared to be under the influence of methamphetamine and arrested him. He arrested Vasquez for driving without a license. The officers took the keys for the LHS, searched it, and found approximately one pound of crystal methamphetamine inside the black bag. Smith believed Vasquez abandoned the LHS in the parking lot in order to distance himself and Valenzuela from it because it contained drugs.
Vasquez testified that the day of his arrest he was followed by some men in a tan truck to Carl’s Junior. After he went into the restaurant, the driver of the truck walked in and began staring at him. The driver was in the restaurant five or six minutes before he left. Vasquez called Corall Dawson to ask her for a ride. At La Mina Restaurant he went inside to use the restroom and then he and Valenzuela went outside to wait for Dawson. When Dawson arrived they got in the car and Vasquez told her they were being followed. Vasquez looked back and saw a van following them. Dawson made a hard right turn to see if the van would follow them. When the van also turned, Dawson sped away.
Dawson testified that after learning she was being followed she accelerated to 60 miles per hour and drove through alleys until she got to her friend’s apartment complex.
During argument on the motion, Vasquez’s defense counsel argued that the court should ignore the evidence of counter surveillance driving because Vasquez’s erratic driving was caused by his fear of the men he saw following him and thus not suspicious. The court, however, responded that Vasquez’s conduct in leaving the Carl’s Junior Restaurant and waiting for a ride instead of driving off in his car indicated that he and Valenzuela were more concerned with being connected to something in the LHS than their safety.
The court took the matter under submission. On November 17, 2006, the court issued a written decision denying the motion.
DISCUSSION
Vasquez contends the surveillance team’s observations did not corroborate the informant’s statement to Smith because the informant’s tip did not cast Vasquez’s conduct in a suspicious light or provide specific information related to any activity observed by Deputy Smith and the surveillance team. Thus, according to Vasquez, the court erred in denying his motion to suppress because in detaining him and searching his car the deputies relied on no more than an anonymous, untested informant’s description of him and his car. We will reject these contentions.
“‘In reviewing the denial of [a motion to suppress evidence], we must view the record in the light most favorable to respondent [citation], uphold all express and implied factual findings of the trial court that are supported by substantial evidence, then independently apply the proper federal constitutional standards to those facts [citations].’ [Citation.] ‘“[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power....” [Citations.]’ [Citation.]” (People v. Gomez (2004) 117 Cal.App.4th 531, 537.)
“Information from an untested informant will not establish probable cause unless ‘corroborated in essential respects by other facts, sources or circumstances. [Citation.]’ ‘[I]n order for corroboration to be adequate, it must pertain to defendant’s alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citations.]’ [Citation.] The mandate that facts must ‘pertain’ to criminal activity ‘is met if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant.’ [Citation.] Even observations of seemingly innocent activity suffice alone, as corroboration, if the anonymous tip casts the activity in a suspicious light. [Citation.] ‘[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens’ demands .... In making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’ [Citation.]” (People v. Costello (1988) 204 Cal.App.3d 431, 446, italics added.)
Here, Deputy Smith received a tip from an anonymous informant that Vasquez and Alfaro were selling drugs. On July 29, 2006, Smith’s surveillance team saw Alfaro enter Vasquez’s car in a convenience store parking lot and exit a short time later. Vasquez and Alfaro then went to Alfaro’s apartment where Vasquez waited while Alfaro left and returned shortly. Vasquez entered the apartment with a black bag that was rolled up but left carrying the now, unrolled bag by some straps. Vasquez then drove off, parked his LHS in a restaurant parking lot, and entered the restaurant. After Vasquez called for a ride, he and Valenzuela were picked up down the block behind another restaurant. During this time, the surveillance team witnessed Vasquez, Alfaro, and Dawson engage in counter-surveillance driving, Valenzuela, Alfaro, and another woman scanning their surroundings as if checking to see if they were under surveillance, Vasquez and Valenzuela acting nervous and paranoid looking out the Carl’s Junior Restaurant windows, and Valenzuela going to the LHS twice, apparently to inspect something there. Based on Deputy Smith’s expertise in narcotics investigations he could reasonably conclude from these circumstances that: 1) Vasquez initially negotiated a drug deal with Alfaro in the 7-Eleven parking lot; 2) they both then went to Alfaro’s apartment where Vasquez waited for Alfaro to go procure the drugs; 3) after Alfaro gave the drugs to Vasquez, he carried them out of the apartment in the black bag; and 4) Vasquez drove to the Carl’s Junior parking where he temporarily abandoned his LHS and left in a different car in an attempt to evade the surveillance team. These circumstances corroborated the anonymous informant’s tip because they indicated Vasquez was involved in criminal activity along the lines suggested by the informant, thus providing the deputies with probable cause to arrest Vasquez and search his car.
Vasquez cites People v. Pitts (2004) 117 Cal.App.4th 881, to contend that the above circumstances did not provide probable cause to search of his car. In Pitts the officers detained the defendant as he walked around the corner from a house that the officer suspected was the site of drug sales activity. (Id. at p. 883-884.) The officer relied on the following circumstances to detain the defendant: 1) a month-old, be-on-the-look-out bulletin that had been issued for the defendant based on an anonymous informant’s tip that suggested the defendant was involved in methamphetamine sales; 2) the officer’s suspicion that a house near the location of the detention was the site of drug sales activity; and 3) furtive conduct by two other people the officer saw in the area. The Pitts court found that none of these circumstances individually or collectively provided the officer with a lawful basis for detaining the defendant. (Id. at pp. 888-889.)
Pitts is easily distinguishable because unlike the anonymous informant’s tip in that case, the informant’s tip here was corroborated by the circumstances discussed above which suggested that Vasquez was involved in criminal activity along the lines described by the informant.
Vasquez cites Florida v. J.L. (2000) 529 U.S. 266, to contend that Deputy Smith could not rely on the anonymous informant’s tip because the tip did not contain any “predictive information.” We disagree.
In J.L. an anonymous informant called police and told them that a black male standing at a certain bus stop and wearing a plaid shirt was carrying a gun. The officers went to the bus stop and frisked a black male wearing a plaid shirt and found a concealed gun. (Florida v. J.L., supra, 529 U.S. at p. 268.) In J.L. the Supreme Court found that the anonymous informant’s tip did not provide the officers with probable cause to search the male because it “provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility.” (Id. at p. 271.) In so finding, the court contrasted the case at bar with its earlier decision in Alabama v. White (1990) 496 U.S. 325, where it found that an anonymous informant’s tip which contained predictive information was sufficiently corroborated by police investigation. In White an anonymous informant told police a woman was carrying cocaine and predicted she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Police investigation determined that the informant correctly predicted the woman’s movements. Although finding it to be a “close case,” the court held that the police investigation sufficiently corroborated the anonymous informant’s tip and justified the detention of the woman. (Id. at pp. 270-271.) However, neither J. L. nor White held, as Vasquez suggests, that the only way an anonymous informant’s tip can be corroborated is if it contains predictive information that is confirmed by police investigation. Although the tip in the instant case did not contain any predictive information, it was sufficiently corroborated in other ways by the surveillance team’s observations.
Vasquez also misplaces his reliance on People v Hulland (2003) 110 Cal.App.4th 1646, to argue that the informant’s tip did not provide probable cause to search his vehicle because the tip was stale. In Hulland an officer bought drugs from the defendant in a controlled buy and waited 52 days before seeking a search warrant to search two houses he believed were associated with the defendant. (Id. at pp. 1649-1650.) In finding that the information from the informant was too stale to provide probable cause for the issuance of the search warrants, the Hulland court stated:
“Although there is no bright line rule indicating when information becomes stale [citation], delays of more than four weeks are generally considered insufficient to demonstrate present probable cause. [Citations.] For example, a delay of 34 days between a controlled sale of heroin and the officer's affidavit for the search warrant has been held insufficient to establish present probable cause. [Citation.] Longer delays are justified only where there is evidence of an activity continuing over a long period of time or the nature of the activity is such as to justify the inference that it will continue until the time of the search. [Citation.]
“. . . Although evidence of drug dealing may be sufficient by itself to furnish probable cause to search the defendant's residence . . . nothing about the nature of the transaction here supports an inference that Hulland continued to sell marijuana until the time of the search, much less that he would be keeping the drugs at his residence.” (People v. Hulland, supra, 110 Cal.App.4th 1652-1653.)
In contrast to Hulland, even though the information from the anonymous informant in the instant case could have been older than 30 days, the surveillance of Vasquez engaging in an apparent drug sale provided evidence that Vasquez was still involved in the sales of drugs.
Vasquez contends the surveillance was not conducted undercover because the unmarked cars pursued him openly. Thus, according to Vasquez, his evasive driving was simply a response to the open and threatening pursuit by the officers and did not corroborate the anonymous informant’s tip. Vasquez is wrong.
It is clear from the record that the court did not believe Vasquez’s claim that the truck following him caused him to fear for his life and drive erratically. In any event, Vasquez’s interpretation of the situation is irrelevant in determining whether the officers had probable cause to arrest him and search his car because probable cause is measured by the information known to the officers, not the information known to the defendant. (Paff v. Kaltenbach (2000) 204 F.3d 425, 436 [“Probable cause to arrest exists when the information within the arresting officer's knowledge at the time of the arrest is sufficient to warrant a reasonable law enforcement officer to believe that an offense has been or is being committed by the person to be arrested”] italics added.) Further, “ ‘[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.’ ” (In re Tony C. (1978) 21 Cal.3d 888, 894.)
Finally, Vasquez appears to contend that the surveillance team deliberately pursued him in an open manner in order to prompt him to engage in evasive driving and justify detaining him. We reject this contention because the only evidence Vasquez cites to support it is that he was able to determine he was being followed. However, this is not surprising given Vasquez’s possession of a substantial quantity of methamphetamine which undoubtedly made him acutely more aware of his surroundings and caused him to be on the look out for law enforcement surveillance. Accordingly, we conclude that the court did not err when it denied Vasquez’s motion to suppress.
DISPOSITION
The judgment is affirmed.