Opinion
B207125
6-24-2009
THE PEOPLE, Plaintiff and Respondent, v. GERALD ALLEN, Defendant and Appellant.
Marcia R. Clark, 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, Zee Rodriguez and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be published in the official Reports
Following the denial of a motion to suppress evidence, Gerald Allen was convicted by a jury of one count of transportation of cocaine in violation of Health and Safety Code section 11352, with a finding the cocaine exceeded four kilograms by weight (Health & Saf. Code, § 11370.4, subd. (a)(2)). On appeal, Allen contends five bricks of cocaine found in his car should have been suppressed as the fruit of an illegal detention. We affirm.
In a bifurcated proceeding Allen waived his jury-trial rights, and the trial court found he had suffered two prior felony convictions for robbery within the meaning of the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court then granted Allens motion to dismiss one of his prior strike convictions (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him as a second-strike offender to an aggregate state prison term of 15 years.
Pursuant to People v. Mooc (2001) 26 Cal.4th 1216, Allen has requested that we examine the transcript of the in camera hearing conducted by the trial court after it determined Allen had demonstrated good cause to discover information in the arresting officers personnel and administrative records pertaining to "fabrication" and "illegal search and seizure." (See Evid. Code, §§ 1043, 1045; Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We have reviewed the sealed record of the proceedings and conclude the trial court satisfied the minimum requirements in determining whether there was discoverable information; no abuse of discretion occurred. (Mooc, at p. 1229.)
Allen also requested we examine the transcript of the in camera hearing on his motion to disclose the identity of a confidential informant. After reviewing the record, including the sealed transcript, we conclude "the record demonstrates, based on a sufficiently searching inquiry, that the informant could not have provided any evidence that, to a reasonable possibility, might have exonerated defendant." (People v. Lawley (2002) 27 Cal.4th 102, 160; see People v. Fried (1989) 214 Cal.App.3d 1309, 1316 ["a reading of the transcript of the in camera hearing leaves no doubt that the informants information could be of no help to defendants, and that the concealment of the informants identity could not possibly deprive defendants of a fair trial"].)
FACTUAL AND PROCEDURAL BACKGROUND
The Peoples evidence at the suppression hearing established El Monte Police Officers Daniel Marin and Richard Luna were on duty on the evening of February 20, 2007 dressed in blue jeans and short-sleeve, casual shirts bearing their department insignia. As they drove on the San Bernardino Freeway in a marked patrol car, the officers saw Allen driving ahead of them. He moved across two lanes of traffic without signaling, in violation of Vehicle Code section 22107, and headed toward the Peck Road exit. The officers illuminated their overhead lights and dual spotlights to initiate a traffic stop and followed Allen to the Peck Road off-ramp.
Statutory references are to the Vehicle Code unless otherwise indicated.
When Allen failed to pull over, Officer Marin sounded his horn twice to alert Allen to the officers presence. Allen still did not stop, although he had sufficient room to do so safely on the shoulder of the exit ramp. Marin decided not to activate his siren in the heavy traffic, concerned the ensuing rush among drivers to pull over would put their safety at risk. Allen continued to drive forward on the Peck Road off-ramp without responding to the patrol cars illuminated lights. The officers saw Allen bend down twice and reach toward the front passenger floor.
At the bottom of the off-ramp Allen drove onto Peck Road. The patrol car was still behind him. Rather than pull over to the curb, Allen merged into the left lane and drove to Valley Boulevard, where he turned left into a gas station. Allen did not signal when changing lanes or initiating turns.
The officers stopped behind Allen at the gas station and got out of the patrol car. Officer Marin walked to the driver side of Allens car; Officer Luna walked to the passenger side. Allen complied with the officers request to produce his drivers license, registration and proof of insurance. Marin explained the reason for the traffic stop. Allen became argumentative; he raised his voice, shook his hands and insisted the traffic stop was unjustified. Allen continued to argue after Marin ordered him out of the car. Marin conducted a pat search for officer safety; no weapons or drugs were recovered. Allen was then ordered to sit on the curb. Marin asked for permission to search Allens car; Allen refused.
Officer Luna arrested Allen for evading a peace officer in violation of section 2800.1, a misdemeanor. The arrest was made three to seven minutes after Allen had been ordered out of his car. Luna then requested a K-9 unit to conduct a search of Allens car. Ten to 15 minutes later, the K-9 unit arrived.
While circling the car, the trained drug dog, "Storm," alerted the officers to several locations on the car, including the left rear well above the tire. Storm was placed inside the trunk and began to scratch aggressively on the interior, passenger-side wall of the trunk. Further investigation by the officers revealed five bricks of cocaine, each weighing approximately one kilogram, which had been hidden behind the wall of the trunk.
Allens testimony at the suppression hearing differed markedly from the Peoples evidence. According to Allen, as he was preparing to change lanes on the freeway, he saw the patrol car behind him with its overhead lights illuminated. He was aware the officers were following him as he took the Peck Road exit, but decided not stop his car on the off-ramp for safety reasons. It was dark outside and he was unfamiliar with the off-ramp, which seemed dangerous. When Allen reached Peck Road, he did not immediately pull over to the curb because he felt the safest place to stop was the gas station up the street. Allen insisted he did not intend to evade the officers. He also testified he had not heard the patrol car horn and denied moving toward the floor of the front passenger seat at any time. Allen testified he used his signal in changing lanes on the freeway. About three minutes later, Marin returned and had Allen get out of his car. Allen cooperated with Marin and never argued with him about the traffic stop. In response to Marins questions, Allen said he had no weapons and was not a gang member. Allen then submitted to a pat search. Marin seemed surprised and upset by Allens refusal to allow a search of his car. Marin had Allen sit on the curb while he spoke with Officer Luna at the front of the patrol car.
Several minutes later, Officer Marin again asked Allen for permission to search his car. When Allen refused a second time, Officer Luna shouted, "Well, Im going to search it anyway." Allen asked if the officers were going to issue him a ticket or let him go. He was told neither officer had his citation book. After about 30 minutes, the K-9 unit arrived. Allen testified he was never told he was under arrest for evading police and only became aware of the arrest when he was handcuffed.
At the conclusion of the hearing, defense counsel moved to suppress the bricks of cocaine found in Allens car, arguing they had been seized as the result of an illegal stop. Counsel argued the officers testimony Allen had committed traffic infractions and made furtive movements was false; and their testimony concerning Allens failure to stop was insufficient probable cause to arrest him for evading a peace officer. Counsel maintained the officers fabricated the Vehicle Code violations as a pretext for conducting a drug investigation without probable cause or even reasonable suspicion.
The trial court denied the motion to suppress, noting the motion turned not on whether Allen had committed traffic infractions or made furtive movements sufficient to justify the traffic stop, but instead on whether Allens pre-stop conduct constituted sufficient probable cause for the officers to stop and arrest him for evading a peace officer, a misdemeanor offense. The court found, based on the uncontradicted hearing testimony, Allen knew the officers were attempting to pull him over and willfully failed to stop until he reached the gas station. Accordingly, there was probable cause to arrest him at the point of the stop itself; and the search of the car and seizure of the cocaine bricks were lawful.
In this regard, the trial court stated it would not consider evidence of Allens furtive movements and would assume Allen had properly signaled when necessary before he was pulled over by the officers.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial courts factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, at p. 891; People v. Ramos (2004) 34 Cal.4th 494, 505.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
2. There Was Probable Cause To Arrest Allen for Evading Police and for the Subsequent Warrantless Search of His Car
Allen contends, after being stopped for committing traffic infractions and producing the requested documents, he should have been given a warning or cited and released by the officers. According to Allen, the officers used the traffic stop as a pretext for conducting an investigation for illegal drugs, which resulted in a prolonged detention or de facto arrest without probable cause in violation of his Fourth Amendment rights.
Within moments of his detention at the gas station, however, Allen was arrested for evading a police officer. Accordingly, in evaluating the lawfulness of the seizure of the cocaine from Allens car, our sole concern is whether at the time of the initial detention Officers Marin and Luna had probable cause to effect that arrest. If the arrest was lawful, the subsequent search of Allens car was also lawful because, once Storm alerted the officers to the presence of illegal drugs inside the vehicle, they had probable cause to search the entire car including the trunk. (United States v. Ross (1982) 456 U.S. 798, 809 [102 S.Ct. 2157, 72 L.Ed.2d 572] [under "automobile exception" to the Fourth Amendments warrant requirement, a "search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained"]; Arizona v. Gant (Apr. 21, 2009, No. 07-542) ___ U.S. ___ [129 S.Ct. 1710, 1721, 173 L.Ed.2d 485] ["[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, [supra] 456 U.S. 798, 820-821, authorizes a search of any area of the vehicle in which the evidence might be found"]; People v. Chavers (1983) 33 Cal.3d 462, 466 [under United States v. Ross, supra, 456 U.S. 798 "police officers who lawfully stop a vehicle, having probable cause to believe that contraband is located or concealed somewhere therein, may conduct a warrantless search of the vehicle that is as thorough (as to location and type of container searched) as that which a magistrate could authorize by warrant"]; People v. Panah (2005) 35 Cal.4th 395, 469 [same].)
Whether Allen in fact committed any traffic infractions or made furtive movements while driving is irrelevant to our analysis of the trial courts denial of the motion to suppress evidence.
Allen does not separately challenge the post-arrest use of a trained police dog to determine if there were illegal drugs in the car. (See United States v. Place (1983) 462 U.S. 696, 707 [103 S.Ct. 2637, 77 L.Ed.2d 110] [K-9 sniff is not a search subject to probable cause requirements]; Illinois v. Caballes (2005) 543 U.S. 405, 409 [125 S.Ct. 834, 160 L.Ed.2d 842].) Because the search of Allens car following his arrest was supported by probable cause based on the drug-dogs indication contraband was inside the trunk, the United States Supreme Courts recent limitation of the scope of a permissible search incident to the arrest of the occupant of a vehicle in Arizona v. Gant, supra, 129 S.Ct. 1710 does not affect our decision. (See Gant, at p. 1721 [recognizing continued validity of United States v. Ross, supra, 456 U.S. 798 permitting warrantless search of any area in vehicle if supported by probable cause].)
Section 2800.1 provides the offense of evading a peace officer is committed by "[a]ny person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officers motor vehicle . . . ." A violation of section 2800.1 is a misdemeanor. (§ 40000.7, subd. (a)(3).) A police officer may make a misdemeanor custodial arrest when the officer has "probable cause to believe that the person to be arrested has committed a public offense in the officers presence." (Pen. Code, § 836, subd. (a)(1); see Atwater v. City of Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549] [Fourth Amendment does not forbid custodial arrest for a fine-only misdemeanor]; People v. McKay (2002) 27 Cal.4th 601 [same].) Probable cause 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.)
For his part, Allen does not dispute there was sufficient probable cause to arrest him for evading a peace officer. (Indeed, he makes no mention of this conclusion by the trial court.) Instead, Allen argues at length the officers were acting based on improper subjective motivation. However, the subjective intentions of law enforcement officer are generally irrelevant to probable cause Fourth Amendment analysis, so long as their conduct is objectively reasonable and within the scope of their authority. (See Whren v. United States (1996) 517 U.S. 806, 812-813 [116 S.Ct. 1769, 135 L.Ed.2d 89]; Arkansas v. Sullivan (2001) 532 U.S. 769, 771-772 [121 S.Ct. 1876, 149 L.Ed.2d 994].)
Here, Officers Marin and Luna had probable cause to believe Allen had violated section 2800.1. They were wearing police uniforms and driving a marked patrol car when they initiated a traffic stop of Allens car, using only their overhead lights and briefly sounding their horn, having decided it was not prudent to sound their siren in heavy traffic. Allen knew the officers were attempting to pull him over, first on the freeway, then on the off-ramp and finally on the street, yet he failed either to stop or otherwise to acknowledge the officers presence behind him, despite having adequate opportunity to do so. The officers acted reasonably and within the scope of their authority in making the arrest. The motion to suppress was properly denied.
Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 2180 provides, in part: "To prove that the defendant is guilty of [evading a peace officer], the People must prove that: [¶] 1. A peace officer in a vehicle was pursuing the defendant, who was also driving a vehicle; [¶] 2. The defendant intended to evade the peace officer; [¶] 3. While driving, the defendant willfully fled from, or tried to elude, the pursuing peace officer; . . . AND [¶] 5. All of the following were true: [¶] (a) There was at least one lighted red lamp visible from the front of the peace officers vehicle; [¶] (b) The defendant either saw or reasonably should have seen the lamp; [¶] (c) The peace officers vehicle was sounding a siren as reasonably necessary; [¶] (d) The peace officers vehicle was distinctively marked; AND [¶] (e) The peace officer was wearing a distinctive uniform."
DISPOSITION
The judgment is affirmed.
We concur:
ZELON, J.
JACKSON, J.