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People v. Ashton

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 18, 2003
D041914 (Cal. Ct. App. Nov. 18, 2003)

Opinion

D041914.

11-18-2003

THE PEOPLE, Plaintiff and Respondent, v. ROGER WILLIAM ASHTON, Defendant and Appellant.


Roger William Ashton entered a guilty plea to possessing marijuana for sale (Health & Saf. Code, § 11359) after the trial court denied a motion to suppress evidence (Pen. Code, § 1538.5). The court suspended imposition of sentence and placed him on three years probation, including a condition he serve 270 days in custody. Ashton contends the trial court erred in denying the motion to suppress evidence.

FACTS

At about 12:50 p.m. on November 14, 2002, a transit district security officer stopped Ashton near the 12th Street and Imperial Avenue trolley stop. Ashton had nine baggies of marijuana in his pocket. At the time, Ashton was on probation for a prior conviction of possessing marijuana for sale and had waived his Fourth Amendment rights. The trial court denied a motion to suppress evidence because of the Fourth Amendment waiver.

DISCUSSION

"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." (People v. Glaser (1995) 11 Cal.4th 354, 362.) However, a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasons. (People v. Hobbs (1987) 192 Cal.App.3d 959, 963.)

A probationer who has waived his Fourth Amendment rights may not challenge a search or seizure except on the ground that it was arbitrary, capricious or harassment. (People v. Bravo (1987) 43 Cal.3d 600, 610.) Ashton argues that his arrest was arbitrary and capricious since the transit district security officer who arrested him lacked probable cause to make the arrest.

At the hearing on the motion to suppress, the security officer testified that he had observed Ashton standing in the bus area near the trolley station for approximately 30 minutes. During this time, he had seen Ashton make a crumbling motion over paper and thought Ashton might be crumbling marijuana into the paper. The officer approached Ashton, intending to arrest him for loitering. Upon noticing the officer, Ashton walked away. The officer stopped him and saw the baggies of marijuana sticking from the pouch of Ashtons sweatshirt.

To be guilty of loitering, one must loiter or wander without apparent reason, refuse to identify himself and account for his presence when requested by an officer, when the surrounding circumstances reasonably indicate that the public safety demands the identification. (Pen. Code, § 647, subd. (e).) Because he was not asked for his identification or the reason for his presence, Ashton argues the officer lacked probable cause to believe he was unlawfully loitering. Even if true, the contention is unavailing, as the officer had a legitimate basis to contact Ashton. Public Utilities Code section 120451, which makes unlawful loitering in or about a transit facility, does not include a request for identification or inquiry into the suspects reason for his or her presence.

Thus, the officer could properly contact Ashton and investigate further.

In a related argument, Ashton notes at the hearing on the motion to suppress evidence, the officer testified that he approached Ashton to arrest him for loitering while at the preliminary hearing he did not mention loitering and implied he approached Ashton to inquire about marijuana. Ashton argues that there was a tacit stipulation that the transcript of the preliminary hearing was part of the record at the hearing on the motion to suppress evidence and that the discrepancy in testimony establishes the officers conduct was arbitrary and capricious. The People dispute that such a stipulation existed. However, even if such a stipulation did exist (which the record does not explicitly support), Ashtons reference to testimony at the preliminary hearing is an attempt to impeach the officers statement that he approached Ashton to arrest him for loitering. In determining whether the conviction is supported by substantial evidence, we must not usurp the trier of facts assessment of credibility. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn 12.) The trial court believed the security officer. Moreover, in our review of the transcript of the preliminary hearing, we find nothing that conflicts directly with the security officers testimony at the hearing on the motion to suppress. Since the officers testimony supports the trial courts finding that the search was not arbitrary, capricious, or harassment, the trial court did not err in denying the motion to suppress evidence.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J., and BENKE, J. --------------- Notes: Probable cause to arrest does not require proof beyond a reasonable doubt that the person arrested has committed an offense. "Probable cause exists where the facts and circumstances within [the arresting officers] knowledge . . . [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." (Draper v. United States (1959) 358 U.S. 307, 313, quoting Carroll v. United States (1925) 267 U.S. 132, 162 [bracketed material added in Draper].) "[R]easonable cause for arrest requires probabilities only, not certainties." (People v. Garrett (1972) 29 Cal.App.3d 535, 539.) Here, Ashton walked away when the officer approached him. The officer was not given the chance to ask Ashton to identify himself or state the reason for his presence at the trolley station. Ashtons conduct gave the officer probable cause to arrest although the officer did not have evidence of all the elements necessary for a conviction of loitering under Penal Code section 647, subdivision (e).


Summaries of

People v. Ashton

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 18, 2003
D041914 (Cal. Ct. App. Nov. 18, 2003)
Case details for

People v. Ashton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROGER WILLIAM ASHTON, Defendant…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 18, 2003

Citations

D041914 (Cal. Ct. App. Nov. 18, 2003)