Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge., Super.Ct. No. RIF128977.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
King, J.
Defendant pled guilty to one count of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) after the court denied his motion to suppress. On appeal, defendant contends the court erred in denying that motion because the arresting officer did not have a reasonable, articulable suspicion of criminal activity to justify the initial detention, that his subsequent consent to search his garage was coerced, and that the officer exceeded the scope of any consent given. We disagree and, therefore, affirm the judgment below.
I. FACTS AND PROCEDURAL HISTORY
On February 23, 2006, at 9:30 a.m., Detective Carl Turner parked approximately 300 feet away from defendant’s residence while on undercover patrol in an unmarked vehicle. Police received reports regarding narcotics activity in the neighborhood; however, those complaints were specifically directed at two named individuals, neither of which was defendant, who lived two blocks away. While Detective Turner had previously patrolled the general area, he had never before been in that specific area and had never before witnessed any drug transactions or criminal activity in the alley contiguous to defendant’s residence, a detached garage. He likewise testified that it was not unusual in that particular area for cars to pull into the alley.
While surveilling the scene, he witnessed a blue vehicle pull into the alley adjacent to defendant’s residence. Defendant exited the garage; walked up to the passenger side of the car; appeared to engage in a hand-to-hand exchange with the passenger; and walked back into the garage. The vehicle immediately took off. The incident appeared to Detective Turner as consistent with a drug deal, though he did not see the exchange of any items, including money or drugs. Likewise, he did not see defendant pull anything out of his pocket prior to the transaction, nor put anything in his pocket afterward.
Detective Turner drove his vehicle into the alley and parked adjacent to defendant’s garage while calling for back-up. Defendant then partially opened the garage door. Detective Turner got out of the car; identified himself as a police officer; pulled out his badge; and removed his weapon, pointing it at defendant. Detective Turner ordered defendant to come towards him, letting defendant know he was being detained under suspicion of involvement in a drug transaction. After defendant complied with his order, Detective Turner put his gun away. Detective Turner asked defendant if he could search him, to which he agreed. Detective Turner conducted a patdown search of defendant but did not find any illicit materials.
As Detective Turner completed his search of defendant, Detective Matthew Lackey, the former’s support, arrived. Detective Lackey drew his weapon as he got out of the car. Detective Lackey was part of a team of between five to eight officers who were operating in the area; although the team’s surveillance was not directed at defendant’s garage. Detective Lackey noted that the garage door remained open approximately six inches to a foot. Out of concern for officer safety he asked defendant if any other persons were inside the garage. Defendant replied there were not. Nonetheless, Detective Lackey requested, and defendant granted, permission to check if anyone occupied the garage. Detective Lackey entered the garage, discovering two balloons sitting in plain sight on top of a desk. Detective Lackey testified that such balloons are commonly used to package heroin. He also testified that the balloons smelt of vinegar, the distinctive scent of heroin. One of the balloons field tested positive for heroin.
Detective Turner placed defendant under arrest, handcuffing him and transporting him to the police station. After reading defendant his Miranda rights, defendant waived them; defendant told Detective Turner that he had been using heroin for the past year; had served time in prison in 1999 for heroin use; and had been purchasing all his heroin from the person in the car from whom he had purchased the heroin that day for $40.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
The People charged defendant by information with possession of heroin. (Health & Saf. Code, § 11350, subd. (a).) After the trial court denied defendant’s motion to suppress the heroin and his subsequent statements to the police, defendant pled guilty as charged. The court suspended proceedings to allow defendant to participate in a Proposition 36 program, placing defendant on probation with various terms and conditions. Defendant appeals from the denial of his motion to suppress.
II. DISCUSSION
A. The Detention Was Valid
At a hearing on a Penal Code section 1538.5 motion, the trial court judges the credibility of witnesses, resolves conflicts in the testimony, weighs the evidence, and draws those factual inferences that he or she may be called upon to make. On appeal, all presumptions are in favor of the trial court’s findings, express or implied, and must be upheld if supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) However, because the reasonableness of a search within the confines of the Constitution is a question of law, we “‘measure the facts, as found by the trier, against the constitutional standard of reasonableness.’ [Citation.] On that issue, . . . the appellate court exercises its independent judgment.” (Id. at p. 597; see Ornelas v. United States (1996) 517 U.S. 690, 699 [116 S.Ct. 1657, 134 L.Ed.2d 911] [de novo review of determinations of reasonable suspicion and probable cause].)
Both parties stipulated below, and the trial court explicitly found, that Detective Turner’s actions constituted a detention of defendant. Thus, the primary issue on appeal is whether that detention was valid. Defendant contends that Detective Turner lacked a sufficient, particular, and articulable suspicion of criminal activity, such that his detention of defendant violated his Fourth Amendment right, via the Fourteenth, to be free from unreasonable seizure. The People counter that defendant engaged in conduct reasonably susceptible to construction by an experienced police officer as criminal behavior in an area known for its high criminality; hence, Detective Turner’s brief detention of defendant to investigate was constitutionally permissible. We agree with the People that Detective Turner articulated sufficient specific facts to support a reasonable suspicion of criminality when he detained defendant.
“[A]n investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith.” (People v. Conway (1994) 25 Cal.App.4th 385, 389.)
“‘[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that . . . some activity relating to crime has taken place or is occurring or about to occur . . . . Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation omitted], to suspect the same criminal activity . . . .’” (People v. Teresinski (1982) 30 Cal.3d 822, 829, quoting In re Tony C. (1978) 21 Cal.3d 888, 893.) “The 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., supra, at p. 894.)
While the conduct of the defendant and his interaction with the occupants could have had an innocent explanation, it is also reasonably subject to interpretation as a drug transaction. As stated in People v. Brown (1990) 216 Cal.App.3d 1442, 1450, “[i]n an earlier day before the traffic in illicit drugs became endemic to our society, the above circumstances might not . . . have been consistent with criminal activity. . . . [T]imes have changed, and a multitude of controlled substances are openly bought and sold on our streets and in our neighborhoods. To any police officer knowledgeable of such conditions, the circumstances above described would not only raise, but almost compel, a reasonable suspicion that conduct ‘consistent with criminal activity’ was taking place.”
Here, the evidence demonstrated that Detective Turner was an undercover officer with the Riverside Police Department and had 12 years of experience and extensive training involving narcotics investigations. The general area was known for narcotics activity and there had been complaints of recent drug activity within approximately two blocks of defendant’s residence. Detective Turner witnessed a car pull up in an alley and stop at defendant’s residence, defendant immediately exited his house; he moved directly to the passenger side of the vehicle, exchanged something with the individual seated in the passenger seat, and returned instantly inside his residence. The vehicle immediately left. The totality of these circumstances is objectively suspicious of potential narcotics activity to even the untrained eye. The defendant emerged from his residence as soon as the car pulled up. This suggests that defendant was looking for or specifically awaiting the arrival of the car, as opposed to a chance visit by the occupants of the car. The defendant immediately approached the vehicle, touched hands with the passenger and returned to his residence. The car immediately left. The suspicion created by this activity is obvious. None of the parties involved lingered to converse or otherwise engage in normal social contact. From the circumstances, the individuals in the car and the defendant wished the encounter to last for as little time as necessary. While the officer saw nothing being exchanged between the passenger and the defendant, there was quick hand-to-hand contact. This conduct is clearly suggestive that defendant was either surreptitiously giving something to the passenger, receiving something from the passenger, or both. The meeting of the hands was not consistent with a handshake or other greeting, after which one might expect some conversation; nor was it consistent with the dropping off of something more benign in nature for which the individuals would have no problem handing the object to each other or exchanging it in plain view. The facts of this case are “such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation omitted], to suspect the same criminal activity . . . .’” (People v. Teresinski, supra, 30 Cal.3d at p. 829, quoting In re Tony C., supra, 21 Cal.3d at p. 893.)
While we find no case on all-fours, our conclusion is consistent with a number of cases. In People v. Handy (1971) 16 Cal.App.3d 858, the court found sufficient basis for the officers to detain the defendant when they observed he and another individual standing six inches to a foot apart “‘shuffling or exchanging merchandise or objects.’” (Id. at pp. 860, 862.) When the two individuals saw the officers approaching, they stopped talking and placed their hands rapidly in their pockets. (Id. at p. 860.) In Santos v. Superior Court (1984) 154 Cal.App.3d 1178, the detention was upheld when the officer observed something being passed from the defendant to another person at 10:00 p.m. in a closed-off parking lot. (Id. at pp. 1180-1184.)
In In re Frederick B. (1987) 192 Cal.App.3d 79, the officer witnessed an apparent exchange between two students on campus in an area known for drug activity. (Id. at pp. 82, 86.) The court concluded that an exchange between two individuals in an area known for drug activity was sufficient to permit law enforcement to detain the individuals involved. (Id. at pp. 86-87.) Likewise, in People v. Limon (1993) 17 Cal.App.4th 524, an officer standing approximately 200 yards away witnessed defendant exchange something with another man. (Id. at p. 529.) The individual with whom he had conducted the transaction then walked away. (Ibid.) The defendant reached into a hidden place both before and after the exchange. (Ibid.) In upholding the search the appellate court explained that “[a] police officer’s expertise can attach criminal import to otherwise innocent facts.” (Id. at p. 532.)
While we recognize that the circumstances in each of the above cited cases were somewhat stronger than in the present case, we nonetheless believe there were sufficient, reasonable, and articulable indications of criminality to justify the detention here. Given the hand-to-hand nature of the contact between the defendant and the passenger of the vehicle, in conjunction with the rapidity of the transaction and the fact that the general area was a high drug area, there existed a reasonable basis upon which an officer could conclude that the defendant had engaged in criminal conduct.
Defendant cites People v. Jones (1991) 228 Cal.App.3d 519, for the proposition that the mere witnessing of an exchange between individuals in an area known for drug activity is insufficient justification for a police detention. (Id. at p. 524.) Jones, however, is distinguishable. There, three men were standing in a group near a street corner, in a high narcotics area. (Id. at p. 521.) The officer observed in plain view, one of the men hand to another U.S. currency. (Ibid.) From the court’s opinion it would appear there was no evidence that the handing of money was done surreptitiously. It also does not appear that the officer observed that the person giving the money received anything in return. Likewise, after the exchange, but prior to the arrival of the officer, the individuals engaged in the transaction did not part company. Also, at the suppression hearing, the officer testified “that he had no ‘probable cause’ interest in respondent.” (Id. at p. 524.)
B. Consent to Search
“The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. [Citation.] Thus, [the United States Supreme Court has] long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. [Citation.]” (Florida v. Jimeno (1991) 500 U.S. 248, 250-251 [111 S.Ct. 1801, 114 L.Ed.2d 297]; accord, People v. Jenkins (2000) 22 Cal.4th 900, 971, 974.) Determining whether consent to search was voluntarily given does not require proof of knowledge of the right to refuse consent. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 232-233 [93 S.Ct. 2041, 36 L.Ed.2d 854].) Rather, the court must look at all the individual circumstances of the encounter in determining whether consent was obtained voluntarily or through coercion. (Id. at p. 233.) However, if under all the circumstances it appears that the consent was not voluntarily given—that it was coerced by threats or force, or granted only in submission to a claim of lawful authority—then the consent is invalid and the search unreasonable. (Ibid.) A warrantless search based on consent must be supported by substantial evidence that the consent was voluntarily given. (People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033.) We view the evidence in the light most favorable to the trial court’s finding. (People v. Ratliff (1986) 41 Cal.3d 675, 686.)
Defendant maintains that due to the illegal nature of the detention and the fact that both officers pointed their weapons at him, defendant’s consent was the result of coercion. The People contend that Detective Turner’s brief draw of his weapon “was not so overbearing as to invalidate any subsequent consent.”
Contrary to the People’s assertion, Detective Lackey testified that he did remove his weapon from its holster; however, unlike defendant’s suggestions, nothing indicates he ever pointed it at defendant. The trial court explicitly found that at the time defendant consented to a search of his garage, neither officer was pointing a weapon at him. Substantial evidence supports this determination. Detective Turner testified he reholstered his weapon as soon as defendant walked over to him. Likewise, Detective Lackey stated that at the time Detective Turner completed his patdown search of defendant, no weapon was trained on defendant. Thus, the evidence does not suggest defendant was under the compulsion of having a weapon trained on him when he agreed to permit Detective Lackey’s search of his garage. (People v. McKelvy, supra, 23 Cal.App.3d at p. 1034; People v. Challoner (1982) 136 Cal.App.3d 779, 782.)
As discussed above, the initial detention of defendant was valid. Nonetheless, defendant maintains that defendant acquiesced solely because he was under the impression that any resistance would be futile, i.e., that the officers were going to conduct a search regardless of his consent. The circumstances of the instant case are distinct from those authorities cited by defendant. Unlike Bumper v. North Carolina (1968) 391 U.S. 543, 548-549 [88 S.Ct. 1788, 20 L.Ed.2d 797], the officers here did not assert they had a valid warrant to search defendant’s garage when they did not. In People v. James (1977) 19 Cal.3d 99, the defendant gave his consent to search after being arrested and placed in handcuffs. (Id. at p. 107.) That court found the consent valid because the defendant was not at gunpoint when he gave his consent and nothing indicated the officers intended to proceed regardless of his permission. (Id. at p. 113.) Moreover, the fact that a defendant had been at gunpoint at some time prior to his being asked for consent to search does not, in itself, compel the determination that the granting of such consent was coerced. (People v. Ratliff, supra, 41 Cal.3d at p. 686.)
Nothing in this record supports the conclusion that the officers suggested defendant’s consent was irrelevant. “[W]hen a person of normal intelligence is expressly asked to give his consent to a search of his premises, he will reasonably infer he has the option of withholding that consent if he chooses.” (People v. James, supra, 19 Cal.3d at p. 116, fn. omitted.) Detective Turner indicated that defendant was being cooperative, the three were simply talking, and defendant gave Detective Lackey consent to search the garage. Detective Lackey testified that he “asked him if he had a problem with me checking, [if anyone was in the garage], he told me no.” Defendant gave consent to search while on familiar territory, i.e., his home. (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 247; People v. James, supra, at p. 107; People v. Boyer (2006) 38 Cal.4th 412, 446.) There is no indication he was overborne by the sheer number of police on the premises. (People v. Boyer, supra, at p. 446 [six or seven officers on the scene not enough to overcome defendant’s will], People v. Weaver (2001) 26 Cal.4th 876, 924 [same].) Defendant was not a newcomer to the law, presumably knowing his right to decline permission to search. (People v. James, supra, at p. 118.) Finally, defendant was not handcuffed. (People v. Ratliff, supra, 41 Cal.3d at p. 687.) Thus, under the totality of the circumstances, we believe defendant’s consent to the search was valid and not the product of police coercion.
C. Detective Lackey Did Not Exceed the Scope of Consent to Search Granted by Defendant
Generally, the scope of a warrantless search is defined by its expressed object. (United States v. Ross (1982) 456 U.S. 798, 824 [102 S.Ct. 2157, 72 L.Ed.2d 572].) A consensual search may not legally exceed the scope of the consent supporting it. (Walter v. United States (1980) 447 U.S. 649, 656- 657 [100 S.Ct. 2395, 65 L.Ed.2d 410].) Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. (United States v. Sierra-Hernandez (9th Cir. 1978) 581 F.2d 760, 764, cert. den. sub nom. Sierra-Hernandez v. United States (1978) 439 U.S. 936 [99 S.Ct. 333, 58 L.Ed.2d 333].) “The touchstone of the Fourth Amendment is reasonableness.” (Florida v. Jimeno, supra, 500 U.S. at p. 250 .) “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” (Id. at p. 251.)
Defendant granted Detective Lackey permission to search his garage to check if anyone else was inside. Once Detective Lackey stepped inside the garage he noticed two balloons, consistent with heroin packaging, on top of a desk to his immediate right. This is not a case where the officer searched inside desk drawers or suitcases looking for a person. Thus, the drugs were within plain sight and Detective Lackey never exceeded the scope of consent given by defendant.
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.