Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 201083
Reardon, J.
In March 2007, the San Francisco District Attorney’s Office filed an information charging appellant Bradley Cherry with felony possession of a controlled substance (heroin). (Health & Saf. Code, § 11350, subd. (a).) Appellant moved unsuccessfully to suppress evidence. (Pen. Code, § 1538.5.) Subsequently, the trial court denied his motion to set aside the information based on the previous motion to suppress. (Pen. Code, § 995 (section 995).) Thereafter, a negotiated disposition was reached whereby appellant pled guilty to misdemeanor solicitation to sell narcotics in exchange for dismissal of the felony possession charge and credit for time served. (Pen. Code, § 653f, subd. (d).) On appeal, appellant asserts that the trial court erred in denying his section 995 motion to set aside the information, arguing that the magistrate should have granted the suppression motion. We affirm the judgment.
I. FACTS
On the evening of January 24, 2007, San Francisco Police Officers Ferrando and Mallinger observed appellant peering into parked cars in the financial district. Later in the same evening, they noticed appellant on the 700 block of Pacific Avenue—an area known for having numerous narcotics-related complaints from local merchants and residents. Both officers were in plain clothes that night with their badges exposed outside of their clothing.
The officers approached appellant as he crossed the street. They asked to speak with him; appellant consented. As he neared the officers, appellant motioned his right hand toward his mouth. Officer Ferrando intercepted appellant’s hand and moved it away from his mouth. In that moment, Officer Ferrando noticed that appellant’s seized right hand contained a “black tar-like substance” wrapped in plastic, immediately identifying it to be “consistent with that of heroin.” As Officer Ferrando confiscated the substance, appellant stated “that it was just a little heroin.” The officers arrested him for possession of heroin.
Officer Ferrando testified at the preliminary hearing that he has received training on how to determine if a person is under the influence of narcotics. He also testified that he has been in narcotics-related law enforcement throughout most of his 11-year career, making numerous heroin arrests. Officer Ferrando has worked in the area around the 700 block of Pacific Avenue for the last four and a half years.
II. DISCUSSION
A. Detention
Appellant challenges the denial of his motion to suppress the evidence discovered during his encounter with Officer Ferrando on January 24, 2007. He reasons that Officer Ferrando violated his Fourth Amendment right to be free from unreasonable searches and seizures.
There is no dispute that the initial encounter was consensual. The parties agree that the detention occurred when Officer Ferrando grabbed appellant’s hand as he was motioning it toward his mouth.
1. Standard of Review
In a section 995 proceeding, the trial court reviews the sufficiency of evidence supporting the magistrate’s denial of a motion to suppress. On appeal from a section 995 review, we directly review the magistrate’s determination at the preliminary hearing, upholding the express or implied findings if supported by substantial evidence. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) Thus, we draw all presumptions in favor of the magistrate’s factual determinations, measuring “ ‘the facts, as found by the trier, against the constitutional standard of reasonableness.’ ” (Ibid., quoting People v. Lawler (1973) 9 Cal.3d 156, 160, superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) We exercise our independent judgment in determining whether, on the facts so found, the search or seizure is reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Further, we may uphold the trial court’s judgment without subscribing to its reasoning, thereby enabling us to affirm the ruling if it is correct on any legal theory relevant to the underlying case. (People v. McDonald, supra, 137 Cal.App.4th at p. 529.)
2. Fourth Amendment Principles
Consistent with Fourth Amendment jurisprudence, a police officer may detain a person for questioning or other limited investigation without a showing of probable cause to arrest the person. (Terry v. Ohio (1968) 392 U.S. 1, 22; see Cal. Const., art. I, § 13.) However, when the officer accosts an individual and restrains his or her freedom to walk away, a detention has occurred. (Terry v. Ohio, supra, at p. 16.) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
3. Analysis
Officer Ferrando established a reasonably articulable suspicion, based on his training and experience in drug enforcement in San Francisco and on the totality of the circumstances, that appellant might be involved in a crime when he motioned his hand toward his mouth. First, considering Officer Ferrando’s 54-month tenure in drug enforcement around the 700 block of Pacific Avenue, he had first-hand knowledge that this block was plagued with narcotics-related violations. This knowledge, in part, came from merchants and residents in and around the 700 block of Pacific Avenue who complained about illicit drug activity. Specifically, Officer Ferrando arrested appellant in front of the Ping Yuen Projects, known for being an area with numerous drug transactions.
Second, the circumstantial indications of narcotics activity around the 700 block of Pacific Avenue coupled with appellant’s previous suspicious activity looking in cars in the financial district and his subsequent presence on the 700 block, supported a reasonable inference that appellant might be involved in a crime when he motioned his hand toward his mouth after agreeing to talk with the officers. While one’s presence in a high-crime area is not sufficient by itself to raise a reasonable, articulable suspicion that someone is about to commit a crime, it is a significant indicator when coupled with other indices of a suspect’s fallible conduct. (People v. Huggins (2006) 38 Cal.4th 175, 242.)
Appellant argues, however, that he could have been preparing to cough or placing a mint or piece of gum in his mouth when he motioned his hand toward it, precluding the officer’s inference of drug concealment. He reasons that the officer, in detaining his arm, acted on a hunch which is insufficient to warrant a Fourth Amendment intrusion. (People v. Huggins, supra, 38 Cal.4th at p. 241.)
Appellant cites In re Tony C. (1978) 21 Cal.3d 888, as justification for his proposition that Officer Ferrando acted on a hunch when he detained appellant’s arm. But, there, the court elaborated that “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (Id. at p. 894.) Furthermore, the Tony C. court reasoned that “the principal function of [an officer’s] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .” (Ibid.) Officer Ferrando relied on his substantial training and experience in narcotics enforcement to draw the inference that appellant was trying to conceal drugs when he motioned his hand toward his mouth. There was substantial evidence supporting this inference despite the possibility of an innocent inference.
B. Plain View Evidence
Appellant further argues that his Fourth Amendment rights were violated when Officer Ferrando confiscated heroin from his palm after detaining his hand, arguing that Officer Ferrando conducted a search without probable cause to do so. The People contend that no search occurred because the bindle of heroin was in plain view.
Appellant contends that the People have impermissibly introduced a new theory on appeal—namely, the plain view argument. This contention is unfounded because the plain view theory involves a mere question of law which can be presented on appeal even if it was not raised in the lower court. (People v. Carr (1974) 43 Cal.App.3d 441, 444-445.) Thus, we may entertain the People’s plain view theory.
Plain view observations, unlike searches, are not presumptively invalid if conducted without a warrant. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 15.) However, seizure of evidence cannot be upheld under the plain view doctrine if the initial detention did not comport with Fourth Amendment principles. (See People v. Miranda (1993) 17 Cal.App.4th 917, 927.) To be sure, a “plain view observation is not itself an invasion of privacy, that is, a search.” (Ibid.) Three guideposts direct us in determining if an officer’s action in confiscating evidence can be justified by the plain view doctrine: (1) the officer must lawfully be in a position from which he or she can view the item; (2) the incriminating qualities associated with the evidence must be immediately apparent; and (3) the officer must be in a position to have lawful access to the object. (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.)
The incriminating qualities of evidence become “immediately apparent” when “the police have probable cause to believe it is contraband or evidence of a crime; officers need not know, to a near certainty, that the item is evidence of a crime . . . .” (People v. Gallegos, supra, 96 Cal.App.4th at p. 623.) The probable cause standard is flexible, requiring only that the facts at hand would justify an officer of reasonable caution in believing that certain items may be contraband or evidence of a crime. (Ibid.) The standard does not demand that the officer’s belief is correct or more likely true than false, rather, it only requires that the belief is founded within practical and nontechnical probability. (Ibid.) If the incriminating quality of an object is not immediately apparent, then the officer cannot use the plain view doctrine to justify its seizure. (People v. Bradford (1997) 15 Cal.4th 1229, 1295.)
Officer Ferrando’s action in confiscating the “black tar-like substance” from appellant’s open hand comes under the purview of the plain view doctrine. First, Officer Ferrando was lawfully on street patrol, engaged in a lawful encounter with appellant that enabled him to view the object in appellant’s hand, thus satisfying the first element. Second, Officer Ferrando immediately recognized the substance in appellant’s hand as heroin. This recognition is founded within practical and nontechnical bounds of probability given his extensive training and experience in narcotics-related law enforcement. Third, Officer Ferrando had lawful access to the object as an extension of his legitimate encounter with appellant and his justified suspicion of drug concealment when appellant moved his hand toward his mouth. In other words, Officer Ferrando’s actions did not exceed the scope of the encounter with appellant. “The plain view doctrine does not create an independent ‘exception’ to the warrant clause, but simply is an extension of whatever may be the prior justification for the officers’ ‘access to an object.’ ” (People v. Bradford, supra, 15 Cal.4th at p. 1295, quoting Texas v. Brown (1983) 460 U.S. 730, 738-739.)
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J. Rivera, J.