Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendant William Sterling Collins appeals a judgment entered following the denial of his motion to suppress evidence, Santa Clara County Super. Ct. No. CC630705
RUSHING, P.J.
Statement of the Facts and Case
In May 2004, around 5:30 p.m., defendant and two other men were standing on the sidewalk near the entrance to a parking garage at the corner of South First Street and Paseo de San Antonio in downtown San Jose. At the time, San Jose Police Officer Mark Alvares was patrolling the area on a bicycle in uniform. As he rode southbound on First Street, he saw defendant and the two men standing on the sidewalk. Officer Alvares then saw defendant and one of the men (Goyita) extending their hands toward each other and exchanging a small item the officer could not see. Defendant and Mr. Goyita looked up at Officer Alvares, turned and walked away from each other.
Believing he had witnessed a drug transaction between defendant and Mr. Goyita, Officer Alvarez turned his bike around and went to the spot where the two men had been standing. Officer Alvares looked at the ground and saw a small, marijuana cigarette that he classified as a “roach” that had been two-thirds to three-quarters smoked, but was not smoking or smoldering at the time. Officer Alvares picked up the roach, and it was not warm to the touch, and there was no smoke in the air.
Officer Alvares believed the roach was the item the two men were exchanging earlier, and called to defendant and Mr. Goyita to stop. Officer Alvares searched both men’s persons and found nothing. The officer then searched defendant’s backpack and found oxycodone, methamphetamine, hypodermic syringes, and pepper spray. Defendant was arrested.
Defendant was charged by information with possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a); count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), possession of an opium pipe (Health & Saf. Code, § 11364; count 3), and possession of tear gas (Pen. Code, § 12420; count 4). The information also alleged that defendant had two prison priors (Pen. Code, § 667.5, subd. (b)).
Following the trial court’s denial of defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5, defendant pleaded no contest to the first three counts and admitted the prison priors. The court dismissed count 4, and granted defendant two years probation pursuant to Proposition 36. Defendant filed a timely notice of appeal.
Discussion
In reviewing a denial of a motion to suppress evidence, we view the record in the light most favorable to the court’s ruling and defer to its findings if they are supported by substantial evidence. We then determine the applicable rules of law and apply them to the facts in order to determine “the reasonableness of the challenged police conduct . . . .” (People v. Williams (1988) 45 Cal.3d 1268, 1301.)
Here, defendant contends that when Officer Alvares detained him and searched his backpack, he lacked probable cause. In support of this contention, defendant notes that the officer’s observations of his hand-to-hand exchange with Mr. Goyita, their location in as what Officer Alvares described as a high crime area, and their proximity to marijuana found by the officer are insufficient to establish probable cause to justify a search.
At the hearing on defendant’s motion to suppress, Officer Alvares, an officer who had been on the San Jose Police force for 12 years, who had training and experience in drug detection and investigation, stated that the area where he saw defendant had a reputation for drug-related activity. In addition, Officer Alvarez stated that the hand-to-hand movement between Mr. Goyita and defendant was consistent with a drug transaction.
In arguing that defendant’s acts were sufficiently suspicious to justify his detention, the Attorney General relies in part on Officer’s Alvares’s general testimony that defendant performed them in an area with a reputation for high crime and drug-related activity. It appears that Officer Alvarez was exaggerating his testimony about the level of narcotics activity in the area where he saw defendant and Goyita. However, such testimony was unimportant here, because Officer Alvares observed additional activity that gave rise to a reasonable suspicion, including the hand-to-hand exchange between defendant and Goyita, and the marijuana cigarette on the ground where the two men were standing.
It is also important to note that with regard to an area’s reputation for high incidents of narcotics transactions, the California Supreme Court has cautioned against investing typical everyday conduct with suspicious meaning simply because it occurs in areas known for criminal activity. “The ‘high crime area’ factor is not an ‘activity’ of an individual. Many citizens of this state are forced to live in areas that have ‘high crime’ rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends. The spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, this court has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual. [Citations.]” (People v. Bower (1979) 24 Cal.3d 638, 645.)
Although an area’s reputation is not an activity of an individual, it can shed some light on the nature of a person’s conduct in that area. For example, in People v. Limon (1993) 17 Cal.App.4th. 524, 532 (Limon), two police officers saw the defendant and another man standing in the carport of an apartment complex located in an area known for gang activity, weapons, violence, and drugs. There had been reports of drug dealing from the carport, and one officer had witnessed drug transactions and made an arrest there. One officer saw the defendant walk to a truck, bend down near the right front wheel well, remove something, and walk back to the other man, where the two touched hands. The officers suspected a drug sale. The defendant then returned to the truck and put something back in the wheel well, and the other man left the area. The two officers walked over to investigate. The defendant was back in his original position, talking to a woman inside a car, whom the officers suspected was another customer. There was a syringe on the ground. Although the defendant was cooperative and not aggressive, the officers detained him. (Id. at pp. 529-531.) In upholding the detention, this court concluded that the reputation of the area and the carport for drug sales, the officers’ experience, the hand-to-hand exchange, and the apparent wheel-well hiding place supported a reasonable suspicion that the defendant was selling drugs. (Id. at pp. 532-534.)
Limon illustrates how an observation of what may appear to be innocent conduct and how pertinent testimony about an area’s reputation for criminal activity can render that conduct reasonably suspicious. Although Officer Alvares did not observe defendant for an extended period as the officer did in Limon, he did see defendant interact with Mr. Goyita and the two exchange something with their hands that was consistent with hand to hand drug transactions. Officer Alvares also observed the men turn and walk away from each other when they saw him. In addition, when Officer Alvares went to the area where the men had been standing, he found what appeared to be a partially smoked marijuana cigarette on the ground. Such observations, coupled with the area’s reputation for narcotics activity render what would ordinarily appear to be innocent conduct reasonably suspicious.
The People rely on the holding and analysis in People v. Guajardo (1994) 23 Cal.App.4th 1738 (Guajardo) to support the trial court’s finding that Officers Alvares had probable cause to search defendant’s backpack. In Guajardo, two officers were patrolling an area known for a high level of narcotics activity when they saw the defendant, whom they had arrested a month before for selling drugs, hand a small object to his male companion who, in turn, placed the object inside a cigarette pack. Though they could not identify the object at the time, the officers formed the opinion that defendant had just sold drugs to the man. After the defendant walked away with a nervous look on his face (Id., at p. 1741), the officers detained the defendant and his companion and searched them. A small rock-like object and over $900 were found on the defendant; a small baggie containing white powdery substance was recovered from a cigarette pack carried by his companion. (Ibid.) Finding the search illegal, the trial court granted the motion to suppress evidence. The Court of Appeal reversed, reasoning that there is no exact formula for determining whether there is probable cause (Id., at 1742) and that a court must look at the totality of the circumstances in light of the officer’s experience in making a probable cause determination.
The Guajardo court noted that what may seem like innocent conduct to a layman can raise suspicion to a trained police office, and listed the following facts as evidence of probable cause in that case: (1) the officers had substantial experience in how street drug transactions are conducted; (2) the officers knew defendant and had arrested him before for narcotics; (3) the area was known for a high rate of street level drug transactions; (4) defendant’s act of handing his companion an object which then was secreted in a cigarette case was consistent with the officer’s knowledge of hand-to-hand street sales; and (5) the defendant displayed some indication of a consciousness of guilt when he acted nervous. (People v. Guajardo, supra, 23 Cal.App.4th at p. 1742.)
The circumstances in the present case are similar to those in Guajardo. Officer Alvares had experience with street drug transactions, and testified that the area where he saw defendant and Goyita had a reputation for narcotics activity. Officer Alvares saw a hand-to-hand exchange between the two men, and testified that this was consistent with a drug transaction, and occurred in an area known for drug sales. In addition, Officer Alvares testified that the hand-to-hand exchange was furtive, and when defendant and Mr. Goyita saw him, they quickly pulled their hands apart and walked away from each other. When Officer Alvares went to the area where the men had been standing, he found a marijuana cigarette on the ground.
Based on the officer’s observations of the conduct, coupled with the location of the marijuana that he found, it is reasonable to infer that defendant and Mr. Goyita dropped the cigarette on the ground when they saw the officer. After viewing what he perceived to be a drug transaction, Officer Alvares had probable cause to detain defendant.
Based on the succession of events witnessed by Officer Alvares and his reasonable conclusion that defendant had just engaged in a narcotics transaction and was attempting to destroy the evidence once he noticed the police in the area, the motion to suppress evidence was properly denied.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.