Opinion
B329694
05-01-2024
THE PEOPLE, Plaintiff and Respondent, v. MANUEL CORDOVA, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA503330, Ricardo R. Ocampo, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P.J.
Los Angeles Police Department officers stopped a car in which the defendant Manuel Cordova was a passenger. The officers detained the occupants and found a semiautomatic firearm in the car in a location that indicated defendant had possessed the weapon. An information charged defendant with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and possessing a firearm after having been previously convicted of violating section 273.5 (§ 29805, subd. (b)). Defendant moved to suppress evidence obtained during the detention and search on the ground that the officers' conduct violated his rights under the Fourth Amendment to the United States Constitution. A magistrate denied the motion and held defendant to answer. Defendant later moved to dismiss the information under section 995 on the same basis, which the court denied. Defendant thereafter pleaded no contest to the charge of being a felon in possession of a firearm.
Subsequent unspecified statutory references are to the Penal Code.
Defendant contends that the magistrate and court erred in denying his motions to suppress and to dismiss the information because (1) the police lacked reasonable suspicion that the occupants of the car may be involved in criminal activity when they conducted the traffic stop; and (2) if the stop was lawful, the subsequent detention exceeded what was reasonably necessary to conduct a lawful investigation. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
Los Angeles Police Department Officer Adam Mott worked in a gang enforcement unit that collected information about gangs, including their territorial claims and the identity of their rivals. On the night of February 22, 2022, Officer Mott and two other officers were patrolling an area claimed by the El Sereno gang. Officer Mott had patrolled that area for four and a half years and was aware that the Vario Nuevo Estrada gang was a rival of El Sereno.
That night, Officer Mott observed a vehicle traveling in the opposite direction with its front and rear side windows tinted to a degree that prevented him from seeing the occupants of the vehicle. The officer driving the patrol vehicle made a U-turn and proceeded to pull over the vehicle.
Officer Mott got out of the patrol car and stood behind the patrol car door, about 30 feet behind the stopped vehicle. He illuminated the stopped car and saw the passenger seated in the right rear seat, later identified as defendant, make what Officer Mott described as "furtive movements." Specifically, defendant "shift[ed] his body" and "lean[ed] over" toward the center of the vehicle; he then "reach[ed]" with his right hand across the left side of his body to the middle of the seat. Officer Mott instructed defendant to stop moving, and defendant complied.
The court reporter transcribed Officer Mott's testimony as stating that defendant was "making a further movement toward the center" of the backseat. (Italics added.) Later, in discussing the same testimony, defense counsel and the court stated that Officer Mott described defendant's actions as "furtive movements." (Italics added.) The earlier transcription of "further" thus appears to be a mistranscription of "furtive." On appeal, both sides agree with this view of the record.
The officers ordered the four occupants to exit the vehicle one at a time, had them stand with their hands behind their backs facing a fence, and handcuffed them. Meanwhile, two other patrol units, each with two officers, arrived on the scene.
Officer Mott recognized all four occupants as associates or members of the Vario Nueva Estrada gang, and knew they were in an area claimed by a rival gang. The officer was also aware that defendant had previously been in a vehicle where police found a weapon in the vehicle.
The police officers patted down the four occupants, asked them about their probation and parole status, and checked for outstanding warrants. None of the four stated that they were on probation or parole, and the warrant check revealed no outstanding warrants.
Officer Mott then searched the area of the backseat where he had seen defendant making "furtive" movements. In the middle of the backseat, a drop-down armrest was ajar. Officer Mott pulled down the armrest revealing a small semiautomatic handgun in good working order. The grip of the gun was facing the seat defendant had occupied, consistent with him having held the gun by the grip and placing it where Officer Mott found it.
A photograph excerpted from a video recording taken by Officer Mott's bodycam showing the location and position of the armrest was admitted into evidence at the hearing. Neither party designated the exhibit for inclusion in our record, and it is not included.
Defendant was arrested and charged with two firearm possession counts. (§§ 29800, subd. (a)(1); 29805, subd. (b).)
B. Procedural History
Prior to his preliminary hearing on July 20, 2022, defendant filed a motion under section 1538.5 to suppress all statements he made during his detention and arrest as well as the gun recovered by Officer Mott. Defendant contended that the police violated his Fourth Amendment rights by stopping the vehicle without a reasonable suspicion that the occupants of the car may be involved in criminal activity, and by detaining them longer than necessary and by means that were more intrusive than necessary.
Defendant further argued that, if the initial stop and detention were proper, Officer Mott's search of the vehicle was not supported by a reasonable belief that the occupants were dangerous or might gain control of a weapon in the car. Defendant does not reassert this argument on appeal.
Officer Mott, the only witness to testify at the hearing on defendant's motion, related the facts summarized above. The People also introduced in evidence defendant's rap sheet, showing prior felony convictions.
The rap sheet was not designated for inclusion, and not included, in our record.
After hearing argument, the magistrate denied defendant's motion to suppress. The magistrate found that "[t]he stop was lawful based on the tinted windows." The magistrate also found probable cause to search the vehicle: "The officer indicates specifically that he observed the defendant make the furtive movements, and based on his information that he had had prior contacts with this particular defendant, as well as the other occupants of the car, and knew that the defendant was a member of a gang . . . and knew that the defendant was . . . stopped before with a possession of a gun."
At his arraignment on August 3, 2022, defendant moved under section 995 to dismiss the information against him. Defendant asserted that the magistrate incorrectly applied the law to facts adduced at the prior hearing on the motion to suppress, and that the motion should have been granted. If the challenged evidence is excluded, he argued, the evidence is insufficient to support the charges against him.
The court concluded, on "the totality of the information that was provided [at the preliminary hearing]," that the magistrate had properly denied defendant's motion to suppress. The court relied on evidence of "the gang activity," which "is inherently dangerous," the fact that the car's occupants were gang members or associates in "rival gang territory," defendant's furtive movements in the car, and Officer Mott's personal knowledge regarding defendant, including the fact that defendant had previously been in a car in which police had found a gun.
After the denial of his motion to dismiss, defendant withdrew his not guilty plea and pleaded no contest to the count of possession of a weapon by a felon. Pursuant to a plea agreement, the court sentenced him to 16 months in prison and credited him with 684 days in custody, and ordered his release. Defendant filed a timely notice of appeal.
DISCUSSION
A. Motions to Suppress and Standards of Review
Under section 1538.5, a "defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a . . . seizure" if the seizure "without a warrant was unreasonable." (§ 1538.5, subd. (a)(1)(A).) When a defendant makes such a motion, the People have "the burden of proving that the warrantless . . . seizure was reasonable under the circumstances." (People v. Williams (1999) 20 Cal.4th 119, 130; People v. Vannesse (2018) 23 Cal.App.5th 440, 444-445.)
If a motion under section 1538.5 is denied at the preliminary hearing, a defendant may raise the warrantless search as a ground to dismiss the information under section 995.
A magistrate hearing a motion to suppress under section 1538.5 "sits as the finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences." (People v. Shafrir (2010) 183 Cal.App.4th 1238, 1244.) On a subsequent motion under section 995 based on evidence submitted on the prior motion to suppress, "the superior court sits as a reviewing court-it must draw every legitimate inference in favor of the information, and cannot substitute its judgment for that of the magistrate on issues of credibility or weight of the evidence." (Shafrir, supra, at p. 1244.) On review of the superior court's ruling, "we in effect disregard the ruling of the superior court and directly review the determination of the magistrate." (Ibid.) We defer to the magistrate's express and implied factual findings if they are supported by substantial evidence and" 'exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.' [Citation.]" (People v. Silveria and Travis (2020) 10 Cal.5th 195, 232.)
B. The Police Had Reasonable Suspicion to Stop the Vehicle in Which Defendant was a Passenger
The Fourth Amendment protects against unreasonable searches and seizures. (Katz v. United States (1967) 389 U.S. 347, 353.) A traffic stop is a seizure that must meet the standards of the Fourth Amendment. (Berkemer v. McCarty (1984) 468 U.S. 420, 436-437.) "[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law." (People v. Wells (2006) 38 Cal.4th 1078, 1082.) "[R]easonable suspicion" exists "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.)
With some exceptions not applicable here, California law prohibits driving a "motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows." (Veh. Code, § 26708, subd. (a)(1).) The law applies to the application of a film affixed to a vehicle's window that obstructs light transmission below a percentage established by federal regulations. (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1292; United States v. Wallace (2000) 213 F.3d 1216, 1217.) To lawfully stop a vehicle for violating this law, police officers need not "be scientists or carry around and use burdensome equipment to measure light transmittance." (Niebauer, supra, at p. 1292; id at p. 1293, fn. 10.) Rather, the officer may form "an opinion in a common- sense examination of a vehicle that there is a film placed upon the vehicle's windows in an unauthorized place or that light is obstructed in the fashion contemplated by the statute." (Id. at p. 1292) This rationale "is consistent with logic and settled Fourth Amendment case law, which gives considerable weight to officer experience and permits detention based on articulable suspicious facts even though not necessarily inconsistent with innocent activity." (People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 9 (Hanes).)
Here, Officer Mott testified that the vehicle in which defendant was riding had tinted front side windows that prevented the officer from seeing inside without a flashlight. He testified that he "couldn't see anything in the vehicle, no occupants inside the vehicle." The inability to see through the windows, he stated, was "a good indication" that the windows were unlawfully tinted.
Courts have upheld vehicle stops under similar circumstances. In Hanes, supra, 60 Cal.App.4th Supp. 6, the reviewing court held that a police officer's investigative stop of the defendant's vehicle was constitutionally permissible based upon the officer's testimony that the vehicle's "right front window was 'so black that it kind of matched the color of the [black] car,'" and "he was unable to see the occupants of the vehicle." (Id. at p. 8.) The court further reasoned that the stop occurred at night, when "illegal tinting was a greater safety concern." (Id. at p. 10.) In People v. Roberts (2010) 184 Cal.App.4th 1149, the court upheld a challenged stop based on an officer's belief that the defendant's vehicle's window was tinted in violation of California law because the officer "could not see through the driver's tinted side window from the open passenger side window [of the police car]." (Id. at p. 1190; see also People v. Carter (2010) 182 Cal.App.4th 522, 529 ["[w]hen a police officer sees a vehicle with tinted front and side windows, the officer may stop the car and cite the driver for a violation of Vehicle Code section 26708, subdivision (a)"].) Based on these authorities, Officer Mott's testimony that the tinting on the car's front side windows prevented him from seeing the occupants inside the car constitutes substantial evidence to support the finding that Officer Mott held a reasonable suspicion that the driver was violating the law.
Defendant points to the fact that Officer Mott was able to see into the car with a flashlight and observe defendant's movements from 30 feet away. This fact, he argues, "should have immediately dispelled any concerns that the window tint was in excess of California law." The argument erroneously assumes that the window through which Officer Mott saw defendant moving was a tinted window. Officer Mott, however, was standing behind the patrol car's open door after the patrol car had pulled in behind the car in which defendant was riding. From that position, Officer Mott "illuminate[d]" the other car and saw defendant make his movements through the car's rear window. The windows that caused Officer Mott to suspect unlawful tinting, however, were the tinted side windows; there was no evidence that the rear window was tinted in any way. The fact that Officer Mott could see defendant's movements through the rear window, therefore, has no bearing on the legality of the initial stop.
Defendant relies on People v. Butler (1988) 202 Cal.App.3d 602. In that case, the police officer who made the challenged stop testified that he pulled the defendant's vehicle over because he "thought that the occupants [of the car] were 'setting up for a robbery or something, and [he] also didn't like the idea of the tinted windows.'" (Id. at p. 605.) The court held that the evidence was insufficient to support the detention. (Id. at p. 606.) The court noted that "tinted windows are not necessarily unlawful," and the fact that the officer" 'didn't like the idea of the tinted windows'" was insufficient to support the detention. (Ibid.) There must be some "additional articulable facts suggesting that the tinted glass is illegal." (Id. at p. 607.)
Butler is distinguishable because Officer Mott did not stop the vehicle in which defendant was riding simply because he" 'didn't like the idea of tinted windows.'" (Butler, supra, 202 Cal.App.3d at p. 605.) Rather, Officer Mott determined that his inability to see the occupants inside the vehicle was "a good indication" that the tinted windows were unlawful. This testimony supplies the "additional articulable facts suggesting that the tinted glass is illegal" that the record in Butler lacked. We therefore reject defendant's reliance on Butler.
C. The Post-Stop Detention Did Not Violate Defendant's Fourth Amendment Rights
Defendant next contends that, regardless of the validity of the initial traffic stop, his "seizure went beyond what is permissible under the Fourth Amendment." Specifically, defendant argues that ordering the four occupants out of the vehicle, handcuffing them, and patting them down "to investigate illegally tinted windows is simply not reasonable." We reject the argument.
Although an investigative detention may last "no longer than is necessary to effectuate the purpose of the stop" (Florida v. Royer (1983) 460 U.S. 491, 500), and a "routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs" (People v. Celis (2004) 33 Cal.4th 667, 676), "[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention" (People v. Russell (2000) 81 Cal.App.4th 96, 102).
Here, the initial traffic stop based on a possible window tinting violation quickly evolved into an investigation concerning gang members and associates, at least one of whom could be possessing a firearm. Immediately after stopping the vehicle in which defendant was riding and prior to ordering the occupants out of the vehicle, Officer Mott observed defendant making movements in the back seat that suggested defendant was concealing something. Officer Mott knew that defendant had previously been in a vehicle with a firearm. The officer was also aware that defendant was "a known gang member . . . in rival gang territory," and that "[g]ang members are known to carry firearms in rival gang areas."
In determining the nature and scope of the ensuing detention, Officer Mott was permitted to draw on his experience, training, and knowledge of gangs. (See United States v. Arvizu (2002) 534 U.S. 266, 273; United States v. Cortez (1981) 449 U.S. 411, 418.) And although police may not detain someone based solely on the person's suspected gang membership (People v. Rodriguez (1993) 21 Cal.App.4th 232, 238-240), an officer's knowledge that the detained person is a gang member "on another gang's 'turf'" may be considered together with other relevant facts in determining the legality of a detention (In re Hector R. (1984) 152 Cal.App.3d 1146, 1153; accord, People v. King (1989) 216 Cal.App.3d 1237, 1241; see also In re H.M. (2008) 167 Cal.App.4th 136, 146 [it is "common knowledge that members of criminal street gangs often carry guns and other weapons"]).
Under the totality of the circumstances, Officer Mott could reasonably suspect that one or more of the gang-affiliated occupants was unlawfully possessing a firearm and that "his safety or that of others was in danger." (Terry v. Ohio (1968) 392 U.S. 1, 27.) The fact that there were multiple passengers in the vehicle increased the risk of danger. (Maryland v. Wilson (1997) 519 U.S. 408, 415.) In such situations, "we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest." (Terry, supra, at p. 24; accord, People v. Glaser (1995) 11 Cal.4th 354, 364.) Because of the need for protection, the officers in this instance acted in a "reasonably prudent" manner by ordering the occupants out of the vehicle, handcuffing them, and patting them down for weapons. (See Terry, supra, at p. 27; see also Wilson, supra, at p. 414 [passengers in vehicle stopped for a speeding violation may be lawfully detained outside the vehicle to deny them "access to any possible weapon that might be concealed in the interior of the passenger compartment"].) They did not, therefore, violate defendant's Fourth Amendment rights.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., WEINGART, J.