Opinion
A150633
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO DELGADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-151574-1)
Within minutes of receiving a report of suspicious activity at a residence, police detained appellant Jose Alfredo Delgado, who was nearby and carrying two cases. Ensuing searches revealed incriminating evidence. After being charged with various burglary- and drug-related offenses, Delgado moved to suppress the evidence, arguing that the evidence was obtained after and as consequence of an unlawful detention. The trial court denied the motion, Delgado pleaded guilty to one charge, and a jury convicted him of the remaining charges. On appeal, Delgado renews his objection to the detention, and he raises new, more specific challenges to the ensuing searches. We reject Delgado's argument that he was wrongly detained, and we conclude that Delgado forfeited his new challenges. Accordingly, we affirm.
The motion was brought under Penal Code section 1538.5 All statutory references are to the Penal Code unless otherwise specified.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Around 9:00 a.m. on November 21, 2013, a Concord resident left his home on La Bonita Way. Shortly thereafter, a neighbor noticed a stranger in dark clothing approach the house and then walk away from it with a black case. The neighbor called police, and described the suspect as a "fairly tall" man wearing a black sweatshirt, white shirt, and black jeans. The neighbor first described the suspect as Black, before correcting herself and stating that she did not think he was Black. A dispatcher relayed the information to police on patrol around 9:15 a.m.
A Concord police officer responded to the scene within about five minutes while still receiving information from the dispatcher. The officer was familiar with the area because she had been patrolling it for about 15 years. She parked on a street west of a pedestrian alleyway that connected to La Bonita Way. Shortly after the neighbor told the dispatcher she saw the suspect walk into the alleyway, the officer saw Delgado walking out of the alleyway carrying two black cases. No other pedestrians were on the street at the time. Delgado, who is six feet, one inch tall, was wearing clothes that matched the clothing the neighbor had described: a black sweatshirt, white shirt, and black jeans.
The officer pulled her Taser and ordered Delgado to sit on the curb and drop what he was carrying. A second police officer handcuffed Delgado. The first officer asked Delgado what he was doing in the area, and he responded that he was doing gardening work for "Bill Murray." Delgado identified a black truck nearby as his, but when asked why there was no gardening equipment in it, he did not answer and just dropped his head. At some point, Delgado was placed in a patrol car.
After Delgado was detained, officers went to the residence and saw evidence of a break-in. An officer brought the neighbor to Delgado for an in-field showup. During the showup, Delgado said to the officer, "You don't have to do this. I did it." The officer transported Delgado to the police station, where he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436, interviewed for approximately 20 minutes, and placed under arrest.
"An in-the-field showup . . . is generally an informal confrontation involving only the police, the victim and the suspect. One of its principal functions is a prompt determination of whether the correct person has been apprehended." (People v. Dampier (1984) 159 Cal.App.3d 709, 713.)
The district attorney charged Delgado with first-degree residential burglary (§§ 459, 460, subd. (a)); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and receiving stolen property with a value not exceeding $950 (§ 496, subd. (a)).
Delgado filed a motion to suppress. In it, he sought the suppression of "all evidence seized as a result of an illegal detention, arrest and search," and he listed eight categories of evidence. These categories were (1) "[t]he items Mr. Delgado was holding at the time of his detention (Items #1 to #8 in the police report) and photographs thereof," (2) evidence of the in-field showup identification of Delgado, (3) Delgado's statements to police at the scene of his detention, (4) all evidence taken following a pat-down search of Delgado (and pictures thereof), including a bag of suspected methamphetamine, (5) the burglary victim's statements about items recovered from Delgado, (6) "[o]bservations about Delgado's size 12 work boots and comparisons to muddy footprints" near the burglary, (7) Delgado's statements to police at the Concord jail the day he was arrested, and (8) 10 items recovered from the black truck found near Delgado (and photographs thereof).
In a memorandum of points and authorities filed with his motion, Delgado mentioned in its only heading that suppression was required because the officers acted without a warrant and no exception to the warrant requirement applied. In the substantive arguments, Delgado made three points. The first, which is not at issue in this appeal, was that when a detention is based on hearsay transmitted through a police dispatch, the person who received the information must testify at the hearing. The second was that the seizure and search of Delgado's person was unlawful. The third was that suppression was required for all of the evidence because "all of the evidence seized and observations made . . . represents the fruit of the unlawful search and seizure." No other argument was made about the searches of any cases or the truck connected to Delgado.
In its written opposition to Delgado's motion, the prosecution argued that Delgado's detention was lawful because it was supported by probable cause based on the arresting officer's reasonable suspicion that Delgado had committed a crime, and that the search of Delgado's person was justified as a search incident to a lawful arrest. Delgado filed no reply to the opposition and, thus, indicated nothing to suggest he was seeking to suppress the evidence for any reason other than his claim that it was obtained as a product of an unlawful detention.
At the start of the suppression hearing, the prosecutor asked about the scope of Delgado's motion. A certified law clerk appearing for Delgado responded, "Today we're arguing that the initial detention of Mr. Delgado was unlawful. And for that reason, evidence obtained subsequent to that detention should be suppressed. [¶] And also that police performed an unlawful search of the black truck."
The prosecutor's sole witness at the suppression hearing was the officer who first responded to the neighbor's report of suspicious behavior and who detained Delgado. The prosecutor's examination of the officer focused almost exclusively on the basis for detaining Delgado. The searches of Delgado and the cases were not mentioned. Cross-examination focused on inconsistencies in the neighbor's reports (the neighbor had recanted on the suspect's race and had fluctuated about the number of cases the suspect was carrying) and on differences between the neighbor's description of the suspect's height ("fairly tall, but not over six foot") and Delgado's actual height (six feet, one inch). The search of the black truck was mentioned, but only briefly. At one point, the officer who detained Delgado testified that she did not search the truck but believed that it was searched by another officer after Delgado was arrested.
Thus, our record of the motion to suppress contains no description of the circumstances surrounding the searches of Delgado, the cases, or the truck. (People v. Tolliver (2008) 160 Cal.App.4th 1231, 1237, fn. 9 ["When reviewing the trial court's denial of a motion to suppress, we consider only the evidence presented to the trial court in connection with that motion."].) In their appellate briefs, both parties identify some of the evidence obtained, and identify the search from which it was obtained, but they provide no citations to the record of the suppression hearing to support these facts.
After the close of evidence, defense counsel argued that Delgado was unlawfully detained because the officer lacked reasonable suspicion that Delgado had committed a crime. According to counsel, "because Mr. Delgado's detention was not based upon individualized suspicion, evidence seized as a result of his detention should be suppressed." Counsel then maintained that "all items recovered from the black truck and photographs taken thereof should be suppressed, as the prosecution has neither pleaded nor proven any justification for the warrantless search of the vehicle." In response, the prosecutor argued that the officer had enough information to support a reasonable suspicion to detain Delgado. Regarding the search of the truck, the prosecutor stated that "the officer testified that, by that point they had placed the witness under arrest. I think a search to see if there were any instrumentalities of the crime, or if there was any further items that had been taken from the residence is warranted in that situation."
After the trial court denied Delgado's motion to suppress, Delgado's attorney asked for the court to explain its reason for not suppressing the evidence obtained from the search of the truck. The following exchange then took place:
"THE COURT: He had already admitted he did it. Spontaneous statement, right, by that time.
"[Defense attorney]: But the search of the truck, subsequent to that? [¶] Just so the record is clear.
"THE COURT: I don't think that was raised, was it?
"[Certified law clerk for defense]: Your Honor, that was raised in our brief. And
"THE COURT: It wasn't raised here in front of me.
"[Certified law clerk]: In the beginning when we were asked what the scope of the motion was, we argued that, the detention was unlawful, as well as the subsequent warrantless search of the black truck.
"THE COURT: Would you like to respond to that?
"[Prosecutor]: She did."
The prosecutor then argued that when the truck was searched, Delgado already had been placed under arrest, and the search was thus "justified to find if there were instrumentalities of the crime, or further evidence from the home that had been burglarized." The certified law clerk argued on behalf of Delgado that under Arizona v. Gant (2009) 556 U.S. 332 (regarding searches incident to arrest), the police had no reason to search the vehicle after Delgado had been placed in handcuffs. The trial court responded that the motion remained denied.
Delgado thereafter pleaded no contest to the count of receiving stolen property. (§ 496, subd. (a).) A jury trial proceeded on the other two counts, and a jury found Delgado guilty. The trial court sentenced Delgado to five years in prison.
II.
DISCUSSION
A. Delgado's Detention Was Reasonable.
Delgado renews his argument that his initial detention violated his Fourth Amendment rights because it was unreasonable. We are not persuaded.
The Fourth Amendment to the United States Constitution guarantees a right against unreasonable searches and seizures. (U.S. Const., 4th Amend.; accord Cal. Const., art. I, § 13.) In furtherance of that right, a defendant in a criminal prosecution may challenge a warrantless search or seizure as unreasonable by a motion to suppress evidence. (§ 1538.5, subd. (a)(1)(A).) A detention amounts to a seizure for Fourth Amendment purposes "[o]nly when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
"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; see also People v. Zaragoza (2016) 1 Cal.5th 21, 56.) In reviewing the trial court's denial of a motion to suppress, we defer to the trial court's factual findings if they are supported by substantial evidence and exercise our independent judgment on whether the search was legal. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
Delgado contends that his motion to suppress should have been granted because his detention was unlawful as there was "no objectively reasonable suspicion based on specific and articulable facts of criminal activity." He maintains that the neighbor had no more than "an uneasy feeling" and did not report any specific indication of a forced entry of the residence (such as movement inside or "loot" being taken from it). But this leaves out other parts of the neighbor's report. The neighbor said she was "positive" the person at the house was not her neighbor, and she said the person left with cases he did not have when he was first at the door. This information was more than enough to raise a reasonable suspicion that criminal activity was afoot.
Delgado also argues that, like the neighbor, the officer also had only "little more than an uneasy feeling." True enough, a police officer's "mere hunch" will not suffice to detain a suspect. (See People v. Hernandez (2008) 45 Cal.4th 295, 299.) But here, the neighbor's tip provided a reasonable basis to believe that a crime had occurred and that Delgado might be implicated. The neighbor was an eyewitness who reported her suspicion to the police immediately, and she was subject to penalties for false reporting. (See § 148.3, subd. (a).) These factors provide the "indicia of reliability" upon which an officer can rely. (See Navrette v. California (2014) 134 S. Ct. 1683, 1688-1690.) The evidence showed that at the time Delgado was detained, the officer (1) had responded to the dispatch within minutes of the neighbor's report; (2) found Delgado coming out of the pedestrian alleyway that connects La Bonita Way—the location of the victim's house—with Corte Segundo, and was familiar with the location because she had been patrolling the area for many years; (3) had recently received a dispatch indicating that the suspect had entered the alleyway; (4) found Delgado wearing clothing similar to the neighbor's description; (5) found Delgado generally fitting the neighbor's report of the suspect's height (she estimated Delgado to be six feet, one inch tall; the neighbor, although initially estimating the suspect's height to be not over six feet, described the suspect as "fairly tall"); (6) observed no other pedestrians on the street at the time; and (7) found Delgado carrying "[t]wo black cases."
Given the totality of these circumstances, we cannot say that the impetus for the officer's detention of Delgado was simply an uneasy feeling. People v. Conway (1994) 25 Cal.App.4th 385 provides helpful guidance. Conway held that a motion to suppress in a burglary case was properly denied when an officer detained suspects based on a report of very recent criminal activity in a sparsely trafficked area, even though the officer had no description of the suspects. (Id. at pp. 388, 390.) Like Delgado, the defendant in Conway argued that the officer had detained him " 'upon nothing more than a "hunch." ' " (Id. at p. 387.) The court rejected the argument and concluded that the detention was reasonable. (Id. at p. 390.) Here, not only did the detaining officer have information about contemporaneous suspicious activity in an area with no other pedestrians, but she also had a description of the suspect that generally matched Delgado's.
Delgado questions the reasonableness of the officer's conduct by arguing that "[a]pproaching appellant to speak with him, when he would be free to decline and move on, was the only reasonable and constitutional action to take under the circumstances. When the officer instead unnecessarily and unreasonably went further, she acted unlawfully." But both the United States and our state supreme courts have held that " '[t]he reasonableness of [an] officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.' " (In re Raymond C. (2008) 45 Cal.4th 303, 308, quoting United States v. Sokolow (1989) 490 U.S. 1, 11.) The "totality of the circumstances" standard we apply in determining the reasonableness of a detention affords an officer considerable latitude in that regard. (People v. Souza, supra, 9 Cal.4th at p. 231.) While one approach the officer may have taken might have been to engage Delgado in a consensual interaction, we cannot hold that the officer's decision to detain Delgado was unreasonable.
Because Delgado's initial detention was supported by a reasonable suspicion that criminal activity was afoot and that Delgado might be implicated in it, we hold that his detention did not violate the Fourth Amendment. The trial court, therefore, properly denied Delgado's motion to suppress.
B. Delgado Forfeited His New Challenges to the Searches of the Cases and Truck.
In addition to arguing that his Fourth Amendment rights were violated when he was initially detained, Delgado also argues on appeal that these rights were violated when police searched "two containers" (presumably, the cases) and the black truck. We conclude that Delgado forfeited these claims.
Whether an argument in connection with a motion to suppress is preserved is governed by People v. Williams (1999) 20 Cal.4th 119 (Williams). Williams held that a defendant who brings a motion to suppress must give the prosecution sufficient notice of specific inadequacies or risk forfeiting the issue for appellate review. (Id. at p. 136.) It explained the shifting burdens involved in a motion to suppress. The defendant has the burden to put the prosecutor on notice of a particular argument before the suppression hearing: "[W]hen the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion. Of course, if defendants have a specific argument other than the lack of a warrant as to why a warrantless search or seizure was unreasonable, they must specify that argument as part of their motion to suppress and give the prosecution an opportunity to offer evidence on the point." (Id. at p. 130.) "The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (Id. at pp. 130-131.) "The determinative inquiry in all cases is whether the party opposing the motion had fair notice of the moving party's argument and fair opportunity to present responsive evidence." (Id. at p. 135.) "[W]hen defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.] Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal. '[T]he scope of issues upon review must be limited to those raised during argument . . . . This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions.' " (Id. at p. 136, italics added.)
Here, Delgado met his initial burden of giving notice in his motion to suppress, but the notice he provided was limited. In his motion, Delgado listed eight broad categories of evidence that, according to him, were obtained "as a result of an illegal act." Phrased in the singular, and considered in context, this suggested that the act to which he was objecting was his allegedly unlawful detention, not a series of searches following his detention. Still, if Delgado had then simply listed the evidence that he wanted suppressed, we might be inclined to agree with him that the prosecution was on notice that it needed to prove both the lawfulness of the initial detention and that the ensuing searches fell within exceptions to the warrant requirement.
But he went further. He proceeded to delineate the scope of his notice in his memorandum of points and authorities, which argued that the search and seizure of Delgado's person was unlawful and that "all of the evidence seized and observations made . . . represents the fruit of [that] unlawful search and seizure." At no point in the moving papers did Delgado argue that the evidence obtained from the searches of the cases and truck was required to be suppressed because no other exception to the warrant requirement applied. Thus, in our view, the prosecutor reasonably opposed the motion by focusing on the lawfulness of Delgado's detention and arguing that the search of Delgado's person incident to his arrest was justified (an issue not raised again on appeal). Delgado filed no reply to the prosecution's opposition, and he thereby gave no clarification or indication to the prosecution that he intended to challenge any searches for reasons unrelated to the lawfulness of his initial detention.
At the hearing, no questions were asked, and no arguments were raised, about the search of the cases. For the first time, Delgado's counsel mentioned the search of the truck, but only by claiming generally that the "police performed an unlawful search of the black truck." The officer who stopped Delgado testified about her reasons for detaining him, but she testified that she was not the person who searched the truck.
We agree with Delgado that at the hearing there was "no testimony from any competent witness concerning the timing, sequence, or any other circumstance surrounding the challenged warrantless searches," but we disagree that the prosecution was on notice that it needed to present any such testimony. Given the limited scope of Delgado's motion and supporting papers, we simply cannot conclude that Delgado's late, nonspecific complaint about the search of the truck at the hearing shifted to the prosecution an immediate burden to prove that the evidence obtained from that search was admissible not only because it was not the fruit of an unlawful detention, but was also otherwise authorized under separate exceptions to the warrant requirement. "The determinative inquiry in all cases is whether the party opposing the motion had fair notice of the moving party's argument and fair opportunity to present responsive evidence." (Williams, supra, 20 Cal.4th at p. 135.) If Delgado wanted to proceed with such an argument, his counsel needed to say so plainly, and the court could have considered whether a continuance of the hearing was appropriate to allow the prosecution the ability to present evidence on the new theory. (Ibid.) Under the circumstances of this case, we conclude that Delgado forfeited any non-detention-related challenges to the searches of the cases and truck.
By arguing that Delgado failed to preserve his arguments about searches other than the search of the truck, the Attorney General appears to concede that Delgado preserved his argument about the search of the truck. To the extent he does so, we decline to accept it. (Cf. People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021 [although Attorney General's concession entitled to "appropriate deference," appellate court is not bound by it].) We also do not and need not decide whether the search of the truck was lawful as a search incident to an arrest notwithstanding the Attorney General's apparent concession that it was not. --------
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.