Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA057480, Richard Kirschner, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Rodney Finley appeals the judgment entered following his plea of no contest to possession of a controlled substance and possession for sale of a controlled substance. (Health & Saf. Code, §§ 11350, 11352, subd. (a).) Finley contends the trial court erroneously denied a motion to suppress the evidence underlying the convictions. We conclude Finley’s parole status, which the officer ascertained immediately upon making contact with Finley, supports the trial court’s denial of the motion to suppress. We therefore affirm the judgment.
BACKGROUND
At the hearing on the motion to suppress, Los Angeles Police Detective Ben Herskowitz testified that on November 28, 2007, he was assigned to the Van Nuys narcotics enforcement detail. At approximately 5:00 p.m., Herskowitz was working in a plain clothes capacity, monitoring a parking lot at Woodley Avenue and Parthenia Street that was a “high narcotics location.” Herskowitz personally has made 10 to 15 narcotics related arrests in the parking lot in the last three years. As Herskowitz drove through the parking lot, he noticed a male standing outside a tan car that was parked away from the store entrance. The male was talking on a telephone. When the male got off the telephone, he monitored traffic entering the parking lot, then sat inside the tan car. A female approached and sat in the passenger seat of the tan car. As the tan car drove from the parking lot, Herskowitz noticed the male again was on the telephone. Based on his training and experience, Herskowitz formed the “hunch or suspicion that they were looking for narcotics.” Individuals Herskowitz previously had arrested in the parking lot for narcotics violations acted “almost exactly the same as the[se] two individuals....” They made quick telephone calls, monitored traffic, parked away from the store entrance, made no attempt to enter any of the stores and had no packages.
Finley stipulated Herskowitz was a narcotics expert for the purposes of the motion to suppress.
Herskowitz contacted the other members of the narcotics team and followed the tan car south on Woodley Avenue to Woodley Place. The tan car basically made a “big circle” and returned to Woodley Place where it stopped behind a silver car. This location on Woodley Place also is a high narcotics location. The male got out of the tan car and sat in the passenger seat of the silver car for less than a minute. At about that time, Herskowitz drove past the two cars in his unmarked vehicle and formed the opinion a narcotics transaction had taken place. Herskowitz advised the other team members he was going to investigate the two vehicles and made a U-turn. When Herskowitz returned to the scene, the tan car was stopped next to the silver car and the driver of the tan car was speaking to Finley, who was seated in the driver’s seat of the silver car. Herskowitz stopped behind the two vehicles; other officers stopped in front of them.
Herskowitz got out of his vehicle, identified himself as a police officer and asked if Finley were on parole or probation. Finley, who remained seated in the silver car, said he was on parole and admitted he had a marijuana cigarette. Herskowitz explained he was conducting a narcotics investigation, then arrested Finley for possession of marijuana. The cocaine underlying the current charges was found in a search of the silver car.
The trial court ruled that, based on Herskowitz’s observations in the parking lot, “it was more than reasonable for the officer to conduct further surveillance.... The officer then observed a very suspicious transaction” in which the driver of the tan car momentarily entered Finley’s car. The trial court found Herskowitz had reasonable grounds to detain Finley based on his expertise. The trial court noted Herskowitz had made narcotics related arrests in this very area and, “[i]n this court’s opinion, that[]... gives [Herskowitz] reasonable suspicion to stop and to detain and to further question the defendant.”
DISCUSSION
1. Finley’s contention.
Finley contends the facts do not show that Herskowitz had a reasonable suspicion to detain him. Finley argues Herskowitz admitted he saw no criminal activity and that he decided to follow the couple based on a hunch they were looking for drugs. Finley argues the more reasonable inference is that the couple had met in the parking lot instead of at one of their homes. Thus, Herskowitz improperly followed the couple. Further, even assuming the couple planned to obtain drugs, there was no evidence they had contacted Finley or that Finley was part of their plan. Rather, Finley was merely seated in a vehicle and was not engaged in any activity, criminal or otherwise.
Finley contends that, because all of the information known to Herskowitz was unrelated to Finley, Herskowitz lacked specific articulable facts that Finley was involved in criminal activity. The fact Herskowitz’s hunch was correct cannot retroactively justify detention. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 234.) Finley concludes that, because Herskowitz learned of Finley’s parole status as a direct result of an illegal detention, the evidence should have been excluded as fruit of the poisonous tree. (People v. Boyer (2006) 38 Cal.4th 412, 448.)
2. Relevant principles.
“[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892.) In order to detain a citizen, an police officer must have “specific and articulable facts causing him [or her] to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity.” (Id. at p. 893.)
However, a law enforcement officer who is aware that a suspect is on parole and subject to a search condition may conduct a parole search, even in the absence of a particularized suspicion of criminal activity, so long as the search is not arbitrary, capricious, or conducted for the purpose of harassment. (People v. Reyes (1998) 19 Cal.4th 743, 753-754.)
In reviewing the denial of a suppression motion, “[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (Ibid.)
3. Resolution.
Here, although Finley asserts there was nothing unlawful about the couple’s conduct, Herskowitz’s observations gave rise to a reasonable suspicion that criminal activity was afoot. Herskowitz properly could reach this conclusion based on his conceded narcotics expertise, his knowledge of prior drug activity in the area and his observations of the couple in the parking lot, specifically, parking away from the store, making quick telephone calls and monitoring traffic. Moreover, Herskowitz did not need probable cause merely to follow the tan car for further investigation. When the tan car went around the block in a “big circle” and returned to Woodley Place where the driver momentarily entered Finley’s car, Herskowitz had reasonable grounds upon which to approach Finley and speak to him based on Finley’s apparent participation in a narcotics transaction.
When Finley immediately admitted he was on parole, Herskowitz had the right to search him without probable cause. (People v. Reyes, supra, 19 Cal.4th at p. 751.) Absent conduct that is arbitrary, unreasonable or harassing, parole searches are valid. (Id. at pp. 753-754; People v. Medina (2007) 158 Cal.App.4th 1571, 1577.) Reyes identified various situations in which a parole search may be unreasonable. For example, a parole search is unreasonable if it is “ ‘made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.’ ” (People v. Reyes, supra, at pp. 753-754.)
Here, there is no indication Hersokwitz acted in an arbitrary or unreasonable manner or with an improper motive. Thus, the parole search was proper. In reaching this conclusion, we note Herskowitz did not make a traffic stop of the silver car or detain Finley. Rather, Herskowitz merely approached Finley seated in the silver car and asked if he were on parole or probation.
Finley argues reasonable suspicion cannot be based on factors unrelated to the defendant such as the crime rate or the conduct of others. (People v. Perrusquia, supra, 150 Cal.App.4th at p. 234.) However, Herskowitz’s suspicion was not based solely on the conduct of the couple in the tan car or the high crime rate in the area. The evidence showed a reasonable suspicion that Finley was involved in a narcotics transaction. Further, Perrusquia is entirely distinguishable from this case in that the defendant in Perrusquia was not on parole, as was Finley.
In sum, when the driver of the tan car momentarily entered Finley’s car, Herskowitz reasonably could suspect Finley was engaged in a narcotics transaction. This observation permitted the conclusion Herskowitz acted with a legitimate law enforcement purpose when he inquired about Finley’s parole status and, after determining Finley was on parole, searched his vehicle. Consequently, the trial court committed no error in the denial of the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING J.