Opinion
E051999 Super.Ct.No. INF067578
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL MORIN GAMEZ, Defendant and Appellant.
Raphael M. Goldman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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OPINION
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed.
Raphael M. Goldman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Daniel Morin Gamez appeals from a judgment entered on his guilty plea to possession of heroin (Health & Saf. Code, § 11350, subd. (a)). Defendant also admitted two prison priors (Pen. Code, § 667.5, subd. (b); count 1) and a serious felony conviction (Pen. Code, § 667, subd. (c), (e)). The trial court sentenced defendant to six years in state prison. Defendant contends that the trial court erred in denying in part his motion to suppress evidence seized after an illegal patdown search. We affirm.
II
FACTUAL AND PROCEDURAL BACKGROUND
Defendant moved under Penal Code section 1538.5 to suppress evidence obtained during and after a patdown search. The evidence included defendant's admission made after the patdown search that he was in possession of drugs, and the drugs removed from defendant's shorts pocket.
Sergeant Hignight and Deputy Tavares testified at the hearing on defendant's motion to suppress as follows. During a cool evening in November 2009, Sergeant Hignight responded to a call for assistance at the Fast Trip Food Mart in the City of Coachella. According to the call, defendant was observed nervously walking around the store. When Hignight arrived at the store, defendant was standing outside the store, "[s]weating and looking around a lot."
Sergeant Hignight got out of his vehicle and asked defendant if he could speak to him. Defendant said yes. While talking to defendant, Sergeant Hignight conducted a patdown search of defendant for officer safety purposes. In defendant's front, left shorts pocket, Sergeant Hignight felt what he believed was a pipe. During the hearing on defendant's motion to suppress, Sergeant Hignight testified he could not recall what the item was. Sergeant Hignight pulled the item out of defendant's pocket and put it on top of Sergeant Hignight's car.
According to Sergeant Hignight, Deputy Tavares arrived at the scene while Sergeant Hignight was searching defendant. After Sergeant Hignight pulled the item out of defendant's pocket, Deputy Tavares arrived and continued the search.
Deputy Tavares testified that when he arrived at the scene, he saw defendant sitting on the curb. Defendant was not in handcuffs. Upon arriving, Sergeant Hignight told Deputy Tavares that Fast Trip Food Mart had made a service call request regarding a disturbance. Sergeant Hignight also told Deputy Tavares he believed defendant was under the influence and Sergeant Hignight had obtained a bag or tin from defendant. Deputy Tavares testified that, according to his report, the item was a rolled-up plastic bag found in defendant's front coin pocket.
After briefly talking to Sergeant Hignight, Deputy Tavares asked defendant if he had anything illegal in his pockets. Defendant said he had heroin or some narcotics in his pockets. Deputy Tavares then removed the drugs from defendant's pocket.
During the hearing on defendant's motion to suppress, defendant argued the patdown search was illegal. Consequently, defendant's subsequent admission to possessing drugs and seizure of the drugs in his possession constituted inadmissible evidence, as fruit from the poisonous tree (Wong Sun v. U.S. (1963) 371 U.S. 471, 484-488 (Wong).
The trial court granted defendant's suppression motion in part, finding that the patdown search was illegal and the baggie removed from defendant's pocket during the search was inadmissible because the baggie was a soft item that would not have felt like a weapon or hypodermic needle. However, the court denied his motion to suppress defendant's drug possession admission and evidence of the drugs found in defendant's pocket on the grounds that defendant was free to leave and voluntarily responded to Deputy Tavares's questioning.
III
SUPPRESSION OF EVIDENCE
Defendant contends the trial court erred in denying his motion to suppress evidence of defendant's statement admitting possession of drugs and the drugs Deputy Tavares found in defendant's pocket.
A. Patdown Search by Sergeant Hignight
The principles governing appellate review of a trial court's denial of a motion to suppress evidence are well established. "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Law enforcement officers may conduct a patdown search incident to a detention under circumscribed conditions. An officer may conduct a patdown search to determine if a person is carrying a weapon after the officer observes suspicious behavior prompting reasonable suspicion indicative of someone who is armed and dangerous to the officer or others. (Terry v. Ohio (1968) 392 U.S. 1, 24.) The patdown search is justified by the need to "pursue [an] investigation without fear of violence," not to unearth evidence of a crime. (Adams v. Williams (1972) 407 U.S. 143, 146.)
Before an officer "places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so." (Sibron v. New York (1968) 392 U.S. 40, 64.) If the search extends beyond what is necessary to determine if the suspect is armed, it exceeds the allowable parameters of a Terry stop, resulting in suppression of the fruits of the search. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)
Generally, an officer may not remove an object from a patsearched individual's person if its "'incriminating character [is not] "immediately apparent."'" (Minnesota v. Dickerson, supra, 508 U.S. at p. 375.) This "plain feel" approach is an extension of the "plain view" doctrine set forth in Arizona v. Hicks (1987) 480 U.S. 321. (See People v. Dibb (1995) 37 Cal.App.4th 832, 836-837 ["The critical question is not whether [the officer] could identify the object as contraband based on only the 'plain feel' of the object, but whether the totality of the circumstances made it immediately apparent to [the officer] when he first felt [the object] that the object was contraband"].)
Here, during Sergeant Hignight's patdown search of defendant, Sergeant Hignight felt something soft in defendant's pocket, which turned out to be a rolled up, baggie. The trial court reasonably concluded that since the rolled-up baggie did not have the feel of a dangerous weapon or "immediately apparent contraband" (Minnesota v. Dickerson, supra, 508 U.S. at p. 375), Sergeant Hignight's search and removal of the baggie from defendant's pocket exceeded the scope of a proper search for weapons and was not legally justified.
B. Admissibility of Evidence of Drug Possession
Assuming the patdown search was illegal, we must determine whether evidence obtained during and after the search is subject to suppression under the "fruit of the poisonous tree" doctrine (Wong, supra, 371 U.S. at pp. 484-488).
Evidence obtained as a product of unlawful police conduct, and other evidence which flows from exploitation of that illegality, is tainted "'fruit of the poisonous tree.'" (Wong, supra, 371 U.S. at pp. 487-488.) But "[n]ot . . . all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." (Id. at p. 488.) Rather, the appropriate test is "'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" (Ibid.; see also Mann v. Superior Court (1970) 3 Cal.3d l, 8; People v. Johnson (l969) 70 Cal.2d 54l, 546.) "The degree of attenuation that suffices to dissipate the taint 'requires at least an intervening independent act by the defendant or a third party' to break the causal chain in such a way that the [incriminating evidence] is not in fact obtained by exploitation of the illegality. [Citations.]" (People v. Sims (1993) 5 Cal.4th 405, 445.)
Here, after Sergeant Hignight patted down defendant, there was a brief interlude of a few minutes, during which Deputy Tavares arrived and Sergeant Hignight told Deputy Tavares defendant appeared to be under the influence of drugs and Sergeant Hignight had just done a patdown search. When Deputy Tavares approached defendant and inquired as to whether he had anything in his pockets, defendant was sitting on the curb, unrestrained and free to leave. The patdown search only produced a baggie. Thus defendant's subsequent voluntary admission to possession of drugs and retrieval of the drugs from defendant did not flow from exploitation of the illegal patdown. These circumstances provided sufficient attenuation to dissipate and purge any taint of the patdown search, despite the close temporal proximity between the patdown search and defendant's admission to possession of drugs.
During oral argument on appeal, defense counsel argued the baggie contained black tar heroin residue. However, evidence of this was not presented during the hearing on defendant's motion to suppress evidence. Furthermore, defense counsel argued during the motion that the initial patdown search did not produce a weapon or "any evidence of a crime." It only produced a plastic bag.
Defendant argues that under Brown v. Illinois (1975) 422 U.S. 590, 604, the brief period of time, between the patdown search and Deputy Tavares questioning defendant, was insufficient to provide sufficient attenuation to dissipate the taint of the patdown search. In Brown, the United States Supreme Court held that a two-hour period between the defendant's initial statement, made while in custody following an unlawful arrest, and the defendant's subsequent confession, was not sufficient to dissipate the taint of the unlawful arrest. (Ibid.) Brown is factually distinguishable. The instant case does not involve multiple interrogations and evidence obtained after the defendant was unlawfully arrested and taken into custody. Deputy Tavares questioned defendant after another officer performed an illegal patdown search on defendant, which produced a rolled up plastic baggie.
Defendant's reliance on People v. Leib (1976) 16 Cal.3d 869, 877, is likewise misplaced. In Leib, the issue was "whether defendant's invitation to the police to enter his apartment can be interpreted as a voluntary consent validating the officers' entry, despite the illegality of the prior police conduct." (Ibid.)The court in Leib noted: "In deciding whether an invitation was induced by an illegal arrest, we must determine '"whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."' [Citation.]" (Ibid.)
In applying these principles, the Leib court concluded that defendant's invitation to the police to enter his home was "'inextricably bound up with the illegal conduct and cannot be segregated therefrom.' [Citation.]" (People v. Leib, supra, 16 Cal.3d at p. 877, quoting People v. Haven (1963) 59 Cal.2d 713, 719.) The Leib court explained: "This is a case in which defendant was handcuffed, illegally detained in a holding cell for several hours and - in apparent violation of Penal Code section 851.5 - not given the opportunity to call an attorney. . . . [B]y the time defendant was taken to his residence he was 'an extremely broken individual.' His request to return to his apartment was an understandable, desperate attempt to extricate himself from jail, where he was being illegally held for the crime of possession of a controlled substance, an offense of which he was innocent. Under such circumstances, the officers' entry into defendant's apartment can only be viewed as a direct product of the illegal arrest, and therefore invalid. The contraband found in defendant's apartment should therefore have been suppressed." (Leib, at p. 877.)
The facts of the instant case are far removed from those in Brown and Leib. While the interlude between the unproductive patdown search and Deputy Tavares questioning defendant was five minutes or less, defendant was not under arrest and was free to leave. There is no evidence the questioning before defendant admitted possession drugs, was coercive in any way. Under the totality of the circumstances, defendant's voluntary statement acknowledging possession of drugs in his pockets was sufficiently attenuated from the patdown search. Any taint of the illegal patdown dissipated during the five-minute period between the patdown and Deputy Tavares questioning defendant.
Upon independent review, we conclude that defendant's voluntary admission he possessed drugs and Deputy Tavares's retrieval of the drugs thereafter was sufficiently removed from the primary taint of the earlier patdown search to have been purged from the primary taint. Accordingly, the trial court did not err in denying defendant's motion to suppress the drug possession evidence.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur: Richli
Acting P.J.
Miller
J.