Opinion
D074705
09-05-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID M. GILL, Defendant and Appellant.
Alex Coolman, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Angler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn, and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275993) APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed. Alex Coolman, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Angler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn, and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Two police officers responding to a phone call asked restaurant patron David M. Gill to leave the restaurant. As Gill was leaving, one of the officers noticed a black, zipper bag in the booth on the seat across from where Gill had been sitting. Gill said the bag was not his. After Gill left, while the officer was looking in the black bag, a second officer looked in the area under the table and on the floor of the booth and discovered a baggy containing a white, crystalline substance. The officers detained Gill outside, searched him, and arrested him for drug possession. Gill moved to suppress the evidence, contending the detention was based on the unlawful search of the black bag. The court disagreed, concluding the officers had independent, reasonable suspicion to detain Gill based on the baggy one of the officers found at the scene.
Gill now appeals the judgment, arguing the court erroneously concluded there was reasonable suspicion to detain him based on hearsay evidence and speculation regarding where the baggy used to justify his detention was found and how it got there. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 11, 2017, Ashley Romero was working at a restaurant where Gill was a patron. When Romero attempted to take Gill's order, Gill told her he had contacted the police, and they were en route. Following restaurant policy, she inquired if Gill needed assistance. While there she noticed there was a black, zipper bag on the bench opposite Gill in the booth. Romero waited a bit and called police herself; two officers arrived.
Officers Kyle Rack and Brian Moore arrived at the restaurant at the same time. Officer Rack wore a body camera. Officer Rack approached Gill and asked him to leave at the restaurant's request. When Gill got up to leave, Officer Rack noticed a small, coin-sized purse or black bag with a zipper around all the edges lying on the booth's bench across from Gill. The bag was completely unzipped, but not opened. Officer Rack glanced inside it and moved the contents for a few seconds. Officer Rack asked the defendant if the bag was his, and Gill said it was not.
As Gill was leaving the restaurant, Officer Rack folded open the black bag. Inside, he found two small, empty plastic bags and a digital scale. While Officer Rack was thumbing through the black bag, he noticed Officer Moore pick up a plastic baggy somewhere in the same booth near where Gill had been sitting; the baggy was filled with a white, crystalline substance.
Officers Rack and Moore approached Gill outside the restaurant. Gill threw two additional baggies toward his feet; the baggies were filled with a white, crystalline substance. The police took possession of the additional baggies and arrested Gill. During the subsequent search, the police found some drug paraphernalia, marijuana, two empty baggies, and then two more baggies filled with a white, crystalline substance.
Gill was charged with possession for sale of methamphetamine (Health & Saf. Code, § 11378), with allegations of a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i); 1170.12) and that he had served three prior terms in prison and failed to remain free of custody for five years following release (§§ 667.5, subd. (b), 668).
Further references are to the Penal Code unless otherwise specified. --------
The defense filed a motion to suppress all observations made by law enforcement officers, including observations of the physical evidence impounded and statements made by Gill, as well as all subsequent " 'fruits' of the investigation and seizure of evidence arising from the detention and arrest of Mr. Gill . . . , specifically the black bag, methamphetamine, scale[,] and five small clear plastic bags." The court handled the motion to suppress and the preliminary hearing together. Officer Rack testified at the preliminary hearing, but the People did not call Officer Moore to testify.
Defense counsel argued that the search of the black bag had occurred before Gill disclaimed its ownership and that Officer Rack followed Gill outside based on his search of the black bag. The defense also argued it was unclear where the baggy that Officer Moore found came from, suggesting it could have fallen out of the black bag when Officer Rack opened it. The court disagreed, explaining Officer Rack did not open the black bag until after he had picked it up from the booth and was standing up. At that point, the baggy had to have already been on the floor because Officer Moore found it while Officer Rack was thumbing through the black bag. The court also described the video from Officer Rack's body camera, explaining it showed the baggy was somewhere under the booth or the table where Officer Moore had bent down, not in some other public area.
In discussing its ruling, the court explained Gill left the restaurant unrestrained. While Gill was outside the restaurant, Officer Rack looked inside the black bag and Officer Moore recovered the baggy of suspected methamphetamine from the booth area where Gill had been sitting. It was apparent to the court from the video that Officer Moore retrieved the baggy of drugs from the area where Gill had been sitting. After Officer Moore located the baggy, he began moving outside, toward Gill. The court noted that although the video showed Officer Rack looking through the black bag, by then Officer Moore had already found the baggy. Officer Rack did not say anything to Officer Moore about what he found in the black bag or instruct Gill to stop.
The court concluded that Officer Moore's finding of the baggy provided independent, reasonable suspicion to detain Gill, and that the detention occurred after Gill had left the restaurant. The court also applied the doctrine of inevitable discovery to the search of the black bag, explaining the officers would have searched the bag after they found the baggy in the booth and detained Gill, who then dropped additional baggies containing a white substance. Accordingly, the court denied the motion to suppress.
The jury convicted Gill of the lesser included count of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Gill was released from custody; the court awarded credit for time served and denied probation. Gill timely appealed.
DISCUSSION
Gill contends the court erroneously denied the motion to suppress evidence because it improperly relied on hearsay evidence. Further, Gill contends the court's factual conclusions were speculative and could not properly justify its legal conclusion. In his opening brief, Gill contends that because hearsay evidence was the basis for his detention, the finding that there was inevitable discovery of some of the evidence used at trial was likewise improper. In his reply brief, however, Gill concedes the inevitable discovery doctrine is not the central issue before us, and he instead focuses on the factual bases for the court's legal conclusion. We conclude the court correctly denied the motion to suppress, and we affirm the judgment.
An appellate court's review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) We defer to the court's factual findings, and we exercise independent judgment regarding the legality of the search based on the facts. (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).) " '[W]e view the evidence in a light most favorable to the order denying the motion to suppress' [citation], and '[a]ny conflicts in the evidence are resolved in favor of the superior court ruling' [Citation]." (Ibid.)
A defendant may move to suppress evidence on the basis that it was searched or seized unreasonably, without a warrant. (§ 1538.5, subd. (a)(1)(A).) "A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search." (People v. Redd (2010) 48 Cal.4th 691, 719.) When a police officer observes an object in a public place, in plain view, its search and seizure is presumptively reasonable. (Texas v. Brown (1983) 460 U.S. 730, 738.) An officer may seize the item if its status as contraband or evidence is immediately apparent. (Horton v. California (1990) 496 U.S. 128, 136.) Moreover, an officer may detain an individual if the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, warrant the intrusion. (Terry v. Ohio (1968) 392 U.S. 1, 21 (Terry); People v. Hernandez (2008) 45 Cal.4th 295, 299 (Hernandez) [must have specific, articulable facts for believing detained person has committed or is about to commit a crime].)
Gill acknowledges the court could infer the baggy was in Officer Moore's plain view, but he contends such a conclusion would be speculative because neither the testimony at the hearing nor the body camera footage showed where, precisely, Officer Moore found it. We are not persuaded.
The court reviewed the video and explained it showed Officer Moore had bent down to look under the booth or table. There, he discovered the baggy filled with a white, crystalline substance. It was apparent to the court that Officer Moore had retrieved the baggy from the area where Gill had been sitting. Viewing this evidence in the light favorable to the court's denial of the motion to suppress and deferring to the factual findings as we must (Tully, supra, 54 Cal.4th at p. 979), we conclude the seizure of the baggy was not an unreasonable search or seizure because Officer Moore found the baggy in plain view near where Gill was seated. Given these facts, Officer Moore had evidence before him that Gill had committed a crime (Health & Saf. Code, § 11377, subd. (a) [possession of methamphetamine]), justifying his detention. (Terry, supra, 392 U.S. at p. 21; Hernandez, supra, 45 Cal.4th at p. 299.)
Gill claims the court's conclusion that Officer Moore saw the drugs in plain view improperly relied on the hearsay representations of Officer Rack. Gill's theory is that "nothing was known about the specific circumstances in which Officer Moore found the drugs aside from the hearsay claims of Officer Rack," which were inadmissible hearsay statements. We disagree.
Out-of-court statements offered to prove the truth of the matter asserted are inadmissible hearsay unless they fall within an exception. (Evid. Code, § 1200, subds. (a) & (b).) Although hearsay testimony is admissible at a preliminary hearing, it may not be used at a hearing on a suppression motion raised under Penal Code section 1538.5. (Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927-928; People v. Romeo (2015) 240 Cal.App.4th 931, 940.)
Gill never points to any specific statements made by Officer Moore that form the basis of the officers' decision to detain him. Gill argues that because Officer Rack could not see specifically where Officer Moore found the drugs, Officer Rack's testimony was implicitly hearsay. It was not.
Officer Rack testified to what he observed: Officer Moore picked up a plastic baggy somewhere in the booth where Gill had been sitting, and the baggy was filled with a white crystalline substance. The court also based its decision on the video captured by Officer Rack's body camera, which showed that the baggy Moore found was somewhere under the booth or table where Gill had been seated. This evidence did not involve an out-of-court statement or any action which could be characterized as a hearsay statement.
Finally, although Gill concedes in his reply brief that inevitable discovery is not the central issue, we address it here for completeness.
The inevitable discovery doctrine provides that illegally searched evidence may be used if it would have been discovered by police through lawful means. (People v. Robles (2000) 23 Cal.4th 789, 800 (Robles).) The prosecution must demonstrate by a preponderance of the evidence that unlawfully obtained evidence would have been discovered inevitably. (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1217.)
Here, after police had reasonable suspicion to detain Gill based on the baggy Officer Moore found, Gill threw down two additional baggies containing white, crystalline substance. At this point, police had probable cause to arrest Gill. (People v. Guajardo (1994) 23 Cal.App.4th 1738, 1744 [probable cause exists when reasonable person under circumstances would entertain strong suspicion that crime had been committed].) Because Gill was lawfully arrested, police lawfully searched his person incident to the arrest. (United States v. Robinson (1973) 414 U.S. 218, 223-224.) The evidence gathered in connection with that search—drug paraphernalia, marijuana, empty baggies, and two baggies filled with a white crystalline substance—in conjunction with the baggy found in plain view and the baggies Gill threw to his feet, would have led police to search the black bag recovered from near where Gill had been sitting. (See Robles, supra, 23 Cal.4th at p. 800 [inevitable discovery doctrine].) Thus, the court's denial of the motion to suppress was proper, and none of the evidence was improperly admitted on the basis of Officer Rack's premature search of the black bag.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.