Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 204943
Lambden, J.
After the trial court denied defendant’s motion to suppress evidence, defendant entered into a negotiated disposition and pleaded guilty to possessing cocaine base for sale (Health & Saf. Code, § 11351.5). Defendant appeals the denial of her motion to suppress and claims that the cocaine rocks were seized while she was being handcuffed and the handcuffing of her was an arrest without probable cause. We conclude that the handcuffing of defendant did not transform the legal detention to an arrest and therefore the lower court properly denied her motion to suppress the evidence of cocaine rocks.
BACKGROUND
An information filed on April 21, 2008, charged defendant with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The information further alleged that defendant committed the offense while released on bail and on her own recognizance in another case (Pen. Code, § 12022.1), and that defendant had a prior narcotics conviction (Health & Saf. Code, §§ 11370, subds. (a)(c), 11370.2; Pen. Code, § 1203.07, subd. (a)(11)). Defendant pleaded not guilty and denied the enhancement allegations.
On June 11, 2008, defendant filed a motion to suppress evidence (Pen. Code, § 1538.5). At the hearing on the motion to suppress, Gilbert Canedo testified that between 9:00 and 10:00 a.m., on January 24, 2008, he was leaving his home with his dog; he and defendant’s mother became involved in a “verbal argument.” While outside, defendant kicked Canedo’s dog several times. Canedo told defendant that he had a 12-year-old disabled service dog and that she could go to jail for attacking a service dog. Defendant told him that she had “a drug protector with a gun.” She called a man over and told him to attack Canedo. The man pointed a gun at Canedo and his dog. Canedo retreated to his home and called the police. Someone else witnessing the events had already called the police.
Officer Damon Hart testified that he was dispatched to Eddy Street and was told that a person there had a gun. Canedo told him that someone had kicked his dog and that a person had threatened him with a gun. While they were placing the man with the gun into handcuffs, Canedo yelled that defendant was across the street and that she was the person who had kicked his dog. Hart said that defendant was about 15 to 18 feet down the street. Defendant turned and started running away. Hart followed her.
While Officer Hart was running after defendant, he saw Officers Richard James Araujo and his partner driving to Eddy Street. Hart testified that he yelled to them, “That’s her. That’s her.” Hsu and Araujo drove after defendant.
Araujo testified that he and his partner were responding to a call that a person on Eddy Street had a gun. Araujo reported that Hart told him, “She’s the one with the gun....” Araujo and his partner followed defendant in their car and saw her running into Glide Memorial Church. They entered the church and commanded defendant to stop. Defendant complied but, according to Araujo, she seemed “very nervous and fidgety.” Araujo thought she might have a gun, and went to handcuff her.
At the preliminary hearing, Officer Araujo said that Officer Hart told him that defendant was “involved.”
As he started to handcuff defendant, Araujo noticed a glove on defendant’s left hand; it appeared as if defendant had been trying to peel the glove off. Araujo asked her to open her hand. When she opened her hand, he touched it to see if there was a gun. He testified that he could “feel something that was very familiar” to him. He could feel “rock-like substances.” He believed that she had crack cocaine from the feel of the substances. At that point, he proceeded to take the glove off her and there were 27 rocks individually wrapped in plastic. The officers then arrested defendant.
After the officers arrested defendant, they brought her back in handcuffs to the police car. Canedo identified defendant as the person who had kicked his dog.
At the end of the hearing, the trial court denied defendant’s motion to suppress the evidence. The court explained: “It’s under the totality of circumstances, the officers were diligent, they did what they are supposed to do. Yes, they put her in handcuffs, they [had] seen the glove which is not fully on the defendant’s hand, it’s hiked up in some fashion on her hand. And handcuffing, then, this is part of police protocol, they are supposed to see what is in her hand.
“And his experience is––there is sufficient experience to determine whether there are rocks or not, and he’s entitled to investigate. Particularly after she decides to run or walk away, and that’s evasive conduct. And that doesn’t give officers a complete license to do anything they want, but given the circumstances that were in this situation, the court believes again that [the] officers’ conduct was completely reasonable under the Constitution.”
On February 10, 2009, defendant and the prosecution entered into a negotiated disposition. Defendant pleaded guilty to the charge of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) in exchange for a dismissal of the enhancement allegations and suspension of imposition of sentence. The agreement was that she would receive formal probation for five years, which would include serving six months in county jail. The trial court found that defendant knowingly, voluntarily, and intelligently waived her rights and entered the guilty plea, found a factual basis for the plea, and dismissed the enhancement allegations on motion of the prosecution.
On March 10, 2009, the trial court sentenced defendant in accordance with the negotiated disposition.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Standard of Review
In reviewing the ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891.) The power to judge credibility, weigh evidence, and draw factual inferences is vested in the trial court. (People v. James (1977) 19 Cal.3d 99, 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, at p. 891.)
“The Fourth Amendment provides ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated....’ [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.] A similar guarantee against unreasonable government searches is set forth in the state Constitution [citation] but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. [Citations.] ‘Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court.’ [Citation.]” (People v. Camacho (2000) 23 Cal.4th 824, 829-830, fn. omitted.)
II. Denial of the Motion to Suppress
In the present case, defendant concedes that the police had an articulable suspicion that she had committed a crime sufficient to support a finding that the officers could detain her under the Fourth amendment. She maintains, however, that handcuffing her transformed the detention to an arrest. She contends that the police did not have probable cause to arrest her and therefore the rock cocaine found during the illegal seizure of her was the fruit of the poisonous tree and inadmissible. (See Wong Sun v. United States (1963) 371 U.S. 471, 488.) Thus, we must determine whether the seizure of defendant was a detention or an arrest.
“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive. First, there are... ‘consensual encounters’ [citation], which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever––i.e., no ‘seizure,’ however minimal––and which may properly be initiated by police officers even if they lack any ‘objective justification.’ [Citation.] Second, there are what are commonly termed ‘detentions,’ seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’ [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. [Citation.]” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
“ ‘Detentions’ ” have been summarily defined as “ ‘seizures of an individual which are strictly limited in duration, scope and purpose....’ ” (In re James D. (1987) 43 Cal.3d 903, 911.) As our Supreme Court has pointed out, “ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ ” (People v. Celis (2004) 33 Cal.4th 667, 674-675.) Of significance “are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.” (Id. at pp. 675-676.)
While “the use of handcuffs in the course of an investigatory stop does not automatically convert the encounter into a de facto arrest,” the use of handcuffs is nevertheless “one of the most recognizable indicia of a traditional arrest.” (United States v. Acosta-Colon (1st Cir. 1998) 157 F.3d 9, 18.) Although “police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary,” courts have recognized that “handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry [v. Ohio (1968) 392 U.S. 1] stop.” (United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289.) Handcuffing a detainee “has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee.” (People v. Stier (2008) 168 Cal.App.4th 21, 27.)
A reasonable basis is usually present “when (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect’s description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers.” (People v. Stier, supra, 168 Cal.App.4th at pp. 27-28.)
Here, a reasonable basis for the officers’ believing defendant posed a present physical threat or might flee was present. Defendant had run away from the officers when officers first arrived at Eddy Street. When Araujo caught up to defendant, he noticed that she was acting “very nervous and fidgety[.]”
Additionally, the officers had information that defendant was armed. Araujo testified that he and his partner were responding to a dispatch of a person with a gun. Further, when they arrived at the scene, Hart was running after defendant and Hart, according to Araujo, pointed to defendant and said, “She’s the one with the gun....” Hart testified that he pointed to defendant and told Araujo and his partner, “That’s her. That’s her.”
Given defendant’s nervousness, her initial flight from the officers, and the information that defendant was the person with the gun, the officers were justified in handcuffing defendant and conducting a safety-related patdown search for weapons. A police officer lacking probable cause to arrest may nevertheless undertake a patdown search if the officer has reason to believe that the suspect may be armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 27.)
The scope of the search, however, must be confined to discovery of a hidden weapon. (People v. Dickey (1994) 21 Cal.App.4th 952, 955-956.) Absent unusual circumstances, a police officer may not search a suspect’s pockets during a patdown search unless the officer feels an object that could reasonably be thought to be a weapon, or its incriminating character is “ ‘immediately apparent.’ ” (Id. at p. 957, citing Minnesota v. Dickerson (1993) 508 U.S. 366.) A detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500.)
Here, while Araujo was attempting to handcuff defendant, he noticed that defendant had a knitted glove on her left hand that was peeled down. He testified that it looked like the following: “[I]f you could picture a glove on, with it now pulled over, with the fingers still in the glove but the actual glove pulled over, how you take off a sock.” He stated that the glove was folded back over the palm of her hand and that there was “obviously something there.” He elaborated: “The fingers are not able to close around it, what’s in there, I don’t know.” Araujo stated that he thought she could be holding a gun. He explained: “Then, you know, thinking that, depending on what size gun we are looking for, which I have no idea at this point, it could be a gun, it could be a weapon, something like that in there, we proceed to cuff her and I ask her to open her hand.”
At that point, Araujo asked defendant to open her hand. He reported that she was hesitant, but eventually opened her hand. When the officer touched the hand to see if it were a gun, he felt rock-like substances and it became immediately apparent to him that she had rock cocaine. The officer found the rock cocaine and arrested her. The evidence indicates that the officers discovered the crack cocaine moments after the initial detention and therefore the detention was limited in “duration, scope and purpose[.]” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
Defendant contends that handcuffing her was unnecessary and therefore she was arrested when the officers began their attempt to handcuff her. She claims there was no testimony that she was uncooperative at the lobby of the church or that she had taken any action in the lobby that would have raised a reasonable possibility of danger to the officers or flight by her. She also argues that the officers had no reasonable belief that she was armed and there was no basis for their believing that she had committed a violent crime. She maintains that the record did not show that she was armed. She concedes that Araujo testified that he believed Hatch said that defendant was the person with the gun, but she asserts that this testimony was contradicted by Hart’s testimony. Hart testified that he knew that the person with the gun had already been detained.
Although Hart testified that he knew the person with the gun had been detained, there is nothing in this record to indicate that information had been transmitted to Araujo and his partner. Indeed, Araujo was responding to a call that there was a person with a gun and Hart clearly indicated that the fleeing defendant was being sought. Further, defendant emphasizes that she cooperated once she was stopped in the church, but she ignores that she was caught after fleeing from the officers on Eddy Street. Thus, the officers had reason to believe that defendant would bolt again and that she had a weapon. To the extent defendant is arguing that the police officer had to be absolutely certain that defendant had a gun, we disagree. The inquiry is whether the officers could reasonably believe that she had a weapon. The record clearly supported such a belief.
Accordingly, we conclude that the officers had reason to suspect that defendant might flee and was concealing a gun. Under the facts of this case, handcuffing defendant was reasonable and the handcuffing of defendant did not turn the investigative detention into an arrest. Thus, the cocaine was found while defendant was legally detained and the lower court properly denied her motion to suppress the evidence.
Since we conclude there was no arrest, we need not address defendant’s argument that there was no probable cause for an arrest.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.