Opinion
B227044
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS ITURBE, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA066418 and SA071206)
APPEAL from an order of the Superior Court of Los Angeles County, Cynthia Ulfig, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Luis Iturbe appeals from his conviction of carrying a loaded firearm by a street gang member (Pen. Code, § 12031, subd. (a)(1)), carrying an unregistered loaded firearm (Pen. Code, § 12301, subd. (a)(1)), and unlawful firearm activity (Pen. Code, §12021, subd. (g)(1)). Following the denial of a motion to suppress evidence, appellant pled no contest to carrying an unregistered firearm in violation of Penal Code section 12301, subdivision (a)(1). On appeal, he contends that he was unlawfully detained and, as a result, the trial court should have suppressed all evidence seized as a result of the search. As we shall explain below, his detention was not illegal. Thus the court did not err in denying his motion to suppress. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Preceding Appellant's Arrest
The undisputed material facts are taken from the transcript of the preliminary hearing.
On December 13, 2009, at approximately 9:30 p.m., Los Angeles Police Officer David Kater and his partner Officer Carrasco were on patrol in a marked police car. During their patrol on northbound Laurel Canyon near Osborne Street, they observed a white Toyota Camry traveling southbound on Laurel Canyon. Officer Kater noticed the Camry had tinted windows and decided to pull the vehicle over to investigate further. Officer Kater asked the driver, appellant, for his driver's license and informed him about the reason he was being pulled over. Officer Kater also asked whether appellant was on probation or parole. Appellant responded that he had been on probation but was not certain if he still was. Based on this information, Officer Kater asked appellant to step out of the vehicle to investigate further his probationary status.
Vehicle Code section 26708.5 makes it unlawful to apply any transparent material upon a vehicle windshield or window that alters the color or reduces the light transmittance of the windshield or window.
As appellant stepped out of the vehicle, he removed his baseball cap and attempted to place it inside the car. Officer Kater asked him not to reach in the car and to step away from the vehicle. He then placed appellant in handcuffs. The officer made the decision to handcuff appellant "based upon him reaching into the car suddenly [and because] his probationary status had not been determined." Officer Kater also noted during his testimony that "often when people are resistant in telling me what they are on probation for, it draws concerns in my mind." Next, appellant was escorted to the side of the street so he would be away from oncoming traffic. Officer Kater then asked appellant if he could search his pockets. Appellant consented. The search of appellant's pockets revealed a small plastic baggie which appeared to be clean and free of any residue. Officer Kater then asked appellant if he had ever been arrested for narcotics to which appellant responded he had previously been arrested for possession of methamphetamine.
Officer Kater then obtained permission to search the vehicle. During the search of the vehicle, Officer Kater discovered a photo album under the driver's seat that contained two pieces of paper. One paper had writing that said "Toonerville," "Sir Silent," and "Southsiders." In the backseat, Officer Kater recovered several plastic baggies and a folding knife. He also noticed that the trunk liner was pulled away from the frame of the vehicle. At this point, Officer Kater began to suspect the vehicle was being used to transport narcotics and called for a narcotics dog. While they were waiting, Officer Kater verified appellant's probationary status and learned that appellant was on a deferred entry of judgment (DEJ) and was restricted from carrying weapons. Thus, appellant was placed under arrest for possessing the knife found in the back seat of the vehicle in violation of his DEJ order. The entire stop lasted approximately ten minutes.
Although it appears that Officer Carrasco was present during the stop, it is not clear what role he took in detaining appellant or searching the vehicle.
Following the arrest, appellant and his vehicle were transferred to a police station nearby. Officer Kater accompanied another narcotics officer and a narcotics dog to search the vehicle. Shortly thereafter, Officer Kater discovered a handgun hidden between the trunk liner and floor of the car - the same area within the trunk that Officer Kater had suspected earlier was being used to store drugs. Additionally, he discovered $1,400 in cash hidden under the gearshift at the center console.
B. Proceedings in the Trial Court
The information charged appellant with three counts: (1) possessing a loaded firearm by a criminal street gang member (Pen. Code, § 12031, subd. (a)(1)), (2) carrying an unregistered loaded firearm in public (Pen. Code, § 12301, subd. (a)(1)), and unlawful firearm activity (Pen. Code, § 12021, subd. (g)(1)). During the preliminary hearing, appellant moved to suppress the weapon, arguing that Officer Kater did not have sufficient cause to detain appellant.
The trial court denied appellant's motion, concluding that an officer may handcuff someone during a traffic stop if certain factors are demonstrated by the evidence, such as the officer has a reasonable basis for believing the suspect poses a present physical threat or might flee. The court further stated that an additional factor is the suspect acts in a manner raising a possibility of danger or flight. The court thought it was significant that "as [appellant] is stepping out of the vehicle, he takes off his hat and reached into his car. I think that, combined with what the officer testified to, that this was an area in which gang arrests were made, this was at night, and this is a suspect who is, by his own admission, on probation, I think that's sufficient . . . for officer safety reasons . . . to handcuff appellant for enough time to ascertain whether appellant is on probation and to conduct the rest of the traffic stop."
Following the preliminary hearing ruling, appellant filed a Penal Code section 995 motion to set aside the information. The court denied his motion and appellant subsequently pled "no contest" to count 2.
The judge denied the Penal Code section 995 motion on essentially the same grounds relied on by the judge who denied the initial Penal Code section 1538.5 motion to suppress.
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Appellant now appeals from the order denying his motion to suppress evidence.
DISCUSSION
Appellant contends the trial court should have granted his motion to suppress because the prosecution did not establish Officer Kater lawfully detained appellant in handcuffs and lawfully obtained appellant's consent to be searched. We disagree and affirm as hereafter explained.
I. Standard of Review
An appellate court's review of a ruling on a motion to suppress is "governed by well-settled principles: We defer to the trial court's findings of fact that are supported by substantial evidence, but in all other respects the court's ruling is subject to independent review." (People v. Britton (2001) 91 Cal.App.4th 1112, 1118, citing People v. Ayala (2000) 24 Cal.4th 243, 279.) Whether relevant evidence obtained by unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562.)
II. Initial detention of defendant was justified
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, citing In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385, italics added.) 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." (People v. Celis, supra, 33 Cal.4th at pp. 675-676.)
When a police officer has an objective, reasonable, articulable suspicion a person has committed a crime or is about to commit a crime, the officer may briefly detain the person to investigate. The detention must be temporary, last no longer than necessary for the officer to confirm or dispel the officer's suspicion, and be accomplished using the least intrusive means available under the circumstances. (Florida v. Royer (1983) 460 U.S. 491, 500; People v. Celis, supra, 33 Cal.4th at pp. 674-675; In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.) A detention that does not comply with these requirements is a de facto arrest requiring probable cause. (In re Carlos M., supra, 220 Cal.App.3d at p. 384; see also Dunaway v. New York (1979) 442 U.S. 200, 212 [detention of defendant needed to be supported by probable cause because the detention "was in important respects indistinguishable from a traditional arrest"]; People v. Campbell (1981) 118 Cal.App.3d 588, 595 [stop may be an arrest "if the restraint employed by the police goes beyond that which is reasonably necessary for a detention"].)
The scope of the intrusion permitted during a detention will vary with the particular facts and circumstances of each case and the prosecution has the burden of establishing a detention was lawful. (Florida v. Royer, supra, 460 U.S. at p. 500; People v. Soun (1995) 34 Cal.App.4th 1499, 1516.) Handcuffing substantially increases the intrusiveness of a detention and is not part of a typical detention. (United States v. Bautista (1982) 684 F.2d 1286, 1289.) Nevertheless, because a police officer may take reasonable precautions to ensure safe completion of the officer's investigation, handcuffing a suspect during a detention does not necessarily transform the detention into a de facto arrest. (Ibid.; Washington v. Lambert (1996) 98 F.3d 1181, 1186; People v. Celis, supra, 33 Cal.4th at p. 675; In re Antonio B. (2008) 166 Cal.App.4th 435, 442.) The issue is whether the handcuffing was reasonably necessary for the detention. (In re Carlos M., supra, 220 Cal.App.3d at p. 385.)
In deciding this question, courts consider the duration and scope of the detention. (People v. Celis, supra, 33 Cal.4th at p. 675.) Courts also consider the facts known to the police officer at the time of the detention to determine whether the officer's actions went beyond what was necessary to confirm or dispel the officer's suspicion of criminal activity. (Id. at pp. 675-676.) The same actions of a police officer might constitute a detention in one instance and an arrest in another instance. (Washington v. Lambert, supra, 98 F.3d at p. 1185.)
Generally, handcuffing a suspect during a detention 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. (In re Antonio B., supra, 166 Cal.App.4th at p. 166.) In determining whether the use of intrusive techniques turns a stop into an arrest, we examine the reasonableness of the police conduct in light of a number of circumstances. These include whether: (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. (Washington v. Lambert, supra, 98 F.3d at pp. 1189-1190.)
Upon reviewing the circumstances, we conclude that there is sufficient evidence to support the lower court's conclusion that appellant acted in a manner which resulted in officer safety concerns and thus justified the officer's decision to handcuff appellant.
Officer Kater testified that the area where the encounter occurred was known for gang and weapon-related activity. In addition, the stop occurred at 9:30 at night where appellant was pulled over for having tinted windows which is a violation of Vehicle Code section 26708.5. The detention appears to have been brief, lasting only long enough for Kater to search appellant and his vehicle. Moreover, appellant's equivocal response to his probation status triggered a legitimate concern in the officer's mind based on his experience. Finally, appellant reached into his car once Officer Kater instructed him to step outside. Under the totality of the circumstances, we cannot say Officer Kater's conduct in handcuffing appellant and asking for consent to search the car shortly after making his observations and learning of the prior narcotics offense was unreasonable. Appellant's evasive answer coupled with his sudden and suspicious actions raised a reasonable possibility of danger or flight.
People v. Stier (2008) 168 Cal.App.4th 21, a case relied on by appellant, is factually distinguishable and not controlling. In Stier, two police officers stopped a pickup truck for an equipment violation after DEA agents told them about a narcotics transaction involving the occupants of the truck. (Id. at pp. 24-25.) Officer Johnson (Johnson) detained a passenger who attempted to walk away, and he found narcotics in her pocket after she gave consent to be searched. (Id. at p. 25.) As another officer, Officer Leahy (Leahy) was speaking to the driver (Stier), Johnson told Leahy about the narcotics he had found. (Ibid.)Leahy then asked Stier to get out of the truck. Leahy described Stier as having been very cooperative, mellow, easygoing, and not at all nervous. (Ibid.) When Stier got out of the car, Leahy was shocked to see that his height was approximately six feet six inches, which made Leahy feel "uncomfortable." Because of Stier's height and because Leahy knew that persons involved in narcotics often carry weapons, Leahy decided to handcuff Stier. (Ibid.) Stier denied having any narcotics or weapons and told Leahy to go ahead and check. Leahy found narcotics in Stier's pocket. (Ibid.)
The Court of Appeal agreed with Stier that the prosecution had failed to establish that Leahy lawfully detained Stier in handcuffs and thus had not lawfully obtained his consent for the search. The court concluded the evidence did not establish that Leahy had a reasonable basis for believing Stier was a safety or flight risk when he was handcuffed. (Id. at p. 28.) Leahy testified he did not believe Stier had any narcotics, and Leahy did not state any specific, articulable facts suggesting Stier was armed, had committed a violent crime, or was about to commit one. Instead, Leahy handcuffed Stier primarily because Stier was four or five inches taller than Leahy. (Ibid.)Therefore, the handcuffing was not reasonably necessary, and the consent given by Stier was not voluntary. (Ibid.)
In contrast to the officers in Stier, Officer Kater provided specific, articulable facts to support his actions. Officer Kater cited reasons other than appellant's appearance, namely his concerns for his safety based upon appellant's actions, uncertainty of probationary status and the officer's knowledge of the area and time of day. The circumstances of this case demonstrate reasonable justifications for the officer's conduct that are absent in Stier.
We conclude appellant was not improperly detained and that his consent to be searched was not involuntary. Accordingly the trial court properly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.
WOODS , Acting P. J.
We concur:
ZELON, J.
JACKSON, J.