Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge, Kern Super. Ct. No. BF129298A.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Poochigian, J.
INTRODUCTION
Appellant/defendant Reginald Anthony Johnson (defendant) pleaded no contest to count I, possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and count II, obstructing or resisting an officer (Pen. Code, § 69). As to count I, he admitted a gang enhancement (§ 186.22, subd. (b)(1)), and that he had one prior conviction for possession of cocaine base (Health & Saf. Code, §§ 11351.5 & 11370.2, subd. (a)). He was sentenced to the aggregate term of nine years.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the court should have granted his motion to suppress evidence because he was illegally detained by officers who lacked reasonable suspicion to believe he was engaged in illegal activities. We will affirm.
Defendant’s only contention on appeal is that the court improperly denied his pretrial suppression motion. Therefore, the facts are taken from the evidence introduced at the pretrial suppression hearing.
Around 7:15 p.m. on September 4, 2009, Bakersfield Police Officer Justin Lewis and his partner, members of the police department’s gang unit, were on patrol in a marked squad car. They were driving by Roy’s Market, a convenience store located on Martin Luther King, Jr. Boulevard at Murdock, which was within the territory of the East Side Crips.
Lewis described Roy’s Market as “a well known hangout … and it’s common knowledge within the community that high narcotic activity occurs at that location.” Lewis had conducted investigations in the area involving narcotics activities, weapons violations, burglaries, and robberies. He had personally conducted five or more narcotics investigations in that exact location.
Officer Lewis’s observations of defendant’s conduct
As the officers drove up to the market, Lewis observed two men walk through the parking lot with their backs to the patrol car. The men turned and faced each other, and Lewis recognized one of the men as Gregory Allen. Defendant was later identified as the second man.
Lewis testified defendant and Allen stood facing each other in the parking lot. Allen extended his right hand, palm side up, toward defendant. Defendant retrieved something from his front pants pocket with his left hand. Lewis described the item as a small round piece of light brown material. He could not determine whether the item was paper or plastic, but believed it was some type of packaging material based on his investigative experience.
Defendant runs away
Lewis testified that he decided to order defendant to stop based on his “observations during the hand-to-hand exchange coupled with the fact that it’s a high narcotic area and also because of my training and experience in narcotics.”
Lewis’s partner stopped their patrol car, and Lewis stepped out of the unit and said, “ ‘Stop, police.’ ” Defendant and Allen never completed their hand-to-hand exchange because defendant immediately ran away. Lewis chased defendant. Lewis repeatedly ordered defendant to stop for the police, but defendant ignored his commands and kept running.
According to the police report, Allen did not run away and he was later charged with loitering for narcotics activity (Health & Saf. Code, § 11532).
Lewis testified that defendant ran toward an apartment. Lewis again ordered defendant to stop and defendant again ignored him. Defendant ran into the apartment and Lewis caught up with him. Lewis wrapped both of his arms around defendant and tackled him to the ground. Defendant and Lewis landed about four to five feet inside the apartment’s front door.
The record suggests that the door to the apartment was open and defendant ran inside as he tried to escape from Lewis. Lewis testified it appeared the occupants were moving out because there was no furniture in the apartment, and there were large black trash bags on the apartment’s floor, which contained clothing. There is no evidence that defendant had any connection to that particular apartment, and he did not claim any privacy interest in that apartment.
Defendant’s struggle with the officers
Lewis was on top of defendant on the floor of the apartment. Lewis ordered defendant to stop resisting. Defendant failed to comply and kicked his legs and struggled with Lewis. Defendant’s arms and hands were between his body and the floor, and defendant reached for his own waistband.
Lewis straddled defendant’s prone body on the floor. Defendant was lying on the left side of his body and he continued to resist Lewis. Lewis decided to get up with the intent to draw his duty weapon. As Lewis attempted to stand up, defendant bent his right knee, extended it, and kicked Lewis in the testicles.
Lewis suffered great pain, but he sat on top of defendant and used his left forearm to pin defendant’s head against the floor. Defendant stopped kicking but he moved his hands back to his waistband area. Lewis was afraid defendant was reaching for a gun and ordered him to remove his hands from his waistband. Defendant again failed to obey Lewis’s commands and kept struggling.
Lewis testified that Officers Bender, Littlefield, and Williamson arrived at the scene about 10 to 15 seconds after defendant kicked him. Lewis told the officers that he could not continue because of his pain. The other officers took over and Lewis stepped away.
Officer Bender testified that he saw Officer Lewis chase defendant into the apartment. Bender arrived in the apartment and saw Officer Littlefield on top of defendant, who was face-down on the floor. Officer Williamson was also there, and the officers were telling defendant to “give us your hands and to stop resisting.” Littlefield tried to control defendant, but defendant used his arms and tried to push himself up. Littlefield raised his baton and hit defendant in the lower leg. Bender described the blow as “ineffective.”
Officer Bender testified that Littlefield lifted his baton as if he was going to hit defendant again. Littlefield lost control of the baton and dropped it on the floor. It landed just one foot away from defendant. Defendant extended his right arm and hand toward the baton. Bender believed defendant could reach the baton, so Bender used his right fist and punched defendant on the right side of his face.
Officer Bender tried to grab defendant’s arms and place him in handcuffs. Defendant was “substantially bigger” than Bender, however, and defendant was able to overpower him. Defendant continued to struggle as three officers tried to take him into custody. Defendant used his legs and tried to propel himself forward.
As Bender tried to control defendant, defendant reached toward his right front pants pocket with his right hand. Bender was concerned that defendant was reaching for a weapon and kept watching his right hand. Bender testified that defendant “was able to get his fingers just towards the top of his right pocket and discard—it was like a paper bag, small piece of paper bag, right there on the ground.” Bender saw the item slightly protruding from the top of defendant’s pocket. Defendant was able “to get it with his fingers, ” and he pulled it out and “dropped it on the ground.”
The officers finally obtained control of defendant and placed him in handcuffs. Bender picked up the brown item from the floor and showed it to Lewis. Lewis determined it was a light brown napkin which contained an off-white rocky substance. Lewis testified the light brown napkin was consistent with the apparent packaging material he saw in defendant’s hand in the convenience store’s parking lot. Bender searched defendant incident to his arrest and recovered $125 in cash from his rear pants pocket.
According to the probation report, the contraband consisted of 1.61 grams of a substance containing cocaine.
THE SUPPRESSION MOTION
Defendant was initially charged with count I, possession of cocaine base for sale; count II, obstructing or resisting an officer; count III, transportation of cocaine base (Health & Saf. Code, § 11352); and count IV, participation in a criminal street gang (§ 186.22, subd. (a)), with a gang enhancement for count I, allegations that he suffered three prior narcotics convictions as to count I and III, and that he served five prior prison terms (§ 667.5, subd. (b)).)
Defendant filed a pretrial motion to suppress (§ 1538.5) and argued he was unconstitutionally stopped, detained, and searched, and the officers used excessive force. The court conducted an evidentiary hearing. Officers Lewis and Bender were the only witnesses and testified as set forth ante. At the conclusion of the testimony, the prosecutor argued Officer Lewis had reasonable suspicion to detain defendant, based on his training and experience, because he saw defendant engage in an attempted narcotics transaction in an area known for high narcotics activity. When defendant ran and struggled with Lewis on the ground, there was probable cause to arrest him for resisting. The prosecutor argued the narcotics were properly seized either because defendant abandoned the package when he threw it away from him, or pursuant to a search incident to defendant’s arrest for resisting.
Defense counsel argued Lewis did not have reasonable suspicion for a detention because Lewis only saw defendant try to give an object to another man in the parking lot, and he never saw any drugs. Defendant had the right to run and avoid an unlawful detention, and the officers used excessive force to detain him. Defense counsel argued defendant was already in police custody when he tossed the napkin, and he did not show any intent to abandon it.
The court’s ruling
The court denied defendant’s suppression motion and found there were sufficient grounds for the officers to detain defendant: “When the defendant ran, of course they had a right to chase. And then during the detention, I think it’s really the product of a search incident to arrest or he abandoned it.”
Thereafter, defendant pleaded no contest to possession of cocaine base for sale and obstructing or resisting an officer, and admitted a gang enhancement and one prior drug conviction. The court dismissed all other charges and allegations and sentenced him to nine years.
DISCUSSION
I. Defendant was not detained
Defendant contends that he was illegally detained when Officer Lewis initially ordered him to stop in the convenience store’s parking lot. Defendant asserts that Lewis’s order amounted to a detention by a show of authority, and that detention was unlawful because Lewis lacked reasonable suspicion.
We will first address investigative detentions, whether an officer’s show of authority constitutes a detention, and if defendant was actually detained when Lewis initially ordered him to stop in the parking lot.
A. Consensual encounters, detentions, and arrests
“The standard of appellate review of a trial court’s ruling on a motion to suppress is 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.)
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 (Terry); People v. Hernandez (2008) 45 Cal.4th 295, 299 (Hernandez).) “Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. [Citations.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
“[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.]” (Manual G., supra, 16 Cal.4th at p. 821.)
Although both “detentions” and “arrests” are seizures under the Fourth Amendment, distinctions are drawn between the two concepts since “the constitutional standard for permissible detentions ‘is of lesser degree than that applicable to an arrest.’ [Citation.]” (People v. Hester (2004) 119 Cal.App.4th 376, 385-386, italics in original.)
“[A]n officer who lacks probable cause to arrest can conduct a brief investigative detention when there is ‘ “some objective manifestation” that criminal activity is afoot and that the person to be stopped is engaged in that activity.’ [Citations.] Because an investigative detention allows the police to ascertain whether suspicious conduct is criminal activity, such a detention ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 674.)
There is no bright-line rule to determine whether an encounter is consensual or a detention. (Ohio v. Robinette (1996) 519 U.S. 33, 39.) “ ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.)
In determining whether there has been a consensual encounter or the suspect has been detained, we must examine both an officer’s verbal and non-verbal actions to “assess[] the coercive effect of police conduct as a whole.…” (Manuel G., supra, 16 Cal.4th at p. 821.) An officer’s “words and verbal tones are always considered, ” along with how an officer physically approaches the subject, or if the officer attempts to block the subject’s path. (People v. Garry (2007) 156 Cal.App.4th 1100, 1110-1112.)
However, a detention does not occur when a police officer says “stop” and the suspect does not actually stop. “A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. [Citation.]” (Brendlin v. California (2007) 551 U.S. 249, 254, italics added.) When an officer orders a subject to halt in “a show of authority, ” and the subject “does not yield, ” a seizure has not occurred within the meaning of the Fourth Amendment. (California v. Hodari D. (1991) 499 U.S. 621, 625-626 (Hodari D.).)
“The word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.… It does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.… An arrest requires either physical force … or, where that is absent, submission to the assertion of authority.” (Hodari D., supra, 499 U.S. at p. 626, italics in original, fn. omitted.)
“[A] fleeing man is not seized until he is physically overpowered....” (Brendlin v. California, supra, 551 U.S. at p. 262.)
“Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command ‘Stop!’ expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.” (Hodari D., supra, 499 U.S. at p. 627.)
Thus, “[t]o have a completed seizure, the suspect must also have submitted to the policeman’s authority.” (U.S. v. Wilson (4th Cir. 1991) 953 F.2d 116, 122.)
B. Analysis
Defendant argues that he was detained when Officer Lewis stepped out of the patrol car at the convenience store’s parking lot and ordered him to stop for the police. As explained in Hodari D., supra, 499 U.S. 621, however, a seizure did not occur because defendant’s immediate reaction was to run away. Officer Lewis did nothing to block defendant’s path, he did not touch defendant, he did not use physical force, and he did not display or use his weapon. Lewis attempted to effectuate an investigatory detention by telling defendant to stop for the police. Since defendant did not submit to Lewis’s initial order, he was not detained when Lewis ordered him to stop in the convenience store’s parking lot.
Defendant relies on People v. Jones (1991) 228 Cal.App.3d 519 (Jones) in support of his argument that he was detained. In Jones, an officer observed three men standing on a corner in an area known for narcotics activities. One man handed money to another man. The officer pulled his patrol car to the wrong side of the road, and parked diagonally against traffic about 10 feet behind the group. Defendant started to walk away and the officer told him to stop. Defendant stopped and reached toward his rear pocket, and the officer grabbed defendant’s arms. Defendant was holding a bag of cocaine. (Id. at pp. 521-522.) Jones held the officer’s encounter with defendant was not consensual because “the coercive effect of [the officer’s] conduct was clear. A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic.” (Id. at p. 523; see also People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [occupants of car were detained when officer stopped marked patrol car behind parked car and prevented it from leaving].)
In this case, in contrast to Jones, supra, 228 Cal.App.3d 519, defendant was not detained because he never stopped in response to Officer Lewis’s order. In addition, there is no evidence that either Officer Lewis or his partner engaged in any conduct to impede defendant’s path, that they used the patrol car to assert their authority or block his route, or that they physically grabbed defendant in the parking lot. (Cf. People v. Franklin (1987) 192 Cal.App.3d 935, 940.)
II. Officer Lewis had reasonable suspicion to detain defendant
We next address the question that even if Officer Lewis detained defendant when he ordered him to stop in the parking lot, whether that detention was supported by reasonable suspicion.
A. Reasonable suspicion
An officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by specific and articulable facts, that criminal activity is afoot and that the person to be stopped is engaged in that activity, even if the officer lacks probable cause to arrest. (Terry, supra, 392 U.S. at p. 30; Illinois v. Wardlow (2000) 528 U.S. 119, 123-124 (Wardlow); United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow); People v. Souza (1994) 9 Cal.4th 224, 237-238 (Souza).) “[R]easonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause....” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
“[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]” (In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.), fn. omitted.)
A reasonable suspicion of criminal activity will justify a temporary detention even though the circumstances are consistent with lawful activity. (Tony C., supra, 21 Cal.3d at p. 893; Souza, supra, 9 Cal.4th at pp. 233, 235.) By “allowing such detentions, Terry accepts the risk that officers may stop innocent people.” (Wardlow, supra, 528 U.S. at p. 126.) Therefore, “[e]ven if the circumstances are also consistent with innocent activity, a detention will be justified if the combination of circumstances also supports a reasonable suspicion of criminal activity. [Citation.]” (People v. Daugherty (1996) 50 Cal.App.4th 275, 287.) “ ‘ [T]he relevant inquiry is not whether particular conduct is “innocent” or “guilty, ” but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” (Sokolow, supra, 490 U.S. at p. 10.)
The concept of reasonable suspicion cannot be reduced to “ ‘a neat set of legal rules.’ [Citation.]” (Sokolow, supra, 490 U.S. at p. 7.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (People v. Wells, supra, 38 Cal.4th at p. 1083.)
An officer may rely on “the modes or patterns of operation of certain kinds of lawbreakers” in determining whether there is reasonable suspicion to support an investigatory detention, because “a trained officer draws inferences and makes deductions - inferences and deductions that might well elude an untrained person.” (U.S. v. Cortez (1981) 449 U.S. 411, 418.) Therefore, in order to make a determination of reasonable suspicion, officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citation.]” (U.S. v. Arvizu (2002) 534 U.S. 266, 273; Hernandez, supra, 45 Cal.4th at p. 299.) “The specialized knowledge of a police officer experienced in police narcotics work may render suspicious what would appear innocent to a layman.” (People v. Maltz (1971) 14 Cal.App.3d 381, 390; People v. Mims (1992) 9 Cal.App.4th 1244, 1248.)
Moreover, “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. [Citation.] But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” (Wardlow, supra, 528 U.S. 119 at p. 124.)
“An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. [Citations.] As the Court of Appeal aptly observed in People v. Holloway (1985) 176 Cal.App.3d 150, 155…, ‘it may be fairly said that our entire nation is a high crime area, ’ particularly with respect to drug-related crimes. Unfortunately, this sad state of affairs has seen little improvement in the intervening decade since Holloway was decided. As Holloway noted, mere presence in a high-crime area is not, standing alone, ‘sufficient to justify interference with an otherwise innocent-appearing citizen.... Nevertheless, it would be the height of naivete not to recognize that the frequency and intensity of these sorry conditions are greater in certain quarters than in others. Consequently, we must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings and to draw rational inferences therefrom, unless we are prepared to insist that they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol.’ [Citation.]” (Souza, supra, 9 Cal.4th at pp. 240-241.)
B. Analysis
Even if Officer Lewis detained defendant by initially telling him to stop in the parking lot, we find the detention was lawful because Lewis had a reasonable suspicion that defendant was involved in criminal activity, based on his observations of defendant’s conduct in the parking lot. Lewis did not order defendant to stop simply because he saw two men standing around in an area known for gang activities and other criminal conduct. Instead, Lewis saw defendant produce from his pocket what he believed to be packaging material, based on his personal investigative experience. Defendant attempted to place the suspected packaging material in the outstretched hand of another man, in the exact area where Lewis had personally investigated narcotics transactions. Officer Lewis’s detention of defendant “was based on something more than just ‘mere curiosity, rumor, or hunch.…’ ” (People v. Daughtery, supra, 50 Cal.App.4th at p. 288.)
As discussed in issue I, ante, defendant relies on Jones in support of his argument that he was detained. He also relies on Jones for the contention that Officer Lewis’s observation of his conduct in the parking lot was insufficient to establish reasonable suspicion. As we have explained, the officer in Jones saw three men standing in a group near a street corner, in an area known for drug activity. The officer saw one man hand what appeared to be money to defendant. The officer detained defendant and found him in possession of cocaine. (Jones, supra, 228 Cal.App.3d at pp. 521-522.) Jones held the officer illegally detained defendant because the officer admitted “he had no ‘probable cause’ interest” in defendant, and “the mere fact” that defendant “received money from another person on the street in an area known for drug activity [was] insufficient justification for a detention. [Citation.]” (Id. at p. 524.)
A different result was reached in People v. Limon (1993) 17 Cal.App.4th 524 (Limon), where an officer observed defendant standing near another man in the carport of an apartment complex. The officer was familiar with the area’s history of gang activity, violence, and drugs, and the officer had personally observed about 20 drug transactions in that same area. The officer watched defendant as he walked to a pickup truck, retrieved something from the wheel well, and walked back to the other man. The men touched hands and the officer believed they were exchanging an unknown item. Defendant returned to the truck and placed something in the wheel well, and the other man walked away. The officer lost sight of defendant, and then saw him standing at his original location with two other men, and they were talking to someone in a car. The officer approached defendant, asked him to step away from the car, and conducted a pat-down search which revealed drugs. (Id. at pp. 529-531.)
Limon held the officer had reasonable suspicion to detain because “[d]efendant was not merely present in a drug-ridden area. Defendant engaged in what appeared to be a hand-to-hand exchange. Though an exchange of an unrecognizable object for money on a street in a high crime area does not justify arrest [citations], it may justify detention if the area is known for drug sales.” (Limon, supra, 17 Cal.App.4th at p. 532.) Limon rejected defendant’s reliance on Jones because “there was more than an apparent exchange. Before and after the exchange defendant walked over and reached into an apparent hiding place. This conduct suggested drug sales.” (Limon, supra, 17 Cal.App.4th at pp. 532-533.) Limon concluded that “reasonable grounds to detain defendant existed based on the officer’s specific knowledge of prior drug activity in the area and in the carport, defendant’s hand-to-hand exchange, and defendant’s hiding something in connection with the exchange.” (Id. at p. 534.)
Defendant relies on Jones and argues he was illegally detained because Officer Lewis did not see defendant in possession of any narcotics, and his conduct in the parking lot was not consistent with narcotics activities. The facts of the instant case, however, are closer to Limon than to Jones. In Jones, the officer only saw money being exchanged and did not see any evidence of contraband. In this case, as in Limon, Lewis observed the attempted exchange of apparent packaging material in the precise location where he had personally investigated other narcotics transactions. The only reason the exchange was not completed was because Lewis stepped out of the patrol car and said to stop.
Lewis was not suspicious of defendant simply because he was standing in the parking lot of Roy’s Market, but because defendant was in an area known for narcotics transactions, Lewis had personally investigated narcotics activities in that same area, defendant produced an item from his pocket that appeared consistent with packaging material, and Allen extended his hand as if he was about to receive that item. Although defendant’s gestures may have been consistent with innocent activity, “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (Tony C., supra, 21 Cal.3d at p. 894.) The facts and circumstances in this case, taken together, certainly “warranted further investigation.” (Terry, supra, 392 U.S. at p. 22; United States v. Arvizu, supra, 534 U.S. at p. 274.)
III. The officers properly seized the contraband
The final issue is whether the officers properly seized the contraband after defendant was taken into custody. Defendant argues that since he was illegally detained, he was entitled to run and resist the officers, he was not violent, there is no evidence that he intentionally kicked Officer Lewis, and the officers lacked probable cause to arrest him for resisting. Defendant argues he did not commit any offenses and the court should have suppressed all the evidence obtained from the encounter, consisting of the cash in his pocket and the drugs found on the floor.
A. Search incident to an arrest
Defendant contends he was entitled to nonviolently resist an unlawful detention, he did not commit any crimes when he ran from Lewis, he was not lawfully arrested, and he was not subject to a search incident to arrest. Defendant’s argument is based on the principle that a defendant who nonviolently resists an unlawful detention is not guilty of resisting arrest. (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818-819.) “ ‘Under California law, an officer is not lawfully performing [his or] her duties when [he or] she detains an individual without reasonable suspicion or arrests an individual without probable cause.’ [Citation.]” (Id. at p. 819, italics in original.) As we have explained, however, defendant was not subject to an unlawful detention in this case: under Hodari D., defendant was not detained because he immediately ran away in response to Officer Lewis’s order; and, even if he was detained, Officer Lewis had reasonable suspicion to detain him based on the facts and circumstances of the case.
Moreover, defendant’s refusal to obey Officer Lewis’s lawful order to stop constituted probable cause for a violation of either section 69 or section 148. The legal elements of a violation of section 148, subdivision (a)(1) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) “[P]hysical resistance, hiding, or running away from a police officer have been found to violate section 148. [Citations.]” (In re Muhammed C., supra, 95 Cal.App.4th at p. 1329.)
A defendant violates section 69 by resisting an officer in the performance of his duties by force or violence. (People v. Carrasco (2008) 163 Cal.App.4th 978, 984.) Moreover, the use of violence to overcome reasonable force employed in a lawful arrest is an assault. (People v. Montiel (1993) 5 Cal.4th 877, 916.)
When Officer Lewis ordered defendant to stop for the police, defendant immediately ran away. Lewis chased defendant, repeatedly identified himself as an officer and ordered him to stop, defendant ignored the orders and kept running, and Lewis had probable cause to arrest defendant for violating section 148. When Lewis tackled defendant in the apartment, defendant was lawfully detained but he continued to resist and kept reaching for his waistband. There are strong inferences in the record that defendant intentionally kicked Lewis in the testicles during the struggle, establishing probable cause for a violation of section 69, the offense to which defendant later pleaded no contest.
“[T]o effect the arrest in a safe manner, ‘it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.’ [Citation.] [T]he police may conduct a ‘search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.’ [Citation.]” (People v. Leal (2009) 178 Cal.App.4th 1051, 1060, quoting Chimel v. California (1969) 395 U.S. 752, 763.)
“In Chimel, we held that a search incident to arrest may only include ‘the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ [Citation.] That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.... If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply. [Citation.]” (Arizona v. Gant (2009) __ U.S. __ [129 S.Ct. 1710, 1716].)
As applied to this case, once defendant was taken into custody, he was properly searched incident to his lawful arrest for resisting, and the cash was properly seized from his pocket. As for the light brown napkin, it is not clear whether the officers seized that item while defendant was still struggling on the floor, or after he had been taken into custody and removed from the area.
B. Abandonment
In the alternative, we agree with the superior court that the light brown napkin was properly seized pursuant to the abandonment theory. “[A] search and seizure of abandoned property is not unlawful because no one has a reasonable expectation of privacy in property that has been abandoned. The question whether property is abandoned is an issue of fact, and the court’s finding must be upheld if supported by substantial evidence. [Citation.]” (People v. Daggs (2005) 133 Cal.App.4th 361, 365 (Daggs).)
“[P]roperty is abandoned when a defendant voluntarily discards it in the face of police observation, or imminent lawful detention or arrest, to avoid incrimination.” (Daggs, supra, 133 Cal.App.4th at p. 365.) Abandonment can occur even if the defendant does not intent to permanently relinquish control over the object. (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1048.) “[T]he intent to abandon is determined by objective factors, not the defendant’s subjective intent. ‘ “Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.” ’ [Citations.]” (Daggs, supra, 133 Cal.App.4th at pp. 365-366, italics in original.) For example, in People v. Brown (1990) 216 Cal.App.3d 1442, the court held that defendant’s act of “dropping the bag before making a last-ditch effort to evade the police” supported the factual finding that defendant abandoned the paper bag and lost any reasonable expectation of privacy in its contents. (Id. at p. 1451.)
In the instant case, defendant repeatedly reached for his pants during the struggle with Lewis and the other officers. He finally managed to reach the brown napkin, pulled it from his pocket, and dropped it on the ground as he continued to struggle with the officers. Defendant did not accidentally or inadvertently discard the napkin and drugs during the struggle, but purposefully grasped and discarded it. The record supports the trial court’s factual finding that defendant abandoned the brown napkin which contained the narcotics.
DISPOSITION
The judgment is affirmed.