Opinion
G054606
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. KOUROSH KESHMIRI, Defendant and Appellant.
Ferrentino & Associates and Correen Ferrentino for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13HF3788) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Ferrentino & Associates and Correen Ferrentino for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of his motion to suppress evidence on Fourth Amendment grounds, appellant pleaded guilty to driving under the influence. He contends the motion should have been granted because the police lacked legal justification to stop his car. We disagree and affirm the judgment.
FACTS
Shortly after midnight on June 6, 2013, someone called the police and reported there were people loudly playing basketball in Valyermo Park in Mission Viejo. Sheriff's Deputy Adewale Olukoju was dispatched to the scene. He knew the park closed at 11:00 p.m. and that it was a violation of the city's Municipal Code to be there after that time.
Pursuant to sections 13.04.030 and 13.04.040 of the Mission Viejo Municipal Code (Municipal Code), it is a misdemeanor to be in any city park after 11:00 p.m. without the permission of the city council.
Olukoju arrived at the park to find appellant and two other men playing basketball. As he walked up to the trio, they came over to see what he wanted, and they talked for several minutes. Olukoju told the men the park was closed and someone had complained they were being noisy. The men indicated they were unaware the park was closed. When Olukoju asked them how they got there, they said they drove and pointed to two cars - a Mazda and a Mercedes - that were parked on the street nearby.
During this time, Olukoju was standing five to ten feet from the men and could detect a strong odor of alcohol coming from them. He also noticed they all had red, watery eyes. Olukoju advised the men to leave the park, and they agreed to do so. He also told them that, based on what he could smell, it was probably not a good idea for them to drive. No one in appellant's group disagreed with this assessment. In fact, they assured Olukoju they lived nearby and would be walking home.
At the motion hearing, Olukoju initially described the men's eyes as "reddish" and "watery." Then, when reminded of his preliminary hearing testimony, he acknowledged previously stating the men's eyes were "probably a little watery." This testimony was elicited by the prosecution to establish the odor of alcohol was not the only factor Olukoju relied on in forming his opinion the men had been drinking. It was not intended as a definitive characterization of how Olukoju perceived the men's eyes. In context, contrary to appellant's interpretation of the record, we do not construe this testimony as a disavowal of Olukoju's earlier statement that the men's eyes were both watery and red. (See generally People v. Tully (2012) 54 Cal.4th 952, 979 [in reviewing a motion to suppress, we draw all factual inferences in favor of the trial court's ruling].) --------
Taking the men at their word, Olukoju returned to his patrol car and drove about 1,000 yards in the opposite direction. However, upon coming to a dead end, he circled back toward the basketball court and saw the Mazda and the Mercedes pulling away from the curb onto the roadway. Olukoju activated his overhead lights and stopped both vehicles. As it turned out, appellant was behind the wheel of the Mercedes, and his buddies were in the Mazda. Smelling of alcohol and unable to pass a field sobriety test, appellant was arrested at the scene. A subsequent blood test revealed his blood alcohol level was twice the legal limit.
Appellant was charged with multiple drunk driving offenses. After pleading not guilty, he moved to suppress the fruits of the stop on the basis Olukoju lacked legal cause to pull him over. At the motion hearing, appellant admitted Olukoju had reasonable suspicion to believe at least one person in his group had been drinking. However, he argued the stop was illegal because that suspicion was not sufficiently particularized as to him. Appellant also conceded Olukoju may have had probable cause to arrest him under the Municipal Code for being in the park after hours. However, he asserted that once Olukoju decided to let him go after their initial encounter, he was no longer entitled to invoke the Municipal Code violation as a justification for stopping his car. The trial court was not persuaded by appellant's arguments. Finding Olukoju's actions "totally reasonable," it denied the motion to suppress. Appellant then pled guilty and was sentenced to six months in jail.
DISCUSSION
Appellant renews his claim that Olukoju lacked legal justification to stop his car. Exercising our independent judgment on the issue (People v. Weaver (2001) 26 Cal.4th 876, 924), we disagree and affirm the trial court's ruling.
The police may lawfully stop and detain a motorist for questioning if they have reasonable suspicion he is involved in criminal activity. (People v. Wells (2006) 38 Cal.4th 1078, 1082.) Reasonable suspicion is a "less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence[.]" (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) Consequently, "'reasonable suspicion can flourish in the absence of a direct evidentiary link between the suspect and the suspected crime.' [Citation.] The focus is on what a reasonable officer, armed with the same knowledge, would have thought. [Citation.]" (United States v. Arthur (2014) 764 F.3d 92, 97.) "'The possibility of an innocent explanation [for the subject activity] does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct." (People v. Souza (1994) 9 Cal.4th 224, 233.)
In that sense, "reasonable suspicion is more a concept than a constant: it deals with degrees of likelihood, not with certainties or near certainties." (United States v. Arnott (1st Cir. 2014) 758 F.3d 40, 44; United States v. Cortez (1981) 449 U.S. 411, 418 ["The process does not deal with hard certainties, but with probabilities."].) Each case must be decided on its own facts, giving due deference to the officer's ability to formulate "commonsense conclusions about human behavior." (United States v. Cortez, supra, 449 U.S. at p. 418.)
Here, the circumstances were such as to lead a reasonable officer to believe appellant was driving under the influence when Deputy Olukoju pulled him over. When Olukoju first contacted appellant's group, they were not playing chess in the public square at noon. Rather, they were loudly playing basketball in a closed park after midnight - loudly enough to draw a complaint to the police. Standing alone, this circumstance is not terribly probative of the legality of appellant's subsequent detention, but it does provide context for the events that followed.
As to those events, the record shows Olukoju noticed a strong odor of alcohol coming from appellant's group when he contacted them near the basketball court. Olukoju may not have known from which particular person or persons the smell was emanating, but he could see that all three men had red and watery eyes, which suggested they had all been drinking. This inference gained strength after Olukoju advised the men they should not drive home, given the boozy aroma they were giving off. No one in appellant's group questioned Olukoju's none-too-subtle assumption that they had ingested too much alcohol to safely operate a motor vehicle. To the contrary, they bolstered the assumption by assuring Olukoju they would forego their cars and walk home from the park. But, as Olukoju soon discovered, that assurance turned out to be a ruse. After Olukoju left the scene, the men got in their cars and started driving. Their attempt to deceive Olukoju into thinking they were not going to drive is another incriminating factor in the equation. (See United States v. Simpson (10th Cir. 2010) 609 F.3d 1140, 1149 ["lies, evasions or inconsistencies about any subject while being detained may contribute to reasonable suspicion"].) Indeed, virtually everything about his encounter with them suggested impaired judgment - a symptom of intoxication.
Based on all the information Olukoju had at his disposal, it was reasonable for him to suspect the people driving the Mazda and the Mercedes were members of appellant's group and that they were under the influence of alcohol. He was therefore legally entitled to pull them over.
In arguing otherwise, appellant contends there was no particularized evidence showing he had been drinking, as opposed to his companions. Assuming this were true, it would not change our conclusion Olukoju had reasonable suspicion to stop appellant's car. The police "do not have carte blanche authority to perform stops or searches en masse wherever a group of individuals is gathered." (State v. Meyer (S.D. 2015) 868 N.W.2d 561, 567-568.) However, if an officer has reasonable suspicion to believe someone in a group of closely associated individuals has been involved in illegal drinking activity, the circumstances may justify the detention of everyone in the group in order to identify the offending party. (Id. at pp. 566-568 [police had the right to detain all eight members of a tailgate party on suspicion of underage drinking since they were all observed in the immediate and particular area connected to that activity]; Sizer v. State (Md.App. 2017) 174 A.3d 326, 338-340 [officers had reasonable basis to detain a group of people on suspicion of open bottle and littering where at least one person in the group was seen engaging in those activities]; State v. Walker (2002) 47 P.3d 65, 67 [officers were justified in stopping a group of minors on suspicion of underage drinking although only one them was seen holding a beer bottle].)
Here, the totality of the circumstances gave rise to a reasonable inference two people were driving cars from a group of three in which at least one had been drinking. Simple math said at least one of them was driving after drinking. So when Olukoju saw their cars leaving the area, he had every right to pull them over. The fact Olukoju did not know for certain that appellant had been drinking or that he was one of the drivers does not preclude a finding there was reasonable suspicion for the stop.
Irrespective of that issue, the stop was lawful on the basis Olukoju had probable cause to arrest appellant for violating the Municipal Code. It is undisputed that "'[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.'" (People v. McKay (2002) 27 Cal.4th 601, 607, quoting Atwater v. Lago Vista (2001) 532 U.S. 318, 354.) It is also clear Olukoju had probable cause to arrest appellant for being in the park after it was closed. Nevertheless, appellant contends Olukoju somehow forfeited his right to arrest him for that offense when he let him leave the park with his friends. In appellant's view, Olukoju was not entitled to "resurrect" probable cause for the park violation and use that to justify the subsequent stop of his car.
There may be situations where probable cause to arrest or search has been dissipated by the passage of time or the discovery of exonerating information. "The police may learn, for instance, that contraband is no longer located at the place to be searched," or it may turn out that their initial showing of probable cause has grown stale. (United States v. Grubbs (2006) 547 U.S. 90, 95 fn. 2; accord, United States v. Ortiz-Hernandez (9th Cir. 2005) 427 F.3d 567, 574-575 [if "probable cause is established at any early stage of the investigation, it may be dissipated if the investigating officer later learns additional information that decreases the likelihood that the defendant has engaged, or is engaging, in criminal activity."]. In this case, however, there were no intervening events between the time Olukoju contacted appellant in the park and the time he pulled him over a short time later. In fact, the contact and the stop occurred just minutes apart, in close proximity to each other.
And while it is true Olukoju stopped appellant on suspicion of drunk driving, not to arrest him for violating the Municipal Code, that has no bearing on the legality of his actions. Fourth Amendment reasonableness turns not on the officer's subjective state of mind but on the objective circumstances surrounding his actions. (Whren v. United States (1996) 517 U.S. 806, 814.) Notwithstanding Olukoju's intentions, the objective circumstances provided probable cause to arrest appellant for being in the park after it was closed. Therefore, Olukoju was legally entitled to pull him over. (Devenpeck v. Alford (2004) 543 U.S. 146, 153 [officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause"].)
Appellant complains that in the context of a temporary detention based on reasonable suspicion, the detention may become unlawful if it extends beyond the time and scope needed to investigate the alleged wrongdoing. (Rodriguez v. United States (2015) 575 U.S. ___, ___ [135 S.Ct. 1609, 1614-1615] [traffic stop may become illegal if prolonged beyond the time reasonably required to complete the officer's duties]; Arizona v. Johnson (2009) 555 U.S. 323 [same]; Florida v. Royer (1983) 460 U.S. 491, 500 ["The scope of the detention must be carefully tailored to its underlying justification."].) Analogizing to that situation, appellant contends that while Olukoju may have had reasonable suspicion to detain him in the park, that did not give him the right to stop his car later on. However, as we have explained, Olukoju didn't just have reasonable suspicion to detain appellant for violating the Municipal Code, he had full-blown probable cause to place him under arrest. Under those circumstances, the scope-of-detention cases are inapt, and the stop of appellant's vehicle was lawful. (See People v. Gomez (2004) 117 Cal.App.4th 531, 537-540 [irrespective of whether the defendant's detention was unduly prolonged, there was no grounds for suppression because the police had independent probable cause to effectuate his arrest].) As such, the trial court properly denied his motion to suppress.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. I CONCUR: THOMPSON, J. O'LEARY, P.J., concurring.
I concur in the majority's opinion Olukoju had probable cause to stop Keshmiri for investigation of driving under the influence of alcohol. However, I do not agree Olukoju had probable cause to make the stop based on the Municipal Code violation. (Maj. opn. at pp. 6-7.)
The majority suggests probable cause continues until it is dissipated in some way by an intervening event. It notes there were no intervening events between the time Olukoju contacted Keshmiri and his associates in the park and the vehicle stop. (Maj. opn. at p. 7.) I disagree. After his initial contact with Keshmiri and his associates, Olukoju directed them to leave the park, which they did. The officer's release of Keshmiri and his associates, without issuing a citation for the possible Municipal Code violation, effectively ended his investigation of the Municipal Code violation. There is nothing in the record to suggest the vehicle stop was in furtherance of an investigation of the Municipal Code violation. The vehicle stop was based solely on Olukoju's reasonable suspicion Keshmiri was operating a motor vehicle while under the influence of alcohol.
O'LEARY, P. J.