Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FVA027230, Phillip M. Morris, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles C. Ragland and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In a felony complaint, the San Bernardino County District Attorney charged defendant and appellant Deorsi James Larrea with (1) possession of methamphetamine while armed with a firearm under Health and Safety Code section 11370.1, subdivision (a) (count 1); (2) possession of methamphetamine for sale under Health and Safety Code section 11378 (count 2); and (3) unlawful possession of a firearm under Penal Code section 12021, subdivision (a)(1). The district attorney also alleged that defendant had previously suffered two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c), and Penal Code section 667.5, subdivision (b). Thereafter, the district attorney filed an information with the same charges and allegations as contained in the complaint.
After the trial court denied defendant’s motion to suppress under Penal Code section 1538.5, defendant pleaded no contest to the charge of possession of methamphetamine for sale, and admitted the truth of one of the allegations that he had suffered a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). The remaining charges and allegations were dismissed. The trial court sentenced defendant to serve the upper term of three years in state prison for the substantive offense, plus a consecutive term of three years for the prior conviction, for a total determinate term of six years.
On appeal, defendant contends that the trial court erred in denying defendant’s motion to suppress. For the reasons set forth below, we shall affirm the judgment.
I
STATEMENT OF FACTS
On July 6, 2006, police detectives searched defendant’s residence. During the search, detectives found nine baggies of methamphetamine, weighing approximately 3.3 grams each, and a handgun underneath a mattress in a bedroom.
II
DISCUSSION
Defendant’s sole contention on appeal is that the trial court erred in denying defendant’s motion to suppress the evidence.
A. Background
At the combined preliminary hearing and hearing on defendant’s motion to suppress, the following facts were presented:
On July 6, 2006, Riverside Police Department Detective Jeff Spencer began a surveillance based on information he received that defendant was supplying drugs at a location on Crest Avenue in Riverside. Defendant arrived at the location in a car around 10:00 a.m. Defendant went inside the house, where he remained for approximately 20 minutes. Thereafter, defendant left the residence and drove to an automotive shop on Arlington and Crest, where he stayed 15 to 20 minutes.
Defendant next drove to a residential area in Norco. He went into a residence, which had a business in the back, and stayed for about 20 minutes. After leaving that location, he drove to a residence on Kennedy Street in Fontana, where he stayed for 20 minutes. While Detective Spencer was watching the residence, he received a call from Detective Lackey. Detective Lackey stated that he found heroin and a small amount of methamphetamine at the Crest Avenue residence.
From the Kennedy Street residence, defendant drove to a restaurant on Baseline near Interstate 15. Defendant sat on a bench outside the restaurant. After a short while, a car drove up and defendant entered it. The car drove around the parking lot for about 30 seconds, then dropped defendant off. Thereafter, defendant drove to a grocery store on Baseline and entered it.
Detective Spencer testified that at that point, based on his training and experience and what he had observed that morning, he believed that defendant was selling drugs. When defendant came outside of the grocery store, detectives contacted him and placed him in handcuffs. Defendant consented to being searched. Detective Spencer found $2,000 in cash bundled together with a rubber band in one of defendant’s pant pockets. In the other pocket, the detective found $87 in cash.
Police placed defendant in a van and drove him one or two miles to the house on Kennedy Street; it was defendant’s residence. Police knocked on the door but received no answer. They opened the door and conducted a protective sweep in the house to ensure there were no other people inside. While inside, Detective Spencer noticed some pill bottles with defendant’s name on them in the kitchen, some papers in a bedroom with defendant’s name on them, and the smell of marijuana. Defendant remained handcuffed in the van during the protective sweep.
After confirming that no one was in the house, Detective Ron Kipp took defendant inside and sat with him at a table in the kitchen. Detective Spencer drove back to the police station to prepare an affidavit in support of a search warrant for the house.
While Detective Kipp was waiting at the table with defendant, defendant’s girlfriend and her infant daughter arrived at the residence. Defendant talked to Detective Kipp about whether there was a way that his girlfriend could avoid any liability for criminal activities occurring at the residence. After that discussion, defendant consented to a search of the residence, and directed detectives to a bedroom where methamphetamine and a handgun were hidden underneath a mattress. Detective Kipp estimated that defendant was detained at the grocery store parking lot for approximately 15 minutes, and at the Kennedy Street residence for about 30 minutes before defendant consented to a search of his residence.
After the presentation of evidence, defense counsel conceded that police had reasonable suspicion to detain defendant in the Vons parking lot, and did not challenge the lawfulness of the search of defendant’s person and car. Instead, counsel argued that the seizure became unlawful once police moved defendant to the Kennedy Street residence because the 15 minutes the police spent with defendant in the parking lot was sufficient to investigate any suspicion, and because they lacked reasonable suspicion, or probable cause, of criminal activity after that point in time. Defense counsel also argued that the initial entry into the residence to conduct a protective sweep was unlawful; police did not have a warrant and exigent circumstances did not exist to justify a warrantless entry. Finally, defense counsel argued that defendant’s consent to search the residence was invalid because he was in custody, unlawfully, when he consented.
The prosecutor argued that the detention was not unduly prolonged, the detention was supported by a reasonable suspicion of criminal activity, and the consent to search the house was valid.
The trial court denied the motion to suppress based on the finding that defendant voluntarily consented to the search.
After defendant’s arraignment on the information, defendant filed a motion to dismiss under Penal Code section 995; he argued that the information should be set aside because it was based on evidence presented at the preliminary hearing that was obtained in violation of his Fourth Amendment rights. Defendant repeated the same arguments he made in his motion to suppress evidence. The trial court denied the motion to dismiss.
B. Standard of Review
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” (People v. Ramos (2004) 34 Cal.4th 494, 505.) “[W]e view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.” (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
C. Consent to Search
“The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. [Citation.] Thus, [the United States Supreme Court has] long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. [Citation.]” (Florida v. Jimeno (1991) 500 U.S. 248, 250-251; accord, People v. Jenkins, supra, 22 Cal.4th at pp. 971, 974.) Determining whether consent to search was voluntarily given does not require proof of knowledge of the right to refuse consent. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 232-233.) Rather, the court must look at all the individual circumstances of the encounter in determining whether consent was obtained voluntarily or through coercion. (Id. at p. 233.) However, if under all the circumstances it appears that the consent was not voluntarily given—that it was coerced by threats or force, or granted only in submission to a claim of lawful authority—then the consent is invalid and the search unreasonable. (Ibid.) A warrantless search based on consent must be supported by substantial evidence that the consent was voluntarily given. (People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033.) We view the evidence in the light most favorable to the trial court’s finding. (People v. Ratliff (1986) 41 Cal.3d 675, 686.)
In this case, the prosecution asserted that the search of defendant’s residence was conducted pursuant to defendant’s voluntary consent. The trial court agreed and denied defendant’s motion to suppress. Viewing the evidence in the light most favorable to the trial court’s finding, there is substantial evidence to support the court’s finding.
Here, while Detective Kipp and defendant were sitting inside the residence waiting for police to obtain a search warrant, defendant’s girlfriend arrived at the house. Detective Kipp talked to the girlfriend; she stated that she lived in the house with defendant. As Detective Kipp was speaking with the girlfriend, another officer told the detective that defendant wanted to talk with him. Detective Kipp returned to where defendant was seated. At that time, defendant talked to Detective Kipp “about what we could do to work out an agreement to where his girlfriend wouldn’t be implicated in any potential criminal activities taking place at the residence.” At the end of that conversation, defendant granted consent to search the house, and told Detective Kipp where the drugs and gun could be found. Under these circumstances, we find that there is substantial evidence to support the trial court’s finding that defendant’s consent was freely and voluntarily given, and was not the product of police coercion or duress.
D. Detention
Nevertheless, defendant argues that the consent was invalid because it was the product of an illegal detention in that “the detention in this case was unreasonably prolonged.” As will be discussed below, the “prolonged” detention of defendant was reasonable.
“The Fourth Amendment to the United States Constitution provides that ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’ The protections afforded by the Fourth Amendment have been held to be applicable to the states through the due process clause of the Fourteenth Amendment. [Citation.]” (People v. Gorrostieta (1993) 19 Cal.App.4th 71, 80; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597; Ornelas v. United States (1996) 517 U.S. 690.)
In order to justify the officers’ actions, we must first determine whether they had a reasonable suspicion that defendant was involved in criminal activity, sufficient to support the detention. (See People v. Harris (1975) 15 Cal.3d 384; People v. Gatch (1976) 56 Cal.App.3d 505, 508-509.) A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233; In re Tony C. (1978) 21 Cal.3d 888, 893-894; United States v. Arvizu (2002) 534 U.S. 266, 274-276; United States v. Sokolow (1989) 490 U.S. 1, 7-8.) Even if individual factors are susceptible to innocent explanation, and some factors are more probative than others, taken together they may suffice to form a particularized and objective basis for an investigatory stop. (Souza, at p. 233; Arvizu, at p. 277.)
“It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C., supra, 21 Cal.3d at p. 892, citing Terry v. Ohio (1968) 392 U.S. 1, 22.) However, the police are not free to detain citizens at will. “ . . . ‘[I]n order to 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 James D. (1987) 43 Cal.3d 903, 914, quoting In re Tony C., at p. 893; see also People v. Renteria (1992) 2 Cal.App.4th 440, 443; People v. Souza, supra, 9 Cal.4th at p. 231 [“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity”].)
Here, defendant concedes that his initial detention was reasonable “based on what [Detective] Spencer believed to be a suspicion [defendant] was engaged in the sales of narcotics[.]” Defendant, however, contends that “his continued detention and subsequent transport to the residence on Kennedy Street in Fontana was overbroad in scope. There was no reason to extend any detention of [defendant], other than officer curiosity.” We disagree.
It is well settled that “an investigative 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.) It is also well settled that there is no rigid formula for determining how long a detention may last. (United States v. Sharpe (1985) 470 U.S. 675, 686.) The question is whether the officer “diligently pursued a means of investigation reasonably designed to dispel or confirm his [or her] suspicions quickly.” (People v. Soun (1995) 34 Cal.App.4th 1499, 1520.) Facts that come to light during the detention may provide reasonable suspicion to prolong the detention. (People v. Russell (2000) 81 Cal.App.4th 96, 102.)
In this case, as detailed in the statement of facts ante, Detective Spencer received information that defendant sold drugs at a residence on Crest Avenue. The detective then observed defendant engage in a pattern of behavior that was consistent with a person distributing drugs. Moreover, while watching defendant, Detective Spencer learned that other officers found methamphetamine and heroin at the Crest residence after defendant left. Based on this information, Detective Spencer had a reasonable suspicion that defendant was engaged in the unlawful distribution of drugs. Therefore, Detective Spencer contacted defendant in the grocery store parking lot and placed him in handcuffs. The purpose of the detention was to determine whether defendant was indeed involved in the sale of drugs. After defendant consented to a search, Detective Spencer searched defendant and his car. Defendant does not challenge this search. From this search, the detective found that defendant was in possession of more than $2,000 in cash—which confirmed the detective’s suspicion of drug sales. This discovery, therefore, justified defendant’s continued detention while police continued their efforts to investigate defendant’s involvement with drug sales activities. (See People v. Russell, supra, 81 Cal.App.4th at p. 102 [“Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention”].) The possibility of an innocent explanation did not deprive Detective Spencer to reasonably suspect that defendant was involved in a criminal activity. “ ‘ “Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.” ’ ” (People v. Warren (1984) 152 Cal.App.3d 991, 997.)
After a search of defendant yielded the discovery of over $2,000 cash, police immediately transported defendant a short distance to his residence on Kennedy Street and began the process of obtaining a search warrant for the residence. This course of action by police was reasonable because police had seen defendant enter that residence within the past several minutes, and because police had discovered drugs in the other residence on Crest Avenue where defendant had previously been that same day. Based on this information, together with the information that defendant may be selling drugs and defendant’s behavior that morning, the police could reasonably suspect that drugs were stored at the Kennedy Street residence.
Moreover, it was reasonable to continue detaining defendant while police attempted to obtain a search warrant for the residence. In this case, only about 30 minutes elapsed from the time police arrived at defendant’s residence until the time defendant granted consent to search the residence. In People v. Avalos (1996) 47 Cal.App.4th 1569, 1575, 1577, the court determined a 25-minute detention was lawful although it was extended for an additional 15 to 20 minutes because of the need to obtain a Spanish-speaking officer to communicate with Avalos. In People v. Dasilva (1989) 207 Cal.App.3d 43, 50, the court upheld a 20- to 25-minute detention while “the officer contacted Dasilva, sought a license and registration, radioed Oregon, obtained a response, checked the interior of the car for the registration, sought to inspect Dasilva’s wallet for proof of identification and twice more radioed inquiries concerning two other identifications Dasilva gave.” In United States v. Sharpe, supra, 470 U.S. 675, the defendant was detained 20 minutes when a Drug Enforcement Administration agent enlisted the help of local officers who remained with the defendant’s accomplice while the agent went to the detention site where he proceeded expeditiously and the delay was attributable almost entirely to the evasive actions of the defendant, who sought to elude the agent. (Id. at pp. 677-679.) In those cases, the 20- to 25-minute detentions were upheld where the prosecution produced evidence that established the officers were not dilatory during the detentions. Similarly, in this case, the officers’ testimonies established that they were diligently pursuing their investigation during the detention until defendant decided to consent to a search of his residence.
In view of the foregoing, the trial court properly found that the detention was neither unduly prolonged nor unreasonable. The officers were reasonably justified in prolonging the detention to dispel their reasonable suspicions, which were based on articulated facts, that criminal activity was afoot.
E. Entry Into Residence and Protective Sweep
Defendant contends that the motion to suppress should have been granted because the entry into and protective sweep of his residence was not based on exigent circumstances. In denying defendant’s motion to suppress, the trial court did not specifically address this claim. The court, however, either implicitly rejected defendant’s argument or determined that resolution of the issue was not relevant to the motion to suppress evidence of the drugs and gun.
Here, the evidence at issue, the methamphetamine and handgun, were not discovered during the protective sweep. Instead, they were discovered during the subsequent search undertaken after defendant voluntarily consented to a search of his residence. Therefore, the decision of whether to suppress the drugs and gun does not depend on the reasonableness of the initial entry into the residence and ensuing protective sweep. (See People v. Weiss (1999) 20 Cal.4th 1073, 1077 [the Fourth Amendment does not bar the admission of evidence “ ‘that has been discovered by means wholly independent of any constitutional violation’ ”].) Instead, the reasonableness of the search depended on whether defendant’s consent was voluntary. As provided ante, the record supports the trial court’s finding that defendant’s consent was voluntary. Therefore, the trial court properly denied defendant’s motion to suppress.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J. MILLER, J.