Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA344285 Charlaine F. Olmedo, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steve E. Mercer and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Luis Laureano challenges the trial court’s denial of his motion to suppress evidence under Penal Code section 1538.5. He argues the initial detention was not justified. We find no error and affirm.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
We take our factual summary from the transcript of the preliminary hearing. Los Angeles Police Officer Luis Jurado was assigned to the narcotics detail on July 29, 2008. That afternoon, about 4:45 p.m., he was in the area of 149 East 48th Street. Defendant was on the sidewalk, pacing, and looking up and down the street. Officer Jurado was across the street. He testified: “Because of the area [defendant] was standing in, which I have personal knowledge to be a high narcotics area on 48th Street between Wall Street and Main Street, I believe he was loitering for the purpose of securing or purchasing narcotics.” After two to five minutes of observation, Officer Jurado saw a male Hispanic walk eastbound on 48th Street toward defendant. The male Hispanic and defendant engaged in a brief conversation. Officer Jurado then saw the male Hispanic “retrieve an unknown amount of U.S. currency and hand it over to the defendant.”
Next, Officer Jurado “observed [defendant] standing there momentarily, and a brief conversation again ensued.” He was asked: “And could you see if the defendant made any type of transaction at that point with the unknown male Hispanic?” Officer Jurado said: “No, I didn’t.” Officer Jurado and his partner, Detective Penson, got into their vehicle and drove to a position directly across the street from defendant and the male Hispanic. Detective Penson got out first, followed by Officer Jurado, who made contact with defendant.
Officer Jurado described what happened next: “At that point based on the amount of suspects, two people that were standing on the corner, the exchange of money, and the area that they were standing in, I initiated a pat-down frisk of the defendant.” While he was conducting the patdown, Officer Jurado asked defendant whether he was on probation or parole. Defendant said he was on probation for possession. Officer Jurado said: “At that point I conducted a probation search based on the area that he was in, the exchange of money from the male Hispanic to the defendant, and the fact that he was on probation for narcotics I conducted a probation search.”
On redirect, Officer Jurado was asked why he conducted the initial patdown search. He answered: “The number of suspects, there was two; the known narcotic area; narcotic offenders and narcotic dealers are known to carry weapons. It could be anywhere from screwdrivers to guns to knives to switch blades; the location where he was at. I felt that it was for my safety and the safety of my partner that I conducted that pat-down search.” As he searched defendant, Officer Jurado recovered a plastic bindle from the right front pants pocket which contained numerous off-white solids resembling rock cocaine.
Defendant was arrested and charged with possession of cocaine base. (Health & Saf. Code, § 11350, subd. (a).) He pled not guilty and moved to suppress the drugs seized by Officer Jurado. The motion was denied by the magistrate. Defendant renewed his motion in the trial court. The trial court denied the motion, reasoning that based on the objective facts, the officers had probable cause to arrest defendant for the misdemeanor loitering for narcotics. This justified the stop. The trial court said it was not addressing conditions of defendant’s probation as justification for the search. Defendant changed his plea to guilty on one count of possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) He was placed on three years formal probation and ordered to pay various fees and fines. He filed a timely appeal.
DISCUSSION
“‘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.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 384.)
“The Fourth Amendment protects against unreasonable searches and seizures.” (People v. Maury, supra, 30 Cal.4th at p. 384.) “A detention is lawful ‘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.’ (People v. Souza (1994) 9 Cal.4th 224, 231.)” (People v. Mayfield (1997) 14 Cal.4th 668, 791.)
Defendant argues the warrant less detention, “much less” a pat down, were not justified without further investigation. He “is not separately challenging the constitutionality of the pat down search....” As we understand his position, defendant’s challenge is to the original detention. He argues since the detention was unjustified, the cocaine seized from his pocket should have been suppressed.
Defendant challenges the trial court’s conclusion that Officer Jurado had probable cause to arrest him for misdemeanor loitering for narcotics, and as a result, the search was justified as incident to the arrest. Citing Knowles v. Iowa (1998) 525 U.S. 113, he argues there was no arrest here, and therefore the trial court’s reasoning is flawed. Defendant also contends, “‘[I]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.’” (Quoting Sibron v. New York (1968) 392 U.S. 40, 63.) Based on this authority, he argues that without an actual arrest, the police cannot conduct a full body search even though they had probable cause to arrest. Here, he contends, there was no evidence appellant was under arrest prior to the search and no indication that an arrest for a misdemeanor was imminent. In addition, defendant argues that his admission that he was on probation did not justify his initial detention.
Respondent argues that under the totality of the circumstances, Officer Jurado had reasonable suspicion to detain defendant. Alternatively, even if the original detention was illegal, respondent argues it did not taint the subsequent legal probation search.
Based on the facts found by the trial court, we apply de novo review in determining whether the search or seizure was reasonable under the Fourth Amendment and therefore are not bound by the trial court’s reasoning. (People v. Maury, supra, 30 Cal.4th at p. 384.) First, we examine whether Officer Jurado provided specific articulable facts that, considered in light of the totality of the circumstances, provided some objective manifestation that defendant was involved in criminal activity, thus justifying the detention. (People v. Mayfield, supra, 14 Cal.4th at p. 791.)
One fact relied upon by Officer Jurado was that defendant was pacing up and down the street in an area known for narcotics activity. “An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.” (People v. Souza, supra, 9 Cal.4th at p. 240, citing United States v. Sharpe (1985) 470 U.S. 675, 682-683, fn. 3.) Although this factor is not sufficient without more, it is a factor that can lend meaning to the person’s behavior. (People v. Limon (1993) 17 Cal.App.4th 524, 532.)
In People v. Limon, a police officer saw the defendant walk to a truck in an apartment carport, remove something from the wheel well, and make an exchange with another man. After the exchange, defendant returned to the truck and put something in the wheel well, the same place from which he had removed something before the exchange. The officer was unable to see what was exchanged. (17 Cal.App.4th at p. 529.) He approached the defendant and two other men who were standing nearby, and pat searched each of them. The officer felt a hard, rectangular object in the defendant’s front pants pocket and could not determine what it was by touch. He asked the defendant in English what was in his pocket, but the defendant did not appear to understand the question. The officer pulled the pocket open and looked in. He saw a hide-a-key box with a magnet on the back. He removed the box and told his partner to ask the defendant in Spanish for permission to look inside the box. After talking to defendant, the officer’s partner said to open the box. It contained four packages of heroin and two packages of cocaine.
The officer, who was experienced in narcotics investigations, was aware that the area was known for gang activity, violence and drugs. Based on his experience, he was aware that buyers from street drug dealers walk up to the dealer, engage in a quick transaction, then leave. (People v. Limon, supra, 17 Cal.App.4th at pp. 530-531.) The officer had seen drug transactions at the apartment complex where appellant was searched. Employees of a nearby school had told him they had seen drug transactions in the carports of the complex. The officer had seen a syringe in the carport. He stated three reasons for the pat down search of defendant. First, he and his partner were outnumbered by defendant, the two other suspects, and others in the area. Second, the officer knew drug dealers often carry weapons. Finally, he was aware that the area was known for weapons since he had arrested people in the area carrying firearms, knives and baseball bats. Based on his experience, the officer thought the hard, rectangular object in the defendant’s pocket might have been a knife. (Id. at p. 531.)
The Limon court noted a conflict in the case law as to whether merely receiving money on the street in an area known for drug sales is sufficient justification for a detention. (People v. Limon, supra, 17 Cal.App.4th at p. 532.) The court concluded that the evidence of going to an apparent hiding place, in conjunction with the evidence that the defendant was in a drug-ridden area and had engaged in what appeared to be a hand-to-hand exchange, provided reasonable grounds to justify the detention. (Id. at p. 534.) The court also concluded that the officer had an objectively reasonable belief that the defendant might be armed and dangerous, based on his knowledge of the prevalence of drugs and weapons in the area, the propensity of drug dealers to carry weapons, and the other circumstances we have discussed. (Id. at p. 535.)
Similarly, here Officer Jurado provided specific articulable facts that, considered in light of the totality of the circumstances, provided an objective manifestation that defendant was involved in criminal activity thus justifying the detention. (People v. Mayfield, supra, 14 Cal.4th at p. 791.)
The possibility that defendant was armed was another factor justifying the pat down. “‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ the officer may conduct a limited pat search ‘to determine whether the person is in fact carrying a weapon.’ [Citation.]” (People v. Osborne (2009) 175 Cal.App.4th 1052, 1059.) “[C]ases have recognized that drug trafficking so often involves weapons and violence that an officer may reasonably suspect that an individual involved in such activity is presently armed and dangerous, and thus may be subjected to a pat search. (See, e.g., People v. Limon[, supra, ] 17 Cal.App.4th 524, 535; People v. Lee (1987) 194 Cal.App.3d 975, 983.)” (People v. Osborne, supra, 175 Cal.App.4th at p. 1060, fn. omitted.)
Based on our conclusion that the initial detention was justified, we find no Fourth Amendment violation and affirm.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J. SUZUKAWA, J.