Opinion
B329387
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. RASHON LEE, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TA159381, Hector E. Gutierrez, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
BAKER, ACTING P. J.
Defendant and appellant Rashon Lee (defendant) was stopped by the police for a moving violation and the police searched the car he was driving without a warrant. When defendant moved to suppress a firearm and other items found during that search, the People argued the search was justified because defendant was driving in a high crime area, defendant made what an officer described as furtive movements inside the car when driving away a short distance at low speed after the officers activated their lights and siren, defendant was wearing attire suggestive of gang affiliation, and defendant gave what the officers described as an evasive answer when asked if there were any weapons in the car. The trial court denied defendant's suppression motion. In this appeal challenging the suppression ruling, we consider whether, as the trial court found, the search was justified as a protective search for the officers' safety.
I. BACKGROUND
A. The Preliminary Hearing and Motion to Suppress
The People filed a felony complaint alleging defendant possessed a firearm after having sustained a prior violent conviction, in violation of Penal Code section 29900, subdivision (a)(1). Before the preliminary hearing, defendant filed a motion to suppress evidence seized by the officers from the car he was driving: a semi-automatic firearm, a magazine, ammunition, and a cell phone. Defendant contended the police improperly searched his vehicle without a warrant.
Undesignated references that follow are to the Penal Code.
1. Officer Luna's testimony at the hearing
At the preliminary hearing, which also served as the hearing on the motion to suppress, the People called Officer Luis Luna as their sole witness. He testified about the circumstances of defendant's arrest.
According to Officer Luna, he and his partner, Officer Worley, were stopped at an intersection in a marked police car at approximately 9:30 p.m. on January 23, 2023. Officer Worley was driving. The area in which the officers were driving is known for increased crime, and a Blood criminal street gang (whose members wear red clothing) was known to operate nearby just to the east.
Officer Luna observed a vehicle with tinted windows, driven by defendant, make a right turn without stopping at a red light. Defendant then made an abrupt lane change and pulled alongside the street curb. Upon observing defendant's traffic violations, the officers pulled behind him and used their spotlight to illuminate the car. They did not activate their lights or sirens, nor did they say anything to defendant over their vehicle's intercom system. Officer Luna then observed defendant making what he described as quick, furtive movements-moving his shoulder towards the passenger side as if, in the officer's estimation, defendant was discarding something. Officer Luna could see defendant's head, shoulders, and back, but he could not see defendant's arm or hand.
Defendant drove away from the curb, traveling approximately one block. The officers then activated their lights, siren, and spotlight to indicate to defendant that he should pull over. Defendant, however, did not immediately do so. Instead, he continued driving at a low speed. At this point, defendant's back, shoulders, and arms were still visible with the officers' spotlight turned on and Officer Luna saw defendant lean toward the passenger side of the car and make "a tossing motion."Defendant then made a u-turn at an intersection (while the light was red) and pulled over and parked alongside the curb. The officers pulled behind defendant's car and exited their vehicle.
Officer Luna testified that, based on his training and experience, movements during a traffic stop akin to those made by defendant indicate the individual is concealing weapons or contraband.
The officers instructed defendant to exit the vehicle he was driving, which he did. Officer Worley then instructed defendant to walk to a nearby wall and face the wall, which he also did. Defendant was "dressed down in all blue," and based on the location where they encountered defendant, Officer Luna believed defendant's all-blue clothing suggested he was affiliated with a Crip gang that is a rival to the Blood gang operating near the area.
When asked why they had defendant exit the vehicle rather than approaching the vehicle's window themselves, Officer Luna testified the decision to have defendant get out of the car was "based off [defendant's] actions and what I observed, him running a red light, abrupt lane change, him making furtive movements in the vehicle and not complying the first time."
The officers asked for, and were shown, defendant's driver's license and proof of insurance. In response to a question to defendant asking "if there was anything inside the vehicle," Officer Luna recalled defendant's response was "[i]t's not my vehicle." Officer Worley also asked defendant if there was a firearm in the car and defendant said there was not.
Officer Worley thereafter searched the vehicle defendant was driving and recovered a loaded firearm with an extended magazine in the area of the passenger seat floorboard.
2. The video evidence
During the suppression hearing, the trial court admitted, as a defense exhibit, video footage of the interaction between the police and defendant that was recorded on Officer Worley's body camera. Excerpts of the footage were played during the hearing, and several screenshots from the footage were admitted as separate exhibits.
We have reviewed the video footage admitted as an exhibit. It shows that after defendant exited his car, one of the officers patted defendant down while he stood facing a wall. Defendant was not handcuffed at this time. Officer Worley asked if defendant had an ID, and he responded he had a driver's license. Officer Worley also asked if defendant had any guns in the car, and though the audio on the recording is difficult to hear, defendant appears to state the car is not his. Officer Worley then tells defendant that his main concern is the possibility that there is a pistol in the car, and he asks defendant again if there was one in the car. Defendant responds, "nah, hell, no." Officer Worley then informed defendant he was going to search the car just to verify there was no firearm inside because it looked like defendant threw something under the seat. The officer, however, tells defendant that "as long as there's no pistol [in the car] you'll be on your way."
During the suppression hearing, the prosecution asked Officer Luna if defendant was handcuffed immediately after exiting the vehicle and Officer Luna answered "yes." The video shows this was a misrecollection-the handcuffing occurred only later, after a firearm was found during the search of the vehicle.
Officer Worley searched the passenger compartment of the vehicle and discovered a firearm and a magazine. At that point, the officers handcuffed defendant.
3. The trial court's ruling
The trial court denied the motion to suppress. The court found defendant's decision to "[i]nexplicably" drive away from the police spotlight, his movements inside the car, and his u-turn and subsequent stop were sufficient to justify the search. Specifically, the trial court stated that, when all the factors were viewed together, "it seems justified for the officers to have - for officer safety to have the defendant come out and look for the source of those movements." The trial court acknowledged there was some evidence the window of defendant's car was tinted, but it found Officer Luna's testimony that he was able to observe defendant's movements credible. The court concluded the officers acted reasonably under the circumstances.
During argument, the People conceded they were not contending the officers had performed a search incident to arrest.
B. Defendant's No Contest Plea
At arraignment on an information charging defendant with a prior violent felon in possession of a firearm offense (§ 29900, subd. (a)(1)), defendant pled no contest to the charge. (He entered an open plea in response to the court's indicated sentence, over the People's objection.) The court dismissed in furtherance of justice a prior felony conviction qualifying as a strike crime under the Three Strikes law and sentenced defendant to the mid-term of two years in state prison. As permitted by statute (§ 1538.5, subd. (m)), defendant thereafter noticed an appeal from the trial court's suppression ruling.
II. DISCUSSION
The police officers searched defendant's vehicle by the book-the book being the volume of the United States Reports containing the high court's opinion in Michigan v. Long (1983) 463 U.S. 1032. Long authorizes officers to search the passenger compartment of a vehicle during a traffic stop for officer safety, i.e., when officers have a reasonable belief based on specific and articulable facts that a suspect is dangerous and may gain immediate control of weapons. (Id. at 1049.) Such facts, considered in their totality, are present here: defendant's traffic violations, defendant's movements inside the car before eventually yielding to the officers' request to pull over, the location of the traffic stop combined with defendant's attire, and defendant's initial nonresponsive answer when asked if there were any firearms in the vehicle. The motion to suppress was correctly denied.
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress evidence, "we rely on the trial court's express and implied factual findings, provided they are supported by substantial evidence, to independently determine whether the search was constitutional. [Citation.] 'Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court.' [Citation.] It is the trial court's role to evaluate witness credibility, resolve conflicts in the testimony, weigh the evidence, and draw factual inferences. [Citation.] We review those factual findings under the deferential substantial evidence standard, considering the evidence in the light most favorable to the trial court's order." (People v. Lee (2019) 40 Cal.App.5th 853, 860-861.)
B. The Trial Court's Suppression Ruling Was Correct
"The Fourth Amendment to the United States Constitution prohibits 'unreasonable searches and seizures.' In general, a law enforcement officer is required to obtain a warrant before conducting a search. [Citation.] Warrantless searches 'are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' [Citations.]" (People v. Lopez (2019) 8 Cal.5th 353, 359-360.) "The prosecution bears the burden of establishing an exception applies." (People v. Hall (2020) 57 Cal.App.5th 946, 951.)
One such exception to the warrant requirement is the protective search exception established in Long, supra, 463 U.S. 1032. In that case, the defendant Long was driving his car at excessive speed at a late hour, swerved his car into a ditch, and appeared to be under the influence when the officers questioned him outside the vehicle. (Id. at 1035-1036.) After observing a knife in the interior of the car he was moving toward reentering, the officers stopped Long's progress, frisked him (finding nothing), and searched the passenger compartment of the vehicle. (Id. at 1036.) During that search, the officers found marijuana. (Id. at 1034-1035.) Long was charged with a marijuana possession offense, and he moved to suppress the marijuana the police found as the product of an unconstitutional, warrantless search of his car. (Id. at 1036.)
The high court rejected Long's argument and held the warrantless search was reasonable, and constitutional, in light of officer safety concerns. (Long, supra, 463 U.S. at 1035.) In upholding the "protective search," the court did not require a showing that it was supported by probable cause. Instead, and "recogniz[ing] that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers," the Long court applied a lower standard and held "the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if [a] police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer[ ] in believing that the suspect is dangerous and . . . may gain immediate control of weapons." (Id. at 1049.) Subsequent California authority confirms the protective search rule established in Long "applies even where a defendant is outside his car and nominally under the control of law enforcement officers." (People v. Bush (2001) 88 Cal.App.4th 1048, 1050, 1052.)
Here, considering all the evidence in the record, the search of defendant's car was justified because the facts give rise to a reasonable belief that defendant posed a danger to the officers and might gain immediate control of a weapon if and when permitted to reenter the car he was driving. Defendant's undisputed traffic violations drew the attention of Officers Luna and Worley. At the time of those violations, defendant was driving at night in a high crime area. Although just these facts may not have been sufficient to justify a Long search of the car defendant was driving, the officers' subsequent observations provided greater cause for suspicion. When the officers turned on their lights and siren, and again activated their spotlight, defendant made a tossing motion toward the passenger side of the car-and he did so while continuing to drive (albeit at a low speed) rather than immediately pulling over. In view of their training and experience, the officers reasonably believed defendant's observed movements were indicative of an intent to hide a weapon. The officers' concern about the presence of a weapon in the car, and defendant's potential dangerousness, only increased when the officers ordered defendant out of his car. Officer Luna observed that defendant was dressed entirely in blue, and in the context of the location at which they encountered defendant, Officer Luna believed defendant's attire signified he may be a member of a Crip gang that was a rival of a Blood gang operating in the area. Additionally, when Officer Worley first asked defendant if there was anything in his vehicle, defendant responded that the car was not his, which the officers could, in context, reasonably consider an evasive answer providing additional reason to be concerned about what might be in the vehicle.
Defendant contends that, despite the foregoing, the record still lacks the requisite specific and articulable facts. He argues the officers here, unlike the officers in Long, did not actually see a weapon before searching the vehicle. Long does not, however, hold that officers will only have a reasonable basis for a protective search if they have already perceived a weapon. Indeed, the primary point of a protective search is to discover weapons that may not be apparent and thereby avoid a violent confrontation.
Defendant additionally argues he could not have gained immediate control of a weapon because he was handcuffed three or four feet from his car and under observation the entire time. This is wrong on both the facts and the law. As a matter of fact, defendant was not handcuffed at the time of the search-the video footage irrefutably establishes this. As a matter of law, the question of whether defendant was under the control of law enforcement is not determinative; both Long and Bush were under the control of law enforcement too, and even when the police handcuff a suspect thought to be dangerous while engaging with him or her during a traffic stop, the police may be appropriately concerned about what the suspect will do if released to a vehicle that has not been inspected for weapons. (Long, supra, 463 U.S. at 1051 ["the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long's immediate grasp before permitting him to reenter his automobile"].)
Because we hold the officers conducted a permissible protective search of the vehicle defendant was driving, we need not address the parties' arguments about whether the search was supported by probable cause.
DISPOSITION
The judgment is affirmed.
We concur: MOOR, J. KIM, J.