Opinion
Page 1059a
194 Cal.App.4th 1059a __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Appellant, v. DEEMARIO BOMONE MAGEE, Defendant and Respondent. A124598 California Court of Appeal, First District, Fifth Division May 5, 2011Solano County Super. Ct. No. VCR199809
THE COURT:It is ordered that the opinion filed herein on April 12, 2011, (194 Cal.App.4th 178;___ Cal.Rptr.3d ___), be modified as follows and the petition for rehearing DENIED:
At the end of the first partial paragraph on page 14 [194 Cal.App.4th 191, advance report, 1st par., line 5], after the sentence ending with “warrantless entry, ” add as footnote 12 the following footnote, which will require renumbering of all subsequent
Defendant argues for the first time in a petition for rehearing that Potts’s act of kicking open the locked bathroom door was a “show of... authority” that effected a seizure before Potts observed any illegal narcotics. (United States v. Mendenhall (1980) 446 U.S. 544, 553 [64 L.Ed.2d 497, 100 S.Ct. 1870].) However, for purposes of the Fourth Amendment, a seizure does not occur where a suspect does not yield to an officer’s show of authority. (California v. Hodari D. (1991) 499 U.S. 621, 625-626 [113 L.Ed.2d 690, 111 S.Ct. 1547].) Defendant did not yield when Potts kicked down the door; he had to be physically restrained by Potts with the assistance of other officers. Moreover, even assuming Potts’s conduct did effect a seizure, that seizure was supported by reasonable suspicion. (See id. at p. 623, fn. 1.) In particular, defendant, in a high-crime area known for narcotics trafficking, evaded contact with the police and immediately locked himself in a bathroom. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124 [145 L.Ed.2d 570, 120 S.Ct. 673] [reputation of area for narcotics trafficking and suspect’s “nervous, evasive behavior” are relevant considerations in determining whether officer had reasonable suspicion].)
There is no change in the judgment.
Respondent’s petition for rehearing is denied.