Opinion
A147441
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. VERNON MANDIGO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. NF435285B)
Vernon Mandigo appeals his conviction for attempted burglary with a gang enhancement. He contends the court erred when it denied his motion to suppress evidence resulting from what he contends was a warrantless arrest without probable cause. We affirm.
BACKGROUND
Around 3:00 p.m. on April 18, 2015, Burlingame Police Officer Kevin Thorpe received a report of a possible residential burglary in progress. The dispatcher informed him a neighbor had observed a black male look in the windows of a house on Lexington Avenue, attempt to enter a side gate, and then walk through another side gate. The dispatcher advised Thorpe the caller said the suspect was a "[s]tocky black male wearing black pants, white t-shirt with a black box on the front of the t-shirt," and was associated with a black Lexus parked on Lexington.
Officer Thorpe arrived within approximately a minute after receiving the call. A black Lexus was parked on the wrong side of the street one or two houses away from the Lexington house. The Lexus moved approximately five feet, then stopped. Thorpe parked his patrol car in front of the Lexus. He observed two people in the car. A black male was in the driver's seat.
Officer Thorpe got out of his patrol car, drew his gun and told the occupants to show their hands. He testified that he drew his weapon "[b]ased on the call history. The reason I'm there is a felony. There's two of them and only one of me, and it's for my safety." He ordered both occupants to stay in the car and show their hands and waited for cover officers to arrive.
Corporal Michael Martyn arrived on the scene 10 to 15 seconds after, followed soon by Officer Joe Fregosi. The officers drew their guns and conducted a "high-risk stop of the vehicle." Corporal Martyn first ordered the passenger, Mandigo, out of the car. Mandigo matched the dispatcher's description of the suspect: a black male wearing a white t-shirt with a black box on the front and black pants. Officers pat searched, handcuffed, and placed him in the back seat of one of the patrol cars, then ordered the driver out of the car and similarly secured him in another patrol car. Thorpe and Martyn testified they took these actions for officer safety, out of concern the suspects could be armed. The officers searched the Lexus for weapons and cleared the exterior of the house, then holstered their weapons. By this time, approximately five minutes had elapsed since Officer Thorpe had arrived on the scene.
Once they cleared the scene for possible weapons, Martyn and Thorpe began to investigate. Officer Thorpe interviewed the neighbor who had reported the possible burglary. She said she had seen a black male look in the front windows of a house on Lexington, try to open a side gate on the north of the house and then cross the front yard and enter another side gate. She described him as a "[b]lack male, stocky, about six feet, wearing a white t-shirt with a black box on the front of the shirt and black jeans or black pants." The neighbor contacted the homeowners, who told her no one was supposed to be on the property. The neighbor's husband made the same observations and added that he had seen the suspect enter the Lexus's passenger-side door.
Corporal Martyn inspected the house. Near one of the gates he observed two punctures in a window that appeared to have been made by a window punch and broken glass inside the house, indicating the holes were fresh. Martyn recognized the damage as caused by a typical method burglars use to gain entry into homes.
Martyn then directed Mandigo to get out of the patrol car so he could conduct a more thorough search. When Mandingo complied, Officer Thorpe saw a window punch tool on the floor of the car where he had been sitting. Martyn compared marks he made using the tool to the holes in the window and determined that they corresponded. He then placed Mandigo under arrest. Approximately 10 minutes had elapsed since Officer Thorpe had first arrived at the scene.
Mandigo was charged with attempted residential burglary with a gang enhancement, street terrorism, and misdemeanor possession of burglary tools. He moved at the preliminary hearing to suppress all the evidence against him under Penal Code section 1538.5, arguing the detention was a de facto arrest without probable cause. The magistrate disagreed: "The Court found the testimony of Corporal Martyn and Officer Thorpe to be compelling, and I found them both to be candid, forthright and honest in their responses to the questions. [¶] I don't find it to be a close question at all. The motion to suppress is denied."
Mandigo renewed the argument before the trial court in a motion to set aside the information, again without success. The court explained: "the case law allows the Court to . . . determine[] whether or not the officers acted reasonably within the spirit of the Fourth Amendment under Celis and in Soun, facts that are very similar. And probably even more pertinent here is the fact that the detention was so brief. It was five minutes, and they did do an investigation to tie the defendant to the tool that was used to make the pry marks on the windows thus then creating probable cause to arrest the defendant." Accordingly, the court confirmed the magistrate's ruling.
Mandigo pleaded no contest to attempted burglary and admitted the gang allegation. He was sentenced to six years in prison, and filed this timely appeal.
DISCUSSION
As below, Mandigo contends all of the evidence against him should have been suppressed "because the police seizure of [him] amounted to a de facto arrest, effectuated without probable cause." It did not.
I. Standard of Review
Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, "the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness." (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) We independently determine the applicable law, apply it to the established facts (People v. Carter (2005) 36 Cal.4th 1114, 1140) and affirm the trial court's ruling if it is correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
II. Analysis
Mandigo correctly acknowledges the police had reasonable suspicion for his initial detention, but he argues "the police actions of drawing guns, handcuffing the suspects, and putting them in police cars, were, in important respects, so indistinguishable from a traditional arrest that this seizure amounted to a de facto arrest" requiring probable cause. We disagree.
As explained in People v. Celis (2004) 33 Cal.4th 667, 673-674 (Celis), "When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.] Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime. [Citation.] '[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts.' [Citation.] It is incapable of precise definition. [Citation.] ' "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt," ' and that belief must be 'particularized with respect to the person to be . . . seized.' " (Ibid.)
"But 'not all seizures of the person must be justified by probable cause to arrest for a crime.' [Citation.] In Terry v. Ohio, supra, 392 U.S. 1. . . , the United States Supreme Court created a limited exception that allows police officers to 'stop and . . . frisk for weapons' when they have an 'articulable suspicion [the] person has committed or is about to commit a crime.' [Citation.] Thus, an officer who lacks probable cause to arrest can conduct a brief investigative detention when there is ' "some objective manifestation' that criminal activity is afoot and that the person to be stopped is engaged in that activity.' [Citations.] Because an investigative detention allows the police to ascertain whether suspicious conduct is criminal activity, such a detention 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " (Celis, supra, 33 Cal.4th at p. 674.)
" '[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' [Citations.] Important to this assessment, however, are the 'duration, scope and purpose' of the stop." (Celis, supra, 33 Cal.4th at pp. 674-675.)
People v. Soun (1995) 34 Cal.App.4th 1499 applies these principles on analogous facts. The suspect there was removed from a car at gunpoint by a large number of police officers, forced to lie on the ground, handcuffed and placed in a patrol car, transported three blocks to a parking lot and held there for 30 minutes. The court rejected his assertion that this was too intrusive and protracted to be regarded as a detention, rather than an arrest. "Courts have, for example, declined in particular circumstances to base a finding of de facto arrest on evidence that the officers stopped the individual at gunpoint (U.S. v. Alvarez (9th Cir. 1990) 899 F.2d 833, 838-839), or required him or her to get out of a car (cf. Pennsylvania v. Mimms (1977) 434 U.S. 106, 109-111 . . .) and lie down on the pavement (U.S. v. Buffington (9th Cir. 1987) 815 F.2d 1292, 1300),or handcuffed him or her (People v. Bowen [1987] 195 Cal.App.3d [269,] 272-274; cf. In re Carlos M. (1990) 220 Cal.App.3d 372, 385 . . .; U.S. v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289-1290), or placed him or her in a police car (U.S. v. Parr (9th Cir. 1988) 843 F.2d 1228, 1231), or transported him or her for legitimate police purposes short of booking or custodial interrogation (In re Carlos M., supra, 220 Cal.App.3d at p. 385; cf. Florida v. Royer, supra, 460 U.S. at pp. 504-505 . . .; People v. Harris [1975] 15 Cal.3d [384,] 390 [but transportation impermissible in the circumstances of record]), or held him or her for more than a minimal amount of time (United States v. Sharpe (1985) 470 U.S. 675, 686-688 . . . [20 minutes]; In re Carlos M., supra, 220 Cal.App.3d at pp. 384, 385 [30 minutes]; United States v. Place (1983) 462 U.S. 696, 709-710 . . . ['we decline to adopt any outside time limitation' (although 90 minutes would be too long in this case)]). '[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.]' " (People v. Soun, supra, 34 Cal.App.4th at p. 1517.)
Such was the case here. The circumstances presented a clear danger to the officers. They were responding to a report of a suspected burglary and thus had reason to believe the two suspects could be armed and dangerous. For reasons of officer safety, they drew their weapons, handcuffed the suspects and placed them in patrol cars and, once the suspects were secured, conducted a brief investigation of the reported crime. When within minutes they discovered the window punch near where Mandigo had been seated and determined it matched the marks on the window they promptly placed him under arrest. The entire detention lasted no more than 10 minutes. Under the circumstances, the officers' actions were the least intrusive means reasonably available to protect their personal safety and maintain the status quo during the investigative stop. (See Soun, supra, 34 Cal.App.4th at p. 1519.) We agree with the trial court: this was not a close case.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Pollak, J.