Opinion
NOT TO BE PUBLISHED.
Appeal from a judgment of the Superior Court of Orange County No. 06WF3543, Daniel Barett McNerney, Judge.
Correen Ferrentino, 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, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
SILLS, P. J.
Jesus Mendoza appeals from the judgment granting him formal probation for three years following his guilty plea to transporting methamphetamine for the purpose of sales. (See Health & Saf. Code, § 11379, subd. (a).) His sole contention on appeal is that his post-arrest statements should have been suppressed due to an allegedly illegal arrest. We affirm.
A codefendant, Luis Godina, was charged with Mendoza and another codefendant, Edward Hernandez. The prosecution conceded that codefendant Godina’s suppression motion was meritorious and charges against Godina were dismissed on motion of the prosecution in the superior court. Codefendant Hernandez never raised a motion to suppress evidence.
FACTS
The pertinent facts on the suppression issue were established at the preliminary hearing and then argued at the hearing in the superior court. At the hearing on the motion to suppress—which was held partially in conjunction with the preliminary hearing—Westminster Police Officer Ronald Weber, Jr. testified that he was on duty as a narcotics enforcement officer when he received some information from a confidential informant. The informant provided the information in the hope he or she would receive “some consideration as to their own pending charges.” The information was that a planned narcotics exchange was to occur in the parking lot at a particular McDonald’s at 5:00 p.m. The seller of the methamphetamine was to arrive in a green, four-door Toyota Camry, and the informant described him as a heavy-set Hispanic man with short dark hair and a mustache.
Mendoza was a Hispanic man but was about 5 feet 10 inches tall and weighed about 130 pounds.
Weber and other officers waited in the parking lot and observed a green, four-door Toyota Camry enter the lot about 5:00 p.m. and park on the east side of the restaurant. About a minute after parking, a passenger in the front seat got out of the car and walked towards the McDonald’s door. It was Mendoza. The driver, who generally matched the description given by the informant, remained in his seat, and a third man was in the rear of the Camry. The officers, knowing of the high probability that narcotics traffickers employ firearms to protect their inventory and themselves in the dangerous world of drug deals, approached Mendoza, placing handcuffs on him and leading him back to the car where the other two men were also placed in handcuffs. The officers searched the passenger compartment of the car, finding a “heat-sealed pack” of methamphetamine—weighing just over an ounce—between the front passenger seat and the center console.
Mendoza was then arrested, Mirandized and questioned. Mendoza told the officers that he knew that a drug deal was about to occur as he overheard a cellular phone conversation between Godina and another man; and he was accompanying Godina, the driver, and Hernandez, the backseat passenger, to assist in that exchange.
See Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
The Detention and Subsequent Arrest
The magistrate denied the suppression motion which was later revisited in the superior court and again denied. However, codefendant Godina’s motion was granted. (See fn. 1, ante.) The distinguishing element between Mendoza and that of codefendant Godina was the ability to dispute the search of the car which was driven by Godina. Because the illegal drugs were found in the car, the lower court held Mendoza could not object to its search as he lacked standing to do so. Mendoza does not contest the issue of standing or the seizure of the drugs. He maintains, however, he was illegally arrested at the beginning of the incident and thus his incriminatory statements were “fruit of th[at] poisonous tree.” (See Wong Sun v. United States (1963) 371 U.S. 471, 487-488.) He concludes the lower court erred when it did not grant that portion of his motion pertaining to those statements. Thus, he argues, we must reverse the judgment and the court’s denial of the suppression motion.
The standard to review a trial court’s denial of a suppression motion 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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The facts are basically undisputed. Weber, in reliance on the information provided by a known but untested informant, went to a prescribed location to observe a planned drug exchange. At the precise hour, a car matching in all particulars to the one described by the informant, arrived driven by a man who likewise matched the description of the seller. The man in the front passenger seat got out of the car and approached the restaurant. Knowing of the high likelihood that drug traffickers would carry and use firearms in a drug deal, the officers approached the two occupants of the car as well as the passenger with guns drawn and in anticipation of weapons. However, all three men were specifically informed they were not arrested. Instead, the officers questioned the three men, searched the car, and after finding the methamphetamine, placed them under arrest.
Weber noted that he could not see whether the driver was “heavyset or chubby” as described by the informant, but Godina matched the informant’s description in all other ways.
The legality of a detention, as distinct from that of an arrest, is determined by the reasons prompting the detention and the manner it is effectuated. As for the reasons prompting it, “the temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]” (People v. Souza (1994) 9 Cal.4th 224, 230.) As for the manner the detention is conducted, it must be constitutionally reasonable which “depends ‘“on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.”’” (Brown v. Texas (1979) 443 U.S. 47, 50.) “Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” (Id. at pp. 50-51.)
The “articulable facts” on which Weber relied to detain the three men were clearly such as would lead a reasonable man to suspect criminal activity by these three men. Mendoza complains that they could not be relied on to detain anyone because the informant was untested, never having given information to the officers before this incident. (See Illinois v. Gates (1983) 462 U.S. 213, 230-238 [although former authority demanding strict corroboration before relying on informant’s tip overruled, an informant’s reputation for veracity and basis for personal knowledge remains factor in assessing the totality of circumstances to justify arrest].) However, when an officer knows the identity of the informant, the veracity of that informant is enhanced “as the informer exposes himself or herself to potential liability for malicious prosecution or false reporting.” (People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504-1505.)
Weber had very detailed information from the informant, and his observations at the scene matched those details. His reliance on the information was warranted, justifying the detention to investigate the situation. (See People v. Lissauer (1985) 169 Cal.App.3d 413, 420 [tip from untested informant, whose motivation to inform was unknown, insufficient to establish probable cause for search but sufficient to detain and investigate the situation]; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881-882 [informant’s tip sufficient to justify detention to investigate reported crime].)
Mendoza responds that, irrespective of the adequacy of the information to detain someone, the uncorroborated tip from an untested informant cannot support an arrest. He characterizes his detention as an arrest because he was handcuffed at gun point. As any restraint on liberty “tantamount to arrest” must be supported by probable cause sufficient for an arrest (see Florida v. Royer (1983) 460 U.S. 491, 496), he concludes the officers illegally restrained him.
But mere handcuffing at gunpoint is not always the equivalent to an arrest. In some circumstances, the factual environment justifies an officer to use a weapon or cuffs for his or her own safety (e.g., Allen v. City of Los Angeles (9th Cir. 1995) 66 F.3d 1052, 1056-1058 [stopping speeding car was justified, and entire scenario constituted a detention not an arrest although the car’s passenger was ordered out at gunpoint and then was handcuffed and detained for 24 minutes]; Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 989 [based on 911 call of a burglary, Gallegos was justifiably stopped in his truck, pulled out at gunpoint, placed in handcuffs and transported in patrol car for in-field show-up, which confirmed he was not the suspect and resulted in his release]) for there is “‘no bright line rule for determining when an investigatory stop crosses the line and becomes an arrest.’ [Citation.] . . . ‘[I]n evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.’ [Citation.] Therefore, whether an arrest has occurred depends on all the surrounding circumstances, and each case must be decided on its own facts. [Citation.]” (Allen, supra, 66 F.3d at 1056.)
“‘A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.’ [Citation.]” (People v. Soun (1995) 34 Cal.App.4th 1499, 1516; original italics.) Such a temporary capture does not transmogrify the situation into an arrest if the facts known to the detaining officer support the degree of action he employs. “‘The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. . . . It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. [Citations.]” (Ibid.)
In Soun, a Cambodian video store owner was shot and killed by a young Asian man in the company of five other young Asians who were attempting to rob the San Jose store. The next day, Oakland police found a car matching that described by witnesses of the culprits’ fleeing the scene. The officers waited until Soun and his five companions returned to the car and then seized the suspects at gunpoint, placing them in handcuffs, transporting them in patrol cars to police headquarters where they were interrogated by San Jose police officers over an hour later. Soun soon confessed to the killing, but attacked the admission of that confession and its antecedent detention—or arrest, as he characterized it—as illegal.
The witnesses gave a detailed description of the car but could provide only a partial license plate number. (People v. Soun, supra, 34 Cal.App.4th at pp. 1506-1511.)
The appellate court rejected Soun’s argument, noting that the detaining officer was “‘authorized to take such steps as were reasonably necessary to protect [his] personal safety and to maintain the status quo during the course of the stop.’ [Citation.]” (People v. Soun, supra, 34 Cal.App.4th at p. 1519.) The appellate court concluded, in agreement with the magistrate, that “the initial stop, in the circumstances we have described, met the criterion of using the least intrusive means reasonably available under the circumstances.” (Ibid.)
Likewise, here. Weber opined that a methamphetamine purchase was about to occur based on the very detailed information given to him by an informant whose identity was known to him and who was trying to prove to the authorities that he was helping them in giving them this information. His goal would only be achieved if the information proved to be, in fact, true. Knowing that drug dealers protect their inventory from greedy buyers or themselves from strong-arm robbers or undercover officers by carrying—and using—firearms in a drug exchange (see e.g., People v. Simpson (1998) 65 Cal.App.4th 854, 862), the officers drew their weapons and secured the scene by placing the three men in handcuffs until they seized the methamphetamine from the car. The entire situation resulted in a swift, safe and secure investigation that confirmed the informant’s report completely and halted the illegal business before anyone was hurt or the culprits escaped with—or destroyed—the contraband.
Mendoza argues that the situation was identical to that in U.S. v. Delgadillo-Velasquez (9th Cir. 1988) 856 F.2d 1292, in which the defendant—in company with two other men—was stopped at gunpoint while walking from his apartment, ordered onto the ground and handcuffed. These actions were deemed an arrest for which the informant’s tip was insufficient to support.
But in Delgadillo-Velasquez, the arresting officers told all three men that they were arrested when they first approached them—unlike the situation here—based on nothing more than an informant’s tip concerning a fugitive seen at an adjacent apartment but not related at all to Delgadillo-Velasquez or his two companions. (U.S. v. Delgadillo-Velasquez, supra, 856 F.2d at pp. 1292-1295.) Thus, the Delgadillo-Velasquez case is distinctly different in its relevant facts than the situation before us.
Similarly, Mendoza invokes the language found in Washington v. Lambert (9th Cir. 1996) 98 F.3d 1181 which emphasizes that handcuffing and the use of weapons by officers are not part of a typical detention as permitted in Terry v. Ohio (1968) 392 U.S. 1 and subsequent cases. The case before us may not be a typical Terry stop, but it is a legal detention nonetheless based on the facts possessed by the officer and the authority permitting an officer to use the force necessary to protect himself and preserve the contraband which he reasonably believes is present. (See People v. Soun, supra, 34 Cal.App.4th at p. 1516.)
Once the methamphetamine was seized from the car, probable cause to arrest all three individuals was established. (See Alabama v. White (1990) 496 U.S. 325, 325-326 [once White gave consent to search her car and the officers found the contraband, probable cause was developed to arrest her, although the anonymous caller providing the tip that triggered the initial detention would not have been enough to detain her but for the officers’ observations confirming and corroborating that tip].) As Mendoza does not—and cannot—appeal the search of the car, his arrest subsequent to that search must be upheld.
The motion to suppress was appropriately denied. The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J. BEDSWORTH, J.