Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment (order granting probation) of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Modified and, as modified, affirmed. Los Angeles County Super. Ct. No. BA336069
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Alfonso Montes appeals from the judgment (order granting probation) entered after his plea of no contest to possessing for sale diazepam, lorazepam, and codeine (Health & Saf. Code, § 11351), following the denial of his suppression motion (Pen. Code, § 1538.5). The court suspended imposition of sentence and placed appellant on formal probation for three years. We modify the judgment and, as modified, affirm it.
FACTUAL SUMMARY
The record reflects that on February 6, 2008, appellant committed the above offense in Los Angeles.
CONTENTIONS
Appellant claims (1) police officers illegally detained and arrested him; therefore, the fruits of the search incident to his arrest should have been suppressed, and (2) certain narcotics probation conditions should be amended to reflect knowledge and illegality requirements.
DISCUSSION
1. The Trial Court Properly Denied Appellant’s Suppression Motion.
a. Pertinent Facts.
Viewed in accordance with the usual rules on appeal (People v. Leyba (1981) 29 Cal.3d 591, 596-597), the evidence established that about 3:20 p.m. on February 6, 2008, Los Angeles City Police Officers Sean Mulford and Kevin Scott, assigned to the Rampart division, were on mounted patrol in the area of 662 Alvarado, near MacArthur Park. The area was known for being a “high narcotics area.”
Mulford testified that he observed appellant conversing with Steven Padilla in a courtyard near a Metrolink escalator. Appellant handed Padilla a white object which Padilla put in his mouth. Padilla then handed paper currency to appellant. Appellant subsequently gave Padilla a plastic baggy filled with white pill-shaped objects which appellant had removed from his backpack. Padilla placed the baggy into his pocket. According to Mulford, baggies were usually associated with narcotic transactions. Mulford was atop a flight of stairs, 20 to 30 feet from appellant and Padilla, when Mulford made his observations, and he had an unobstructed view of the transaction.
Mulford had over 15 years of law enforcement experience and had taken a 40-hour narcotics course. He had made between 800 and 900 narcotics-related arrests, and had observed hand-to-hand transactions “[a] couple dozen times.” Mulford believed he had observed appellant and Padilla engage in a narcotics transaction. Mulford previously had testified as an expert concerning the possession and sales of controlled substances.
Mulford and Scott approached Padilla and appellant, and detained them. Mulford conversed with Padilla and appellant. Mulford asked Padilla what he had put in his mouth. Padilla initially said aspirin. Mulford explained his observations and why Padilla and appellant were being stopped. Mulford told Padilla and appellant that Mulford had seen Padilla hand appellant money and appellant hand a plastic baggy to Padilla. Padilla spontaneously declared, “ ‘I have a drug problem, I am addicted to pain medication, and when I need pain medication, I come to... [appellant] to buy it.’ ” Mulford and Scott then arrested Padilla and appellant. During the ensuing search of appellant, the officers found the subject narcotics. Appellant presented no defense evidence.
Appellant brought a Penal Code section 1538.5 suppression motion on the grounds, inter alia, that the officers illegally detained and arrested him; therefore, the fruits of the search incident to his arrest should have been suppressed. Appellant conceded during argument on the motion that the officers might have had “probable cause to detain.” The court denied the motion.
b. Analysis
(1) Police Lawfully Detained Appellant.
“A detention is reasonable under the Fourth Amendment 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.)
There is no dispute that Mulford detained appellant immediately after Mulford approached him. The threshold issue is whether the detention was lawful. There was substantial evidence as follows. The area at issue was known as a “high narcotics area.” Mulford observed the pertinent actions of Padilla and appellant from a nearby elevated location, and Mulford had an unobstructed view of the events. He saw appellant hand a white object to Padilla, who placed the object in his mouth. Appellant then removed a plastic baggy containing white pills from a backpack and gave the baggy to Padilla in exchange for paper currency. Mulford reasonably could have concluded the pills had been concealed in the backpack.
Padilla then put the baggy in his pocket, an act which Mulford reasonably could have construed as concealment. Mulford, an expert concerning the possession and sales of controlled substances, concluded he had witnessed a narcotics transaction. The trial court reasonably could have concluded that Mulford essentially had witnessed a typical drug sale. We conclude Mulford lawfully detained appellant. (Cf. People v. Souza, supra, 9 Cal.4th at p. 231; People v. Limon (1993) 17 Cal.App.4th 524, 532-533.)
(2) Police Lawfully Arrested Appellant.
Police officers cannot arrest a person absent probable cause to arrest the person. “[Probable cause] to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1005.) An officer’s specialized knowledge can render suspicious what would appear innocent to a layman. (Cunha v. Superior Court (1970) 2 Cal.3d 352, 358.) Factors which can contribute to a determination that probable cause to arrest exists include the officer’s experience, the officer’s awareness that an area was known for drug transactions, the defendant’s conduct, and any indication by the defendant of consciousness of guilt. (People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742.)
In the present case, the factors supporting the conclusion that Mulford legally detained appellant also contribute to a conclusion that Mulford had probable cause to arrest him. Appellant suggests that perfectly legal items, such as aspirin, are sold in the form of white pills. However, there was no testimony that aspirin is usually sold in a plastic baggy in public, and Mulford, a narcotics expert, testified in effect that baggies are usually associated with narcotic transactions.
In any event, whether or not Mulford had probable cause to arrest appellant immediately following the narcotics transaction, the officers received additional information after the detention but prior to the arrest. Padilla initially suggested he had taken aspirin. However, Mulford subsequently said that he had seen Padilla hand money to appellant and appellant hand a plastic baggy to Padilla. Padilla then appeared to change his story, telling Mulford that Padilla had a drug problem, was addicted to pain medication, and when Padilla needed pain medication, he came and bought it from appellant.
We conclude there was sufficient evidence that Mulford had probable cause to arrest appellant. Since appellant’s challenge to the search incident to his arrest is based on the premise that his detention and arrest were unlawful, we also conclude the officers’ search of appellant was lawful. The trial court properly denied appellant’s suppression motion. None of the cases cited by appellant compels a contrary conclusion.
2. Modification of Certain Probation Conditions is Appropriate.
On July 1, 2008, during the sentencing hearing, the court imposed probation conditions upon appellant, including three pertinent to this appeal, namely: “[1] Do not own, use, possess [sic] any controlled substances or associated paraphernalia except with valid prescription, and [2] stay away from places where users, buyers or sellers congregate except in an authorized drug counseling program. [¶] [3] Do not associate with persons known by you to be controlled substance users or sellers except in an authorized drug counseling program.” Appellant did not object to the imposition of these conditions.
A probation condition may not be vague, and a condition which infringes on a constitutional right may be struck down if it is overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In the present case, we reject appellant’s suggestion that the first above enumerated probation condition should be modified to include knowledge and illegality requirements such that the condition would read: “Do not knowingly own, use, or possess any illegal controlled substances or associated paraphernalia[.]” Modification to include knowledge and illegality provisions is unnecessary in light of the phrase “except with valid prescription” currently in the probation condition. (See, e.g., Health & Saf. Code, § 11350, subd. (a), proscribing possession of specific controlled substances “unless upon the written prescription of a physician[.]”)
We agree with appellant’s suggestion that the second probation condition should be modified to include knowledge and illegality requirements. (Cf. In re Justin S. (2001) 93 Cal.App.4th 811, 816; People v. Lopez (1998) 66 Cal.App.4th 615, 628-629, 638; see In re Sheena K., supra, 40 Cal.4th at p. 892.)
We also agree with appellant’s suggestion that the third probation condition should be modified to include an illegality requirement. (Cf. In re Justin S., supra, 93 Cal.App.4th at p. 816; People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629, 638; see In re Sheena K., supra, 40 Cal.4th at p. 892.)
We reject respondent’s argument that appellant waived the above issues by failing to raise them below. (Cf. In reSheena K., supra, 40 Cal.4th at p. 889; In re Justin S., supra, 93 Cal.App.4th at p. 815.)
DISPOSITION
The judgment (order granting probation) is modified by modifying the previously enumerated second and third probation conditions to read: “Stay away from places where persons known to you to be illegal users, buyers, or sellers of such controlled substances congregate except in an authorized drug counseling program. Do not associate with persons known by you to be illegal users or sellers of controlled substances except in an authorized drug counseling program.” As so modified, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.