Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF116275 Stephen P. Gildner, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J. and Kane, J.
Appellant Carl William Palmer, Jr., pled no contest to a violation of Health and Safety Code section 11378, subdivision (a) (possession for sale), after the trial court denied his motion to suppress evidence pursuant to Penal Code section 1538.5. He now challenges that denial. We will affirm.
FACTS
The evidence at the hearing on the motion to suppress was as follows.
At 11:13 p.m. on September 26, 2006, police received a 911 call from a female who said she lived in an apartment with an enclosed back yard (no entry except through her apartment) and that, about five minutes earlier, she had heard someone in that back yard. She was afraid and asked that an officer be sent. Dispatch put out a call saying “RP advise she heard someone walking in her backyard. Advises there is no way to gain access unless they were to come over the fence.”
Two patrol cars responded to the dispatch, though only one officer testified at the suppression hearing. Officer Joseph Dougherty testified that he was within a few blocks of the given address when he received the dispatch. He testified that, as he approached the address given by dispatch, he observed a pickup truck pull away from the curb near that residence—within two or three residential lots of it—and then make a U-turn and proceed, all without its headlights on. Then Dougherty saw another vehicle, a Hyundai Elantra, leave the curb, make a U-turn, and proceed behind the pickup truck. Dougherty also made a U-turn and pulled in behind the Hyundai, while another officer stopped the pickup truck. Dougherty shined his spotlight on the vehicle and activated his overhead lights to make the stop. The Hyundai stopped without incident; Officer Dougherty saw no furtive movements from either the driver or any of the three passengers as he made the stop. He made the stop not for any Vehicle Code violation but, instead, to investigate the prowler call.
Officer Dougherty approached the Hyundai on the driver’s side, asked the driver for identification, and asked the driver for consent to a search of the vehicle. That consent was granted. Dougherty then took each of the occupants out of the vehicle, in succession, and as he did so, obtained their consent and searched their persons. Appellant was third in the succession; the driver was first. The second in succession, a male from one of the rear passenger seats, was on parole for a weapons violation.
After the four individuals had been searched, and told to sit on the curb, Dougherty searched the vehicle. On the front passenger side, where appellant had been seated, Dougherty found a glass pipe of the type used for smoking methamphetamine wedged between the seat and door jamb. Next to the seatbelt for that same seat, Dougherty found a brown canvas bag that contained a digital scale, a bag of one-inch by one-inch ziplock baggies, and a charger. Dougherty made these discoveries within approximately five minutes of stopping the Hyundai.
After finding the contraband, Dougherty approached appellant, told him what he had found, and told appellant to remove his shoe. Inside the shoe was a baggie containing methamphetamine.
DISCUSSION
Appellant contends the trial court erred in denying his motion to suppress because (1) Officer Dougherty’s detention of the Hyundai was unreasonable under the Fourth Amendment of the federal Constitution, (2) the detention was unduly prolonged and therefore violated the Fourth Amendment, and (3) the paraphernalia found in the Hyundai and the methamphetamine found in appellant’s shoe were the fruit of those Fourth Amendment violations. We reject the proposition that Fourth Amendment violations occurred.
On appeal, after a trial court’s denial of a motion to suppress, we review the evidence in the light most favorable to the trial court’s ruling. (People v. Long (1987) 189 Cal.App.3d 77, 82-83.) Though the appellate court must uphold any factual findings, express or implied, that are supported by substantial evidence, it must assess independently, as a question of law, the question whether the challenged search or seizure conforms to the Fourth Amendment standard of reasonableness. (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Loewen (1893) 35 Cal.3d 117, 123.)
1. Was the detention unlawful?
“The law is well-established that ‘in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation].’” (People v. Loewen, supra, 35 Cal.3d at p. 123.)
Under Brendlin v. California (2007) 551 U.S. __, __ [127 S.Ct. 2400, 2404], a passenger in a motor vehicle is detained when the vehicle is stopped by police, and the passenger may challenge the constitutionality of the stop. A valid detention is one supported by reasonable suspicion that a crime has occurred or is about to occur and that the person detained is connected with the criminal activity. (United States v. Cortez (1981) 449 U.S. 411, 417.) “‘[R]easonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence….” (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) The purpose of a detention is to resolve whether suspicious behavior is innocent or related to crime, and “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894.) Fourth Amendment law “accepts the risk that officers may stop innocent people.” (Illinois v. Wardlow, supra, at p. 126.)
The totality of the circumstances here convinces us that the officer had reasonable cause to detain. He received a call of a prowler “in progress” and responded within a very few minutes. Upon arrival, he saw two vehicles he suspected of leaving the scene of the reported crime—one attempting stealth and the other following behind. While this could have been perfectly innocent behavior, we do not find it unreasonable that Officer Dougherty suspected otherwise.
2. Was the detention unduly prolonged?
Appellant contends that Officer Dougherty unduly prolonged the detention by requesting consent, searching each of the occupants of the Hyundai, and then searching the vehicle. We reject appellant’s contention.
First, as respondent notes, Officer Dougherty acted properly when, after he obtained the driver’s consent to a search of the Hyundai, he asked each of the occupants to step out of the car. Officer safety justified such requests (People v. Fisher (1995) 38 Cal.App.4th 338, 345); officers may order passengers out of a vehicle as a matter of course. (Maryland v. Wilson (1997) 519 U.S. 408, 410.)
Neither do we believe that Officer Dougherty acted improperly in requesting consent to search the Hyundai or the individuals. “Police officers act in full accord with the law when they ask citizens for consent.” (United States v. Drayton (2002) 536 U.S. 194, 207.) An officer may request consent without probable or specific cause, and lawful detention does not vitiate consent. (See People v. Ratliff (1986) 41 Cal.3d 675, 686-687; 4 LaFave, Search and Seizure (4th ed. 2004) § 8.1, pp. 4-5 & fn. 9.)
As appellant notes, under the Fourth Amendment, a citizen “may not be detained even momentarily without reasonable, objective grounds for doing so.” (Florida v. Royer (1983) 460 U.S. 491, 498.) Further, the scope of a detention must be carefully tailored to its underlying justification. “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (Id. at p. 500.)
There is nothing in the record before us that demonstrates that Officer Dougherty unduly prolonged this detention.
Further, we note that appellant raises this argument for the first time on appeal.
Appellant’s written motion in the trial court asserted (1) error under People v. Madden (1970) 2 Cal.3d 1017 and People v. Harvey (1958) 156 Cal.App.2d 516; (2) that the detention was unlawful because “there was no reason to connect the prowling call with the vehicle leaving,” and (3) that the search of appellant’s shoe was not justified by his consent to the initial search of his person. At the hearing, before the evidence was presented, the trial court asked defense counsel to state the issues he intended to assert. Counsel said “Two issues. Well, two issues. Legality of the detention— [¶] … [¶] … Depending on what the evidence is, I think we may be talking about whether there was an unduly prolonged detention and the scope of the consent of the search.” At the end of the hearing, however, counsel argued only the issue relating to the scope of the consent and that the detention was not justified. He made no further mention of the length of the detention nor any argument that it was prolonged.
“A judgment may not be reversed because of the erroneous admission of evidence illegally seized unless the record demonstrates a motion to exclude or strike the evidence was timely made, on the specific ground asserted on appeal. (Evid. Code, § 353; Pen. Code, § 1538.5, subd. (m).)” (People v. McDowell (1972) 27 Cal.App.3d 864, 879.)
“[I]f defendants detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.” (People v. Williams (1999) 20 Cal.4th 119, 130.) For this reason too we reject appellant’s argument.
DISPOSITION
The judgment is affirmed.