Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA312939, Charles F. Palmer, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
After Leonard Pittman’s (defendant) motions to set aside the information (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5) were denied, he pleaded nolo contendere to one count of possessing marijuana for sale in violation of Health and Safety Code section 11359. He also admitted two prison-prior allegations under Penal Code section 667.5, subdivision (b).
The trial court sentenced defendant to a total term of four years, consisting of the upper term of three years and a consecutive year for one of the prison-prior enhancements. The trial court struck the other prison-prior allegation. The trial court suspended execution of sentence and granted defendant probation for a period of three years.
Defendant appeals on the ground that the trial court committed reversible error when it denied his motion to suppress evidence.
FACTUAL AND PROCEDURAL HISTORY
On November 20, 2006, Detective Suzanne Reed was assigned to the Hollywood Narcotics Squad. She and her partner, Officer Orellano, were in the area of Santa Monica Boulevard and Las Palmas Avenue along with other officers and detectives. Detective Reed and the other officers were in the area because it is a “chronic narcotics location” that they commonly patrol for narcotics activity.
Detective Reed and her partner noticed a Black male, later identified as defendant, at a bus bench with a second Black male. Two different officers had previously given Detective Reed a description of a Black male wearing a black sweatshirt and black cargo shorts walking in the area, and defendant matched that description.
At first defendant and the other man at the bus stop conversed while defendant was standing behind the bus bench. Then the other man stood up and walked behind the bus bench to join defendant. As the two men were standing there, it appeared that defendant leaned and reached down towards his right side. The man standing next to defendant looked down in the general direction of where defendant was reaching. Defendant then walked away eastbound on Santa Monica Boulevard. Detective Reed broadcast her observations and the direction in which defendant was heading to all other officers and detectives in the area.
Detective Brent Honore was part of Detective Reed’s team that day. After hearing Detective Reed’s broadcast, Detective Honore and a fellow officer, Officer Ramsey, stopped an individual, who was later identified as defendant, near Santa Monica Boulevard and Wilcox Avenue. Detective Honore identified himself to defendant as a police officer. Detective Honore asked if he could speak with defendant, and defendant replied, “Sure, what for?” Detective Honore asked defendant if he was on probation or parole, and defendant replied that he had been discharged from parole recently. When asked if he had identification, defendant said he had only a social security card and began reaching into one of his pockets. When Detective Honore asked defendant not to reach into his pockets, defendant “took a defensive posture” and backed up to a fence. He stepped backward with his fists down and said, “What’s going on, what’s going on?” Defendant made no attempt to walk away, nor did he say he wished to leave—“[i]t was more of a fight posture.” For his own safety and the safety of other officers, Detective Honore handcuffed defendant. Detective Honore had also noticed a strong smell of marijuana coming from defendant, and he knew it was not the scent of smoked marijuana. Defendant was patted down, and marijuana was recovered from his right cargo pocket.
At the hearing on the motion to suppress, the People argued at the close of evidence that the officers’ conduct was lawful based upon the police observations of defendant, his time in the area, his looking down, and his showing other people what was in his pants pocket in the targeted vicinity. Also, when he was lawfully approached, the officers smelled what they believed to be marijuana. They then found marijuana in defendant’s right pants pocket.
Defendant, who represented himself, argued that the arrest report and preliminary hearing testimony did not support an investigative detention. Defendant argued that the officers admitted in their arrest report that they decided to conduct a consensual encounter, but he did not give his consent. The trial court responded that only the evidence before it—not the police report or preliminary hearing transcript—would form the basis of its decision.
Defendant reiterated that there was no basis for an investigative detention. The officers near the bus stop observed only that defendant was showing something to someone, and the police could hear nothing. There was no transaction. By the time defendant was stopped, he was outside the perimeters of the area the police were investigating, which was between Seward Street and Highland Avenue. Defendant had left the area without doing anything but showing something to someone, and there was no articulable suspicion. The officers had a mere hunch, and “as far as smelling marijuana, it was also a hunch.” Defendant cited the case of People v. Marshall (1968) 69 Cal.2d 51 (Marshall) for the proposition that plain smell was not equivalent to plain view, and officers may rely on their sense of smell only to confirm their observations of already visible contraband.
Defendant also argued that a search contemporaneous with arrest may proceed as long as there is probable cause from the outset of the search. In this case there was no probable cause, since an investigative detention is short of probable cause. The officer said merely that he wanted to talk to defendant. Therefore the detention was illegal, and anything found subsequently was the fruit of the poisonous tree.
The trial court stated it was not familiar with the Marshall case, but it believed Detective Honore had testified that the strong odor of marijuana emanating from defendant was one of the bases for his detention. Also, Detective Honore was already aware of the prior conduct of defendant—appearing to show something to the other person at the bench. The trial court stated it would read the Marshall case, which would likely determine the matter. The trial court took the matter under submission.
The trial court subsequently stated it had reviewed the Marshall case and agreed with defendant’s interpretation. The court stated, however, that Guidi v. Superior Court (1973) 10 Cal.3d 1 held “the owner of hasheesh [sic] confirmed with a basis of a seizure in a closed bag and a smell was sufficient,” and subsequent cases seem to have followed that case, which implicitly overturned Marshall. The trial court stated that the Guidi court itself acknowledged its holding was inconsistent with Marshall.
The People interjected that People v. Cook (1975) 13 Cal.3d 663 expressly overturned Marshall. The court stated, “Okay. That being the case, the court does find that the People have met their burden with respect to this motion and the motion is denied . . . .”
DISCUSSION
I. Defendant’s Argument
Defendant contends that his detention by Detective Honore was unlawful because the detective detained defendant without a reasonable suspicion that a crime had been or was about to be committed and that defendant was involved. According to defendant, the investigative detention in this case was not based upon specific articulable facts; rather, it was predicated on mere curiosity or a hunch that defendant was somehow involved with narcotics. The stop was unlawful even if Detective Honore was acting in good faith. Defendant claims that his actions, as observed by Detective Reed, were completely innocent. The fact that Detective Honore later smelled marijuana, or that defendant later took a defensive posture, occurred after the stop and cannot support the stop. All evidence obtained after the detention was the fruit of the poisonous tree and should have been suppressed.
II. Relevant Authority
On appellate review of a trial court’s ruling on a motion to suppress evidence, the appellate body must accept the trial court’s resolution of disputed facts and its assessment of the credibility of witnesses if supported by substantial evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.) In holding that “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal,” the United States Supreme Court has “hasten[ed] to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” (Ornelas et al. v. United States (1996) 517 U.S. 690, 699 (Ornelas).) The California Supreme Court’s description of the standard of review in Fourth Amendment cases is the same standard put forth in Ornelas. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Williams, supra, at p. 1301.)
In People v. Dolly (2007) 40 Cal.4th 458, 463, the California Supreme Court reiterated the “‘guiding principle in determining the propriety of an investigatory detention [as] “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” [Citations.] In making our determination, we examine “the totality of the circumstances” in each case.’ ([People v.] Wells [(2006)] 38 Cal.4th [1078,] 1083; see also People v. Souza (1994) 9 Cal.4th 224, 227, 230 . . . .) ‘Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.’ (Wells, supra, 38 Cal.4th at p. 1083.)”
“Unlike a detention, a consensual encounter between a police officer and an individual does not implicate the Fourth Amendment. It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so. There is no Fourth Amendment violation as long as circumstances are such that a reasonable person would feel free to leave or end the encounter.” (People v. Rivera (2007) 41 Cal.4th 304, 309.) “Consensual encounters require no articulable suspicion of criminal activity.” (Ibid.) Under the Fourth Amendment, a “seizure” of the person occurs only when police use physical force to restrain a person or, absent that, when a person physically submits to a show of authority by the police. (California v. Hodari D. (1991) 499 U.S. 621, 626-627 & fn. 2.) The fact that most people respond to a police request without being told they are free to leave does not eliminate the consensual nature of the response. (INS v. Delgado (1984) 466 U.S. 210, 216.)
III. Motion Properly Denied
We conclude that Detective Honore’s initial encounter with defendant was consensual in nature. Thereafter, defendant’s fighting stance led the officer to reasonably determine that defendant had to be detained for officer safety, which, combined with the totality of circumstances in the instant case, justified the patdown search which led to the discovery of the contraband.
The evidence showed that Detective Honore, while wearing his badge clearly visible on his shirt, approached defendant and told him he was a police officer. The detective asked defendant if he could speak with him, and defendant stopped and said, “Sure, what for?” Defendant made no attempt to walk away, and there was no constraint on appellant’s liberty. Detective Honore asked defendant if he was on probation or parole, and defendant replied that he had just been discharged from parole.
Up to this point, there was no detention, since the detective’s conduct displayed no overt or implied coercion. The contact occurred during daylight hours on a public street, and the detective gave defendant no orders and did not draw his weapon. The detective apparently spoke in a conversational tone, and no force was implied. We do not believe that a reasonable person would have considered his liberty to be constrained. Thus, considering the totality of the circumstances, Detective Honore did not seize appellant by approaching and asking to speak with him. (See United States v. Mendenhall (1980) 446 U.S. 544, 554 & fn. 6 [reciting circumstances to consider in determining whether an encounter was consensual or coercive and noting irrelevance of officer’s subjective intent]; In re Manuel G. (1997) 16 Cal.4th 805, 821; see also Whren v. United States (1996) 517 U.S. 806, 812-813 [law enforcement officer’s motive does not invalidate objectively justifiable behavior under the Fourth Amendment].)
Continuing the consensual encounter, Detective Honore asked defendant if he had any identification. Defendant stated he had a social security card and began reaching into his pocket. He was asked not to reach into his pockets. At that point, defendant adopted a “fight posture.” The detective, as a reasonably prudent police officer, decided to handcuff appellant and detain him. Detective Honore’s actions were reasonable. (See Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry) [officer need not be certain suspect has weapons—the issue is whether a reasonably prudent person in the circumstances would be justified in the belief that his or her safety or that of others was in danger].) As stated in People v. Dickey (1994) 21 Cal.App.4th 952, 957, “[t]he lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.]” Where an officer harbors a reasonable belief that “the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (Terry, supra, at p. 24.)
In addition to the issue of officer safety, we believe that other factors contributed to the totality of the circumstances justifying the detention. First, the area was known for high narcotics traffic. (See, e.g., United States v. Sharpe (1985) 470 U.S. 675, 682-683, fn. 3 [an area’s reputation for criminal activity may be considered among other valid criteria in determining whether police had articulable and reasonable suspicion of narcotics activity].) Also, the officers had received information from members of their team that defendant had acted suspiciously at the bus stop and had been observed by several officers walking around the targeted area. Although defendant’s conduct at the bus stop may have been consistent with innocent activity, as he asserts, the Fourth Amendment places no such constraint on officers. “Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.” (Illinois v. Wardlow (2000) 528 U.S. 119, 126.)
In this case, we believe the strong odor of marijuana gave the officers probable cause to search defendant’s person. The officers smelled the marijuana before they handcuffed defendant. Detective Honore knew immediately upon detecting the odor emanating from defendant that it was unsmoked marijuana, having smelled this odor hundreds of times in his 20-year career. “Odors may constitute probable cause if the magistrate ‘finds the [officer] qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance.’ [Citations.] The ‘strong aroma of fresh marijuana’ can establish probable cause to believe contraband is present. [Citation.]” (People v. Benjamin (1999) 77 Cal.App.4th 264, 273; see also People v. Cook, supra, 13 Cal.3d at p. 668; People v. Gale (1973) 9 Cal.3d 788, 794.) Thus, the officers could fully search defendant and were not limited to an investigatory patdown only for weapons. (See United States v. Ross (1982) 456 U.S. 798, 824-825 [scope of search defined by object of search and places where there is probable cause to believe it will be found].)
In sum, defendant was not detained because of an unparticularized hunch of criminal activity. The totality of the circumstances in this case justified the detention and subsequent search of defendant’s person. The trial court properly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.