Opinion
B226838
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMIL PUGH, Defendant and Appellant.
Elizabeth H. Lopez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA084928)
APPEAL from a judgment of the Superior Court of Los Angeles County. Laura L. Laesecke, Judge. Affirmed.
Elizabeth H. Lopez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jamil Pugh (defendant) appeals from a judgment of conviction entered after he pled no contest to possession of marijuana for sale. He challenges the trial court's denial of his motion to suppress evidence, arguing that he was unlawfully detained and that the contraband discovered in his car while he was under detention was "fruit of the poisonous tree," subject to exclusion under Wong Sun v. United States (1963) 371 U.S. 471 (Wong Sun). We find no error and affirm the judgment.
1. Procedural Background
Defendant was charged by information with one count of possession of marijuana for sale in violation of Health & Safety Code section 11359. For purposes of the "Three Strikes" law, the information also alleged that defendant had suffered a prior conviction of felony assault in violation of section 245, subdivision (a)(1).
See Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). All further statutory references are to the Penal Code, unless otherwise indicated.
Defendant filed a motion to suppress evidence pursuant to section 1538.5, which the trial court denied. On July 15, 2010, the second day of jury selection, defendant entered into a plea agreement whereby he would plead no contest to count 1 as charged in the information, the prior conviction allegation would be stricken, and defendant would be placed on formal probation for three years with custody limited to time served and other conditions of probation. Defendant pled no contest as agreed and the trial court sentenced him according to the terms of the plea agreement. Defendant filed a timely notice of appeal challenging the denial of his motion to suppress evidence.
2. Motion to Suppress Evidence
In opposition to defendant's motion to suppress evidence, the prosecution presented the testimony of Long Beach Police Officers Andrew Fox and Joshua Brearley, who were partners on a law enforcement team which monitored gang activity. Officer Fox had six years of experience investigating gangs. The officers testified that they were dispatched to Cherry Park in response to a report of gang activity there. Upon their arrival, they saw a group of 30 to 40 men, clearly together within a 30 to 40 foot radius. Many were wearing clothing and baseball caps in black and gold, the colors preferred by the Rolling 20's Crip gang. Because of their appearance, Officer Brearley believed the men were loitering for the purpose of some gang activity. He testified that the park had a history of gang shootings, robberies, other violent crimes, and that because gang members were often armed, such a large group of them posed a threat to the community and themselves.
The men in the group were drinking beer, eating chicken, and throwing the bones into the street. Some were smoking, and the odor of marijuana was in the air. The officers could not determine who in the group was smoking the marijuana, so they called for backup to help detain the men.
Because the officers were outnumbered four to one by the apparent gang members, the officers believed that their safety and the safety of the public required a search for weapons. The officers then drew their guns, ordering the men onto their knees with their hands on their heads and fingers intertwined. When some of the men tried to walk away officers repeated the order to get on their knees. The men were patted down for weapons, but officers only found two knives that had been abandoned on the ground. Among those detained were 21 documented gang members with gang monikers as well as some documented "affiliates" -- persons known to associate with the gang but never before arrested for gang crimes.
Defendant asserted that over 20 police officers ordered the group onto their knees. Officer Fox testified that at that time, there were just six or seven officers. Other officers did arrive later.
After the group had been detained, Officer Brearley walked along the vehicles parked on the south side of the park, concerned that someone may have been hiding in them. He saw a 1989 Chevrolet Blazer parked illegally, more than 18 inches from the curb, with the driver's side window open, emanating a strong odor of marijuana. Without entering the car, Officer Brearley looked inside and saw what appeared to be a brick of marijuana on the passenger side floorboard. He opened the door, reached in, and recovered the marijuana.
According to the reporter's transcript, Officer Brearley testified that the car was more than eight inches from the curb. This was apparently a transcription error, as the preliminary hearing transcript reflects that Officer Brearley noted that the car was more than 18 inches from the curb. At eight inches, the car would not have been illegally parked. (See Veh. Code, § 22502, subd. (a).)
After checking the license plate number, Officer Brearley learned that the car was registered to defendant. Officer Brearley returned to the group of detained men, gave the marijuana to Officer Fox and asked defendant to identify himself. When defendant responded, he was placed under arrest. The officers searched defendant, but found no weapons. Defendant was not wearing gang related colors or clothing and the officers had not seen him drink alcohol, smoke, or litter.
DISCUSSION
Defendant contends that the trial court erred in denying his motion to suppress evidence. "'The standard of appellate review of a trial court's ruling on a motion to suppress 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.]' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 924.) "[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court." (People v. Lawler (1973) 9 Cal.3d 156, 160.)
The Fourth Amendment prohibits unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8.) "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; see also United States v. Cortez (1981) 449 U.S. 411, 417.) Although officers are not permitted to rely on mere hunches, they may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' [Citations.]" (United States v. Arvizu (2002) 534 U.S. 266, 273.)
Defendant contends that because the officers had no reasonable suspicion that he was personally engaged in criminal activity when the group was detained, his initial detention was illegal. Defendant relies on authority holding that officers making a traffic stop must have "a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime. [Citation.]" (United States v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1129.) He acknowledges that the officers could lawfully detain the persons suspected of smoking marijuana, drinking alcohol, and littering, but argues that they could not legitimately detain him simply because he was present with those who may have been doing such things.
Both littering and public intoxication are prohibited by law. (§§ 374.4, subd. (a); 647, subd. (f).) Nothing in the Fourth Amendment prohibits police officers from detaining persons suspected of minor crimes and infractions. (People v. McKay (2002) 27 Cal.4th 601, 607.)
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We disagree. Because the officers were unable to discern which individuals in the group were the perpetrators, they reasonably suspected that any or all were involved either as a direct participant or by encouraging or facilitating the unlawful activity and were justified in detaining them for further investigation. In any event, the detention was primarily intended to ensure the officers' safety while they investigated. It would be "unreasonable to require that police officers take unnecessary risks in the performance of their duties." (Terry v. Ohio, supra, 392 U.S. at p. 23.) Officers are authorized to take steps that are reasonably necessary to protect their personal safety. (United States v. Hensley (1985) 469 U.S. 221, 235; see Pennsylvania v. Mimms (1977) 434 U.S. 106, 110 [officers' safety is a "legitimate and weighty" concern].) Thus, when officers reasonably believe their safety requires it, they may conduct a weapons search of the suspected individual's companions. (Terry v. Ohio, supra, at pp. 29-30.)
The officers were outnumbered four to one by a large group that included possibly intoxicated and armed gang members gathered in an area known for gang shootings and other violence. The circumstances reasonably led the officers to believe that their safety required a search for weapons. Indeed, under similar circumstances, one appellate court observed that "[f]ailure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity and weapon usage is known from the officers' past experience would be most careless." (In re Stephen L. (1984) 162 Cal.App.3d 257, 259-260.) We conclude that the officers' actions were reasonable.
Defendant also contends that the marijuana seized was found as a result of the detention, and should therefore have been suppressed as "fruit of the poisonous tree" under Wong Sun, supra, 371 U.S. 471. Defendant argues that if the officers had not detained him, he might have been able to flee before they noticed his illegally parked car or the odor of marijuana emanating from it.
Because we find no Fourth Amendment violation, we need not reach defendant's contention. However, we note that not "all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' [Citation.]" (Wong Sun, supra, 371 U.S. at pp. 487-488.) Regardless of what was happening with the group of men in the park, Officer Brearley was properly walking alongside defendant's vehicle. As defendant's car was parked in a public place, Officer Brearley had a right to approach it and look into it through the window. (People v. Rogers (1978) 21 Cal.3d 542, 549; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059.) From that position, Officer Brearley was able to both see and smell the marijuana and recognize it as contraband. This discovery was sufficient to authorize the officer's entry into the vehicle to recover the marijuana. (People v. Lomax (2010) 49 Cal.4th 530, 564; People v. Bradford (1997) 15 Cal.4th 1229, 1293-1994.)
The subsequent determination of the registered owner of the Blazer via computer records based on the car license plate was not a search within the purview of the Fourth Amendment. (United States v. Diaz-Castaneda (9th Cir. 2007) 494 F.3d 1146, 1150-1151.) Because Officer Brearley lawfully determined the defendant's ownership of the vehicle containing the lawfully discovered marijuana, that evidence is not the product of the detention. Thus even if the detention had been illegal, the independent discovery and lawful seizure of contraband in defendant's car was sufficiently distinguishable to purge any taint. (Wong Sun, supra, 371 U.S. at p. 488; cf. People v. Brendlin (2008) 45 Cal.4th 262, 268 [search and seizure conducted pursuant to arrest under the warrant attenuated the taint of the unlawful traffic stop that had led to discovery of warrant].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ, J. We concur: BOREN, P. J. DOI TODD, J.