Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1330660 George C. Eskin, Judge.
Joyce E. Dudley, District Attorney, Michael J. Carrozzo, Deputy District Attorney, for Plaintiff and Appellant.
Raimundo Montes de Oca, Public Defender, Nathan Aaron Poulos, Deputy Public Defender, for Defendant and Respondent.
GILBERT, P.J.
A felony complaint charged Marcos Allen Ramos with possession of methamphetamine (Health & Saf. Code, § 11350, subd. (a)), and carrying a dirk or dagger concealed upon the person (Pen. Code, § 12020, subd. (a)(4)), with the special allegation that Ramos suffered a prior felony conviction (§ 667.5, subd. (b)). The complaint also charged a misdemeanor resisting a peace officer. (§ 148, subd. (a)(1).) Ramos was held to answer on all counts. The information added a "two strike" special allegation (§§ 667, subds. (d)(1), (e)(1), 1170,12, subds. (b)(1), (c)(1)), a prior serious or violent felony conviction allegation (§ 1192.7, subd. (c)(23)) and an allegation that Ramos had three prior felony convictions for which he served a prison term and committed another offense within five years (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise stated.
The trial court granted Ramos's motion to suppress evidence (§ 1538.5) and dismissed the case (§ 1385, subd. (a)). The People appeal. We reverse.
FACTS
On January 4, 2010, at approximately 9:55 a.m., Santa Barbara Police Lieutenant Rafael Molina was on his way to assist other officers with a traffic stop. He was driving a marked police car while in full uniform. He saw Ramos standing on a street corner. Molina had almost 20 years experience as a gang detective and sergeant. He had known Ramos for many years. Ramos was a member of the Westside criminal street gang.
When Molina arrived at the traffic stop, he was informed by the officers there that his assistance was not needed. He returned to where he had seen Ramos.
Molina saw Ramos mid-block. Ramos looked at him and immediately crossed in the middle of the street. Molina testified Ramos was nearly hit by a car because he was looking at Molina. Molina realized Ramos failed to yield the right of way to the car while crossing mid-block.
Molina pulled his car over and told Ramos, "Stop. I want to talk to you." Ramos replied, "You can't stop me. I'm not on parole." Molina responded, "Marcos, step over here. We're going to--I want to talk to you, and I will check on your parole status." Ramos complied.
Molina asked Ramos about his parole status. Ramos replied that he was no longer on parole. He said that he had spoken with his parole officer, Kitty Thompson, a week ago. This caused Molina concern because he knew Thompson had been retired for six months.
As Molina was calling dispatch to find out if Ramos was on parole, Officer John Thompson arrived. Thompson arrived within a minute of Molina stopping his patrol car and telling Ramos he wanted to talk to him. Ramos looked toward Thompson. As Ramos turned, part of his waistband was exposed. Molina could see something on Ramos's waistband that appeared to be a weapon. Molina told Ramos he was going to be patted down. Ramos immediately said he had a knife. Thompson took the knife from Ramos.
Thompson told Ramos that he was going to pat down the rest of his person. Thompson held Ramos's hands, but Ramos twisted out of Thompson's grasp and ran away. Molina and Thompson ran after him. Thompson yelled at Ramos to stop, but Ramos refused to comply. Thompson struck Ramos in the back with his taser. Ramos fell to the ground and was handcuffed.
The officers found a useable quantity of methamphetamine in Ramos's pocket. They later determined Ramos had been discharged from parole a month earlier.
DISCUSSION
I
The People contend Molina's initial contact with Ramos was a consensual encounter.
Consensual encounters between the police and a citizen do not constitute a seizure, and therefore the Fourth Amendment is not implicated. (People v. Rivera (2007) 41 Cal.4th 304, 309.) The police may initiate a consensual encounter without any articuable suspicion of criminal activity. (Ibid.) An encounter is consensual where a reasonable person would feel free to leave or end the encounter. (Ibid.)
Here the trial court found the initial encounter was not consensual. The finding is supported by the evidence. When Ramos saw Molina, he tried to avoid him by crossing the street mid-block, almost getting hit by a car. Molina told Ramos to stop. Ramos replied that he did not have to stop because he was not on parole. Nevertheless, Molina told him to stop. Ramos did everything he could to avoid being stopped. He even expressly told Molina he did not want to stop. It was clearly not a consensual encounter.
II
The People contend Ramos was lawfully detained for a Vehicle Code infraction.
Vehicle Code section 21954, subdivision (a) provides in part: "Every pedestrian upon a roadway at any point other than within a marked crosswalk... shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard."
Ramos argues it is implied in the order granting his motion to suppress that the trial court found no such violation. But the court's ruling on the motion states: "[Ramos] walked eastbound across San Andres Street and was nearly struck by a vehicle. [Ramos] did not use a marked crosswalk in the vicinity and failed to yield to the vehicle." The only reasonable conclusion is that the trial court found a violation of Vehicle Code section 21954, subdivision (a).
Ramos points out that the trial court also found: "Lt. Molina's goal was a search of the defendant pursuant to a standard condition of parole and not to admonish him concerning the Vehicle Code violation he had observed."
But the reasonable suspicion necessary to justify a detention is measured by an objective standard. (People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) A search or seizure that is reasonable based on objective facts is not rendered unreasonable because the officer held an improper subjective motivation. (People v. Uribe (1993) 12 Cal.App.4th 1432, 1436.)
Here the trial court found Molina observed Ramos violate Vehicle Code section 21954. That gave Molina sufficient grounds to detain Ramos. It is irrelevant that Molina's true purpose in detaining Ramos was to verify his parole status. The detention was lawful.
III
Ramos argues the detention was unduly prolonged.
A detention violates the Fourth Amendment if it is extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. (People v. McGaughran (1979) 25 Cal.3d 577, 586.) Circumstances arising after the initial detention may allow the officer to expand the scope of the detention. (See People v. Valencia (1993) 20 Cal.App.4th 906, 918.)
Here Thompson arrived within a minute of Ramos's detention. Upon Thompson's arrival, Ramos turned to look at him. When Ramos turned to look at Thompson, Molina noticed what appeared to be a weapon in Ramos's waistband. This gave the officers the authority to conduct a pat-down search for weapons. (See Terry v. Ohio (1968) 392 U.S. 1, 27.) Ramos's subsequent actions gave the officers probable cause for his arrest. The detention here was not unreasonably prolonged.
Ramos's reliance on People v. McGaughran, supra, 25 Cal.3d 577, is misplaced. There, after an initial traffic stop, the police detained the defendant for an additional 10 minutes to check for warrants. Here Ramos had been detained for approximately one minute before giving the officers cause to conduct a pat-down search. One minute's detention is not unduly prolonged.
Nor is Ramos aided by Willett v. Superior Court (1969) 2 Cal.App.3d 555. There the police stopped the defendant to issue an equipment warning for a defective tail light. Instead of promptly issuing the warning and releasing the defendant, the officer called for assistance and detained the defendant and his two passengers while conducting a warrant check on all three. That is a far cry from one minute's delay between detention and cause to conduct a pat-down search.
The orders suppressing the evidence and dismissing the case are reversed.
We concur: YEGAN, J., COFFEE, J.