Opinion
B189672
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. CARLOS SALGADO, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Carlos Salgado of one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) as a lesser included offense of the charged crime of possession for sale of methamphetamine. The court suspended imposition of sentence and placed appellant on formal probation for three years under the terms and conditions of Proposition 36. The trial court subsequently determined that appellant was not eligible for Proposition 36 treatment. Appellant was terminated from the program and placed on probation for three years under terms and conditions of probation, including the condition that he serve 90 days in county jail.
Appellant contends that the police officer lacked grounds to detain and search him when he was seated inside a parked vehicle, had violated no laws, and did not threaten the officer. Appellant also requests this court to review the sealed record of the police officers complaint history to determine whether all information subject to disclosure was in fact disclosed.
FACTS
Since appellant appeals solely on grounds relating to his suppression motion, we recite the facts as revealed during the hearing on that motion. On June 28, 2005, at approximately 9:00 a.m., Deputy Arman Nshanian of the Los Angeles County Sheriffs Department was alone in his vehicle in the area of Valley Boulevard and Dora Guzman Avenue in the City of La Puente. He observed appellant sitting in a parked vehicle in the middle of a shopping center parking lot. At that hour, the large market in the shopping center was not open, and appellant was parked closer to the smaller businesses. As Deputy Nshanian drove by in his patrol car, he made eye contact with appellant from a distance of 20 to 30 feet, and he observed that appellant had a startled look on his face. Deputy Nshanian approached appellant and began to converse with him. He "wanted to see if he needed any help, if he was waiting for somebody, doing anything in particular." Deputy Nshanian said, "`Hi. How are you doing? You need some help with anything?" Appellant indicated he did not speak English. Deputy Nshanian noticed that appellant became really nervous and began reaching into his right pocket. Deputy Nshanian told appellant, "`Hey, do me a favor. Dont reach into your pockets." He said this "a couple times," but appellant did not comply with Deputy Nshanians request. Deputy Nshanian acknowledged that this might have occurred because appellant did not speak English, and he knew appellant could not actually insert his hand into his pocket because he was seated. Deputy Nshanian also acknowledged that he could not see if appellant actually had a pocket on his right side, but he assumed appellant was trying to reach into a pocket.
Because Deputy Nshanian was concerned that appellant might be trying to reach for a weapon, he told appellant to step out of the car. He then conducted a patdown search of appellant for weapons. As he patted the outside of appellants clothing, he felt an object in the right pocket of appellants sweatpants. Due to the objects shape — a bowl on one end and a tubular shape on the other — Deputy Nshanian recognized it as a glass smoking pipe commonly used for ingesting narcotics. Deputy Nshanian reached into appellants pocket and retrieved the pipe. In Deputy Nshanians mind, appellant was already under arrest. The pipe, which contained a white residue, was wrapped in a napkin containing five plastic baggies. The baggies contained a white crystal-like substance resembling methamphetamine. The entire process lasted two to three minutes.
DISCUSSION
I. Denial of Motion to Suppress
A. Appellants Argument
Appellant contends that his encounter with Deputy Nshanian was not consensual, and the officer detained him despite a lack of reasonable suspicion for the detention. Furthermore, the officer had no basis for conducting a protective weapons search. Also, because Deputy Nshanian had no information that appellant was armed and dangerous, he exceeded the scope of a limited weapons search by intruding under appellants clothing to seize an item he knew was not a weapon and whose nature as contraband was not readily apparent. Appellant maintains that all of the seized items were the fruit of an illegal search and should have been suppressed.
B. Proceedings Below
After Deputy Nshanian concluded his testimony, appellants counsel argued that there were not articulable facts to make a detention, which occurred when appellant was ordered out of the car. The fact that appellant was making movements was inconsequential, since the deputy only made a request for him to stop and did not issue an order.
The prosecutor argued that the initial encounter was consensual, since appellant could have driven off. Because appellant was moving his hand toward his pants pocket the deputy began to fear for his safety and thought appellant might be reaching for a weapon. After he asked appellant not to do that anymore, appellant continued to make the same motion. The deputy therefore ordered appellant out of the car to perform the patdown. As a result of the patdown the deputy felt something that he could articulate as an instrument of criminality and arrested appellant at that point.
The trial court denied the motion to suppress without comment.
C. Relevant Authority
"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The California Supreme Court has recognized the validity of consensual encounters and has ruled that such encounters do not require any articulable suspicion that the person encountered has committed or is about to commit a crime. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784; see also In re Manuel G. (1997) 16 Cal.4th 805, 821.) Consensual encounters do not trigger Fourth Amendment scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434.) "An officer has every right to talk to anyone he encounters while regularly performing his duties . . . . [Citations.] Until the officer asserts some restraint on the contacts freedom to move, no detention occurs. [Citations.]" (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.)
The guiding principle for evaluating the actions of the police officers is "the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security." (Terry v. Ohio (1968) 392 U.S. 1, 19 (Terry).) Terry held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquires, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Id. at p. 30.) There must be "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Id. at p. 21, fn. omitted; People v. Glaser, supra, 11 Cal.4th at p. 363.)
D. Motion to Suppress Properly Denied
The evidence showed that Deputy Nshanians first words with appellant occurred during a consensual encounter. When Deputy Nshanian approached appellant and engaged him in conversation, there was no constraint on appellants liberty. (See People v. Verin (1990) 220 Cal.App.3d 551, 555-556.) Police do not effect a detention "merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. [Citations.] Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation by coercive means." (United States v. Drayton (2002) 536 U.S. 194, 200; see also People v. Lopez (1989) 212 Cal.App.3d 289, 291-292.) 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.) Circumstances to consider in determining whether an encounter was consensual or coercive include the threatening presence of a number of officers, any display of weapons, physical touching by police, and coercive language or a tone of voice indicating compliance with a police request was obligatory. (United States v. Mendenhall (1980) 446 U.S. 544, 554; In re Manuel G., supra, 16 Cal.4th at p. 821.)
Appellants encounter was not similar to that which occurred in People v. Roth (1990) 219 Cal.App.3d 211 (Roth), cited by appellant in support of his position that the initial encounter constituted a detention. In Roth, police halted the defendants early morning progress across a deserted shopping center parking lot by shining a spotlight on him and ordering him to approach the police car. There, the officer waited behind his open car door. (Id. at p. 213.) Appellants encounter with Deputy Nshanian occurred at 9:00 a.m. in a public area. The deputy got out of his car and approached appellant, engaging him in conversation. Appellant did not have a spotlight shone in his face, and he was given no orders. Deputy Nshanians questions were delivered in a conversational tone. Deputy Nshanian was alone, he did not draw his gun, and no force was used or implied. We find nothing coercive in the deputys conduct and do not believe that a reasonable person would have considered his liberty to be constrained. Considering the totality of the circumstances, Deputy Nshanian did not seize appellant by walking up to the car in which appellant was seated and asking him if he needed help with anything.
We next address Deputy Nshanians decision to ask appellant to exit his car and submit to a patdown search, which constituted a detention. In a detention, there is a seizure of an individual, although limited in time, duration, scope, and purpose. (People v. Verin, supra, 220 Cal.App.3d at p. 555.) Appellant became increasingly nervous as the deputy spoke with him, and he continually reached toward the area where a pants pocket would be located. Deputy Nshanian asked appellant twice not to do this, but appellant ignored his requests. Although, as the deputy candidly stated, this may have been due to an inability to understand English, Deputy Nshanian could not be certain that appellant was unable to understand and that his continued gesturing was not due simply to a determined effort to reach into the pocket. Therefore, the deputy, as a reasonably prudent police officer, decided to ensure that appellant did not have a weapon on him. (See Terry, supra, 392 U.S. at p. 27.)
As stated in People v. Dickey (1994) 21 Cal.App.4th 952, 957, "[t]he judiciary should not lightly second-guess a police officers decision to perform a patdown search for officer safety. The 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, 392 U.S. at p. 24.) Although there are no factual findings by the trial court, its ruling to admit the evidence is sufficient indication that it found credible Deputy Nshanians testimony that he was concerned about the possibility appellant had a weapon given the totality of the circumstances surrounding the encounter. On appellate review of a trial courts ruling on a motion to suppress evidence, the appellate body must accept the trial courts 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.) The trial court has the power to decide "what the officer actually perceived, or knew, or believed, and what action he took in response." (People v. Leyba (1981) 29 Cal.3d 591, 596.) We conclude substantial evidence supports the trial courts implied finding.
We next determine that the extraction of the pipe was justified, and the scope of the search was not excessive, despite appellants argument to the contrary. In this case, the application of the "plain feel" or "sense of touch" doctrine exception to the requirement for a search warrant set out in Minnesota v. Dickerson (1993) 508 U.S. 366 (Dickerson) is clearly warranted. In Dickerson, an officer conducted a patdown of a suspect and felt a small lump in the suspects jacket. (Id. at p. 369.) The officer examined the lump with his fingers, and concluded that it felt like rock cocaine in cellophane. (Ibid.) He then reached into the jacket pocket and retrieved the item, which was a small plastic bag containing cocaine. (Ibid.) Referring to the well-established `"plain view" exception to the requirement for a warrant (id. at pp. 374-375), the court in Dickerson held that when a police officer lawfully pats down a suspects outer clothing and feels an object whose identity as contraband is "immediately apparent," the officer may properly seize the object. (Id. at pp. 375-376.) In Dickerson, however, the court concluded that the officer exceeded the scope of the patdown search by "`squeezing, sliding and otherwise manipulating the contents of the defendants pocket — a pocket which the officer already knew contained no weapon." (Id. at p. 378.)
Other courts have applied the plain feel exception in ruling that officers have properly removed items from suspects during patdowns. In United States v. Mattarolo (9th Cir. 2000) 209 F.3d 1153, 1156 (Mattarolo), for example, an officer saw a pickup truck leaving a closed construction storage area at night with a rather large crate in the truck bed. (Id. at p. 1156.) The officer stopped the truck and received the drivers consent to pat him down. (Ibid.) The officer felt what he suspected was a knife in a pocket. (Ibid.) The officer closed his thumb and forefinger around the object to see if it was hard, and he felt little chunks in plastic bags that he immediately recognized as drugs. (Ibid.) Mattarolo held that the officer properly removed the contraband from the pocket, since he discovered its identity while trying to determine whether the suspect had a weapon. The officer had therefore not exceeded the scope of a proper patdown search. (Id. at p. 1158.)
Likewise, in People v. Dibb (1995) 37 Cal.App.4th 832 (Dibb), an officer stopped a car in which the defendant was a passenger because the cars registration had expired and the occupants were not wearing seat belts. (Id. at p. 834.) The defendant consented to a search of his fanny pack, which contained a gram scale with an odor of methamphetamine, a small plastic bag, a beeper, and a magazine for a pistol. (Id. at pp. 834-835.) Concerned that the defendant might be armed, the officer patted down the defendant for weapons. He felt something "`lumpy" that had "`volume and mass." (Id. at p. 835.) The officer did not think it was a weapon, but he believed it might be a controlled substance because of the items found in the fanny pack. After a second officer patted down the defendant and confirmed the presence of "`something," the officer reached beneath defendants pants and seized a package containing methamphetamine. (Ibid.) Dibb held that under the totality of the circumstances, the officer had probable cause to arrest the defendant when he first touched the object and the search was justified as a search incident to arrest. (Id. at pp. 836-837.)
In the instant case, although there were no surrounding circumstances indicating a presence of contraband, Deputy Nshanian knew immediately upon feeling the object in appellants pants that it was a pipe commonly used for smoking contraband, possession of which constituted a violation of Health and Safety Code section 11364. Nshanian said he recognized the pipe because of the bowl on one end and the tubular shape on the other. He testified that he believed appellant was under arrest at that point. The same napkin that was wrapped around the pipe was found to contain the baggies of methamphetamine.
We conclude that the detention of appellant was justified, and under the plain feel doctrine of Dickerson, the trial court properly denied the motion to suppress.
II. Review of Sealed Record
Appellant requested this court to review the sealed record to determine whether all information that should have been disclosed was disclosed.
We have reviewed the transcript of the November 9, 2005 in camera hearing and have determined that it constitutes an adequate record of the trial courts review of the documents provided to the court. We have determined that the trial court did not abuse its discretion and did not fail to disclose discoverable information from the officers personnel files. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, 1232.)
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
DOI TODD, J.