Opinion
B205433
9-18-2008
THE PEOPLE, Plaintiff and Respondent, v. JESUS FELIX SOTELO, Defendant and Appellant.
Richard L. Fitzer, 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, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
After the trial court denied his motion to suppress evidence, appellant Jesus Felix Sotelo pled no contest to possession for sale of a controlled substance, in violation of Health and Safety Code section 11351. Sotelo appeals the denial of his motion to suppress under Penal Code section 1538.5, subdivision (m), claiming that an illegal patdown search rendered invalid his subsequent written consent to search his truck. We affirm.
FACTS
The following facts are drawn from the testimony at the hearing on Sotelos motion to suppress on December 12, 2007.
Los Angeles Police Officer Nick Vascones testified that at 11:00 a.m. on February 1, 2007, he received an anonymous phone call at the 77th Precinct Police Station. The male caller told Officer Vascones that a man named Jesus Sotelo was selling cocaine, and drove a silver Ford F-150 truck. The caller gave Vascones the truck license plate number. Officer Vascones asked the man for his name and telephone number, but the caller refused. The phone call took less than a minute.
Officer Vascones ran the license plate number on the computer and came up with an address for Jesus Sotelo. He also ran a warrant check but found no criminal history. With his partner, Officer Matthew Killman, and an Officer Currie, Officer Vascones drove in an unmarked car to an address on Potomac Avenue in Los Angeles and set up an observation point across the street. The three officers sat there for three hours.
A silver F-150 truck with the license plate number given by the informant pulled into the driveway. A man left the vehicle, entered the house, and a short time later came out, got back into the truck, and drove away. The officers followed the truck, which made a left-hand turn without signaling, in violation of Vehicle Code section 22108. The truck stopped in front of a mini-mart and liquor store five to seven blocks later. Vascones saw the driver get out of the truck and go into the mini-mart. Officers Vascones and Killman followed the driver into the store. They followed him not only for failure to signal but also to investigate whether he had or was selling cocaine. Officer Currie remained standing outside.
Officer Vascones, who like the other officers was in plainclothes, identified himself as a police officer by showing his badge. Officer Vascones told the driver about the traffic violation, told him he was going to issue a citation, and asked for a drivers license. The driver gave him his license; it was Sotelo. Officer Vascones patted Sotelo down, although he had no indication Sotelo was armed. Officer Vascones said he patted Sotelo down "[f]or my safety." He found nothing, but touched Sotelos wallet in his back right pocket.
Officer Vascones then told Sotelo that he and his partner "work[ed] narcotics," and asked Sotelo for permission to search the truck. Officer Vascones handed Sotelo a Los Angeles Police Department (LAPD) "consent to search" form. Sotelo read it for two minutes. Sotelo then signed the form on the top of a freezer chest and gave the officers the keys to the truck out of his right front pocket. Officer Vascones did not know whether the truck was locked. The conversation was entirely in English.
Officer Killman then searched the truck while Officer Vascones stayed inside the store with Sotelo for five to ten minutes, getting basic information from Sotelo, such as height, weight, date and place of birth, and phone number. Before the search of the truck, Sotelo had been detained for about five minutes.
Officer Killman reentered the store and told Officer Vascones he found narcotics in the truck. The officers arrested Sotelo, put him in handcuffs, and took him away in a black-and-white police vehicle.
Officer Vascones testified that after Sotelo was arrested, he gave consent to search his home, and his home address was added to the consent form. The police subsequently searched Sotelos house. That search is not in issue on this appeal.
Officer Killman testified that when he came to work on February 1, 2007, Officer Vascones told him about the anonymous telephone call. The officers were undercover, dressed in jeans, T-shirts, and had long hair and facial hair. Officer Killman described the observation at Sotelos home, the arrival and departure of the truck, and the failure to signal on the left turn.
Officer Killman entered the mini-mart with Officer Vascones, who patted Sotelo down after Officer Vascones told Sotelo "who we were, first of all, and—what we were doing." In the three to five minutes before the patdown, Sotelo "had a hard time believing we were the police, so he was going into depth, verifying who we were by not only showing our badge, but our police I.D. as well." "Nothing" happened during the patdown, which was done "to make sure we werent obviously talking to someone who was armed." Officer Killman observed Officer Vascones go over the consent form with Sotelo for a "couple minutes."
Officer Killman entered the locked truck with Sotelos keys, and found a clear plastic bag containing a white powder on the front seat, between the middle seat and the drivers seat.
The substance was later tested and found to be about one-half ounce of cocaine (8.44 ounces). Sotelos wallet contained $315 in small denominations (one $50, eleven $20s, three $10s, and three $5s).
Blanca Torres, the manager of the mini-mart, saw Sotelo drive up in his truck and enter the store, where he headed toward the avocados. Two people entered two minutes later. One spoke to Sotelo, the other stayed some distance away. Torres did not know they were police officers. Sotelo and the man spoke for about 10 minutes, and then she saw the men make Sotelo put his hands above his head and "they were looking for something in his pockets" (making up and down motions at the hip area). She then realized they were police officers. Officer Currie stayed at the door throughout and never entered the store.
The officers and Sotelo returned to where the avocados were and talked for 30 minutes. When Sotelo walked up to the counter to buy his avocados, the officers arrested him, handcuffed him, and took him outside. Two minutes later they put Sotelo in a black-and-white police car.
Sotelo testified that he lived at the Potomac Avenue address with his wife and two children, and owned a small pool service company. When he arrived home from work on February 1, 2007, his brother-in-law told him they needed avocados for a planned barbecue. Sotelo drove to the nearby mini-mart, using his signal for the left turn as he always does. He entered the store and picked out some avocados.
A plainclothes policeman approached Sotelo and showed him a badge. Sotelo was nervous and did not believe the men were police officers. Officer Vascones told Sotelo about the infraction and told him he was investigating narcotics and they knew about a "suspicious man driving a silver truck." Officer Vascones pat-searched Sotelo, asking Sotelo if he "had any grenades, AK-47. . . . Or kilos of Cocaine. And I said, No."
Sotelo testified that Officer Vascones took Sotelos wallet and searched it, then took his keys from his front pocket and gave them to Officer Killman. Sotelo asked if he was arrested and tried to pay for the avocados. Officer Killman started searching Sotelos truck without consent or a warrant. The officers arrested Sotelo and handcuffed him. Then they gave Sotelo the consent to search form. The form was blank. The officers released Sotelos handcuffs so he could sign the form. He signed the form without time to read it, and it was blurry and hard to read. Sotelo then waited with the officers inside the store for a long time (around 40 minutes) until the black-and-white police car came.
Sotelo moved to suppress the 8.44 ounces of cocaine found in the search of his truck, the $315 taken from his wallet, the police officers observations, and any and all of his own statements. The trial court denied the motion to suppress without explanation. Sotelo then pled nolo contendere to one count of possession of cocaine for sale, in violation of Health and Safety Code section 11351. He received a suspended sentence, three years of formal probation, and 60 days in Los Angeles County jail, and he was ordered to pay fines and restitution.
The court dismissed count 2 of the information, which charged Sotelo with transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a).
DISCUSSION
We review independently, as a question of law, whether the undisputed facts show that the search and seizure were unconstitutional. (People v. Saldana (2002) 101 Cal.App.4th 170, 173.) In doing so, we defer to the trial courts factual findings, whether express or implied, which must be upheld if they are supported by substantial evidence. (People v. Loewen (1983) 35 Cal.3d 117, 123.)
I. The patdown search was unconstitutional
Sotelo does not question the legality of his initial detention, and the Attorney General does not dispute the illegality of the patdown. The officers observed a traffic infraction before Sotelo parked the truck and entered the mini-mart. Following him into the store and asking about the failure to signal was permissible as part of the traffic stop. (People v. Medina (2003) 110 Cal.App.4th 171, 176.) Nevertheless, "a traffic stop that is lawful at its inception `"may exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible."" (Ibid.)
A warrantless patdown is only constitutionally justified if the officer reasonably believes that the detainee is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 24, 27.) Here, there was no reasonable belief.
II. The unconstitutional patdown did not taint the consent search of the truck
A. Substantial evidence supports the conclusion that the consent was voluntary
The officers did not find any evidence as the result of the illegal patdown search. The evidence was recovered when Officer Killman searched Sotelos truck after Sotelo signed the consent form. The factual question before us is whether the consensual search of the truck was tainted by the illegality of the earlier patdown search so that the resulting evidence is subject to suppression as "fruit of the poisonous tree." (People v. Medina, supra, 110 Cal.App.4th at p. 178, citing Wong Sun v. United States (1963) 371 U.S. 471, 484-488.) We ask whether the evidence was found "`"`by exploitation of that initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint." . . . The degree of attenuation that suffices to dissipate the taint requires at least an intervening independent act by the defendant or a third party to break the causal chain in such a way that the [incriminating evidence] is not in fact obtained by exploitation of the illegality." (Ibid.) "[T]he taint of prior improper conduct can be attenuated. That attenuation can result from a subsequent voluntary consent to search." (People v. Sanchez (1981) 116 Cal.App.3d 720, 729.) Whether the defendant voluntarily consented is a factual issue to be determined from all the circumstances. (Schneckloth v. Bustamante (1973) 412 U.S. 218, 233.)
As discussed above, the detention herein was lawful. In addition to the anonymous tip, the officers observed a traffic infraction, and Sotelo admits the initial detention was constitutional. After the impermissible patdown, the officers gave Sotelo the one-page consent form and allowed him time to read it. The form states that the signer has been advised of his right to refuse consent, and that his consent is voluntary. Sotelo signed it and gave the officers the keys. After the discovery of the cocaine in the car, the officers arrested Sotelo.
Given these circumstances, we conclude that substantial evidence supports the trial courts implied factual finding that Sotelos written consent was voluntary. (See People v. Sanchez, supra, 116 Cal.App.3d at pp. 728-729 [substantial evidence supported trial courts finding, after full hearing, that consent to search was voluntary in spite of warrantless entry]; Schneckloth v. Bustamante, supra, 412 U.S. at p. 233 [careful sifting of unique facts and circumstances required in consent-to-search cases].) There was substantial evidence that the consent was voluntary.
B. The effect of the illegal patdown was sufficiently attenuated
Finally, we consider whether, given the illegality of the patdown search, "`the evidence was obtained by the governments exploitation of the illegality or whether the illegality has become attenuated so as to dissipate the taint." (People v. Boyer (2006) 38 Cal.4th 412, 448.) Although substantial evidence supports the conclusion that Sotelo voluntarily signed the consent form, "[w]hen the accused claims a consent to search is tainted by a prior Fourth Amendment violation, mere voluntariness of the consent is not enough to dissipate the taint. [Citations.] In such cases, we must additionally examine the `attenuation factors set forth in Brown [v. Illinois (1975)] 422 U.S. 590." (Ibid. at p. 450.) These factors include the temporal proximity of the Fourth Amendment violation to the seizure of the challenged evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct. (Ibid; Brown v. Illinois, supra, 422 U.S. at pp. 603-604.)
Only a short time elapsed between the patdown and the search. The request for consent to search followed shortly upon the patdown. Officer Vascones testified he gave Sotelo time to read the consent form before Sotelo signed it. Sotelo gave Officer Vascones his keys and Officer Killman promptly searched the truck.
The intervening circumstance in this case was Sotelos reading of the consent form and then signing it. (People v. Sanchez, supra, 116 Cal.App.3d at p. 729 [voluntary consent may constitute event attenuating taint of improper police conduct].)
The remaining factor is how flagrant was the police misconduct. Here, the officers patted Sotelo down for weapons without reason to believe he was armed and dangerous. The patdown was limited to the area around Sotelos hip pockets. No evidence was seized as a result of the patdown. Sotelo was subsequently asked to consent and had time to review the consent form. The entire sequence of events occurred in a store with the manager watching. While the search occurred shortly after the patdown, the brevity of Sotelos preceding detention is also a factor in favor of concluding that the police misbehavior was less flagrant and coercive.
Sotelo also did not testify that he was physically or mentally abused in any way, and his consent was not obtained on the basis of any information the police garnered during the patdown. (United States v. Calhoun (6th Cir. 1995) 49 F.3d 231, 234-236.) The police sought consent to search the truck not as a result of anything found during the patdown, but because of the telephone tip they had received that morning with Sotelos name and the trucks license number. "[T]here is no evidence that the illegal police conduct toward defendant was the impetus for the decision to attempt to search" Sotelos truck. (People v. Boyer, supra, 38 Cal.4th at p. 452, fn. 25.)
Although the time between the illegal patdown and the consent search of the truck was short, "`the decisive issue is not that the road from the unlawful search to the [challenged evidence] is "long," but that it is "straight."" (People v. Superior Court (Casebeer) (1969) 71 Cal.2d 265, 272.) The consent search of the truck did not follow from exploitation of the unlawful patdown, and we therefore conclude that the taint from the illegal patdown was sufficiently attenuated to justify the trial courts denial of Sotelos motion to suppress.
DISPOSITION
We affirm the denial of the motion to suppress.
We concur:
MALLANO, P.J.
ROTHSCHILD, J.