Opinion
A158080
04-09-2020
THE PEOPLE, Plaintiff and Respondent, v. ALAMAR TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 18CR003780)
Defendant Alamar Taylor was stopped just south of the Napa County line after a Napa County police officer observed him riding a bicycle without lights or reflective clothing. During the stop, the officer noticed a bulge in Taylor's pants, conducted a pat down search, and found a firearm. Taylor was arrested and ultimately charged with various firearm offenses. After the trial court denied his motion to suppress, he pleaded guilty to one count of carrying a loaded stolen firearm and was sentenced to 90 days in local custody and three years probation. Taylor appeals the denial of his motion to suppress, arguing that the search was unreasonable because it took place outside the officer's jurisdiction and that the circumstances did not justify the pat down search. We affirm.
BACKGROUND
The factual background is drawn from the hearing on Taylor's motion to suppress, at which Officer Coleman was the only witness.
Around midnight on November 24, 2018, Napa County Deputy Sheriff Joshua Coleman was in in the parking lot of a Chevron station on the northeast corner of Mini Drive and Highway 29, just south of the Napa County line, when he observed Taylor riding a bicycle eastbound on Mini Drive. Taylor was wearing all black clothing and did not have lights on his bicycle or reflectors on his clothing, in violation of Vehicle Code section 21201, subdivision (d).
Officer Coleman began following Taylor in his patrol car, illuminating Taylor with the car's spotlight in order to get his attention, in response to which Taylor "quickened his pace" on his bicycle. Taylor eventually stopped and dismounted from his bicycle, at which point, according to Officer Coleman:
"He stopped his bicycle and turned his—he stopped his bicycle and turned his body towards me but turned his hips in a complete, in like a 180 direction as if to put the bike between me and him so that he could exit by backing off. As he did that he was slightly bent over at his waist and was sticking his butt out away from me. That, that body language is not normal of somebody who is being stopped on a bicycle. Typically people just stop, turn around and ask what they have been stopped for. So because of that I immediately changed directions from where my car was stopped and tried to circle him to cut him off as to the direction I thought he might be trying to flee to."
Officer Coleman ordered Taylor to stay on his bicycle and put his hands on his head. Taylor did not move his hands toward his head, but instead "let his hand slide off of his handlebars toward his waistband." Officer Coleman then grabbed Taylor's wrists and "put his hands on top of his head for him," at which point he observed that Taylor's muscles were "tight and tense." At that moment another officer arrived on the scene, and Officer Coleman was able to place Taylor in handcuffs.
Officer Coleman asked Taylor for identification and Taylor responded that he did not have any on him. Officer Coleman then "went to check [Taylor's] pocket to see if he had any identification. Prior to doing that I touched his pocket because I could see that there was a bulge in his pants and I felt what I believed to be a firearm."
Officer Coleman testified that Taylor "was acting really strange. He became, he started sweating profusely. Sweat was pouring out of his face. He was doubling over as if he was having some sort of anxiety or panic attack. He continued to move his hips in a very strange way. So for the entire time that I was explaining that stop to him and asking for his identification I kept his hands pulled away from his waist as I was talking to him."
Officer Coleman went on that Taylor "was wearing light jogging pants at the time. He was, the weight and bulge in his pants was pretty significant. He was wearing like light nylon jogging pants, and so the very first place that I touched was that, the pocket, and I just reached out and touched the pocket and I could feel the gun through the thin jogging pants."
Officer Coleman asked Taylor "You have a gun on you?" and Taylor responded "Yes." Officer Coleman then retrieved a gun from Taylor's pocket and placed Taylor under arrest.
The arrest eventually led police to obtain a warrant to search Taylor's home, where additional stolen firearms were located.
On April 22, 2019, an information was filed in Napa County Superior Court charging Taylor with carrying a loaded stolen firearm (Pen. Code § 25850, subd. (c)(2)) (count 1); possessing a stolen concealed firearm (§ 25400, subd. (c)(2)) (count 2); and carrying a loaded unregistered firearm (§ 25850, subd. (c)(6)) (count 3).
Further undesignated statutory references are to the Penal Code.
At the preliminary hearing, Coleman testified regarding the location of his traffic stop of Taylor as follows:
"Q. Were you on duty around 1:00 A.M. on November 24th of 2018?
"A. Yes, I was.
"Q. And at that time did you stop someone who was riding a bicycle in American Canyon?
"A. Yes, I did.
"Q. You had some hesitation. What were you
"A. The hesitation was that the location of the stop wasn't technically in the city of American Canyon or the county of Napa, it was just over the border in the city of Vallejo, county of Solano.
"Q. Could you please describe—are you familiar with the Napa/Vallejo border?
"A. I am.
"Q. How far away from Napa was that stop?
"A. Within 400 yards."
On May 9, Taylor moved to suppress the evidence found as a result of the stop pursuant to section 1538.5. The motion came on for hearing on June 21, at which hearing Officer Coleman testified as follows regarding the location of the stop:
"Q. Could you please describe the circumstances around that stop?
"A. Yes. It was a dark night. It was also raining. I was traveling in the area of Broadway and Mini Drive just south of the Napa County line when I observed a male wearing dark clothing riding a bicycle."
After Officer Coleman was excused, counsel for the parties presented argument concerning whether he had authority to conduct the stop. As will be discussed in further detail, the prosecutor argued that Officer Coleman had the authority to conduct the stop within 500 yards of the county line under section 782. As part of his argument, Taylor's counsel stated that that "there is no testimony that it's within 500 yards just south of the county line." The trial court responded:
"THE COURT: Well, everyone seems to agree that it was within 500 yards of the county line. You didn't brief this issue, Mr. Nguyen [Taylor's counsel], so I haven't had a chance to read the cases. Mr. Fadem [prosecutor] hasn't. So you are just springing this on us. And if the 500 yard issue was identified ahead of time I'm sure there would have been testimony on that. And I would allow reopening of the evidence to establish that.
"MR. FADEM: We did address jurisdiction at the preliminary hearing, as well, and this specific issue of the 500 yards. Not the issue of the statutes or the authority to arrest."
After taking a brief recess, the trial court denied the motion to suppress, concluding that there was probable cause for the search and, as will be discussed, that section 782 gave Officer Coleman jurisdiction to conduct the stop.
Taylor then entered a plea of no contest to count 1. On the prosecution's motion, the court dismissed the remaining counts.
At sentencing, the trial court suspended imposition of sentence and placed Taylor on three years probation, on certain terms and conditions, including that he serve 90 days in local custody.
Taylor appeals the denial of his motion to suppress.
DISCUSSION
"A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on . . . the . . . grounds . . . [¶] . . . [t]he search or seizure without a warrant was unreasonable." (§ 1538.5, subd. (a)(1)(A).)
"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.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) "We review issues relating to the suppression of evidence derived from police searches and seizures under federal constitutional standards." (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1074, citing People v. Bradford (1997) 15 Cal.4th 1229, 1291.)
Taylor argues that the pat down search of his person was unreasonable under the Fourth Amendment because (1) he was stopped by Officer Coleman outside Officer Coleman's jurisdiction of Napa County, and (2) the circumstances did not justify the pat down search on the ground that Officer Coleman believed Taylor was armed and dangerous. I. The Evidence From the Stop Was Admissible Under the Good Faith Exception to the Exclusionary Rule
The Attorney General argues that Officer Coleman had authority to conduct a traffic stop within 500 yards of the Napa County line under section 782, which provides: "When a public offense is committed on the boundary of two or more jurisdictional territories, or within 500 yards thereof, the jurisdiction of such offense is in any competent court within either jurisdictional territory."
In People v. Rogers (1966) 241 Cal.App.2d 384 (Rogers), a police officer from the City of Covina detained and arrested the defendant adjacent to the boundary of the city. (Id. at p. 386.) The court found that the detention was not illegal even though it took place just outside the officer's jurisdiction, concluding based on section 782 that "[s]ince authority to prosecute crime extends to offenses which take place just outside the boundaries of a particular jurisdiction, we believe that, A fortiori, authority to investigate crime extends beyond the territorial boundaries of a particular jurisdiction in the same manner and to the same extent." (Id. at p. 388.)
Taylor argues that Rogers was wrongly decided because the plain language of section 782 concerns only jurisdiction and not the authority to investigate crime, and that therefore the search was unreasonable because Officer Coleman had no authority to conduct the stop. But even if Rogers was wrongly decided as Taylor argues, we conclude that the exclusionary rule does not apply.
"The Fourth Amendment ' "contains no provision expressly precluding the use of evidence obtained in violation of its commands" ' (Herring v. United States (2009) 555 U.S. 135, 139), but the United States Supreme Court 'establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial' (ibid.). The exclusionary rule 'is a "prudential" doctrine, [citation], created . . . to "compel respect for the constitutional guaranty." [Citations.]' (Davis v. United States (2011) 564 U.S. 229, 236 (Davis).) 'Exclusion is "not a personal constitutional right," nor is it designed to "redress the injury" occasioned by an unconstitutional search. [Citations.] The rule's sole purpose . . . is to deter future Fourth Amendment violations. [Citations.]' (Id. at pp. 236-237.) In other words, the exclusionary rule is limited 'to situations in which [deterrence] is "thought most efficaciously served." [Citation.] Where suppression fails to yield "appreciable deterrence," exclusion is "clearly . . . unwarranted." [Citation.]' (Id. at p. 237.)
" '[T]he deterrence benefits of exclusion "var[y] with the culpability of the law enforcement conduct" at issue.' (Davis, supra, 564 U.S. at p. 238.) 'When the police exhibit "deliberate," "reckless," or "grossly negligent" disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. [Citation.]' (Ibid.) 'But when the police act with an objectively "reasonable good-faith belief" that their conduct is lawful, [citation], or when their conduct involves only simple, "isolated" negligence, [citation], the " 'deterrence rationale loses much of its force,' " and exclusion cannot "pay its way." [Citation.]' (Id. at p. 238.) In particular, 'when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than " 'ac[t] as a reasonable officer would and should act' " under the circumstances. [Citation.] The deterrent effect of exclusion in such a case can only be to discourage the officer from " 'do[ing] his duty.' " [Citation.]' " (Id. at p. 241.) Hence, 'searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.' (Id. at p. 232.)" (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1364-1365.)
We do not believe the purpose of the exclusionary rule would be served here. Rogers squarely held that police authority to investigate crime extends 500 yards over the county line, and we have not found any published cases discussing this aspect of the case. It appears to remain good law today, and Taylor does not contend otherwise. Thus "binding appellate precedent specifically authoriz[ed the] particular police practice" at issue here (Davis, supra, 564 U.S. at p. 241), and excluding the evidence it produced would not yield any appreciable deterrence. (See People v. Harris (2015) 234 Cal.App.4th 671, 702-704 [good faith exception applies where police conducted a warrantless blood draw in good faith reliance on then-binding California authority which held that no additional exigent circumstances were required]; People v. Jimenez, supra, 242 Cal.App.4th at pp. 1364-1365; People v. French (2011) 201 Cal.App.4th 1307, 1323-1325.)
Taylor argues that the good faith exception does not apply, because Officer Coleman "did not claim to have detained Taylor in reliance on Rogers nor did he indicate an awareness of the Rogers opinion." But Taylor cites no authority for the proposition that an officer must specifically reference appellate court precedent in order for his conduct to qualify for the good faith exception. Instead, "[a]pplication of the good faith exception requires a factual presentation of the officers' activity, which is then measured against a standard of objective reasonableness." (People v. Gotfried (2003) 107 Cal.App.4th 254, 265; see United States v. Leon (1984) 468 U.S. 897, 919 fn. 20 ["the standard of reasonableness . . . is an objective one" which does not "turn on the subjective good faith of individual officers"]; Illinois v. Krull (1987) 480 U.S. 340, 348-349 [exclusionary rule does not apply where "officer's conduct is objectively reasonable"]; People v. Willis (2002) 28 Cal.4th 22, 48-49.) Officer Coleman's conduct here was objectively reasonable, and accordingly the good faith exception to the exclusionary rule applies.
Given this conclusion, we need not reach the Attorney General's argument that the stop was justified under section 830.1, subdivision (a).
II. Any Error in Relying on Evidence from the Preliminary Hearing Was Harmless
Taylor next argues that even under Rogers, the evidence does not support the conclusion that the stop took place within 500 yards of the Napa County border because Officer Coleman's testimony that the stop took place "about 400 yards" of the border was at the preliminary hearing, not the hearing on the motion to suppress. Under section 1538.5, subdivision (i), where no suppression motion is made at the preliminary hearing, the defendant has the right to "fully litigate" the validity of a search or seizure at a special hearing, the determination of the validity of that search is made "on the basis of the evidence presented at [that] special hearing" (ibid.), and "the preliminary hearing transcript is not properly considered by the superior court at such a de novo hearing unless the transcript (or portions of it) are formally received in evidence pursuant to stipulation or appropriate exception to the hearsay rule." (People v. Neighbours (1990) 223 Cal.App.3d 1115, 1120.)
In the first place, even without Officer Coleman's testimony from the preliminary hearing, substantial evidence supports the trial court's implied finding that the stop took place within 500 yards of the Napa County line. In particular, Officer Coleman testified that he was "just south of the Napa County line" when he observed Taylor riding his bicycle. And even if the trial court relied on Officer Coleman's more specific testimony from the preliminary hearing, the error was of state law only—meaning that it would require reversal only if it is reasonably probable Taylor would have obtained a more favorable result if the statutory procedure had been followed. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Rodriguez (2016) 1 Cal.5th 676, 695 [evaluating violation of statutory procedure under section 1538.5, subdivision (p) for prejudice under Watson].) It is not. Coleman was clearly prepared to testify that the stop took place 400 yards from the county line, and did so testify at the preliminary hearing. And Taylor did not dispute the location of the stop. Under these circumstances, reversal is not required.
III. The Circumstances Justified the Pat Down Search
Taylor does not dispute that Officer Coleman had probable cause to stop him for a violation of the Vehicle Code, but a pat down search of a detained person requires a separate type of suspicion. (People v. Parrott (2017) 10 Cal.App.5th 485, 495.) A detained person may be searched "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others." (Terry v. Ohio (1968) 392 U.S. 1, 24 (Terry).) Before conducting a pat down search, "[t]he officer need not be absolutely certain that the individual is armed." (Id. at p. 27.) But "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the search. (Id. at p. 21.) Factors relevant to this reasonable suspicion inquiry include the nature of the crime being investigated, a bulge in the detainee's clothing, movement toward a place where a weapon could be concealed, or knowledge that the detainee was previously found to be armed. (People v. Osborne (2009) 175 Cal.App.4th 1052, 1061.) The scope of such a pat down search is limited to outer clothing and to the discovery of weapons. (Terry, supra, 392 U.S. at pp. 29-31.)
We conclude that the circumstances here justified the search. The stop occurred around midnight, in an area Officer Coleman testified was the "highest in sense of criminal activity. Specifically strong-arm robberies, armed robberies of businesses in the area. There's gas stations and other small businesses and strip malls that carry cash and tend to be the victim of crimes." Officer Coleman also knew of an "ongoing robbery series going on in that specific neighborhood right now . . . that Vallejo is investigating." Officer Coleman observed Taylor wearing "all black clothing," gloves, and a mask. When Officer Coleman shined his spotlight on Taylor from about 20 feet away, Taylor "quickened his pace on his bicycle." As Taylor dismounted from his bicycle, he did so "as if to put the bike between [Officer Coleman] and him so that he could exit by backing off," in a way that was "not normal of somebody who is being stopped on a bicycle."
Taylor then "bent forward at his waist and in this very odd stance and moved his body in a way that, to me, appeared as if he was trying to conceal something while at the same time keeping his hands visible by bending over and kind of hiding that right hip pocket." When told to put his hands on top of his head, Taylor instead "moved his hand toward his waistband." As Coleman began handcuffing Taylor, he could feel that his muscle were "tense and rigid," despite having been told to relax. Taylor was "acting really strange," "sweating profusely," "doubling over as if he was having some sort of anxiety or panic attack," and he "continued to move his hips in a very strange way." And most importantly, prior to touching Taylor's pocket, Coleman "could see there was a bulge in his pants" that Coleman believed was a firearm. (See Pennsylvania v. Mimms (1977) 434 U.S. 106, 111-112 [pat search justified based on an officer's observation of "a large bulge" under the defendant's jacket].) We conclude that the pat down search was justified and the motion to suppress properly denied.
DISPOSITION
The judgment is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.