Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF118178C. Jerold L. Turner, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Doris A. Calandra, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Hill, J., and Kane, J.
OPINION
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant, Danny Allen Wood, pled guilty to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378, subd. (c)), and admitted allegations he had suffered a prior conviction of that offense (Health & Saf. Code, § 11370.2) and served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to six years in prison.
On appeal, appellant’s sole contention is that the court erred in denying his suppression motion. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Motion to Suppress
Appellant filed a notice of motion “to suppress as evidence all fruits of a detention and a search of defendant … on February 27, 2007.” At the hearing on the motion, defense counsel stated he was “challenging only the initial detention,” and conceded, for the purposes of the motion, that “if the initial detention is lawful, then the observations and the information that law enforcement officers got later justified the search of the vehicle.”
Evidence Adduced at Hearing on Motion to Suppress
On February 27, 2007, at approximately 4:00 p.m., City of Bakersfield Police Officer Christina Abshire, along with between four and six other members of the California Multijurisdictional Methamphetamine Enforcement Team, arrived in an “undercover van” at the residence located at 216 Galaxy Avenue (the residence) for the purpose of “execute[ing] a narcotics search warrant.” Abshire was driving. As she pulled up to the residence, she saw a Dodge Ram pickup parked “directly in front of the residence.” She stopped “right in front of [the pickup],” facing the vehicle. One of the pickup’s doors was open and appellant was sitting in the passenger seat. “[H]is head was down” and he was “manipulating something downwards in the vehicle.”
Our summary of the evidence adduced at the suppression motion hearing is taken from the testimony of Officer Abshire, who was the sole witness at the hearing.
It is not clear from the record whether the passenger-side door or the driver-side door was open.
Abshire and the other officers got out of the van; all were wearing vests with the word “Police” on both the front and back. “As soon as” Abshire began to exit the van, appellant “saw [Abshire], his eyes got wide and he quickly went … back down towards the floorboard area of the vehicle and began moving furtively.” Appellant “began moving at a more rapid pace, and he also dipped his shoulders down lower to the vehicle than he was when [Officer Abshire] originally arrived.”
As the other officers “were responding to the front door of the residence,” Officer Abshire approached appellant and “ordered him to exit the vehicle.” Appellant did not comply, and “continued to move in the passenger seat of the vehicle.” At that point, Officer Abshire drew her gun and, “[u]pon getting a little bit closer and rounding the open door, … ordered [appellant] again to get out and he then complied ….”
DISCUSSION
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. (U.S. Const., 4th Amend.; People v. Camacho (2000) 23 Cal.4th 824, 829-830.) A “brief investigative stop[]” of a person, commonly referred to in the case law as a detention, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229.)
Here, as the parties do not dispute, Officer Abshire detained appellant. Appellant argues the detention violated his Fourth Amendment rights because the facts available to the officer were not sufficient to give rise to a reasonable suspicion that appellant was involved in criminal activity, and therefore evidence seized as a result of the detention should have been suppressed. The People counter that under the “totality of the circumstances,” viz., “appellant’s suspicious conduct in front of the home to be searched on a narcotics search warrant, in conjunction with the imminent service of the warrant,” the detention and subsequent seizure of evidence were constitutionally reasonable.
In reviewing the denial of a suppression motion, “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.” (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
The People rely chiefly on Glaser. In that case, six police officers, including one who was a member of a “Narcotics Task Force,” arrived at a house to search the house pursuant to a search warrant. The night was dark and the weather stormy. The defendant arrived approximately 20 seconds ahead of the officers and was “‘about to open the gate’” that led to the driveway of the house to be searched when one of the officers directed the defendant, at gunpoint, to get down on the ground and lie face down. (Glaser, supra, 11 Cal.4th at pp. 360-361.) The defendant obeyed and the officer handcuffed him. Within five minutes, another officer, who had gone inside the house, came back outside, and approximately one minute later appellant was led into the house. (Ibid.) Our Supreme Court held that the “initial brief detention,” i.e., the approximate five-minute period that ended when the second officer returned to the driveway, “was justified by the need to determine what connection defendant, who appeared to be more than a stranger or casual visitor, had to the premises, and by the related need to ensure officer safety and security at the site of a search for narcotics.” (Id. at p. 365.)
“To test the detention against ‘the ultimate standard of reasonableness embodied in the Fourth Amendment’ [citation] [the court] balance[d] the extent of the intrusion against the government interests justifying it ….” (Glaser, supra, 11 Cal.4th at p. 365.) Addressing the former factor first, the court noted that the intrusiveness of the encounter was increased by the defendant being held at gunpoint, but diminished by the “extremely brief” (Glaser, supra, 11 Cal.4th at p. 366) duration of the detention and the fact that the detention “occurred not in a public place, but at the back gate of a private residence” where given the virtual absence of witnesses, “[t]he embarrassment and stigma sometimes associated with a detention were thus reduced or eliminated” (id. at p. 367).
As to the government interests justifying the detention, the court first cited the officers’ concern for their safety. That concern was heightened by the potential for violence inherent in a search for narcotics, given the common association of illegal drugs and firearms. (Glaser, supra, 11 Cal.4th at pp. 367-368.) Further, the court stated, “[t]he danger is potentially at its greatest when, as here, the premises to be searched are a private home, rather than a place of public accommodation,” because “‘the likelihood that the occupants [of a residence] are armed or have ready accessibility to hidden weapons is conspicuously greater than in cases where … the public freely enters premises where legal business is transacted.’” (Id. at p. 367-368.)
Second, the court cited, “[t]he government interest in determining the identity of a person entering premises being searched ….” (Glaser, supra, 11 Cal.4th at p. 368.) In support of this interest, the court cited a number of factors, including “[t]he risk posed by residents or familiars of the household, who may be involved in the criminal activities therein, [which] is obviously greater than that posed by mere visitors who happen unwittingly on the scene.” (Ibid.)
In weighing the relevant police interests against the invasion of defendant’s personal security the court concluded: “[The officer who detained the defendant] was … faced with an unidentified person who appeared to be a resident or familiar visitor of a house in which, [the officer] had probable cause to believe, criminal drug activity was occurring--a person who was standing where he could not be clearly seen under the prevailing conditions, who was unresponsive to verbal attempts at contact, and who, if left alone, would walk into the middle of a search being conducted by several other officers. [The officer] had no practical choice but to detain defendant.” (Glaser, supra, 11 Cal.4th at p. 369.) “[A] ‘reasonably prudent’ officer [citation] could consider [detention] necessary to protect his own safety, that of the other searchers and that of the detainee himself.” (Ibid.)
Appellant contends Glaser is inapplicable because there, as indicated above, the court considered “[t]he government interest in determining the identity of a person entering premises being searched” (Glaser, supra, 11 Cal.4th at p. 368, italics added), whereas in the instant case, appellant argues, “[t]here was no evidence adduced tying appellant to the house that was the subject of the warrant.” Appellant asserts there was no evidence that (1) the residence “was the only house on the street, thus suggesting that appellant was connected with the residence”; (2) appellant “was parked close to the entry of the house”; or (3) “residents of the house appeared to be waiting for him on a porch.”
We acknowledge that appellant was not on the premises being searched, nor did he exhibit familiarity with the premises, as the did the defendant in Glaser. This factor notwithstanding, we conclude Officer Abshire acted reasonably in detaining appellant based on the situation confronting her. We base this conclusion on two factors.
First, although appellant was not on the premises being searched, he was parked “directly in front of the residence” and all of the officers except Officer Abshire were heading for the front door to execute the search warrant. Thus, Officer Abshire was confronted with a situation in which officers were about to enter a private residence where they had probable cause that criminal activity was occurring, and appellant could have come up from behind the officers and entered while the search was being conducted.
Second, appellant’s movements were consistent with reaching for a weapon, and, as indicated above, he was parked very near a residence where the police had reason to believe drugs were present. As also indicated above and as the court stated in Glaser, “‘In the narcotics business, “firearms are as much ‘tools of the trade’ as are most commonly recognized articles of narcotics paraphernalia”’” (Glaser, supra, 11 Cal.4th at p. 367); persons selling drugs have a “‘recognized propensity … [to] frequently carry firearms”’”; and the danger to officers conducting a search in a place where drugs are believed to be present are “particularly acute” when the place searched is a private residence (id. at p. 368).
We recognize that, as appellant argues, furtive gestures, taken alone, are not sufficient to justify a detention, and innocent explanations for appellant’s movements can be easily imagined. “[H]owever, that a person’s conduct is consistent with innocent behavior does not necessarily defeat the existence of reasonable cause to detain. [Citation.] What is required is not the absence of innocent explanation, but the existence of ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” (Glaser, supra, 11 Cal.4th at p. 373.) And in determining whether the intrusion is warranted, “The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations.” (People v. Dickey (1994) 21 Cal.App.4th 952, 957.) Moreover, “we ‘judge the officer’s conduct in light of common sense and ordinary human experience,’ [citation], and we accord deference to an officer’s ability to distinguish between innocent and suspicious actions.” (U.S. v. Williams (10th Cir. 2001) 271 F.3d 1262, 1268.)
Here, neither appellant’s proximity to the execution of a narcotics search warrant nor his conduct would be sufficient, by itself, to justify the detention. But, when considered together, these factors establish that the police were confronted with an uncertain and fast-moving situation that was fraught with potential danger: they were about to enter a private residence where, they had probable cause to believe, illegal drugs were located. Thus, they were embarked on a course of action that entailed the risk of encountering criminals armed with firearms. Moreover, there was a person in close proximity whose connection with the premises was unknown; who was behaving in a way consistent with reaching for, using and/or secreting a firearm; and who, if not detained, could have come up behind the officers in the process of executing the search warrant. These are specific and articulable facts which, as Glaser, would justify a “‘reasonably prudent’ officer” in detaining appellant. (Glaser, supra, 11 Cal.4th at p. 369.)
DISPOSITION
The judgment is affirmed.