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The People v. Marlon Brown

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE


December 15, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARLON BROWN, DEFENDANT AND APPELLANT.

(San Francisco City & County Super. Ct. No. 208397)

The opinion of the court was delivered by: Marchiano, P.J.

P. v. Brown

CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Police detained defendant Marlon Brown, discovered he was subject to a probation search condition, and found quantities of three different controlled substances in his car and house. After unsuccessfully moving to suppress the evidence as the product of an illegal detention, defendant pleaded guilty to possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The trial court sentenced him to three years in prison. Defendant contends the motion to suppress should have been granted. We disagree because the detention was valid and not unduly prolonged. We affirm.

I. FACTS

We take the facts from the transcript of the preliminary hearing.

On February 14, 2009, San Francisco Police Officers Constantine and Perez were on routine patrol near 76 Sixth Street. That area of Sixth Street, which both officers had patrolled for several years, was a seedy and depressed area, a "skid row," known for the sale and use of narcotics, drunkenness, street crime, loitering, threats, public urination and littering. In the 11 years he had patrolled the area, Officer Constantine had seen narcotics violations "several times a week, every week."

Shortly after noon, the officers saw defendant and two other men sitting on folding chairs in the alcove, or recessed front doorway, of 76 Sixth Street. The business at 76 Sixth Street was closed, its doors and windows covered with white paper. Next door, at 74 Sixth Street, was the Baldwin Hotel, which was open. Two days earlier, Officer Perez had received complaints from employees of the Baldwin Hotel about people "hanging out" in the 76 Sixth Street alcove, "leaving trash behind, urinating, doing drugs, selling drugs, all of the above." One of the maintenance workers at the Baldwin went into the alcove to hose it down and encountered a woman in the alcove injecting heroin. The woman "became very hostile."

The officers approached defendant and his two companions. Officer Constantine, who had seen defendant sitting in the alcove earlier in the day, recognized him in connection with a car defendant drove in the neighborhood. Six to eight months earlier, Officer Constantine had received information about defendant from an "unknown citizen," had run a computer check on defendant, and had learned he was a registered sex offender and had a pending charge of possession of crack cocaine for sale.

The officers noted that the alcove smelled of urine. They did not see any drug paraphernalia or anything unusual, except a small amount of litter and the fact that three men were sitting on folding chairs. Officer Constantine had no reason to believe that the three men were urinating or littering in the alcove. Neither officer saw anything to make them believe defendant was engaging in any criminal activity. The complaints from the Baldwin Hotel employees to Officer Perez did not specifically mention defendant.

Officer Perez approached the three men and announced that the police had received complaints about persons loitering in the alcove. The officers asked the three men for identification. The men "cooperated fully." Defendant produced a driver's license, which Officer Constantine took to the patrol car to run a warrant check. The check revealed that defendant was on probation with a warrantless search condition. The warrant check of defendant took about one minute. During the warrant check, Officer Perez and two beat officers who had walked up were standing by defendant in the alcove.*fn1

Officer Constantine returned to the alcove and asked defendant why he was on probation. Defendant replied his probation was for a narcotics offense. Officer Constantine asked defendant the location of his car. Defendant gave conflicting information.

Officer Constantine then conducted a probation search of defendant's person, and found $216 in cash and the keys to a red 2009 Cadillac the officers had seen defendant drive in the area. The car was parked on the street nearby. Officer Constantine searched the car, and found 28 individually wrapped rocks of crack cocaine in the center console, and $2,000 in $20 bills in the glove compartment. Defendant was arrested.

The officers learned defendant's address and went to the house. A search of the residence revealed 100 individually wrapped rocks of cocaine base weighing 20.48 grams, 177 tablets of hydrocodone, and 241 tablets of oxycodone.

Defendant moved to suppress evidence at the preliminary hearing, arguing that the officers had detained him and there was no valid basis for the detention. The magistrate denied the motion, ruling as follows: [¶] "[I] need to look at the totality of the circumstances and determine whether there was reasonable suspicion that criminal activity was afoot back there on Sixth Street and to determine if the detention was justified.

"[¶] We're talking about the unit block of Sixth Street, which is the officers testified a notorious block. We are talking about officers responding to a citizen complaint of loitering in an alcove of a private building. We had more than loitering. We had folding chairs as I recall the testimony, and at least one of the people detained being there for some period of time on a folding chair. To me, the officers had no other choice but to investigate what was going on.

"[¶] This detention was the briefest of detentions. The running of the identity of the three gentlemen was justified under the circumstances, and what any reasonable officer would have done. Then, the warrantless search [condition] was discovered. So, based upon everything that I heard regarding the detention, I think it's a proper detention and the motion to suppress is denied."

The People filed an information charging defendant with two counts of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) (counts 1 and 2), and one count each of possession for sale of hydrocodone and oxycodone (Health & Saf. Code, § 11351) (counts 3 and 4).

Defendant moved to dismiss the information (Pen. Code, § 995) on the ground that the magistrate should have granted his motion to suppress, which would leave no evidence in support of the charges. Defendant argued that he had been detained when the officers took his driver's license, that there were no specific and articulable facts to justify an investigative detention, and the detention was unduly prolonged to conduct a warrant check.

The superior court denied the motion to dismiss. Defendant then pleaded guilty to count 1. The remaining charges were dismissed. The trial court sentenced defendant to state prison for three years, with credit for time served of 478 days.

II. DISCUSSION

Defendant contends that his detention was invalid because the officers did not have a reasonable suspicion that he was engaged in criminal activity, and that even if initially valid, the detention was unduly prolonged for the warrant check. Thus, he concludes, the evidence found in the Cadillac and the house should have been suppressed. We disagree because the detention was valid and was not unduly prolonged.

When a defendant makes an unsuccessful motion to suppress at the preliminary hearing, and seeks review in the superior court by a Penal Code section 995 motion, we review the superior court's denial of that motion under established principles. We review the determination of the magistrate at the preliminary hearing. (People v. McDonald (2006) 137 Cal.App.4th 521, 529 (McDonald).) We must draw all presumptions in favor of the magistrate's factual determinations, and uphold his express or implied findings if supported by substantial evidence. (Ibid.) In determining whether the challenged detention was reasonable, we review the factual determinations of the magistrate under the substantial evidence standard. (Ibid.; see People v. Carter (2005) 36 Cal.4th 1114, 1140 (Carter).) In determining the appropriate applicable law, and whether the detention was reasonable under the facts found by the magistrate, we exercise our independent review. (Carter, supra, at p. 1140; McDonald, supra, at p. 529.)

At the outset, we reject the Attorney General's contention that defendant's encounter with Officers Constantine and Perez was consensual, so that no detention occurred. Viewing the totality of the circumstances, the encounter started consensually; but with the surrendering of his driver's license, defendant was detained because the officers' conduct would have communicated to a reasonable person that he was not free to leave. (See In re Manuel G. (1997) 16 Cal.4th 805, 821.) Defendant had surrendered his driver's license to Officer Constantine, who took it to the patrol car for a warrant check. Meanwhile, Officer Perez and two other officers stood close to defendant in the alcove. A reasonable person would not have felt free to walk away under these circumstances. Thus, the encounter was not consensual and a detention occurred.

"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) As the Attorney General observes, the detainee's conduct does not have to be obviously criminal. "[W]holly lawful conduct might justify the suspicion that criminal activity was afoot . . . ." (Reid v. Georgia (1980) 448 U.S. 438, 441 [noting the lawful conduct described in the seminal case of Terry v. Ohio (1968) 392 U.S. 1, 5−7, 27−28].)

The totality of the circumstances are these: Officers Constantine and Perez knew well that the Sixth Street area was rife with drug use, street crime, public urination, and numerous other criminal offenses. Two days before the detention, Baldwin Hotel employees had complained of people using the alcove of a closed business to urinate, loiter, litter, and inject drugs. Officer Constantine had seen defendant sitting in the alcove earlier in the day and knew he was a registered sex offender and had been, and may still have been, charged with possession for sale of crack cocaine. The officers then came upon defendant and two other men sitting on folding chairs in the alcove, which smelled of urine.

The men were sitting―if not necessarily "loitering" within the strict legal definition of that term―in the alcove of a closed business that was being used for criminal acts. Even if the officers did not suspect defendant of any particular criminal activity, and the hotel employees did not identify defendant in their complaints, the officers were entitled to investigate the situation, particularly in light of defendant's status as a registered sex offender and possible charged criminal defendant. Thus, it was reasonable to briefly detain defendant and examine his identification.

The detention was not unduly prolonged by the warrant check. There is no fixed time limit for a constitutionally valid detention. (People v. Gomez (2004) 117 Cal.App.4th 531, 537.) A valid detention becomes constitutionally invalid when it is prolonged beyond what is reasonably necessary under the circumstances. (People v. Russell (2000) 81 Cal.App.4th 96, 101−102.) Here, the officers knew defendant was a registered sex offender and had been charged with a serious drug offense. They were entitled to detain defendant for a brief minute to ensure he was legally entitled to be at liberty. The officers' behavior was reasonable under the circumstances.*fn2

III. DISPOSITION

The judgment is affirmed.

We concur: Dondero, J. Banke, J.


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