IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LAVELL JOHNNY WRIGHT, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F07375)
The opinion of the court was delivered by: Blease , J.
P. v. Wright
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his suppression motion at his preliminary hearing was denied, defendant Lavell Johnny Wright pleaded no contest to possession of marijuana for sale. (Health & Saf. Code, § 11359.) He later withdrew the plea and resubmitted the suppression motion to the trial court sitting as a superior court. (See Pen. Code, § 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 895-897.) When the motion was again denied, defendant reentered the no contest plea. Imposition of sentence was suspended and defendant was placed on probation for five years with conditions including 90 days of incarceration with credit for three days.*fn1
On appeal, defendant contends the warrantless search of his person was not supported by probable cause and his admission that he had marijuana on his person was the fruit of an "unlawful search that was about to occur." We shall affirm the judgment.
FACTS FROM SUPPRESSION HEARING
On September 30, 2009, at approximately 4:20 p.m., Sacramento Police Officer Adam Feuerbach was working as a School Resource Officer at Kennedy High School in Sacramento County. A gardener at a nearby apartment complex flagged down Feuerbach and told him that several juveniles were smoking marijuana at an intersection. Feuerbach went to the area and saw several people huddled together behind a wrought iron fence at the apartment complex. While still outside the fence, Feuerbach called out to defendant and asked him to come over.
Defendant walked toward Officer Feuerbach, staying behind the wrought iron fence. When defendant reached him, Feuerbach observed that defendant smelled of marijuana; his eyes were red, bloodshot, and watery; and he appeared to be under the influence of marijuana. At Feuerbach's request, defendant came around to the other side of the fence. He was wearing a backpack that he, or Feuerbach, removed. Based on defendant's behavior, the odor of marijuana on his person, and his red, bloodshot, and watery eyes, Feuerbach concluded that defendant was under the influence of marijuana.
Officer Feuerbach placed defendant in a "standing modified position," which involved placing defendant's hands on top of his head and Feuerbach's hand on top of defendant's hands. Feuerbach next asked defendant if he had "anything illegal, guns, knives, needles, anthrax, dynamite, or narcotics" on his person. Defendant answered that he had some baggies of marijuana in his pants pocket.
Officer Feuerbach searched defendant's person and found three "dime size"*fn2 baggies of marijuana in his front right pants pocket, another baggie of marijuana in his lower right pants pocket, and a vial on his belt buckle containing marijuana stems and marijuana "shake." The parties stipulated that a total of 6.37 grams of marijuana, a useable amount, was recovered from defendant.
After "detaining" defendant, Feuerbach searched defendant's backpack and found $69 in cash, a silver knife, two smoking pipes with marijuana residue, a marijuana grinder, 112 empty narcotics baggies, a nail file, a handkerchief, a plastic baggie with marijuana residue on it, two letters, a hookah pipe (water pipe), and a film canister that contained marijuana. In defendant's pants pocket, Feuerbach found a cellular telephone that contained several text messages related to the sale of marijuana.
Officer Feuerbach later spoke to C.L., whom Feuerbach recognized as a member of the group that had been with defendant. C.L. told Feuerbach that the group had been smoking a marijuana joint that one of his friends had purchased from defendant. C.L. acknowledged that defendant had sold them marijuana in the past. Based on the items recovered from defendant's person and backpack, Feuerbach opined that defendant had possessed the marijuana for the purpose of sale.
On cross-examination, Officer Feuerbach admitted that he had no reason to believe defendant was armed and that defendant had cooperated with him until, and including, the point when defendant was placed in the standing modified position. Feuerbach did not recall defendant telling him that he was waiting for his fiancee. However, Feuerbach did recall defendant's fiancee arriving at the scene in her vehicle.
Defendant testified on his own behalf. He stated that he had been standing with a group for approximately eight minutes while waiting for his fiancee to take him to work. He did not observe any member of the group to be smoking marijuana. However, earlier in the day, he had been at the apartment of a friend who was smoking marijuana in a room that lacked ventilation. He acknowledged that, under those conditions, "everything in the room starts smelling a lot like marijuana . . . ."
Defendant testified that when Officer Feuerbach arrived at the apartment complex, everyone in the group dispersed and defendant began walking toward another friend's apartment. Feuerbach called out, "[h]ey you," and he addressed defendant as his "nineteen-year old compadre." Defendant confirmed that he knew Feuerbach from when he was a student at Kennedy High School. Defendant turned around to see whom Feuerbach was calling, and Feuerbach told defendant to come over and talk to him. Defendant walked through a hole in the fence. Feuerbach told him to raise his sunglasses and hand Feuerbach his backpack. Feuerbach placed the backpack on the trunk of his police car. Defendant's wallet remained in his pocket.
At Officer Feuerbach's request, defendant placed his hands behind his head. Feuerbach asked defendant if he had anything on him, but defendant did not respond. Without performing any sort of patdown, Feuerbach stuck his hand into defendant's pockets and found the dime sacks of marijuana.
Defendant denied smoking marijuana with C.L. on September 30, 2009. Defendant remembered the events of the day very clearly because it was the first and only time he had been searched by a police officer.
On cross-examination, defendant denied smoking marijuana at the friend's apartment. Defendant explained that he had not walked away from Officer Feuerbach because Feuerbach had called out to him and stated that he wanted to talk. Defendant admitted that Feuerbach did not handcuff him when Feuerbach told him to put his hands behind his head. Nor did Feuerbach threaten him or point weapons at him.
After hearing argument from the parties, the trial court denied the suppression motion, explaining: "I think [Officer Feuerbach] did precisely what he was entitled to do, perhaps, not in the way [defense counsel] would have had him do it. [¶] [M]y reading of the testimony before me is that [Feuerbach] received information from a concerned citizen. We actually know who that person is. It was a custodian [sic] at the area indicating that there was something, a group of youth[s] utilizing marijuana. That was significant enough that he reported it to [Feuerbach, who] followed up. [¶] [Feuerbach] went there and engaged in what was initially a consensual encounter with [defendant], where he said come here. [Defendant] says he wanted to talk to me. Went over there and started to talk to him. [¶] When he got close enough to talk, [Feuerbach] had additional information that [defendant] smelled of marijuana. Perhaps, from smoking marijuana previously, [or perhaps] from being in a place [that lacked ventilation]. [¶] But the officer didn't have any idea of what the reason is. But he now has information that people are out smoking marijuana, [defendant] smells of marijuana, he asked [defendant] to come around so he can talk. He determines that [defendant] is under the influence of marijuana based on his observations, and asked [defendant] if he has anything on his person. He says marijuana in my pocket. [Feuerbach] searches and retrieves it. [¶] You can't -- this always layering on itself. It's a very fluid situation for a law enforcement officer. And while [defendant] probably would have been within his rights to keep walking and walked into the complex and that may have been the end of it. [¶] If [Feuerbach had] run him down and turned what was a consensual encounter into something else, he might be on certainly a better footing. [¶] But in the way this particular thing played off, there were layers of information that [Feuerbach] legitimately received, and each of those layers permitted him to go further in his, what you call a detention. What was initially an encounter went into a detention, went into that gray area between a detention and arrest, and ultimately turned into arrest when other things were recovered. [¶] And I don't find anything that [Feuerbach] did to be inappropriate under the Fourth Amendment, and, certainly, not inappropriate to the degree that it would warrant a suppression of evidence."
Defendant contends the denial of his suppression motion was error because the search of his person was unreasonable under the Fourth Amendment to the United States Constitution. In particular, he argues his detention amounted to a de facto arrest that was not supported by probable cause and thus does not support a search incident to arrest. In a supplemental brief, defendant contends that, if his detention did not amount to an arrest, then no search incident to arrest was authorized. We conclude probable cause supported defendant's arrest, which in turn authorized the search of his person.
"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.)
There are three categories of police contacts with individuals: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty. (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
An encounter is consensual, and requires no reasonable suspicion, "[a]s long as a reasonable person would feel free to disregard the police and go about his or her business . . . ." (Manuel G., supra, 16 Cal.4th at p. 821.) A detention occurs when an officer restrains a person's liberty "by means of physical force or show of authority . . . ." (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [20 L.Ed.2d 889, 905].)
A detention for the purpose of investigating possible criminal activity is less intrusive than an arrest and therefore may be based on "'some objective manifestation'" that criminal activity is afoot and that the person to be stopped is engaged in that activity. (People v. Souza (1994) 9 Cal.4th 224, 230, quoting United States v. Cortez (1981) 449 U.S. 411, 417 [66 L.Ed.2d 621, 628].) "'[T]he totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.' [Citation.]" (Souza, at p. 230, quoting Cortez, at pp. 417-418 [66 L.Ed.2d at pp. 628-629].)
In this case, the "'objective manifestation'" was the gardener flagging down Officer Feuerbach and telling him that several juveniles were smoking marijuana at an intersection. (People v. Souza, supra, 9 Cal.4th at p. 230, quoting United States v. Cortez, supra, 449 U.S. at p. 417 [66 L.Ed.2d at p. 628].) A citizen's report of criminal activity, given to an officer in a face-to-face communication, is a proper basis for an officer to formulate reasonable suspicion. (People v. Coulombe (2000) 86 Cal.App.4th 52, 59; see United States v. Valentine (3d Cir. 2000) 232 F.3d 350, 354, and cases cited.)
Because Officer Feuerbach had received the face-to-face tip before he located defendant in the group that the tip described, Feuerbach had reasonable suspicion from the outset of their encounter. It is not necessary to determine when during the encounter a reasonable person would have ceased feeling free to disregard Feuerbach and to go about his or her business. (Manuel G., supra, 16 Cal.4th at p. 821.)
Feuerbach's initial observations of defendant--the odor of freshly smoked marijuana; the red, watery, and bloodshot eyes; and his physical appearance of being under the influence--all suggested his recent ingestion of marijuana and thus further supported the detention. In his opening brief, defendant concedes that Feuerbach had reasonable grounds to detain him and investigate further.
As soon as defendant emerged from the wrought iron fence, Officer Feuerbach physically detained him by placing him in a "standing modified position" and asked if he had "anything illegal, guns, knives, needles, anthrax, dynamite, or narcotics" on his person. Although Feuerbach had no specific reason to believe defendant had a weapon or was armed, and thus had no basis to frisk him for weapons (Terry v. Ohio, supra, 392 U.S. at p. 27 [20 L.Ed.2d at p. 909]), Feuerbach was not precluded from making "reasonable inquiries," such as asking whether defendant had the specified items (id., 392 U.S. at p. 30 [20 L.Ed.2d at p. 911]).
Defendant argues his response to the inquiry, acknowledging the presence of marijuana in his pockets, "may hardly be considered voluntary." His authorities, Florida v. Royer (1983) 460 U.S. 491, 497 [75 L.Ed.2d 229, 236] (plurality opn. of White, J.) and Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, considered whether consents to searches of airport luggage were freely and voluntarily given. But the present search was not based on consent, and the voluntariness of defendant's response to Feuerbach's Terry inquiry is not at issue.
Because Officer Feuerbach's inquiry did not result from an unlawful detention, there is no merit to defendant's argument that his answer--his "purported admission that he had marijuana in his pockets"--is the tainted fruit of an unreasonable seizure.
Nor is there merit to defendant's argument that his admission occurred "after he had been informed that he would be searched, and was thus the fruit of the unlawful search that was about to occur." On cross-examination, Officer Feuerbach admitted that he subjectively had determined to perform a search before he asked his question about "anything illegal" in defendant's possession. But Feuerbach did not indicate that he communicated his subjective intent to search to defendant. Thus, in Feuerbach's version, defendant was not informed of the search until after he admitted that he had marijuana in his pockets.
Defendant testified that Feuerbach "told [defendant] that he'd search [defendant], and in a minute, he'd tell [defendant] why." Defendant admitted that, before Feuerbach reached into his pocket, Feuerbach asked defendant if he had anything on him. However, defendant claimed he "didn't respond to" Feuerbach's question, and Feuerbach immediately put his hands into defendant's pocket. Thus, in defendant's version, Feuerbach's remarks did not induce him to make any admission that he possessed marijuana.
Thus, neither version supports defendant's appellate argument that his admission was a fruit of the search that was about to occur (or, more precisely, a fruit of an expressed intent to conduct a search).
A seizure of a person that amounts to an arrest must be supported by an arrest warrant or by probable cause. "Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037.) In deciding whether probable cause exists, courts must examine the "totality-of-the-circumstances" at the time of the arrest. (Illinois v. Gates (1983) 462 U.S. 213, 233 [76 L.Ed.2d 527, 545].) "[P]robable cause is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules." (Id. at p. 232 [76 L.Ed.2d at p. 544].) There must be a "'"reasonable ground for belief of guilt"'" and that belief must be "'particularized with respect to the person to be . . . seized.'" (People v. Celis (2004) 33 Cal.4th 667, 673.)
When defendant admitted that he had marijuana in his pockets, Officer Feuerbach had probable cause to arrest him for the crime of possession of marijuana and to search his person for the substance.*fn3 Probable cause to arrest and search arose from the totality of circumstances: the report of persons smoking marijuana; the persons' flight when Feuerbach identified himself; the smell of marijuana on defendant's person; his bloodshot, red, watery eyes consistent with being under the influence of marijuana; and defendant's admission that he possessed marijuana. Thus, the search of defendant's person and his ensuing arrest complied with the Fourth Amendment.
Defendant's reliance on In re Antonio B. (2008) 166 Cal.App.4th 435, 442 and People v. Collier (2008) 166 Cal.App.4th 1374, 1377, in which the evidence fell short of the quantum necessary for probable cause to arrest, is misplaced.
Because the search of defendant's person was supported by probable cause, the only remaining issue is whether the search was properly conducted without a warrant. Defendant acknowledges that a warrantless search incident to arrest may precede a formal arrest if the two events are reasonably contemporaneous and if the fruits of the search are not necessary to supply probable cause for the arrest. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111 & fn. 6 [65 L.Ed.2d 633, 646].) Contrary to defendant's reply argument, the fruits of the search were not necessary to supply probable cause for the arrest in this case. Defendant's suppression motion was properly denied.
The judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.