IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
January 17, 2013
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHRISTOPHER JOHN TROTTER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F4986 10F4939)
The opinion of the court was delivered by: Blease , J.
P. v. Trotter
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In case No. 10F4986, after his motion to suppress was denied, defendant entered a plea of no contest to driving under the influence of alcohol (DUI), having previously been convicted three or more times of DUI within 10 years, and admitted violating probation in case No. 10F4939, in exchange for a stipulated state prison sentence of two years eight months and the dismissal of the remaining counts and allegations. The court sentenced defendant accordingly.
Defendant appeals, challenging the denial of his suppression motion. We will affirm.
At the suppression hearing, Deputy Sheriff Jim Moser testified that in the evening on November 6, 2010, while on patrol, he saw defendant driving an older-model white car at a four-way stop at the intersection of Tom Bell Road and Main Street in Murphys. The deputy began following defendant and attempted to close in to check the car's registration but was never able to do so. Defendant drove into a gas station and the deputy parked across the street and watched for 10 minutes while defendant and his passenger, later identified as his son, pumped some gas and went inside the store. Deputy Moser was unable to see who drove the white car away from the gas station.
Deputy Moser followed the white car. About an eighth of a mile later, the car turned down a street off of Highway 4 but the deputy did not follow because it was a short, dead-end street. Instead, the deputy proceeded on Highway 4 but turned around and as he drove past the dead-end street, the car was approaching the stop sign. The car turned onto Highway 4 but Deputy Moser was unable to turn around and follow because of traffic. Deputy Moser radioed Deputy Sheriff Chad Poortinga reporting that he believed the white car's driving pattern was suspicious and an attempt to avoid him. Deputy Moser had not made any attempt to stop the white car.
About 10:00 p.m., Deputy Poortinga saw a white car which matched Deputy Moser's description. By the time Deputy Poortinga turned around to follow the white car, it appeared to have "gained more distance" than he would have expected. Without signaling, the car turned into a closed business, the Sam Berri Tow yard. Deputy Poortinga said he was about one-quarter of a mile behind and the traffic was very light. The deputy pulled into the tow yard and saw the car parked in the parking lot with its lights off. The deputy had been on patrol in the area for two years and it was suspicious to see cars parked at the tow yard at that time of night. The deputy did not attempt a traffic stop - he never activated his red lights or siren.
Deputy Poortinga spotlighted the car and saw defendant and his son walking away from the car, towards a grass field. They were a few yards away from the car. The deputy thought it was unusual and suspicious that a car would quickly park and turn its lights out at a closed business, and the occupants walk away in a dark parking lot. Defendant turned around and walked back towards his car with his hands in his pockets. The deputy directed defendant to remove his hands from his pockets and to approach the patrol car. Defendant and his son complied. The deputy patsearched defendant "[t]o make sure he didn't have any weapons or anything dangerous on him." Defendant said that he and his son were hitchhiking to Sheep Ranch.
When Deputy Moser arrived shortly thereafter, defendant was acting agitated, irate, and upset. According to Deputy Poortinga, he and Deputy Moser determined that defendant had been drinking alcohol and contacted the California Highway Patrol (CHP). CHP Officer Rod McNally arrived within 30 minutes and arrested defendant for DUI.
In his written motion, defendant argued "Deputy Poortinga had no probable cause to stop or detain the occupants of the vehicle" and that defendant had done nothing to warrant his detention. Defendant claimed neither deputy "witnessed any criminal activity on the part of the defendant." He asserted that all evidence obtained as a result of his unlawful detention must be suppressed as "fruit of the poisonous tree." He also asserted that "all evidence seized as a result of the arrest which followed from his unlawful detention is inadmissible as fruit of the poisonous tree."
In its written response, the prosecution asserted that defendant's detention was reasonable, arguing that there was no traffic stop of defendant's car and that Deputy Poortinga observed a traffic violation (turning without signaling), had a report from Deputy Moser of suspicious driving, and made his own observations, which justified the detention.
At the hearing, the prosecutor argued that Deputy Moser's observations of the car led him to suspect the car was trying to avoid him and radioed Deputy Poortinga. The prosecutor stated that Deputy Poortinga saw the car turn without signaling into a closed business's parking lot, park, turn its lights off, and saw the occupants walk away from the car. The prosecutor argued that it was reasonable for the deputy to briefly investigate, so he put the spotlight on the two who were walking away. Deputy Poortinga said nothing to either person but defendant turned and walked back towards the deputy with his hands in his pockets. At that point, Deputy Poortinga called defendant to the patrol car and told him to take his hands out of his pockets. The deputy conducted a patdown for weapons. The prosecutor argued that the deputy's actions were reasonable and that the CHP who was then called concerning a possible DUI arrested defendant.
Defense counsel argued that Deputy Moser profiled defendant's car and radioed Deputy Poortinga but there had not been any criminal activity, that Deputy Poortinga detained and patsearched defendant but there had not been any criminal activity, and that it became a prolonged detention when the deputies called the CHP officer who took 30 minutes. Defense counsel also argued that the CHP officer did not testify concerning probable cause for defendant's arrest, that is, field sobriety tests, a preliminary alcohol screening (PAS) device test, or a blood test.
Citing the statement of facts in defendant's suppression motion, the prosecutor responded that defendant had challenged the initial detention and had not challenged his arrest or the determinations of CHP Officer Rod McNally.
Defense counsel stated it was not his intent to mislead by his factual statement in the motion but that he was seeking to suppress "anything and everything." The prosecutor stated that he did not question what defendant wanted suppressed but did question the grounds and reiterated that defendant had only argued the detention.
The court queried, "[O]nce the defendant had been . . . patted down and nothing was found, what justifies the continued detention between that time and the time the CHP officer got there, that is the question I have." Defense counsel agreed with the court, stating, "[T]hat is exactly why we brought this motion. I believe they needed Officer McNally here to put that evidence on. They didn't call him today, so they have not met their burden, Your Honor." Although stating it was not yet ruling, the court commented that the initial detention appeared to be justified but there was no evidence justifying the continued detention. Over defense counsel's objection, the court granted the prosecutor's request to reopen.
Deputy Moser was recalled to testify. After talking with defendant, the deputy determined that defendant had been driving under the influence of alcohol. The deputy described his experience and training with identifying persons under the influence of alcohol. He noticed that defendant smelled of alcohol. He and the other deputy called CHP to the scene to conduct a further evaluation. While waiting for the CHP officer, Deputy Moser put the handcuffed defendant into Deputy Poortinga's patrol car for officer safety reasons. Deputy Moser also looked into the white car and saw unopened alcoholic beverage containers. At some unspecified time, but "later," Deputy Moser searched the white car. He then testified that he believed that he did not conduct a search.
The court determined that Deputy Moser's initial observations and Deputy Poortinga's observation that the car gained some distance from him were subjectively indicative of suspicious activity as well as consistent with lawful activity. The court found that an investigative detention was justified when the car turned into the darkened, closed business without signaling, turned its headlights off, and the occupants walked away from the car. Although the conduct may have been completely innocent, the court determined that such conduct was "indicative of something criminal going on." The court found defendant was detained when the deputy asked defendant to take his hands out of his pockets and to approach the patrol car. Under the circumstances, the court found Deputy Poortinga's detention and patdown of defendant was reasonable and based on specific and articulable facts. The court found the continued detention and subsequent arrest of defendant was justified when the deputy noticed the "odor of alcohol on [defendant's] breath."
In reviewing a ruling on a motion to suppress, we defer to the trial court's express or implied factual findings when supported by substantial evidence and, based thereon, determine independently whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser); People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
"A detention occurs '[o]nly when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . .'" (In re Randy G. (2001) 26 Cal.4th 556, 562.) "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 (Souza); People v. Wells (2006) 38 Cal.4th 1078, 1083.) Further, "'[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .' [Citation.]" (Souza at p. 233.)
The reasonable suspicion requirement is measured by an objective standard, not by the officer's subjective suspicion. (Graham v. Connor (1989) 490 U.S. 386, 397 [104 L.Ed.2d 443, 456].) Thus, the circumstances known or apparent to the officer "must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question." (In re Tony C. (1978) 21 Cal.3d 888, 893, fn. omitted; United States v. Arvizu (2002) 534 U.S. 266, 273-274 [151 L.Ed.2d 740, 749-750]; Souza, supra, 9 Cal.4th at pp. 230-231.)
The trial court found defendant was detained within the meaning of the Fourth Amendment when Deputy Poortinga directed defendant to approach the patrol car and to take his hands out of his pockets. Defendant contends his initial detention was not supported by reasonable suspicion that he was about to commit a crime. Assuming for the sake of argument that what happened here was a detention rather than a consensual encounter, we conclude that the trial court properly determined that it was reasonable under the totality of the circumstances.
Based on defendant's driving pattern, Deputy Moser believed defendant was attempting to avoid the deputy. When Deputy Poortinga turned to follow the white car, the car had gained more distance than he would have expected. "[F]light from police is a proper consideration -- and indeed can be a key factor -- in determining whether in a particular case the police have sufficient cause to detain." (Souza, supra, 9 Cal.4th at p. 235.) Defendant added to their suspicions by turning, without signaling, into a dark parking lot of a closed business, parking, turning the headlights off, and walking away from the car towards a field. The turning without signaling, whether a Vehicle Code violation or not and whether defendant was cited for the same or not, was a factor to consider in the totality of the circumstances. The parking lot was dark and it was unusual, in Deputy Poortinga's experience, for anyone to park there at that time of night. Further the occupants were walking away from the car, towards the field. While each of these factors can be explained away individually, considered together they warranted a brief detention of defendant to ascertain his intentions at the closed business, notwithstanding that his presence in the area may have been entirely innocent and lawful. (Souza, supra, 9 Cal.4th at p. 233; People v. Foranyic (1998) 64 Cal.App.4th 186, 189.)
The trial court properly determined that defendant's conduct, although consistent with innocent behavior, did not negate the existence of reasonable suspicion of criminal activity. It was reasonable for the officer to investigate defendant's intentions at the closed business. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145-149.)
Defendant challenges the patsearch, arguing there was no basis for believing he was armed or could destroy evidence. Defendant concedes that nothing was obtained as a result of the patsearch and thus "there was no prejudice." He raises the point "to demonstrate that each step taken by these deputies was unlawful."
Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (Terry) held that an officer has the authority to conduct a patdown search for weapons where that officer has reason to believe a suspect is armed and dangerous. The test is "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." (Id. at p. 27; see also People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.) "'"The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence . . . ." [Citation.]'" (People v. Limon (1993) 17 Cal.App.4th 524, 534.) "The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. 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.)
Deputy Poortinga did not stop defendant's car. Instead, the deputy pulled into the parking lot and spotlighted the car. Before the deputy could say anything, defendant walked back towards his car with his hands in his pockets. The deputy was investigating reports (by Deputy Moser) and observed suspicious driving by defendant. Deputy Poortinga was alone in the dark parking lot with two detainees one of whom had had his hands in his pockets. The deputy was reasonably justified to conduct a brief patdown search of defendant for weapons for officer safety reasons in order to pursue his investigation without fear of violence. (Terry, supra, 392 U.S. at pp. 24-27 [20 L.Ed.2d at pp. 907-909].) As defendant acknowledges, no evidence was obtained.
Defendant's continued detention was justified by his misleading statement that he was hitchhiking to Sheep Ranch, his agitated state, and the fact that both deputies smelled alcohol on defendant. Based on his training and experience in the past with drivers who had been under the influence of alcohol, Deputy Moser considered defendant to have been driving under the influence of alcohol after having seen him driving, talked to him, and smelled the odor of alcohol coming from his person. Also, defendant was agitated, irate, and upset. Defendant's continued detention was reasonable under the circumstances.
Defendant contends he was arrested without probable cause when Deputy Moser handcuffed him and put him in the patrol car. Defendant was not arrested at that time but was instead further detained. "[T]he length of the detention is only one circumstance [and] its brevity weighs heavily in favor of a finding of reasonableness." (Glaser, supra, 11 Cal.4th at p. 367.) The deputies were waiting for the CHP officer to arrive and conduct a further evaluation before formally arresting defendant. The CHP officer arrived within 30 minutes and arrested defendant for DUI. Deputy Moser's opinion of defendant's intoxication and his pursuit of confirmation by CHP justified defendant's continued detention. (People v. Gorak (1987) 196 Cal.App.3d 1032, 1037-1038.)
Defendant also contends the deputies illegally searched his car and found unopened alcoholic beverage containers which did not constitute "evidence to support any charges." He claims he raises the issue "to demonstrate that every step taken by these deputies violated [defendant's] Fourth Amendment rights against unreasonable search and seizure." This ground was not raised in the motion or argued at the suppression hearing and cannot be raised for the first time on appeal. (People v. Williams (1999) 20 Cal.4th 119, 129-131.) In any event, we find no constitutional violation. Deputy Moser testified he "later" searched the car and found unopened alcoholic beverage containers. He also testified he looked into the car and saw these containers which suggests they were in plain view. He then testified he did not believe he conducted a search. While this testimony is ambiguous, a search of the vehicle incident to defendant's arrest for DUI was valid because it was reasonable to believe that evidence relevant to his crime might be found in the car. (Arizona v. Gant (2009) 556 U.S. 332, 335, 343-344 [173 L.Ed.2d 485, 491, 496]; People v. Evans (2011) 200 Cal.App.4th 735, 750; People v. Nottoli (2011) 199 Cal.App.4th 531, 551-554.) Although unopened, there were alcoholic beverage containers in the car, evidence relevant to defendant's DUI offense.
Finally, defendant contends that the prosecutor failed to call the CHP officer who arrested defendant to establish probable cause for the arrest. Defendant claims he raised the issue of his illegal arrest, citing a statement in his written motion under the section, "Items to be Suppressed." The statement provides that defendant sought to suppress "[a]ny and all evidence" which was the "fruit of the defendant's illegal detention, search, or arrest." (Italics added.) He did not state "illegal arrest" as he suggests in his reply brief. Further, this language appears under the heading of items to be suppressed, not the grounds for suppression. He did not specify as a ground that there was not any probable cause for his arrest. Further, he had asserted under the grounds that "all evidence seized as a result of the arrest which followed from his unlawful detention is inadmissible as fruit of the poisonous tree."
Defendant also cites the discourse at the hearing in support of his claim that he raised an illegal arrest as a ground. We disagree.
The discourse between counsel and the trial court reflects that defense counsel believed the evidence was insufficient for the prolonged detention. The prosecutor recalled Deputy Moser who testified that based on his training and experience, he determined that defendant had been drinking and driving, the CHP officer was contacted to further evaluate, and that defendant was arrested for DUI by the CHP officer.
The specific ground of probable cause for his arrest was not raised in defendant's written motion as the prosecutor complained or at the suppression hearing. Defendant cannot wait until appeal to raise an issue. (Williams, supra, 20 Cal.4th at pp. 129-131.)
To forestall an ineffective assistance of counsel claim, defendant cannot demonstrate prejudice from counsel's failure to raise probable cause to arrest as a ground. CHP Officer McNally testified at the preliminary hearing that he arrived at the scene at about 10:10 p.m. and concluded that defendant appeared to be under the influence. Defendant had red, watery eyes and a significant odor of alcohol on his breath. Defendant was too agitated to understand the field sobriety tests. Although he admitted he had been drinking, he claimed he was not driving and that he had walked to the tow yard to get his car. His speech was slurred and "labored." Defendant was arrested. A search of his person revealed the keys to the car. A subsequent blood sample revealed defendant's blood alcohol content to be 0.21 percent. Any deficient performance on counsel's part was clearly harmless.
The judgment is affirmed.
We concur: RAYE , P. J. HULL , J.
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