Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick T. Meyers, Judge., Los Angeles County Super. Ct. No. VA092656.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KITCHING, J.
Milton Hasley appeals from the judgment entered following his conviction by jury of possession of marijuana for sale (Health and Saf. Code, § 11359), following the denial of a suppression motion (Pen. Code, § 1538.5). The court sentenced him to prison for two years. Appellant claims the trial court erred by denying the suppression motion. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on October 6, 2005, appellant possessed marijuana for sale in Los Angeles County.
CONTENTION
Appellant contends a sheriff’s deputy unlawfully detained appellant and, as a result, appellant’s incriminating admission to the deputy was a product of the illegal detention, and appellant’s consent to search a vehicle was involuntary.
DISCUSSION
The Trial Court Properly Denied Appellant’s Suppression Motion.
1. Pertinent Facts.
a. Suppression Evidence.
Viewed in accordance with the usual rules on appeal (People v. Leyba (1981) 29 Cal.3d 591, 596-597), the evidence established that about 8:40 p.m. on October 6, 2005, uniformed Los Angeles County Sheriff’s Deputy Tony Guerrero was driving a marked patrol vehicle. At that time, Guerrero received a call to go to 1408 99th Street in Los Angeles. Guerrero testified he responded to the location because he received a call that there were “multiple gang members loitering . . . in that area.” According to Guerrero, this was a violation of Los Angeles County Code section 13.44.010. Before Guerrero arrived at the location, an officer in a sheriff’s helicopter at the location gave Guerrero information about a particular vehicle.
That section states, in pertinent part, “Prohibited acts. A. It is unlawful for any person who is a member of a ‘criminal street gang’ as that term is defined in California Penal Code Section 186.22(f) or who is in the company of or acting in concert with a member of a criminal street gang to loiter or idle in a ‘public place’ as defined in Section 13.44.010 B under any of the following circumstances: [¶] 1. With the intent to publicize a criminal street gang’s dominance over certain territory in order to intimidate nonmembers of the gang from entering, remaining in, or using the public place or adjacent area; [¶] 2. With the intent to conceal ongoing commerce in illegal drugs or other unlawful activity. [¶] B. For purposes of this chapter, a ‘public place’ means the public way and any other location open to the public, whether publicly or privately owned, including, but not limited to any street, sidewalk, avenue, highway, road curb area, alley, park, playground or other public ground or public building, any common area of a school, hospital, apartment house, office building, transport facility, shop, privately owned place of business, to which the public is invited, including any place of amusement, entertainment, or eating place. Any ‘public place’ also includes the front yard area, driveway and walkway of any private residence, business, or apartment house. [Citation.]” Section 13.44.040 states, “Penalty. Violation of this chapter shall be punishable by a fine not to exceed $500.00 or by imprisonment not to exceed six months, or both. [Citation.]”
When Guerrero arrived, the helicopter was at the scene and Guerrero asked for backup. Guerrero saw four Black males standing in the middle of the street at 1408 99th Street. The street contained two lanes, one for each direction of traffic. Guerrero testified the area was a residential area populated with gang members, and there was a very large gang, the 99th Street Mafia, “that occupies that street.” He also testified there had been many illegal shootings in the area and it was a high crime block. Guerrero testified he could not tell exactly what the four males were wearing or the color of their clothes. He also testified the neighborhood was a gang neighborhood and “they all have different styles and clothing that they wear.”
Guerrero parked his patrol car perhaps 30 feet from the four males. He illuminated them with his high beams and a spotlight. Guerrero ordered the males to put their hands up. Deputies called the four males to come to the deputies. Seconds later, Guerrero saw a van parked on the south side of the street against the curb. The van’s doors were closed. The van was 20 feet south of the four males, and perhaps 30 feet slightly southwest of Guerrero.
Appellant was standing on the curb behind the back of the van, on its passenger side. Guerrero had not seen appellant exit the van. Guerrero testified appellant was moving from side to side, “maybe from his midtorso up,” (sic) as Guerrero and other deputies tried to look around the van and through its glass windows. Appellant moved sideways in this manner perhaps three or four times. Guerrero also testified that appellant was “just moving his upper torso from side to side as he was attempting to move or walk or conceal himself.” Guerrero further testified appellant was moving around for about 15 seconds. Appellant was looking at Guerrero, and Guerrero saw appellant duck a couple of times. Appellant was very close to Guerrero, perhaps at least 50 or 60 feet away. Another police unit had arrived by the time Guerrero made these observations.
Guerrero did not remember what appellant was wearing that night, but Guerrero was certain it was documented on appellant’s booking slip. After Guerrero’s memory was refreshed by the booking slip, Guerrero testified appellant was wearing a blue and white shirt, blue pants and brown shoes. Appellant’s counsel asked Guerrero whether appellant was wearing gang attire. Guerrero testified he could not recall what appellant’s clothing looked like, and that all Guerrero remembered was what was documented on the booking slip.
Guerrero testified he had been a police officer for nine years, and he had an opinion as to what gang attire was. The following then occurred during cross-examination: “Q Did Mr. Hasley, based upon his booking sheet, wear what you would describe as gang attire? [¶] A Well, once again, it’s not described in detail what exactly he was wearing, but the color blue is a color that they wear on that street.” Guerrero did not remember whether the other four males were wearing blue.
Once Guerrero saw appellant, Guerrero and other deputies called appellant over. Guerrero testified appellant had been watching all this, and had not run away. Guerrero also indicated everyone had been in very close proximity to each other.
After Guerrero and other deputies called appellant over, Guerrero walked towards appellant, told him to show his hands to Guerrero, and instructed him to walk towards the police car. Guerrero testified Guerrero did so for officer safety reasons, he wanted to see what was back there, and perhaps appellant was trying to conceal something. Guerrero also testified he called appellant over to the patrol car where the four males were. Guerrero testified during cross-examination that he asked appellant to approach Guerrero, and appellant did so. All five males were instructed to put their hands on the front of the patrol car. Guerrero testified this was done for officer safety reasons.
Guerrero instructed his partner to conduct a patdown search of the five males but his partner recovered nothing. Guerrero testified his partner obtained the males’ information, appellant did not have any identification, and appellant told Guerrero that appellant’s identification was inside the van. Guerrero also testified appellant said his identification was “inside the van that he possessed.” According to Guerrero, appellant was detained at the time Guerrero spoke to appellant about his identification in the van. Guerrero asked appellant permission to enter the van, and appellant consented.
At some point before Guerrero headed towards the van, he asked appellant if there was anything illegal inside the van. Appellant replied yes, and said there were a few bags or baggies of marijuana. Guerrero testified he proceeded to enter the van to recover appellant’s identification. Guerrero later testified he proceeded to enter the van, he gained access through the sliding door, and once he opened the door, he saw in plain view a clear plastic baggy which contained smaller baggies. The large baggy was directly behind the driver’s seat on the floor. The door Guerrero opened was the unlocked sliding door on the van’s passenger side. Inside the large, clear plastic baggy were 33 smaller baggies containing marijuana and 13 empty baggies. Guerrero found no identification in the van. Perhaps five minutes passed from the time Guerrero arrived at the scene to the time he entered the van. Appellant was not handcuffed. Neither Guerrero nor his partner pointed a gun at the five males.
After Guerrero searched the van, he returned to appellant and placed him in the patrol car. Guerrero then advised appellant of his Miranda rights, appellant indicated he understood them, and Guerrero asked him questions. Appellant told Guerrero that the marijuana was appellant’s and that appellant “sells a few.”
(Miranda v. Arizona (1966) 384 U.S 436 [16 L.Ed.2d 694].)
Ten minutes after appellant was placed in the patrol car, Guerrero determined that the van was registered in the name of someone other than appellant. Appellant had told Guerrero that the car was appellant’s and that he had recently purchased the vehicle.
Guerrero testified during cross-examination that he received a call about gang members loitering around the area, he absolutely believed there was a threat to his safety, and that was the reason he had detained the five males.
b. Suppression Proceedings.
Appellant moved to suppress evidence pursuant to Penal Code section 1538.5, in part on the ground that he was unlawfully detained. At the hearing on the motion, after argument, the court discussed case law, then stated, “among other factors that the court has taken into account, . . . are that the defendant was initially in close proximity to the subject van. The van was unlocked. The observed movements of the defendant give rise to an inference of his at least wanting to observe the officers and others without being observed.
“And the presence of the airship and the arrival of the second unit at or about the time that the defendant was observed seem to the court noteworthy in this respect. Certainly, [this] would complicate one trying to be unobserved. . . .
“The area was known for a high incidence of criminal activity. The defendant was patted down along with others. Nothing was recovered or noted with respect to any of the persons detained with respect to bulges, et cetera. There was no I.D. reportedly on the defendant. The I.D. was claimed by him to be in his van, connecting him with the van.
“Asked if there was anything illegal in the van. He stated, yes, a few bags or -- bags or baggies of marijuana, consented to the search of the van. [Sic.] Baggies containing what resembled marijuana were observed in plain sight in the van.
“He was Mirandized. He stated the marijuana in the van was his. The vehicle was registered to someone other than the defendant. The vehicle was recently purchased by the defendant per the defendant per the officer.
“The [defense] argument is that this doesn’t make sense. There is no evidence offered to undermine the evidence presented other than the argument, which is not evidence, that it just doesn’t make sense. I don’t find it so outlandish that that [defense] argument is terribly persuasive to the court. [¶] Based on the evidence presented, the motion is denied.”
2. Analysis.
Appellant claims Guerrero illegally detained him and, as a result, his admission that there was marijuana in the van should have been excluded and was involuntary, his consent to search the van was invalid, and therefore, the marijuana should have been suppressed. We disagree.
A person is “seized” within the meaning of the Fourth Amendment only when the person is physically restrained or voluntarily submits to a peace officer’s show of authority. (People v. Johnson (1991) 231 Cal.App.3d 1, 10-11; People v. Arangure (1991) 230 Cal.App.3d 1302, 1307.) The requisite show of authority exists when a reasonable person would believe that the person was not free to leave. (People v. Johnson, supra, 231 Cal.App.3d at pp. 10-11; People v. Arangure, supra, 230 Cal.App.3d at pp. 1305-1308.)
A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts which, considered in light of the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) Moreover, if an objectively reasonable basis for a detention exists, whether an officer actually relies on that basis to detain, and the officer’s subjective intent or motivation in detaining, are irrelevant. (Cf. People v. Valencia (1993) 20 Cal.App.4th 906, 915-916; People v. Miranda (1993) 17 Cal.App.4th 917, 923-926; People v. Uribe (1993) 12 Cal.App.4th 1432, 1435-1438.)
We assume without deciding that Guerrero detained appellant as early as when (1) Guerrero told him to show his hands and instructed him to walk towards the police car, and (2) appellant walked towards the police car. However, in the present case, Guerrero testified he received a call, at 8:40 p.m., about gang members loitering around the area, he absolutely believed there was a threat to his safety, and that was ultimately the reason he had detained the five males. He had received a call that the loitering was occurring in the area of 1408 99th Street. He noted the loitering violated Los Angeles County Code section 13.44.010.
Indeed, we will assume without deciding that Guerrero detained appellant when Guerrero told him to show his hands, although Guerrero did not explicitly testify whether appellant complied with that direction.
When Guerrero arrived at the location, he saw four Black males standing, not on the sidewalk, but in the middle of the street. The area was a gang neighborhood, and the 99th Street Mafia, a very large gang, “occupie[d] that street.” There had been many illegal shootings in that area, which was a very high crime block. The above facts provided an objective manifestation that the four males could have been criminal street gang members loitering or idling in a public place, intending to publicize the gang’s dominance over certain territory to intimidate nonmembers from entering, remaining in, or using the public place. Accordingly, Guerrero ordered the four males to put their hands up and approach the deputies, and the four males put their hands on the patrol car.
An officer in the helicopter had called Guerrero’s attention to a particular vehicle. Appellant had been standing behind a van, 20 feet directly south of the four males. The street was a two-lane street, and Guerrero testified “We were all very close.” Appellant was wearing a blue and white shirt, blue pants, and brown shoes. Guerrero, asked whether, based on the booking sheet, appellant was wearing gang attire, testified “blue is a color that they wear on that street.” Guerrero reasonably could have suspected appellant was a member of the criminal street gang, or at least was in the company of a member(s) of the criminal street gang, that is, the four males.
Appellant was behind the van and moving side to side as Guerrero and other deputies were trying to look around the van and through its windows. Guerrero testified appellant was trying to move or walk or conceal himself. Appellant was looking at Guerrero, and Guerrero saw appellant duck a couple of times. Guerrero testified that when he called appellant over from the van and appellant complied, Guerrero did so for officer safety and “[w]anted to see what was back there. Maybe [appellant] might be trying to conceal something.” Appellant had engaged in furtive conduct evidencing consciousness of wrongdoing, from which, under the circumstances, Guerrero reasonably could have suspected appellant possessed contraband or a weapon.
Guerrero pointed to specific articulable facts which, considered in light of the totality of the circumstances, provided an objective manifestation that appellant might have been involved in a violation of Los Angeles County Code section 13.44.010; therefore, Guerrero lawfully detained appellant. Appellant’s arguments that (1) his admission that there was marijuana in the van should have been excluded and was involuntary, (2) his consent to search the van was invalid, and therefore, (3) the marijuana should have been suppressed, are based on the premise that Guerrero illegally detained him. We reject that premise.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.