Opinion
B192315
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. JOSE MENDEZ, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Defendant Jose Mendez appeals from a judgment of conviction entered after his motion to suppress tangible evidence (Pen. Code, § 1538.5) was denied and he pled no contest to unlawful possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He was granted probation and drug treatment under Proposition 36. He appeals, contending that his suppression motion should have been granted. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At the hearing on defendants suppression motion, Los Angeles County Sheriffs Deputy Michael Kurinij testified that around 3:00 a.m. on February 27, 2006, he and his partner, John Montenegro, were on patrol in a marked patrol car near the corner of Compton Boulevard and Aprilia Avenue in the City of Compton, when they saw defendant standing in front of a hotel. The hotel was known as a location where narcotics were used. Deputy Kurinijs attention was drawn to defendant because "he was standing out in front of the hotel at the late hour with no apparent reason." When Deputies Kurinij and Montenegro drove toward defendant, defendant began to walk away from the marked patrol vehicle toward the walkway or driveway of the hotel.
The deputies got out of their patrol car and approached defendant to "determine whether or not [defendant] was loitering in front of the hotel or if he had purposes to be at the hotel." When the deputies were at defendants side, they asked him if he was staying at the hotel. Defendant responded that a friend of his was staying there. The deputies "asked him the name of the friend and [defendant] was unable to give us a name. We then asked him what room the friend was staying in and he was unable to tell us what room the friend was staying." At that point, they detained him pending a "loitering and narcotics investigation." Loitering is prohibited by Compton Municipal Code section 7-14.3, and Deputy Kurinij believed defendant may have violated this law because he was "in an area of public domain with no purpose."
After detaining defendant, Deputies Kurinij and Montenegro asked defendant if he had anything on his person that they needed to know about. Defendant responded that he did not and that the officers could search him if they wanted to. The deputies searched him and found a small Ziploc bag in defendants jacket pocket. The bag contained methamphetamine.
At the suppression hearing, defendant argued that he was detained without probable cause and that the search of his person was a fruit of the improper detention. With respect to probable cause, defendant argued that his conduct clearly did not constitute loitering, and he had not done anything to arouse reasonable suspicion that he was engaged in narcotics activity.
The trial court rejected possible loitering as a valid basis for the detention, noting that the loitering ordinance had been read to the court by defense counsel and "the elements of violation had not taken place." The court then upheld the detention on the basis of the narcotics investigation, stating: "[C]ase law says that law enforcement can temporarily detain a person in an attempt to verify or spell out any suspicion of illegal activity. The illegal activity thats been articulated by the deputy as being suspected of [defendant] is that he is in a known narcotics area at 3:00 oclock in the morning by himself. There is no one else around walking towards the hotel when he sees the officers, . . . but says he is not staying there and he has [a] friend there, did not know the name of the friend—the alleged friend that was there or the room number. [¶] The search was also at the request or consent of [defendant]."
Compton Municipal Code section 7-14.3, provides in part:
"a. Public Property. No person or persons, after first being warned by a law enforcement officer, or where a sign or signs prohibiting loitering has been posted, shall willfully and maliciously loiter, stand, sit or lie in or upon any public street, sidewalk, walkway area or mall so as to create or cause to create any of the following:
"1. Hinder or obstruct the free passage of pedestrians thereon; or
"2. Block, obstruct, or prevent the free access to the entrance to any building open to the public; or
"3. Stand in any roadway other than in a safety zone or in a crosswalk if such action obstructs or impedes the lawful movement of traffic. . . ."
MALLANO, Acting P. J., Dissenting.
Deputy Kurinij testified that his attention was drawn to defendant because defendant was "standing out in front of the hotel at the late hour with no apparent reason." Kurinij and his partner then drove toward defendant, who responded by "walk[ing] away from our marked patrol vehicle towards the walkway or driveway of the hotel." After talking to defendant, the deputies detained him pending a "loitering and narcotics investigation."
The trial court properly rejected loitering as a lawful ground for the detention based on the language of the pertinent ordinance. Instead, the court upheld the detention on the basis of a narcotics investigation.
Defendants act of "walk[ing] away" from the deputies was significantly less suspicious than the conduct in People v. Souza (1994) 9 Cal.4th 224, 228, where upon the officers approach the "defendant took off running." In People v. Nonnette (1990) 221 Cal.App.3d 659, 668, the court recognized "[t]he fact that a detention occurs in a high crime area may contribute to probable cause if it is relevant to the officers belief that the suspect is involved in criminal activity." But additional factors in that case included a citizens call regarding suspicious activity in a car and when the responding officer approached the car he observed a clutch purse inside that contained baggies and a prescription bottle. (Id. at pp. 662-663.) In People v. Holloway (1985) 176 Cal.App.3d 150, 152, officers encountered several males during the early morning hours in an area known for narcotics activity. The defendant, apparently unaware of the officers, remained in place while his companions took flight. When the defendant saw the officers, he closed his fist and moved his arm as if he were going to throw something. (Id. at p. 153.) None of these cases supports the trial courts upholding defendants detention.
Although many reasons may exist for not wanting to name a friend being visited in the early morning hours at a hotel, I acknowledge defendants failure to name his friend could be considered a suspicious circumstance. But that circumstance, standing alone or in conjunction with the other circumstances in this case, is inadequate to compensate for the lack of any single objective fact to arouse reasonable suspicion of defendants involvement in narcotics or any other criminal activity.
The relevant precedent cited in the majority decision and above compels the conclusion that defendants detention was unjustified. Accordingly, the seized evidence should have been suppressed.
I would reverse.
DISCUSSION
"A defendant meets the initial burden of raising the issue of an unreasonable warrantless search or seizure by `simply assert[ing] the absence of a warrant and mak[ing] a prima facie showing to support that assertion. [Citation.] After the defendant sufficiently raises the issue, it is the prosecutions burden to justify a warrantless search or seizure. [Citation.] A defendant then must present any arguments as to why that justification is inadequate. [Citation.]" (People v. Smith (2002) 95 Cal.App.4th 283, 296.) "The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.]" (People v. Williams (1999) 20 Cal.4th 119, 130.)
"`An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] "The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review." [Citations.] [¶] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review. [Citation.]" (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
The People again assert that the temporary detention was valid. We agree. The People urge that the deputies had facts sufficient to constitute a reasonable belief that defendant was involved with narcotics based on the hotel being a known area of narcotics activities, defendants presence outside the hotel by himself at 3:00 a.m., defendants having walked away from the deputies and toward the walkway or driveway of the hotel when the deputies approached in their patrol car, and defendants failure to provide information about the friend he was supposedly visiting.
In order for a detention to be constitutionally reasonable, the detaining officer must have "`specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity." (People v. Dougherty (1996) 50 Cal.App.4th 275, 285.) The articulated facts must be "considered in light of the totality of the circumstances." (People v. Souza (1994) 9 Cal.4th 224, 231.)
The facts supporting a temporary detention in Souza are very similar to the facts in the instant case. In Souza, a police officer observed two people on a sidewalk at 3:00 a.m., who appeared to be talking to the occupants of a car parked in total darkness in an area that the officer described as a "high crime area." When the officer parked behind the car, its occupants engaged in evasive conduct while defendant ran away. (People v. Souza, supra, 9 Cal.4th at p. 228.) In the instant case, the deputies observed defendant about 3:00 a.m., standing in front of a hotel known as an area of narcotics use. As the deputies drove toward defendant, defendant began to walk away from the patrol vehicle. After defendant was stopped and questioned, he gave a vague and inconclusive response to questions posed by the deputies. From the totality of the circumstances, including the time, the areas reputation for criminal activity, defendants being in the area for no apparent purpose, and defendants walking away from the deputies, a reasonable deputy would have believed that defendant may have been involved in criminal activity. (People v. Dougherty, supra, 50 Cal.App.4th at p. 285.) The fact that defendant walked away and did not run from the deputies is inconsequential. As in Souza, defendants furtive actions were indicative of an attempt to avoid law enforcement.
In People v. Holloway (1985) 176 Cal.App.3d 150, a police officer came upon defendant and his companions in an area known for narcotics trafficking at 3:00 a.m. The officer said "hold it," defendant appeared to attempt to throw something, and his companions fled. (Id. at pp. 152-153.) The court noted that presence in a high crime area, "standing alone, [is] not sufficient to justify interference with an otherwise innocent-appearing citizen." (Id. at p. 155.) But the presence of other factors, such as "unprovoked flight," rendered the officers detention reasonable. (Ibid.)
Similarly, in People v. Nonnette (1990) 221 Cal.App.3d 659, 668, the court recognized "[t]he fact that a detention occurs in a high crime area may contribute to probable cause if it is relevant to the officers belief that the suspect is involved in criminal activity." There were additional factors in Nonnette, including a citizens call regarding suspicious activity in a car and the responding officers observation of a large quantity of materials used for packaging drugs. (Ibid.) However, a high crime area is a factor in determining if a detention is reasonable.
Here, the totality of the circumstances justified the temporary detention of defendant: defendants presence in a location known for narcotics activity, the late hour, defendants attempt to evade the deputies when they approached, and his suspicious answers to their questions supported the finding that Deputy Kurinij had reasonable cause to detain defendant. (People v. Souza, supra, 9 Cal.4th at p. 228; People v. Nonnette, supra, 221 Cal.App.3d at p. 668; People v. Holloway, supra, 176 Cal.App.3d at p. 155.) The trial court therefore did not err in denying defendants suppression motion. (People v. Alvarez, supra, 14 Cal.4th at p. 182.)
DISPOSITION
The judgment is affirmed.
I Concur:
VOGEL, J.