Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR064374BS
SIMONS, J.
Harvey Michael Mills (appellant) appeals from the trial court’s denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. Appellant contends the court erred in denying his motion, because his detention and the seizure of his jacket were unreasonable under the Fourth Amendment. We disagree and affirm.
Background
According to his testimony at the hearing on appellant’s motion to suppress, on August 10, 2006, agent James Stone (Agent Stone) of the Humboldt County Drug Task Force was conducting surveillance of Greg Henley (Henley) at the Bear River Casino in Loleta. Henley was believed to be involved in narcotics trafficking. At some point, Henley left the casino parking lot in a Ford Thunderbird, “at a high rate of speed,” following a red Nissan that had departed the lot at the same time.
In the record, this name is spelled both as “Greg Henley” and “Craig Hendley.” We adopt the former spelling, used in the reporter’s transcript of proceedings on appellant’s motion to suppress.
Agent Stone followed the two cars, as did three other special agent vehicles. Agent Stone observed the two cars travel some distance, and it appeared from the path they took that they were together. Agent Stone testified that he did not believe any of the officers attempted to pull over either the Nissan or the Thunderbird, and did not see red lights or hear sirens coming from the other agents’ vehicles. The Nissan and Thunderbird traveled to a somewhat remote location off of Hay Rake Road, which Agent Stone believed to be Henley’s residence. Both cars stopped at this location. The Nissan pulled into the driveway of a trailer-type dwelling, and Agent Stone parked directly behind the Nissan. One agent, Dan Fagetan (Agent Fagetan), might have parked near Agent Stone’s vehicle, and the two other agents parked near Henley’s vehicle.
Appellant, the driver of the Nissan, got out of the car and stood by the open driver’s side door. Agent Stone then approached appellant about a speeding violation. Agent Stone had taken his gun out of its holster, removed the safety, and was pointing the gun toward the ground; Agent Fagetan had also drawn his gun. The other two agents conducted a search of Henley.
Agent Stone stopped by the driver’s side of the Nissan. He asked appellant why he was there and whether he knew Henley; appellant replied that he had been following the vehicle that Agent Stone observed following appellant. Appellant also stated he did not know Henley. Appellant’s responses made Agent Stone somewhat suspicious. Agent Stone asked if appellant lived at the residence; appellant said he did not. Agent Stone also asked to see appellant’s driver’s license. Appellant gave his name to Agent Stone, who “recognized [it] from receiving a phone call into the Drug Task Force, stating that an individual by the name of Harvey Mills was also involved in trafficking drugs.” This gave Agent Stone concern for officer safety.
Agent Stone asked for appellant’s driver’s license; appellant’s eyes then moved to the passenger side of the Nissan, where there was a jacket. Agent Stone asked appellant twice if he had any weapons; appellant said he did not and again looked back toward the car. Appellant could reach the jacket from where he was standing. Agent Stone then walked to the passenger side of the car and removed the jacket through the open window.
After removing the jacket, Agent Stone again asked appellant if he had any weapons. Appellant indicated there was a syringe in the jacket. Agent Stone searched the jacket and found a syringe, controlled substances, a digital scale, packaging materials, and cash. A search warrant was later obtained and executed for appellant’s residence. Police found additional controlled substances, a shotgun, digital scales, packaging materials, and suspected “pay and owe” records.
In October 2006, a five-count felony information was filed, charging appellant with possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 1); transportation of methamphetamine (§ 11379, subd. (a)) (count 2); possession of heroin for sale (§ 11351) (count 3); possession of methamphetamine and heroin while armed with a loaded, operable firearm (§ 11370.1, subd. (a)) (count 4); and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 5). The information also alleged that as to counts 2 and 3, appellant had previous drug-related convictions under section 11378. (§ 11370.2, subds. (a) & (c).) Later that month, appellant was arraigned and pleaded not guilty to all counts.
All undesignated section references are to the Health and Safety Code.
In November 2006, appellant filed a motion to quash the search warrant and suppress evidence, pursuant to Penal Code section 1538.5. The prosecution opposed the motion. At the close of a December 2006 hearing, the court denied appellant’s motion. The following week, pursuant to a negotiated disposition, appellant pleaded guilty to counts 2, 3, and 5, and the remaining counts and the special allegations were dismissed. The court sentenced appellant to a total term of four years imprisonment.
Appellant filed this timely appeal of the court’s denial of his motion to suppress evidence.
Discussion
I. Standard of Review
“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.)
II. Any Detention of Appellant Was Reasonable Under the Fourth Amendment
A police officer’s detention of an individual “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.) “ ‘The 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.]” (Id. at p. 233.) The state bears the burden of justifying a detention. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809.)
A. Initial Detention of Appellant
Appellant contends the trial court erred in denying his motion to suppress because he was detained at the time Agents Stone and Fagetan approached him with their guns drawn, and that detention violated the Fourth Amendment. We conclude that the initial detention of appellant was justified because Agent Stone suspected appellant had been speeding.
We assume, arguendo, that appellant was detained at the time Agents Stone and Fagetan parked behind appellant and exited their vehicles with their guns drawn.
“A police officer may legally stop a motorist he suspects of violating the Vehicle Code for the purpose of issuing a citation. The officer may detain the motorist for the period of time necessary to discharge the duties related to the traffic stop. [Citation.]” (People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Appellant concedes that an officer may detain a motorist for committing a speeding violation, but contends there is not substantial evidence that he committed a speeding violation. He argues that Agent Stone testified only as to Henley’s speed, not as to appellant’s speed.
Agent Stone testified that Henley left the casino parking lot and followed appellant “at a high rate of speed.” The prosecution asked Agent Stone, “And when you say high rate of speed that location, that area, whatwhat’s in general the speed limits, and what would you estimate were the speeds being traveled by those two vehicles?” Agent Stone responded, “Thirty . . . miles an hour. It’s a very windywindy road. Thirty miles an hour would be my estimation of the speed.” The prosecution then asked Agent Stone, “And what would you estimate was the travel speed of Mr. Henley’s [ ] vehicle that was also traveling with him?” Agent Stone responded, “Fifty plus.” Thus, Agent Stone testified that Henley was speeding, and that appellant’s vehicle was ahead of Henley’s. Agent Stone further testified that he initially approached appellant about a speeding violation.
Indulging all factual inferences in favor of the trial court’s ruling on the suppression motion (People v. Brown (1990) 216 Cal.App.3d 1442, 1447), we conclude there is substantial evidence that Agent Stone suspected appellant was speeding. Logically, if two vehicles depart from the same location at approximately the same time and the following car is exceeding the speed limit by 20 miles per hour, the lead car must also be exceeding the speed limit, or lose its lead. This inference from the testimony is reasonable even if, as appellant contends, Agent Stone did not inform appellant that he was being detained for speeding. Thus, Agent Stone’s initial detention of appellant was justified by his suspicion that appellant had been speeding.
B. Continued Detention of Appellant
We further conclude that the continued detention of appellant, beyond the time necessary to issue a traffic citation, was justified by appellant’s suspicious responses to Agent Stone’s questioning and the apparent association between appellant and Henley, a suspected narcotics trafficker.
Henley was believed to be involved in narcotics trafficking. Appellant and Henley left the Bear River Casino parking lot at the same time, and Henley followed appellant at a high rate of speed. Both appellant and Henley then stopped at a somewhat remote location believed to be Henley’s residence, and appellant parked in the driveway. Agent Stone approached appellant and asked him why he was there; appellant replied that he was following the vehicle that actually had been following him. Agent Stone asked whether appellant knew who Henley was, and appellant said he did not. Appellant’s responses made Agent Stone somewhat suspicious because appellant had been driving ahead of Henley, and yet he stated that he had been following Henley, whom he claimed not to know. Agent Stone then questioned appellant further, asking whether he lived at the residence where he had parked his vehicle, and asking to see his driver’s license.
In light of the specific facts connecting appellant to Henley and the suspicious responses appellant provided to Agent Stone’s questions, Agent Stone had a reasonable basis for believing appellant was involved in criminal activity. (See People v. Samples (1996) 48 Cal.App.4th 1197, 1206 [a detention is lawful where, among other factors, “appellant was clearly in close association with several subjects of a search warrant which was then being executed”].) This reasonable belief justified Agent Stone’s continued detention and questioning of appellant.
Appellant’s reliance on People v. Gallant (1990) 225 Cal.App.3d 200 is misplaced. In Gallant, police officers were executing a search warrant of a residence and had found suspected contraband when the defendant, a male, arrived and parked at the curb in front of the residence. The warrant referred to no male subjects, and, as far as the police knew, the residence had no male occupants. The police did not observe anything about defendant suggesting criminality. When the defendant approached the residence and knocked on the front door, the police detained him. (Id. at pp. 203-204.) The court held that the detention was unlawful because no specific facts connected the defendant to the premises or to the criminal activity that police suspected was conducted at the premises. The court reasoned that “a police officer may not reasonably conclude . . . that everyone approaching [a house in which drugs have been found] is involved in the drug trade.” (Id. at p. 208.) However, unlike in Gallant, specific facts connected appellant to Henley, including the fact that appellant and Henley left the casino parking lot at the same time and traveled together at a high speed to a remote location, and that appellant parked in the driveway of Henley’s suspected residence. Furthermore, whereas nothing about the defendant in Gallant suggested criminal activity, appellant’s suspicious responses to Agent Stone’s questioning provided further reason to believe that appellant was involved in criminal activity.
III. The Search and Seizure of Appellant’s Jacket Was Reasonable under the Fourth Amendment
Appellant further contends that the trial court erred because, even if appellant’s detention was lawful, the seizure of his jacket was unlawful. Again, we disagree.
In Michigan v. Long (1983) 463 U.S. 1032, 1049, the Supreme Court held that “protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect.” Therefore, “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Fn. omitted.) (Ibid.)
At the time Agent Stone seized appellant’s jacket, specific facts reasonably warranted his belief that appellant was dangerous and might gain control of weapons. Appellant left the casino parking lot at the same time as Henley, a suspected narcotics trafficker, and Henley followed appellant “at a high rate of speed.” The two vehicles both stopped at a somewhat remote location, which Agent Stone believed to be Henley’s residence. When Agent Stone questioned appellant, appellant said he did not know Henley and claimed he had been following the car that had followed him; these responses made Agent Stone somewhat suspicious. Appellant then gave his name to Agent Stone, who recognized it from a phone call to the Drug Task Force stating that appellant was involved in drug trafficking. Courts have recognized that firearms are “ ‘ “ ‘tools of the trade’ ” ’ ” in the narcotics business. (See People v. Glaser, supra, 11 Cal.4th at p. 367.)
When Agent Stone asked for appellant’s driver’s license, and again when Agent Stone asked if appellant had any weapons, appellant’s eyes moved toward the passenger side of the car, where a jacket was located. Appellant was standing by the open driver’s side door of the car, and could reach the jacket on the passenger side from where he was standing. Agent Stone then walked to the passenger side of the car and removed the jacket through the open window. Based on Agent Stone’s recognition of appellant’s name as someone reported to be involved in drug trafficking and appellant’s suspicious behavior in response to Agent Stone’s questions about weapons, Agent Stone reasonably believed that appellant might be armed and dangerous.
Appellant argues that, unlike in Long, appellant had not been driving recklessly, it was not late at night, and Officer Stone did not observe a weapon in appellant’s car. (See Michigan v. Long, supra, 463 U.S. at pp. 1050-1051.) However, even in the absence of these additional circumstances, we conclude that sufficient facts supported Officer Stone’s belief that appellant was dangerous and might gain access to weapons.
People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran) and Williams v. Superior Court (1985) 168 Cal.App.3d 349 (Williams), relied on by appellant, are inapposite. These cases hold that nervous behavior or furtive gestures “can be deemed suspicious only when there are additional facts known to the officer that reasonably give [such behavior] a guilty connotation,” such as prior reliable information or the officer’s personal observation of contraband. (McGaughran, supra, at p. 590 & fn. 8; see also Williams, supra, at pp. 361-362.) However, Agent Stone’s reasonable suspicion was based not on appellant’s nervous behavior alone, but on additional facts known to Agent Stone, including that a phone call to the Drug Task Force had reported appellant was involved in drug trafficking, appellant appeared to be associated with Henley, a suspected drug trafficker, and appellant provided inconsistent information to Agent Stone regarding Henley. Based on these facts, Agent Stone reasonably believed appellant was dangerous and might gain control of weapons contained in his jacket, and his seizure of the jacket was reasonable. These same facts justify Agent Stone’s subsequent search of the jacket for weapons.
Disposition
The order denying appellant’s motion to suppress evidence and quash the warrant is affirmed.
We concur. JONES, P.J., NEEDHAM, J.