Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F16015
ELIA, J.Cody Ashlin Aylsworth pleaded guilty to possession of a controlled substance, methadone, in violation of Health and Safety Code section 11350 following the denial of both a Penal Code section 995 motion and a renewed suppression motion under section 1538.5, which challenged evidence obtained as a result of an investigatory vehicle stop. The court placed defendant on 36 months formal probation and ordered him to enter and complete a Proposition 36 program.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant challenges the constitutionality of the stop and the denial of the suppression motion. (See § 1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b)(4).) We conclude that reasonable suspicion of criminal activity justified the stop and affirm.
A. Procedural History
A criminal complaint against defendant alleged unlawful possession of a controlled substance, namely methadone (Health & Saf. Code, § 11350, subd. (a)) (count one), unlawfully carrying a switch-blade knife (§ 653k) (count two), and being under the influence of a controlled substance, namely methamphetamine (Health & Saf. Code, § 11550, subd. (a)). Defendant initially brought a motion to suppress at the preliminary hearing, arguing that he was improperly detained and arrested in violation of the Fourth Amendment because the officers did not have specific, articulable facts supporting a reasonable suspicion that he was committing a crime when they stopped the vehicle in which he was traveling. The following evidence was adduced at the suppression hearing.
Sergeant Steven Carney had been a peace officer for over 16 years and was a supervisor of a street narcotics team with the Santa Cruz County Sheriff's Office. He had been assigned to exclusively street level narcotics work for approximately seven years and had training and experience in recognizing persons under the influence of drugs and drug addicts going places to acquire drugs. Part of street level narcotics work involves driving around and contacting drug offenders, many of whom are on the "Prop 36 caseload." He had arrested or been involved in the arrest of approximately 500 to 700 drug users.
On August 24, 2007, Sergeant Carney was driving an unmarked police car. At approximately 1 p.m., he spotted two males standing, pacing and walking around on the curb near a white Jeep Cherokee. A registration check indicated the vehicle was registered to defendant.
Sergeant Carney pulled over approximately three houses down from the men's location and began watching them with binoculars through his rear view mirror. The men were observed from a distance of approximately 150 to 200 feet.
Sergeant Carney first saw that defendant had "kind of dark circles under his eyes" and was gaunt, which he stated were symptoms consistent with abuse, or being under the influence, of heroin or another controlled substance. He then noted the pale skin, which drug offenders commonly have from staying largely inside, and facial scabs or picking marks. Once the sergeant saw the two symptoms (dark circles and gaunt appearance) and "looked at the total package," he concluded that defendant's appearance was consistent with the appearance of a person who abuses, or is under the influence of, heroin. The man with defendant had a dirty and gaunt appearance, yellowish skin, facial picking marks, which was consistent with the appearance of persons abusing drugs or under the influence, and the companion was unable to stand still and "making rapid movements."
Based on his training and experience, the sergeant was familiar with the recognizable appearance of drug users and both men appeared to him to be drug users. The sergeant also knew that drug users oftentimes associate and acquire drugs together or from each other.
Sergeant Carney saw defendant doing something with the white Cherokee. While conducting the surveillance, the sergeant became aware that he had previously encountered defendant in 2004 or 2005 when the sergeant had been involved in serving a search warrant on a storage locker. Approximately one pound of crystal methamphetamine had been found in defendant's possession, resulting in defendant's arrest.
At some point, Sergeant Carney saw the other man doing something with his truck, which appeared to be a work truck. After no more than 15 minutes, the sergeant saw the men get into the truck; the truck made a U-turn and went down the street. Sergeant Carney decided to detain the men and "evaluate them further for being under the influence of drugs." He conducted a vehicle stop of the truck with Detective Ramirez.
Photographs were subsequently taken of defendant and his companion. The photograph of defendant showed freshly picked scabs on the left side of his neck and both cheeks. Dark circles were apparent under defendant's eyes, which was a symptom Sergeant Carney had seen in drug users. Defendant was unshaven and pale, and he appeared "somewhat gaunt" with cheeks starting "to suck in," a common symptom of drug abuse according to the sergeant. According to the sergeant, drug abusers are "[o]ften times unshaven by a couple days." The photograph of the other man showed "more significant picking on his face, scabs and apparent sores on both cheeks and his forehead," facial gauntness with cheeks "somewhat 'sucked up,' " pale, yellowed skin, which he testified were "all symptoms of drug influence and use." Based upon the men's appearances, Sergeant Carney had a strong suspicion that both men were drug users and were possibly under the influence of drugs since they both "displayed symptoms consistent with . . . being under the influence of drugs."
The motion to suppress was denied.
After denial of the motion, Deputy Sheriff Ceasar Ramirez testified at the preliminary hearing that, during the vehicle stop, he performed a drug evaluation of defendant and concluded defendant was under the influence of a controlled substance. A subsequent search revealed four 10 milligram methadone pills in a container attached to defendant's key chain and at least 20 other methadone pills in a bottle in defendant's backpack.
Following the preliminary examination at which the defendant was held to answer on counts one and three, defendant was charged by information with unlawful possession of a controlled substance, namely methadone (Health & Saf. Code, § 11350, subd. (a)) (count one) and being under the influence of a controlled substance, namely methamphetamine (Health & Saf. Code, § 11550, subd. (a)) (count two). It was also specially alleged as to count one that defendant had previously been convicted of violating Health and Safety Code section 11378 (possession for sale). (Health & Saf. Code, § 11370, subds. (a), (c) [probation ineligibility].)
Defendant filed a section 995 motion to set aside the information on the ground that he had been committed without reasonable or probable cause. (§ 995, subd. (a)(2)(B).) He argued that the evidence supporting the commitment had been obtained in violation of the Fourth Amendment because the officers had detained him without reasonable suspicion that he was involved in any criminal activity. Defendant also renewed his motion to suppress in a special hearing in the superior court. (§ 1538.5, subd. (i).) The People filed opposition to both motions. Each motion was denied.
Defendant subsequently pleaded guilty to count one and the court dismissed the special allegation attached to count one pursuant to Penal Code section 1385 and also dismissed count two in the interests of justice. The court suspended imposition of sentence and placed defendant on formal probation for three years under specified terms and conditions.
B. Review of the Renewed Motion to Suppress
Defendant now seeks review of the order denying the renewed motion to suppress. "Where a motion to suppress is submitted to the superior court on the preliminary hearing transcript, the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness. [Citation.]" (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) We, as the reviewing court, exercise our independent judgment in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (See People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler (1973) 9 Cal.3d 156, 160.)
"The authority and limits of the [Fourth] Amendment apply to investigative stops of vehicles . . . ." [Citations.]" (U.S. v. Sharpe (1985) 470 U.S. 675, 682 [105 S.Ct. 1568]; see Delaware v. Prouse (1979) 440 U.S. 648, 663 [99 S.Ct. 1391] [holding that "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment"].) "An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion [citation] . . . ." (Ornelas v. U.S. (1996) 517 U.S. 690, 693 [116 S.Ct. 1657].)
"In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968), [the U.S. Supreme Court] we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." (U.S. v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581] ["level of suspicion required for a Terry stop is obviously less demanding than that for probable cause"].) A legitimate governmental interest underlying investigative detentions is "effective crime prevention and detection." (See Terry v. Ohio, supra, 392 U.S. at p. 22.) "The officer, of course, must be able to articulate something more than an ' inchoate and unparticularized suspicion or "hunch." ' Id., at 27, 88 S.Ct., at 1883." (U.S. v. Sokolow, supra, 490 U.S. at p. 7.)
The relevant inquiry in making a determination of reasonable suspicion is not whether particular conduct is "innocent" or "guilty" but whether the degree of suspicion that objectively attaches to particular types of acts renders the actions of police reasonable. (See U.S. v. Sokolow, supra, 490 U.S. at p. 10; Terry v. Ohio, supra, 392 U.S. at pp. 21 ["police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion"], 21-22 ["would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate"].) "Terry accepts the risk that officers may stop innocent people" when they briefly detain individuals to resolve ambiguous conduct. (Illinois v. Wardlow (2000) 528 U.S. 119, 126 [120 S.Ct. 673].) In U.S. v. Sokolow, supra, 490 U.S. at page 11, the Supreme Court made clear that "[t]he reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques" because "[s]uch a rule would unduly hamper the police's ability to make swift, on-the-spot decisions . . . ."
"An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581; Adams v. Williams, 407 U.S. 143, 146-149, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra, 392 U.S., at 16-19, 88 S.Ct., at 1877-1879." (U.S. v. Cortez (1981) 449 U.S. 411, 417 [101 S.Ct. 690]; cf. U.S. v. Brignoni-Ponce (1975) 422 U.S. 873, 881 [95 S.Ct. 2574] ["when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion"].) In determining the constitutional validity of an investigatory stop, "the totality of the circumstances -- the whole picture -- must be taken into account." (U.S. v. Cortez, supra, 449 U.S. at p. 417.)
"Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e. g., Brown v. Texas, supra, 443 U.S., at 51, 99 S.Ct., at 2640; United States v. Brignoni-Ponce, supra, 422 U.S., at 884, 95 S.Ct., at 2581." (Id. at pp. 417-418.) "[T]he whole picture must yield a particularized suspicion . . . that the particular individual being stopped is engaged in wrongdoing." (Id. at p. 418.) "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' Id., at 418, 101 S.Ct. 690. . . ." (U.S. v. Arvizu (2002) 534 U.S. 266, 273-274 [122 S.Ct. 744].) But "the likelihood of criminal activity need not rise to the level required for probable cause . . . ." (Id. at p. 274.)
In this case, Sergeant Carney indicated, based on his training and experience, that haggard appearances of defendant and his companion were "consistent with" the use, or being under the influence, of heroin or other drugs. He knew that, a number of years earlier, defendant had been discovered in possession of methamphetamine. He observed the men associating with each other, which, he knew from experience, drug offenders commonly do for drug related purposes. The sergeant suspected that the two men were both drug abusers or under the influence of drugs, perhaps heroin.
We recognize that being a drug addict is not a criminal violation. (See Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417 [California law making status of narcotic addiction a criminal offense inflicted cruel and unusual punishment in violation of the Fourteenth Amendment].) But, in some cases, observations supporting a reasonable suspicion that a person is a chronic drug abuser may, under the totality of circumstances, give rise to such a reasonable suspicion that the person recently used or may be under the influence of a controlled substance in violation of Health and Safety Code section 11550.
Health and Safety Code section 11550, subdivision (a), provides in part: "No person shall use, or be under the influence of any [specified] controlled substance . . . except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances." The statute at issue in Robinson was former Health and Safety Code section 11721, which at that time provided in part: "No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics." (Robinson v. California, supra, 370 U.S. at p. 660, fn. 1, italics added.) Health and Safety Code section 11550 was derived from former Health and Safety Code section 11721. (See Stats.1972, ch. 1407, § 2, p. 2987 [repealing former Health and Safety Code section 11721]; Stats.1972, ch. 1407, § 3, p. 2987 [adding Health and Safety Code section 11350].)
"[B]eing under the influence within the meaning of Health & Safety Code section 11550 merely requires that the person be under the influence in any detectable manner." (Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 727; People v. Gutierrez (1977) 72 Cal.App.3d 397, 402 [same]; see CALCRIM No. 2400 (2008 ed.) p. 329 [someone is under the influence of a controlled substance under Health and Safety Code section 11550 if the substance "has appreciably affected the person's nervous system, brain, or muscles or has created in the person a detectable abnormal mental or physical condition"].) A statutory violation predicated on "use" requires present or recent use. (See People v. Jones (1987) 189 Cal.App.3d 398, 404, 405 ["The 'use' proscribed by [Health and Safety Code] section 11550 is a current use" and usage two days before arrest qualified as current use where interviewing officer testified that defendant's "symptoms (dilated pupils and drooping eyelids) were more consistent with recent use than withdrawal"]; People v. Gutierrez, supra, 72 Cal.App.3d at p. 402 ["use" within the meaning of Health and Safety Code section 11550 requires that a person has injected or ingested a controlled substance in the officer's presence]; People v. Velasquez (1976) 54 Cal.App.3d 695, 699-700 ["The 'use' " proscribed by section 11550 of the Health and Safety Code is a current use, not a use in the past" and heroin usage five to seven days prior to arrest did not support finding of current use]; see also Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 191, [Health and Safety Code section 11550 not unconstitutionally vague since the term "use" had been judicially interpreted to mean "the People must show that the defendant had used a controlled substance immediately prior to the arrest"]; CALCRIM No. 2400 ["use" requires that controlled substance was used "a short time" before arrest].) None of the cited cases considering the meaning of "use" or being "under the influence" suggest that an officer may not investigate suspicious circumstances amounting to less than probable cause to arrest under Health and Safety Code section 11550.
In People v. Gutierrez, supra, 72 Cal.App.3d 397, cited by defendant, the search incident to arrest was based on an officer's opinion that the defendant was experiencing withdrawal symptoms. (Id. at pp. 400-402.) The principal issue before the appellate court in Gutierrez was whether an officer's observation of withdrawal symptoms establishes reasonable cause to believe an offense under Health and Safety section 11550 is being committed in the officer's presence. (Id. at p. 401.) The appellate court concluded that withdrawal from drug use is not a crime but rather " 'the direct result of discontinuing the crime of use.' " (Id. at p. 402.) The court concluded that the evidence obtained from the search incident to arrest was tainted and subject to suppression. (Ibid.) The Gutierrez case does not, as defendant contends, preclude a brief investigatory stop where the objective facts do not show that a person is merely experiencing withdrawal symptoms and there are facts giving rise to a reasonable belief that the person may have recently used or may be under the influence of a controlled substance.
It is now argued on appeal that "there was nothing observed by Carney that suggested that appellant was, at that moment, using, possessing, or under the influence of drugs" and the "observed factors" were consistent with only "innocent behavior." But Sergeant Carney testified, based upon his experience and training, that the physical signs displayed by the men were consistent with being under the influence or abusing heroin or another controlled substance. While defendant now contends that the sergeant did not testify to any "observations that police routinely use to determine that a suspect is under the influence of illegal drugs," the sergeant was not questioned about this at the hearing. Defendant did not produce countervailing evidence of the typical physical signs and symptoms of being under the influence of heroin, methamphetamine, or any other controlled substance that might have undermined the officer's credibility. (See generally Evid. Code, §§ 110 ["Burden of producing evidence" means "the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue"]; 550, subd. (a) ["The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence"]; Cal. L. Rev. Com. com., 29 B, Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 550, p. 632 ["a party may introduce evidence of such overwhelming probative force that no person could reasonably disbelieve it in the absence of countervailing evidence, in which case the burden of producing evidence would shift to the opposing party to produce some evidence"].) As the reviewing court, we are limited to applying the law to the facts found by the trier of fact to the extent supported by substantial evidence. (See People v. Glaser, supra, 11 Cal.4th at p. 362.) "[T]he direct testimony of a single witness is sufficient to support a finding [of fact] unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.]" (People v. Cudjo, supra, 6 Cal.4th 585, 608.)
It is rational to suspect that a person, whose appearance suggests chronic drug abuse, may have recently used or be under the influence of drugs within the meaning of Health and Safety Code section 11550, where that person does not exhibit symptoms of withdrawal. In addition, the sergeant observed two people who appeared to be drug abusers together, which was in keeping with the sergeant's experience that drug abusers often associate, and he was aware of defendant's past methamphetamine offense, which buttressed his suspicion. The facts may not have been individually significant and certainly did not provide probable cause to arrest but, taken together, they were adequate to form a reasonable suspicion that the men may have recently used, or been under the influence of, a controlled substance in violation of the law. (Cf. Terry v. Ohio, supra, 392 U.S. at pp. 22-23, 28 [officer observed three men go through series of acts that individually appeared innocent but cumulatively raised suspicion that men were "contemplating a daylight robbery"].) Terry recognizes that officers can detain individuals to resolve ambiguous circumstances that indicate, in the light of experience, that "criminal activity may be afoot." (Terry v. Ohio, supra, 392 U.S. at p. 30; see Illinois v. Wardlow, supra, 528 U.S. at p. 125.)
While the sergeant observed limited physical symptoms from his vantage point in the patrol car, enough suspicion attached to the factual circumstances in light of the officer's training and experience to warrant a brief intrusion to dispel or confirm the suspicion. No defense argument was made regarding the scope of the investigatory stop (see Florida v. Royer (1983) 460 U.S. 491, 500 [103 S.Ct. 1319] (plurality opinion) ["an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"]; Terry v. Ohio, supra, 392 U.S. at p. 20 [detention must be "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place"]) and that issue is not before us. (See People v. Williams (1999) 20 Cal.4th 119, 130, 136 [issues on review limited to those raised below].) Given the appellate record, we cannot conclude the officers acted outside the bounds of the Fourth Amendment.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.