Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR257715
Haerle, J.
I. INTRODUCTION
Defendant and appellant Lyle P. Bynum pleaded guilty to one count of possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1), one count of transportation of less than an ounce of marijuana (Health & Saf. Code, § 11360, subd. (b)), and one count of contributing to the delinquency of a minor (§ 272, subd. (a)(1)). He argues on appeal that the trial court erred in denying his motion to suppress. We disagree.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
Our factual summary is based on the transcript of the preliminary hearing held on September 8, 2008. Although Bynum’s suppression motion was heard on two separate occasions—first at the preliminary hearing on September 8, 2008, and then a month later on September 22, 2008, after an amended information was filed—both hearings were based on the facts contained in the preliminary hearing transcript.
City of Fairfield Police Officer Rebecca Belk testified that at 2:00 a.m. on July 30, 2008, she was on patrol on Mystic Drive, a “fairly new residential area” of Fairfield, where there were “some established homes... as well as a construction zone.” She noticed a car that was parked in an area where there were “empty lots [and] some construction equipment....” She shone a spotlight into the parked car to see if anyone was in it. As soon as she shone her light, the male in the car slouched down in his seat. She turned her patrol car around so it was directly behind the parked car. The car started up and drove away, at which point Belk conducted a traffic stop.
Belk explained the purpose of the traffic stop as follows: “It was an investigative stop due to the vehicle being in the construction zone and also a welfare check to make sure the occupants were okay.”
The car stopped on Bullsridge Court, about a block south of its original location. She approached the car and, before she made any contact with the people in the car, “initially smelled a strong odor of marijuana coming from the vehicle.” She approached the driver’s side of the car and the person inside, Bynum, rolled down the window. At that point, the smell of marijuana was “extremely strong.”
There was a young woman, whom Belk believed to be underage, sitting in the front passenger seat. (The passenger, JT, was in fact 14 years old.)
Bynum gave Belk his driver’s license. She observed that “[h]e seemed extremely nervous. He was fidgeting his hands around and kept asking me questions as to why I was stopping him.” She ordered him to place his hands on the steering wheel and waited for a cover officer to arrive.
She detained Bynum, based on her observation that his vehicle smelled strongly of marijuana. She ran a warrant check, and there were no outstanding warrants. She placed him in handcuffs and searched him. She used the handcuffs during this detention because she “received information from our dispatcher that [Bynum] had prior weapon contacts.” She then placed him in the back seat of the patrol car and called for a canine unit.
The canine unit arrived two minutes after she made the call. A canine search revealed “green plant-like material that was located in a zipped bag as well as a... smaller plastic bag that contained pills.” Bynum was placed under arrest.
A search of the vehicle revealed “a weapon, a wooden-type device. It’s commonly known as nun chucks....” A digital scale was also located. Defendant was then read his Miranda rights. Bynum agreed to speak to Belk after he was read his rights. Bynum “admitted that both items belonged to him. He admitted that the... green plant substance was marijuana and the pills located inside [were] ecstasy. He also admitted that the items were for his personal use and not for sales.” As for the scale, Bynum “said it was for him to ensure he was not being ripped off as he purchased the items.”
Bynum said he purchased “the items” “from a third party, and he wasn’t going to provide the name of the seller.” He told Belk that the items were for his personal use. There were approximately 35 pills in the bag. There were 9.8 grams of marijuana in the plastic bag.
Bynum argued that there was no basis for a detention, because there was no “need for a welfare check.” The trial court disagreed, pointing out that Bynum’s car was parked in a construction area at 2:00 a.m., that he slouched down when the officer shone a spotlight on his car, that when the officer pulled her car in behind his to make contact he drove away. The trial court characterized this as “basically good police work.... [T]his is what you want to happen. I don’t think there’s any violation of any of the Constitutional rights of your client in this situation.” The trial court denied the motion to suppress.
This timely appeal followed.
III. DISCUSSION
A. Standard of Review.
Bynum appeals from the denial of the section 1538.5 motion, contending that Officer Belk did not have proper cause to detain him. We review such a claim as follows: “We apply the Fourth Amendment standard in deciding what remedy may be available following a claim of unlawful search or seizure. [Citations.] [¶] ‘“‘An appellate court’s review of a trial court’s 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] court’s 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. Ayala (2000) 24 Cal.4th 243, 279; see also People v. Parson (2008) 44 Cal.4th 332, 345; People v. Weaver (2001) 26 Cal.4th 876, 924; People v. Glaser (1995) 11 Cal.4th 354, 373; People v. Souza (1994) 9 Cal.4th 224, 231, 240-242 (Souza); People v. Logsdon (2008) 164 Cal.App.4th 741, 744.)
B. Bynum’s Detention was Justified by the Totality of the Circumstances.
“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.” (Souza, supra, 9 Cal.4th at p. 231.) Thus, in Souza, a detention was reasonable when taking into consideration an “area’s reputation for criminal activity, the presence of two people near a parked car very late at night and in total darkness, and evasive conduct not only by defendant but by the two occupants of the parked car....” (id. at p. 240), and hence reversed the decision of the court of appeal. (Id. at pp. 240-242.)
The detention in this matter was reasonable. First, defendant was discovered in an uninhabited construction area at 2:00 a.m.. Courts have consistently found reasonable an investigatory detention involving “persons outdoors at night at times and in areas where one would not reasonably expect to see them....” (People v. Davis (1968) 260 Cal.App.2d 186, 188.)
Second, defendant displayed evasive behavior when he drove away as soon as Belk pulled in behind him. “Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (In re H.M. (2008) 167 Cal.App.4th 136, 144; see also People v. Holloway (1985) 176 Cal.App.3d 150, 153-155 [detention occurred around 3:00 a.m. in an area of Pasadena where narcotics traffic often occurred; defendant observed with others, who fled as police approached, and “manifested surprise” and closed his hand “into a fist” as if he might “discard contraband” when he saw the police]; and Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
Bynum, however, argues that two cases, People v. Wilkins (1986) 186 Cal.App.3d 804 (Wilkins) and People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia) support his argument that the detention was unreasonable. Both cases, however, are factually distinguishable. In Wilkins, the court found a detention unreasonable when it was based on an officer’s observation of a car parked in a convenience store parking lot at 10:18 p.m., a time the court found did not give rise to a reasonable suspicion of criminal activity. (Wilkins, supra, 186 Cal.App.3d at p. 807.)Similarly, in Perrusquia, the defendant was parked in a parking lot at a convenience store at 11:26 p.m. (Perrusquia, supra, 150 Cal.App.4th at p. 231.) Both defendants were in areas where they could reasonably be expected to be found, under circumstances that did not indicate possible involvement in criminal activity. Here, in contrast, defendant was not parked in an area where he might reasonably be expected to to be found. Rather, he was in a deserted area at 2:00 a.m. and, when the officer pulled up behind him, his behavior was evasive.
Defendant’s detention was based on observations which, taken together, indicated he might be engaged in illegal activity. The trial court, therefore, properly denied defendant’s motion to suppress.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.