Opinion
A131895
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID AARON JORGENSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR276277)
Defendant David Jorgenson moved pursuant to Penal Code section 1538.5 to suppress evidence obtained on the night of May 14, 2010, when he was arrested after a loaded handgun fell out of his pant leg during an encounter with Vacaville Police Officer Greg Eisert. After his motion was twice denied, defendant pleaded no contest to one count of possession of a concealed weapon by a felon (Pen. Code, § 12025, subd. (a)(2)) and admitted a probation violation. He was sentenced to two years, eight months in state prison. Defendant's sole contention on appeal is that his suppression motion was erroneously denied. We conclude that it was not, and we affirm.
BACKGROUND
Factual Background
Defendant's suppression motion was heard in combination with a July 12, 2010 preliminary hearing, at which Officer Eisert was the primary witness. The following evidence, which we view most favorably to the trial court's ruling (People v. Davis (2005) 36 Cal.4th 510, 528-529), was developed at the hearing:
At approximately 8:00 p.m. on the night of May 14, 2010, a dispatcher from the Vacaville Police Department broadcast a report of a person brandishing a handgun in the Nelson Park area of Vacaville. The suspect was described as a heavily built, Black male in his teens or early 20's wearing a black "hoodie" sweatshirt with a white T-shirt underneath and black jeans.
The report also advised that the suspect was with a girlfriend who was wearing a purple uniform, and that the couple left in a burgundy car with the rear window broken out. Officer Eisert did not hear this part of the broadcast.
Officer Eisert was on a call when he heard the dispatch report. Approximately thirty minutes later, he was heading back to the police department when he passed two men—later identified as Dominic Trotter and defendant—walking on Emira Road. Trotter resembled the description of the suspect, so Officer Eisert made a U-turn and, without lights or sirens, pulled up approximately 15 feet behind the two men.
Officer Eisert rolled down the passenger window of the patrol car, and both men approached the car. When the officer asked if he could talk to them, they responded, "Yes." He got out of the car, and explained to them that while he was not sure if either of them was the suspect, he had received a report of heavyset, Black, adult male in a white T-shirt, black hooded sweatshirt, and black jeans brandishing a handgun approximately two miles away. He asked if either of them was on probation, and they both confirmed they were, defendant acknowledging he was on probation for attempted robbery.
Officer Eisert then asked Trotter, who most closely matched the suspect's description, if he could search him. Trotter consented, and a pat search did not uncover any weapons. The officer then asked defendant if he could search him, and defendant responded that he was not comfortable with being searched. Officer Eisert asked him if it was correct that he was on probation for attempted robbery. As defendant responded, "Yes," he simultaneously reached down, touched the waistband of his pants, and then brought his hand back up. When he did so, Officer Eisert saw "an object sliding down— something sliding down the inside of his pants." The object slid to the ground, making a loud "tink" when it hit the pavement. Believing it to be a metal object, possibly a handgun, and concerned for his own safety, Officer Eisert drew his weapon, pointed it at defendant's back, ordered Trotter to the ground, and called for emergency backup.
While waiting for backup, Officer Eisert repeatedly asked defendant what the object was. After initially ignoring the question, defendant eventually admitted it was a gun. Additional officers arrived, and the gun—bearing seven rounds, one of which was loaded in the chamber—was removed from defendant's pant leg. Defendant was taken into custody without incident. In all, two to three minutes elapsed from the moment Officer Eisert pulled up behind Trotter and defendant to the time defendant was taken into custody.
On cross-examination, defense counsel would adduce that Trotter was 33 years old, of thin build, did not have a visible hood on his sweatshirt, and was wearing dark blue jeans.
Defendant's Suppression Motions
On June 1, 2010, defendant moved to suppress all evidence arising out of his encounter with Officer Eisert. He contended that he had been detained without sufficient justification and that the detention was "unnecessarily prolonged." As such, all evidence obtained as a result of the illegal detention should be suppressed. The People disagreed, offering the following four counter-arguments: (1) the initial contact between Officer Eisert and defendant was a consensual encounter, not a detention; (2) alternatively, the officer had reasonable suspicion to detain defendant; (3) any such detention was not unduly prolonged; and (4) the officer had reasonable cause to conduct a pat down search for weapons.
The magistrate who presided over the preliminary hearing denied defendant's motion, explaining his reasoning as follows: "I think that the clothing description is clearly very, very close to what was put out, and it's certainly not uncommon either for people involved in offenses to change their clothing or switch the order in which they wear it, switch things inside out, flip jackets over or other clothing, or reverse the clothing. We hear it in this court every day in situations. . . . [H]ere we've got a gentleman wearing a black and white shirt. The testimony is it has a hood in the back, and while you can't see it in the photos, this was an individual who—you know, when the officer pulled over, at that point I think what we essentially have is a consensual encounter. He doesn't call the defendants to him. They come to him. He explains why he's there, what the call is about, asks the first party that he's most interested in for permission to search him and finds nothing. [¶] In speaking with the defendant, he asked him for permission, and defendant, although acknowledging that he's on probation, says he's not comfortable with the officer searching him, but as this conversation goes on . . . the officer both sees and hears this object fall from the waistband area of the defendant, which turns out to be the firearm, sounds to the officer like it could be a firearm, makes the sound of metal hitting the ground. I don't really know what else a competent, well trained officer would do other than what we've seen the officer do here."
On September 3, 2010, defendant renewed his suppression motion. Again, the motion was denied, the court stating, "[T]his court is not going to reevaluate the credibility determination made by the magistrate. And the court did accept that it was a consensual encounter. And once the probation status was determined, the subsequent conduct was justified."
Three months later, defendant pleaded no contest to possession of a concealed weapon by a felon and admitted a probation violation. Defendant was sentenced to an aggregate term of two years, eight months in state prison.
Defendant had also been charged with being a felon in possession of a firearm (Pen. Code, § 12021.1), a felon in possession of ammunition (id., § 12316, subd. (b)(1)), and a felon carrying a loaded firearm (id., § 12031, subd. (a)(1)). These charges were dismissed.
By notice filed April 25, 2011 and subsequently amended, defendant timely appealed.
DISCUSSION
In People v. Glaser (1995) 11 Cal.4th 354, 362, the California Supreme Court succinctly summarized the standard of review we are to apply in this case: "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.]" Exercising that independent judgment here, we agree with the magistrate and the trial court that defendant's motion to suppress was devoid of merit.
Defendant contends that he was detained by Officer Eisert and that there was insufficient justification for his detention. But "[t]he United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.] '[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' " (In re Manuel G. (1997) 16 Cal.4th 805, 821; see also Florida v. Royer (1983) 460 U.S. 491, 497 ["[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions."].) Circumstances that might indicate a detention, as opposed to a consensual encounter, are "the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (In re Manuel G., supra, 16 Cal.4th at p. 821.)
The evidence at the hearing depicted what began as a consensual encounter between Officer Eisert and defendant. The officer pulled up 15 feet behind defendant and Trotter; he did not stop in front of the men or impede their progress in any way, nor were his lights and sirens activated. When he rolled down the passenger window, defendant and Trotter approached the patrol car on their own volition. The officer asked if he could speak with them, and they both responded affirmatively. He did not issue any commands, nor was there any evidence he spoke in a demanding tone. He told them about the dispatch report, but also told them that he was not sure either of them was the suspect. None of Officer Eisert's actions was indicative of any restraint in freedom of movement and, in view of these circumstances, we conclude that a reasonable person would have believed that he or she was free to leave. (In re Manuel G., supra, 16 Cal.4th at p. 821 [an encounter is consensual if "a reasonable person would feel free to disregard the police and go about his or her business."].) There was thus no detention at that point.
In urging a contrary conclusion, defendant relies on In re Tony C. (1978) 21 Cal.3d 888 (Tony C.), contending that it is "comparable" to this case. Not so. In that case, 13-year-old Tony C. and another minor, both of whom were Black, were walking down the street in La Puenta (Los Angeles County) at 12:45 p.m. on a weekday. A California Highway Patrol officer drove by them three times and then "pulled over, stopped the youths, and began questioning them as to their identities, their home addresses, and the purpose of their presence in the area." (Id. at p. 896.) The officer offered three justifications for the stop: (1) it was during school hours and juveniles commit crimes when they are supposed to be in school but are not; (2) three Black males were being sought in connection with burglaries that had occurred in the general area the previous day; and (3) he thought the second youth was possibly acting as a lookout while Tony was committing a burglary. (Id. at pp. 896-897.)
The California Supreme Court held that the boys had been detained but that the detention was "wholly unwarranted." (Tony C., supra, 21 Cal.3d at p. 897.) In so concluding, the court rejected each of the officer's three justifications for detention. As pertinent here, a day-old burglary report offering only the "vague description" of "three male blacks" "could not reasonably have led [the officer] to suspect these two black minors were the missing culprits." (Id. at pp. 897-898.) The present situation here is markedly distinguishable.
First, unlike Tony C, defendant was not detained. In Tony C, after driving by them three times, the officer stopped the two youths and asked them their names, addresses, and reason for being in the area. (Tony C., supra, 21 Cal.3d at p. 896.) Here, as detailed above, there were no circumstances indicating detention. Officer Eisert did not stop defendant and Trotter. He did not ask them their names, where they lived, where they were going, or what they were doing. He did not display a weapon. He did not issue any commands. He did not physically touch Trotter or defendant. Simply put, there were no circumstances suggesting to defendant that he was not free to leave.
But even if we were to assume there had been a detention, Officer Eisert had more than Tony C.'s "vague description" to justify it. (Tony C., supra, 21 Cal.3d at p. 898; see also People v. Souza (1994) 9 Cal.4th 224, 231 ["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."].) The officer's encounter with defendant and Trotter occurred a mere half hour after the dispatch report went out, and the two men were, in Officer Eisert's estimation, just two miles away from where the suspect was seen brandishing a firearm. Most significantly, Trotter's appearance closely resembled the description of the suspect: a Black male wearing a black sweatshirt with a white T-shirt underneath and dark jeans. As the magistrate put it, "the clothing description is clearly very, very close to what was put out . . . ." Minor discrepancies in the description, such as hooded versus unhooded sweatshirt or black jeans versus dark blue jeans, do not undermine that conclusion.
When defendant told Officer Eisert that he was not comfortable being searched, defendant arguably terminated the consensual encounter. (See People v. Cartwright (1999) 72 Cal.App.4th 1362, 1371 [burden on the individual to terminate consensual encounter].) But at that point, Officer Eisert sought confirmation from defendant that he was on probation for attempted robbery. And concurrent with defendant confirming that he was, defendant fussed with his waistband and the gun began to slide down his pant leg, ultimately striking the ground. At that moment, Officer Eisert had a reasonable, articulable suspicion that defendant had committed, or was about to commit, a crime, and what began as a consensual encounter became a justified detention. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [detention is justified if the police have an " 'articulable suspicion that a person has committed or is about to commit a crime' "].)
In his recitation of the facts, defendant states, "As Officer Eisert approached [defendant] to conduct a pat-down search, [defendant] reached down and touched the waist of his pants." This statement finds absolutely no support in the record, as Officer Eisert never testified that he approached defendant to conduct a pat down. Similarly unsupported is defendant's claim that Officer Eisert exited his car, "approached" defendant, and "interrogated him."
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DISPOSITION
The judgment is affirmed.
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Richman, J.
We concur:
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Kline, P.J.
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Lambden, J.