Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. Los Angeles County Super. Ct. No. BA305443.
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Jaime Adolfo Leiva (defendant) pleaded not guilty to a charge that he possessed cocaine base for sale in violation of Health and Safety Code section 11351.5. After the trial court denied defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5, defendant pleaded nolo contendere to the charged offense. The trial court placed defendant on formal probation for three years under various terms and conditions. On appeal, defendant contends that the trial court erred when it denied his motion to suppress evidence. We affirm.
BACKGROUND
I. Evidence at the Suppression Hearing
At the hearing of defendant’s motion to suppress evidence, Daniel Bunch, a Los Angeles Police Department Officer assigned to the Rampart Division, testified that about 9:40 p.m. on July 4, 2006, he received a radio call that a male Hispanic sitting in a red Toyota Camry parked in front of 1022 North Edgemont was selling narcotics. According to the call, there were no other vehicles in the area. The call did not describe any physical features of the suspect such as his height or weight and did not describe the suspect’s clothes.
About 11:30 p.m., Officer Bunch and his partner responded to the call. Officer Bunch saw a red Toyota Camry parked in front of 1016 North Edgemont. There was nobody in the Toyota and no other vehicles in the area. Officer Bunch saw defendant, a male Hispanic, sitting on a stairway in front of 1016 North Edgemont about 15 feet from the Toyota. Defendant was talking on his cell phone. There was nobody else in the area.
Because Officer Bunch did not know if defendant was the person who called 911 or if he was the suspect, Officer Bunch approached defendant and asked him if he called 911. Officer Bunch also asked defendant if defendant would speak with him. Defendant did not reply to either question. Officer Bunch observed that defendant was “concealing something in his lower lip consistent with narcotics sales.” Officer Bunch testified that in the Rampart Division persons who sell cocaine in wafer form commonly hold the contraband in their mouths so that it can be disposed of quickly if necessary. Because they were in a high narcotics location, the call had described the vehicle and a male Hispanic, there was nobody else in the area, and defendant had small items in his lower lip, Officer Bunch formed the opinion that defendant “possibly” was the suspect and “possibly” had narcotics in his lower lip.
As Officer Bunch was attempting to speak with defendant, defendant got up from where he was sitting and “proned” himself on the ground. Defendant then rolled around hiding his face from the officers. When Officer Bunch and his partner tried to grab defendant, defendant attempted to get away. Defendant crawled up the street on his hands and knees and then began to rise to his feet. Officer Bunch took control of defendant while his partner placed defendant in handcuffs.
At the preliminary hearing, Officer Bunch testified that they first asked defendant to put his hands behind his back before defendant lay down on the ground.
Once defendant was handcuffed, Officer Bunch asked him several times if he had anything in his mouth and, if he did, to spit it out. Defendant eventually complied, spitting out three small off-white wafers resembling rock cocaine. Defendant was arrested for possession of cocaine. Officer Bunch asked defendant if the Toyota was his. Defendant responded that the car belonged to his girlfriend, but that he had control and dominion over it. Defendant gave Officer Bunch verbal and written permission to search the car. Officer Bunch found a magnetic key holder concealed in the Toyota’s center console. Inside the key holder was more rock cocaine in wafer form. Defendant was then arrested for possession of cocaine for sale.
At the preliminary hearing, Officer Bunch testified that inside the key holder there were 25 more rocks of cocaine, and they also retrieved currency in small bills.
II. The Trial Court’s Ruling on Defendant’s Motion to Suppress Evidence
In denying defendant’s suppression motion, the trial court ruled, “[W]hen we look at everything, the call, the vehicle, the person, what the officer believed to be wafers in his mouth and him rolling around and crawling, proning himself out, and having wafers spit out, I think that’s sufficient.”
DISCUSSION
Defendant contends that the trial court erred in denying his motion, pursuant to Penal Code section 1538.5, to suppress evidence because the information provided by the anonymous caller and the circumstances known to the officers at the time defendant was detained were insufficient to create a reasonable suspicion that defendant was engaged in criminal activity. The trial court did not err.
I. Standard of Review
“‘In reviewing the trial court’s denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court’s application of the law to the facts.’ (People v. Jenkins (2000) 22 Cal.4th 900, 969 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court’s reasoning. (People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19 [22 Cal.Rptr.2d 689, 857 P.2d 1099]; People v. Ellis (1993) 14 Cal.App.4th 1198, 1201 [18 Cal.Rptr.2d 284].)” (People v. Zichwic (2001) 94 Cal.App.4th 944, 950-951.) “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. Under the well-established principles of appellate review, all presumptions favor proper exercise of that power and the court’s finding must be upheld if . . . it is supported by substantial evidence. [Citation.]” (People v. Bloom (1983) 142 Cal.App.3d 310, 316.)
II. Application of Relevant Principles
“In United States v. Arvizu (2002) 534 U.S. 266, 273-274 [151 L.Ed.2d 740, 122 S.Ct. 744], the United States Supreme Court set forth applicable Fourth Amendment jurisprudence in the context of a temporary detention: ‘The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1, 9, [20 L.Ed.2d 889, 88 S.Ct. 1868] (1968); United States v. Cortez, 449 U.S. 411, 417, [66 L.Ed.2d 621, 101 S.Ct. 690] (1981). Because the “balance between the public interest and the individual’s right to personal security,” United States v. Brignoni-Ponce, 422 U.S. 873, 878, [45 L.Ed.2d 607, 95 S.Ct. 2574] (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘“may be afoot,”’ United States v. Sokolow, 490 U.S. 1, 7, [104 L.Ed.2d 1, 109 S.Ct. 1581] (1989) (quoting Terry, supra, at 30.) See also Cortez, 449 U.S., at 417, (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity”).’” (People v. Butler (2003) 111 Cal.App.4th 150, 160.)
In determining the propriety of an investigatory detention, the guiding principle is “‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) We make such a determination by examining “‘the totality of the circumstances’” in the case. (Ibid.) “Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.” (Ibid. citing Alabama v. White (1990) 496 U.S. 325, 330.)
For an officer’s suspicion to be reasonable, it must be supported by “specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.]” (People v. Wells, supra, 38 Cal.4th at p. 1083.) “The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (Ibid.)
An anonymous tip’s reliability does not “depend exclusively on its ability to predict the suspect’s future behavior [citation] or the officer’s ability to corroborate present illegal activity [citation]. Rather, the tip’s reliability depends upon an assessment of ‘the totality of the circumstances in a given case.’ [Citations.]” (People v. Dolly (2007) 40 Cal.4th 458, 464.) To provide sufficient indicia of reliability to justify an investigatory stop, a suitably corroborated anonymous tip must be “‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’” (Id. at pp. 470-471, citing Florida v. J.L. (2000) 529 U.S. 266, 272 [“An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity”].)
Based on the totality of circumstances presented to him, Officer Bunch was reasonable in suspecting that defendant was, or was about to be, engaged in criminal activity when he encountered defendant. (People v. Butler, supra, 111 Cal.App.4th at p. 160.) Officer Bunch received a radio call concerning narcotics sales from a red Toyota Camry in front of 1022 North Edgemont. The call described the suspect as a male Hispanic sitting in the car. The call stated that there were no other vehicles in the area. Although Officer Bunch and his partner did not respond to the call for nearly two hours, the scene on North Edgemont when they arrived was substantially as the call described. A red Toyota Camry was parked in front of 1016 North Edgemont. There were no other vehicles in the area. A male Hispanic, defendant, was sitting 15 feet from the car on a stairway in front of 1016 North Edgemont.
When Officer Bunch approached defendant to determine if he was the person who called 911 or if he was the suspect, Officer Bunch observed that defendant was “concealing something in his lower lip consistent with narcotics sales.” Officer Bunch knew from his experience that persons who sell cocaine in wafer form in that location, a high narcotics location, commonly hold the wafers in their mouths. Then, as Officer Bunch attempted to speak with defendant, defendant lay on the ground and rolled around, hiding his face from the officers. When the officers attempted to take hold of defendant, defendant took evasive action.
A significant factor in finding reasonable suspicion in this case is Officer Bunch’s observation, after having received a call concerning narcotics sales, that defendant was concealing something in his lower lip in the same manner as drug dealers in the area commonly conceal cocaine in wafer form. Defendant attempts to minimize the importance of this factor, arguing that the “bulge” in defendant’s mouth could have been gum or chewing tobacco. As stated above, we consider the totality of circumstances in determining whether reasonable suspicion supports a detention (People v. Butler, supra, 111 Cal.App.4th at p. 160); we do not examine each factor by itself to determine whether, standing alone, the factor is susceptible of innocent explanation. (United States v. Arvizu, supra, 534 U.S. at p. 277 [“A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct”].) The bulge in defendant’s lower lip, along with the other circumstances, supported a reasonable suspicion that defendant was, or was about to be, engaged in the sale of cocaine base. (People v. Butler, supra, 111 Cal.App.4th at p. 160.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.