Opinion
C083406
02-02-2018
THE PEOPLE, Plaintiff and Respondent, v. TOMMY ERNEST MONTIEL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F05046)
Defendant Tommy Ernest Montiel appeals from the denial of his suppression motion. We affirm.
BACKGROUND
Defendant was found with a gun and contraband after the car he was a passenger in was pulled over. The officer who conducted the search testified at the suppression hearing.
The officer, an 11-year veteran, testified he was patrolling with his partner, when they saw a Cadillac with red forward facing lights, a vehicle code violation. An enforcement stop of the Cadillac was conducted.
Waiting for the Cadillac to pull over, the officer became suspicious because he could see the occupants "moving around a lot in the vehicle," and it took the Cadillac an "extended period of time to stop."
When the Cadillac finally stopped, the passenger side door opened and defendant started walking away. The officer immediately ordered him back into the car.
The officer asked defendant for identification, and defendant complied. The officer then asked defendant if he was on probation or parole. Defendant said he was on probation. The officer testified that he confirmed defendant was on searchable probation.
The officer then "pulled" defendant out of the car and asked if he "had anything on his person that [the officer] needed to be aware of." Defendant said he had a gun in his waistband. The officer found a semiautomatic handgun in defendant's waistband along with other contraband.
Following testimony, defense counsel argued that "the detention of [defendant] was a detention that required a justification." Referring to the officer ordering defendant back into the car, he explained: "[T]he defense position is that the detention of [defendant] was unlawful. And it was not justified and as such any evidence gathered after the detention should be suppressed."
The trial court denied the suppression motion, explaining the entirety of the evidence made the detention and search lawful. The court noted the stop was proper. Further, the officer could see movement in the Cadillac, which was not stopping quickly, defendant had exited the car and needed to be ordered back, and defendant admitted he had a gun and was on probation.
The court further explained, "[T]here is a layer of facts also on top of all this . . . . [¶] . . . [Defendant] does admit that he has a firearm which ultimately leads to further searching of his person because he's on probation in part. And then ultimately is arrested for these various crimes. So just based on [the] entirety of the evidence here I find that the detention is proper. [¶] His further detention and search was proper . . . ."
DISCUSSION
On appeal, defendant challenges the denial of his suppression motion. He argues: (1) there was insufficient evidence he was on searchable probation; (2) there was insufficient evidence to support a reasonable suspicion of criminal activity; and (3) his admission that he was armed should not be considered because it was elicited during an unduly prolonged detention. We find no error.
As part of this contention, defendant argues his being ordered back into the car was an unlawful seizure. We see no reason why an officer, owing to a safety concern, could not lawfully order a passenger back into a car. (See People v. Castellon (1999) 76 Cal.App.4th 1369, 1374-1375 ["whether the passenger is ordered to stay in the car or got out of the vehicle is a distinction without a difference"]; Brendlin v. California (2007) 551 U.S. 249, 258 [168 L.Ed.2d 132, 140] ["It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety"]; see also Maryland v. Wilson (1997) 519 U.S. 408, 414 [137 L.Ed.2d 41, 47] ["The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car"]; U.S. v. Williams (9th Cir. 2005) 419 F.3d 1029, 1031 [holding "a passenger's compliance with an officer's command to get back into the car in which the passenger had just exited is not an unreasonable seizure under the Fourth Amendment"].)
We review the trial court's denial of a motion to suppress in the light most favorable to the ruling, deferring to express or implied findings of fact supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 969.) But we independently review the trial court's application of the law to the facts. (Ibid.)
Preliminarily, defendant's contention that his admission to being armed should not be considered because it was elicited during an unduly prolonged stop is forfeited for failure to raise the issue below. (See People v. Williams (1999) 20 Cal.4th 119, 130 ["if defendants detect a critical gap in the prosecution's proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal"].)
While the record does not show the officer knew defendant was on searchable probation prior to the search, the record does support the trial court's denial of the suppression motion based on a search incident to arrest. As the trial court noted, in concluding the entirety of the evidence rendered the search and detention lawful, defendant admitted to having a gun and was ultimately arrested. (Cf. People v. Macabeo (2016) 1 Cal.5th 1206, 1218 ["When a custodial arrest is made, and that arrest is supported by independent probable cause, a search incident to that custodial arrest may be permitted, even though the formalities of the arrest follow the search"].)
Defendant argues this court may not affirm on the grounds of search incident to arrest because it was not presented to the trial court. However, the trial court appeared to consider that ground as part of the entirety of the evidence supporting the lawfulness of the detention and search. The court noted defendant's admission of a firearm "ultimately leads to further searching of his person because he's on probation in part. And then ultimately is arrested for these various crimes. So just based on [the] entirety of the evidence here I find that the detention is proper."
The officer properly ordered defendant out of the car and asked if he had anything the officer should be aware of during the traffic stop. (See Brendlin v. California, supra, 551 U.S. at p. 258 ["during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk"]; Arizona v. Johnson (2009) 555 U.S. 323, 333 [172 L.Ed.2d 694, 704] ["An officer's inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop"].)
Once defendant admitted possessing the gun, probable cause existed to arrest, and concomitantly search, defendant. (See In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240 ["The fact that a defendant is not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest"].) Probable cause was supported by defendant's concessions that he was a probationer with a gun—yielding a high probability he was a felon in possession. (Cf. People v. Hurtado (2002) 28 Cal.4th 1179, 1188 [probable cause refers to " 'a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused' "].) Bolstering that suspicion, the Cadillac took an "extended period of time to stop," while its passengers were "moving around a lot in the vehicle," and once the Cadillac finally stopped, defendant immediately opened the door to leave. Under all the circumstances of the encounter, probable cause existed to believe defendant was a felon in possession of a gun, and thus the search was lawful as a search incident to arrest.
The trial court properly denied defendant's motion to suppress.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: HOCH, Acting P. J. RENNER, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------