Opinion
B199611
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. DESMOND LEE PATTERSON, Defendant and Appellant.
Rita L. Swenor, 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, Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
After his motion to suppress was denied, Desmond Lee Patterson pled no contest to possessing cocaine for sale and resisting arrest. In this appeal, he challenges the trial courts conclusion that he was detained lawfully. We find the detention consistent with the Fourth Amendment of the federal Constitution and affirm Pattersons conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Patterson was charged with possessing cocaine base for sale and resisting arrest. It was further alleged Patterson suffered a prior conviction within the meaning of the Three Strikes law.
At the preliminary hearing, Police Officer Leroy OBrian testified. While driving his patrol vehicle, OBrien saw Patterson walking in one direction and then change directions. OBrien asked Patterson if they could talk and noticed that Patterson was chewing a plastic baggie in his mouth. OBrien saw a "white plastic bag in [Pattersons] mouth." Based on his background and training, OBrien thought Patterson was trying to conceal narcotics. OBrien detained Patterson and Patterson tried to run. OBrien told Patterson to spit out the plastic bag. Patterson eventually, after two to three minutes, spit out the plastic bag, which was recovered by another officer. The plastic bag contained rock cocaine.
Patterson moved to suppress the evidence arguing that its collection violated Fourth Amendment principles. The parties stipulated the court could rely on the testimony from the preliminary hearing. The court found the evidence from the preliminary hearing justified OBrien believing Patterson was attempting to conceal narcotics. The court found the detention appropriate and that probable cause existed to arrest Patterson for such illegal activity. Patterson pled no contest to possessing cocaine for sale and resisting arrest. The court struck Pattersons prior strike and sentenced him to five years in prison.
DISCUSSION
The prosecution had the burden to show the search was consistent with Fourth Amendment principles. (Florida v. Royer (1983) 460 U.S. 491, 500 (Royer); Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 926.) The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." It is made applicable to the states through the Fourteenth Amendment. (Maryland v. Pringle (2003) 540 U.S. 366, 369.)
Appellant argues that his chewing on a white plastic bag was insufficient for reasonable suspicion necessary to detain him. We defer to the trial courts factual findings where supported by substantial evidence and independently determine whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
1. The Initial Questioning Was Proper
There is no violation of the Fourth Amendment by approaching a person on the street and asking the person if he is willing to answer questions. (Royer, supra, 460 U.S. 491.) Thus, the initial questioning of appellant was permissible.
2. The Detention Was Proper
The landmark case of Terry v. Ohio (1968) 392 U.S. 1, 20, established a two-part inquiry in determining whether a search is reasonable: "whether the officers action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (Id. at p. 20.) "[R]easonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop." (Royer supra, 460 U.S. at p. 498.) Where a person is detained, the "scope of the detention must be carefully tailored to its underlying justification." (Id. at p. 500.) Police may detain a suspect "based only on a `reasonable suspicion that the suspect has committed or is about to commit a crime." (People v. Bennet (1998) 17 Cal.4th 373, 387.) Crime prevention is an interest that allows "police investigation of reasonable suspicions of criminal activity. . . ." (Glaser, supra, 11 Cal.4th at p. 364.)
Here, appellants chewing on a plastic bag constituted reasonable suspicion of criminal activity. OBrien testified based on his experience that he believed Patterson was carrying narcotics in his mouth. "Reasonable grounds for believing a package contains contraband may be adequately afforded by the packages shape, design, and the manner in which it is carried." (People v. Lilienthal (1978) 22 Cal.3d 891, 898-899.) An officer had reasonable cause to believe an offense was being committed in his presence where the defendant altered her course when she saw a police car and put a white object the size of a bindle of heroin in her mouth. (People v. Pendarvis (1960) 178 Cal.App.2d 239, 241.) Although a plastic bag may have innocuous uses (People v. Huntsman (1984) 152 Cal.App.3d 1073, 1083), here, Patterson was furtively carrying it in his mouth and changed directions when he saw the police. Thus, the manner the bag was carried and Pattersons other conduct supported the reasonableness of OBriens conclusion. The detention was proper based on OBriens reasonable suspicion that Patterson was committing a crime, i.e., was carrying a controlled substance in a plastic bag in his mouth.
Patterson relies heavily on the Massachusetts case Commonwealth v. Houle (Mass.Ct.App. 1993) 622 N.E.2d 638 (Houle). In that case, the appellate court found that the defendants motion to suppress should have been granted. Police officers observed a couple in a pickup truck in an area known for prostitution and drug activity. (Id. at p. 639.) The couple told the officers they were waiting for Bill, the defendant. (Ibid.) When the defendant approached, officers asked if he were "Bill." Defendants response was not understandable because he had something in his mouth. (Ibid.) Officers told defendant to spit out the contents of his mouth, and it contained several vials of cocaine. (Ibid.)
The appellate court found that there was no reasonable suspicion to detain. The defendants appearance of having something in his mouth "could have been caused by the presence of food, chewing gum, tobacco, or a speech defect." (Houle, supra, 622 N.E.2d at p. 640.) The officers had "no basis" to suspect the defendant had drugs in his mouth. (Ibid.)
The Supreme Court of Massachusetts subsequently limited Houle. (Commonwealth v. Grandison (Mass. 2001) 741 N.E.2d 25 (Grandison). In Grandison, the defendant turned to walk in the opposite direction when he saw police officers. (Id. at p. 29.) Police followed him and the defendant again reversed directions. (Ibid.) The officers saw defendant spit something from his mouth. (Ibid.) One officer yelled at the defendant to stop and he complied. (Ibid.) The Massachusetts high court concluded that the defendants change of direction, spitting something from his mouth, and the officers knowledge that individuals hide drugs in their mouth was sufficient to support reasonable suspicion the defendant was carrying drugs. (Id. at p. 31.) The court found that Houle did not apply because in Houle, there was nothing to arouse a reasonable suspicion that the defendant was involved in drug activity. (Ibid., fn. 7.)
The facts in this case are closer to Grandison than to Houle. Patterson changed directions when he saw police officers and he had a plastic bag in his mouth, something OBrien knew to be a method of carrying drugs. This case differs from Houle because in Houle the officer did not see what the detained person had in his mouth. "His speech was unintelligible to the officer, and he appeared to have something in his mouth. That appearance could have been caused by the presence of food, chewing gum, tobacco, or a speech defect." (Houle, supra, 622 N.E.2d at p. 640.) Thus, Pattersons heavy reliance on Massachusetts cases applying the Fourth Amendment is misplaced.
Patterson challenges only the reasonableness of the detention. He does not challenge the trial courts finding that once detained, OBrien had probable cause to arrest Patterson and therefore to search him. "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search . . . ." (United States v. Robinson (1973) 414 U.S. 218, 235.) As the trial court found, based on Pattersons conduct, probable cause existed to arrest him for possession of contraband, and the lawful arrest justified the search.
DISPOSITION
The judgment is affirmed.
We concur:
RUBIN, J.
FLIER, J.