Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA062074. Elizabeth Ann Lippitt, Judge.
Foster & Flanagan and Steven C. Flanagan, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellant Maria Dejesus Quinonez appeals from a judgment of conviction following her pleas of nolo contendere to possession for sale of cocaine base, transportation of a controlled substance, and sale/transportation/offer to sell a controlled substance. Appellant contends that the trial court erred in denying her motion to suppress evidence pursuant to Penal Code section 1538.5. We affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On May 11, 2009, at approximately 10:20 a.m., Los Angeles Police Department Detective Marco Taoatao was on duty near Collet Avenue and Nordhoff Street, a high crime area known for narcotics activity, in the City of Los Angeles. Detective Taoatao, who was in plain clothes and driving an unmarked car, observed a woman sitting in a white Ford pickup truck parked in a residential area at the east curb of Collet Avenue, just north of Nordhoff Street. The woman was talking on a cellular phone and looking around nervously in all directions, as if she were waiting for someone to arrive.
After a couple of minutes, the woman pulled away from the curb and began following a blue Nissan Quest minivan, driven by appellant. After briefly driving northbound on Collet Avenue, both cars turned onto Callahan Street and about half a block later pulled up to the south curb in a residential area. The Ford parked directly behind the Nissan. The woman in the Ford got out of her car and approached the driver’s side of the Nissan. She engaged in a conversation with appellant and then handed appellant some money. Appellant handed the woman a plain white letter envelope. The woman immediately returned to the Ford. Appellant pulled away from the curb and continued driving eastbound on Callahan Street, directly behind Detective Taoatao. Detective Taoatao concluded that appellant had just participated in a “call-and-deliver” narcotics transaction, and radioed for assistance in conducting surveillance of appellant.
A call-and-deliver narcotics transaction is initiated when a prospective buyer calls a drug dealer by telephone to negotiate the amount of drugs to be purchased and a time and location for the transaction. Both parties meet at that location, and the transaction occurs. Immediately afterwards, both parties go their separate ways. These types of transactions typically occur on quiet residential streets to avoid detection by law enforcement and to shield their activities from the public.
Detective Taoatao followed appellant to Amistoy Avenue, just south of Saticoy Street, where she parked her minivan. Appellant waited in her car and looked around in all directions, as if she were waiting for someone to arrive. A few minutes later, a man (later identified as Damaso Cedeno) arrived in a blue Neon and parked directly across from appellant. Cedeno got out of his car and walked up to the driver’s side of appellant’s minivan. After a brief conversation, Cedeno handed appellant some money, and appellant handed Cedeno a white envelope.
Believing this was another narcotics transaction, Detective Taoatao gave the order to his partners to detain appellant and Cedeno. Detective Taoatao stopped his car in front of appellant’s car so that she could not leave. Cedeno was still standing next to appellant’s minivan. When Detective Taoatao got out of his car and identified himself as a police officer, Cedeno dropped the envelope inside appellant’s minivan and started to walk back to his car. Detective Taoatao asked Cedeno, “What did you just drop into the car?” Cedeno replied, “I didn’t drop anything into the car.”
Cedeno was detained by other officers, while Detective Taoatao asked appellant to step out of her minivan. The white envelope was in plain view inside appellant’s minivan between the driver’s seat and the door. Detective Kim recovered the envelope, which contained cocaine base. Additional cocaine base was found in appellant’s purse and in a clear plastic bag between the driver and passenger seats of the minivan. A total of $325 in cash was found in appellant’s purse and in the ashtray of the minivan, and a cellular phone was found on the driver’s seat.
At the preliminary hearing, appellant moved to suppress evidence pursuant to section 1538.5. The court denied the motion. An information was filed charging appellant with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 (count 1), transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) (count 2), and sale/transportation/offer to sell a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) (count 3). Appellant’s motion to set aside the information pursuant to section 995 was denied.
Appellant renewed her motion to suppress evidence pursuant to section 1538.5 before the trial court. The trial court denied the motion. Appellant pled no contest to all counts. Imposition of sentence was suspended, and probation was granted for three years, on various terms and conditions, including serving 180 days in county jail.
This appeal followed.
DISCUSSION
Appellant contends that the trial court improperly denied her section 1538.5 motion to suppress evidence resulting from a search of her automobile. She argues that the police officer arrested her, rather than detained her, when he stopped his car in front of her car and asked her to exit her vehicle, and he did not have probable cause to do so. Further, she argues that the search of her vehicle and the contents therein was not valid as a search incident to arrest because she had exited the car and had been removed from the area, thereby obviating any need to protect the officers or safeguard any evidence.
I. Appellant Was Reasonably Detained
“‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. 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.’” (People v. Maury (2003) 30 Cal.4th 342, 384, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
Appellant claims that Detective Taoatao arrested her when he parked his unmarked patrol car in front of her minivan, preventing her from leaving, and asked her to exit her vehicle. We disagree. We agree with respondent that Detective Taoatao had merely detained her at that point. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [occupants of car were detained when officer stopped his marked patrol vehicle behind the parked car, preventing it from leaving]; People v. Bailey (1985) 176 Cal.App.3d 402, 405–406 [a detention occurred when officer in unmarked police car pulled in behind vehicle in parking lot and turned on red light].) In support of her argument that she was arrested, appellant relies on the fact that Detective Taoatao asked her to get out of her vehicle. But an officer may order a person out of a vehicle even in a traffic stop. (People v. Hoyos (2007) 41 Cal.4th 872, 892–893 [officer making a traffic stop may order driver and passengers to exit a vehicle]; Pennsylvania v. Mimms (1977) 434 U.S. 106, 110–111 [permissible for officer to require driver to exit the vehicle].)
Because appellant was detained, rather than arrested, the pertinent question is whether the detention was constitutionally reasonable. For a detention to be lawful, an officer must have an objectively reasonable, articulable suspicion that the person has committed or is about to commit a crime. (Terry v. Ohio (1968) 392 U.S.1, 21; People v. Wells (2006) 38 Cal.4th 1078, 1083.) In evaluating whether there is objective reasonableness, we examine the “totality of the circumstances” to determine whether a “particularized and objective basis” supports the detention. (United States v. Cortez (1981) 449 U.S. 411, 417; People v. Souza (1994) 9 Cal.4th 224, 231 [police officer must “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”].)
Here, the record shows that Detective Taoatao had a reasonable, articulable suspicion that appellant had committed a crime. The detention took place in a high crime area, in which narcotics crimes occurred with frequency. Detective Taoatao observed appellant engage in two transactions, which were consistent with call-and-deliver drug sales, based on his experience of having seen hundreds of such transactions. In the first incident, the woman in the Ford behaved nervously, looking around in all directions. When appellant arrived, the woman immediately followed her and parked right behind her, indicating that the meeting had been prearranged. Detective Taoatao observed the woman and appellant exchange money and an envelope, an instrument used to package drugs. Both appellant and the woman immediately left the scene, presumably to minimize the risk of detection of their illegal activity.
The second incident transpired immediately afterwards in a similar fashion. Appellant waited in her car, nervously looking around in all directions. Cedeno parked his car and immediately approached appellant, demonstrating that the meeting had also been prearranged. Cedeno and appellant exchanged money and an identical envelope as in the transaction with the woman in the Ford. When appellant and Cedeno were approached by Detective Taoatao, Cedeno immediately dropped the envelope and began to walk over to his car, as if to flee the scene. When Detective Taoatao asked Cedeno about the envelope, he denied having dropped anything into the car.
Appellant contends that the above details are almost identical to those in Cunha v. Superior Court (1970) 2 Cal.3d 352 (Cunha). As an initial matter, Cunha is inapposite because the issue in that case was whether there was probable cause to arrest the defendant, not whether the defendant had been detained reasonably. Appellant argues that because the Supreme Court noted that it had “some doubts” that the defendant’s activities would have been sufficient to justify a detention, the case also established a standard for determining whether a detention is reasonable. (Id. at p. 356.) In any event, that case does not assist appellant because the facts are distinguishable.
In Cunha, two police officers were conducting undercover surveillance in an area in which each officer had participated in numerous narcotics arrests in recent months. (Cunha, supra, 2 Cal.3d at p. 354.) From their seats at a hot dog stand, one of the officers observed the defendant and another man walking towards them, engaged in conversation. (Id. at pp. 354–355.) The officers’ suspicion was aroused by the manner in which the two men were looking around and behind them as if to see if they were being watched. (Id. at p. 355.) The two men continued their conversation as they walked past the hot dog stand and then stopped. (Ibid.) One of the officers observed each of the suspects reach into his pants pocket. (Ibid.) The companion appeared to extract an object, although the officer could not see it, while the defendant took out what appeared to be money. (Ibid.) The two men then placed their hands together in what appeared to be an exchange. (Ibid.) The officers concluded that they had witnessed a drug deal and proceeded to arrest and search the defendant and his companion. (Ibid.) The Court stated that the fact that the defendant and his companion “looked around as they walked on a public sidewalk in broad daylight, and apparently engaged in some sort of transaction in an area known for frequent narcotics traffic” was not sufficient to provide probable cause for arrest, and perhaps even to justify a detention. (Id. at pp. 356, 357.)
Appellant argues that under Cunha, the activity observed by Detective Taoatao did not rise to the level of reasonable suspicion. We disagree because there was more indicia of criminal activity here than in Cunha. The location was a factor, as Detective Taoatao testified that it was an area well known for narcotics activity. (People v. Souza, supra, 9 Cal.4th at p. 240 [“An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment”].) The transaction itself also aroused suspicion. Here, unlike Cunha, Detective Taoatao was able to see the object, a white envelope known to be used to package drugs, and the money that was exchanged. Detective Taoatao also relied on the parties’ conduct, which included nervously looking around and immediately leaving the scene after the transaction. (See In re H.M. (2008) 167 Cal.App.4th 136, 144 [“Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”].) The brief exchanges between appellant and the parties, which are consistent with business transactions rather than social interactions, the parties’ apparent desire to avoid detection, and the prearranged nature of the meetings further aroused suspicion. Perhaps most significantly, Detective Taoatao observed two virtually identical transactions in a short period of time.
As an officer with training and experience in recognizing call-and-deliver drug dealing, Detective Taoatao could reasonably infer that the transactions were not merely innocent activity. (See United States v. Arvizu (2002) 534 U.S. 266, 273 [“officers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’”]; People v. Ledesma (2003) 106 Cal.App.4th 857, 863 [United States Supreme Court “has been sharply critical of lower court decisions precluding police reliance on facts consistent with an innocent as well as a guilty explanation” and “has cautioned against restricting the range of facts considered in the calculus of reasonable suspicion”].) Under the totality of these circumstances, appellant’s detention was supported by an objectively reasonable suspicion of criminal activity.
II. The Search Was Proper
Appellant argues that under Arizona v. Gant (2009) __ U.S. __ [129 S.Ct. 1710] (Gant) the search of appellant’s car was improper. Gant stands for the rule that a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle is invalid. (Id. at p. 1714.) Because appellant was presumably not arrested until after the search of the car, this rule is inapplicable here. The search of appellant’s car was not incident to an arrest because appellant had only been detained at that time.
The record is unclear as to the sequence of events. Based on the facts in the record, it appears that appellant was detained by the officers, her car was searched, and then she was arrested.
The Fourth Amendment prohibits warrantless searches with some exceptions, one of which is commonly referred to as the automobile exception. Under this exception, a vehicle, because of its mobility, may be searched without a warrant when police have probable cause to believe it contains contraband. (Maryland v. Dyson (1999) 527 U.S. 465.) If probable cause exists, there is no separate exigency requirement for the automobile exception to apply. (Pennsylvania v. Labron (1996) 518 U.S. 938, 940.) Probable cause to search exists if “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238.) “Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.” (Ybarra v. Illinois (1979) 444 U.S. 85, 91.) The police may search an automobile and the containers therein when they have probable cause to believe contraband or evidence will be found. (California v. Acevedo (1991) 500 U.S. 565, 580.)
In this case, the facts discussed above—a high crime area, the nervous and evasive behavior of the parties, the exchange of money for an envelope used to package drugs, the brevity and prearranged nature of the transactions, the two transactions taking place immediately after one another—as well as Cedeno’s obvious desire to depart the scene, his immediate release of the envelope in the car, and his denial that he had dropped anything into the car, justified the search of the car. During such a search, the police “may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.” (Wyoming v. Houghton (1999) 526 U.S. 295, 307.) “‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’” (Id. at p. 301, quoting United States v. Ross (1982) 456 U.S. 798, 825, italics omitted.) Thus, the narcotics discovered in the search of appellant’s car and her purse were properly admitted into evidence.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.