Opinion
F062206 Super. Ct. No. BF126897A
01-18-2012
THE PEOPLE, Plaintiff and Respondent, v. MELVIN DERWAIN WHITE, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5),appellant, Melvin Derwain White, pursuant to a plea agreement, pled no contest to possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5) and active participation in a criminal street gang (§ 186.22, subd. (a)). In accordance with the plea agreement, the court imposed a prison term of three years.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant's sole contention is that the court erred in denying the suppression motion. We affirm.
FACTS
At approximately 4:45 p.m. on April 28, 2009, City of Bakersfield Police Officers Stratton, Kroeker, Martin and Beagley, all of whom were assigned to the Bakersfield Police Department's Gang Unit, were patrolling the area of Reese Avenue and Windsor Street in Bakersfield (the area) when they saw a group of 30 to 40 persons, one of whom was appellant, standing in a circle in the front yard of a residence. The area is part of the territory of the Country Boy Crips criminal street gang (CB gang). Officer Stratton testified to the following: The area is "very violent" and "high in ... criminal activity," specifically "gang-related activity involving the [CB gang]." Within approximately the previous week, two CB gang members had been shot to death, and because it is common for such shootings to lead to retaliatory shootings, Gang Unit officers were "patrolling heavily" in the area in an attempt to "maintain high visibility" in order "to discourage any kind of violent reaction."
Officer Stratton further testified he recognized a "good majority" of the persons standing in the yard, including appellant, as members of the CB gang, and suspected that a "gang meeting" was in progress. As he and the other officers arrived on the scene, some of the persons in the yard yelled, "rollers," a slang term for police officers, at which point the group dispersed. Almost all of them were running, "in several different directions," but appellant was walking at what Officer Martin described as a "fast pace," with two other gang members. Officer Martin testified he "yelled at [appellant] to stop and come back," but appellant continued to walk away "[a]t a fast[] pace." At that point, Officer Martin testified, he and his partner, Officer Beagley, got back into their patrol car and "went around the block," where they "contacted" appellant and his two companions. As the patrol car "pulled around," all three sat down on the curb. Appellant made no furtive movements and did not try to get away.
Officer Martin testified he placed appellant under arrest for "[d]elaying an investigation"; placed appellant in the back of the patrol car, in handcuffs; and transported him to where appellant's car was parked. There, Officer Martin asked for appellant's consent to search his car. Appellant gave his consent, Officers Martin and Beagley searched the car, and during that search Officer Beagley found a quantity of rock cocaine.
Under section 148, subdivision (a)(1), it is a criminal offense to "willfully resist[], delay[], or obstruct[] any ... peace officer ... in the discharge or attempt to discharge any duty of his ... employment ...."
Officer Beagley testified appellant was also arrested for active gang participation in violation of section 186.22, subdivision (a).
Officer Stratton testified he saw appellant "walking away" but did not see appellant "engaged in any type of criminal activity ...." Officer Beagley, who testified he saw appellant walking away from him and Officer Martin and later sitting on the curb, also indicated he did not "observe [appellant] engaged in any type of criminal activity" or "observe [appellant] to do any type of movement that would lead [him] to believe that [appellant] had any type of weapon on him." Officer Martin indicated he "never observed [appellant] doing anything that would lead [him] to believe during the time that [appellant] was walking away that he was engaged in any type of criminal activity."
DISCUSSION
"The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend. ....)" (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) "Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant [citation]." (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 653.) But there are "a few specifically established and well-delineated exceptions" to the warrant requirement. (United States v. Ross (1982) 456 U.S. 798, 825, internal quotation marks and citations omitted.) Two such exceptions—both of which the prosecution relied upon below in seeking to justify the warrantless search of appellant's car—are searches incident to a lawful arrest (Chimel v. California (1969) 395 U.S. 752, 762-763) and searches pursuant to consent (People v. Woods (1999) 21 Cal.4th 668, 674).
The major premise of appellant's challenge to the denial of his suppression motion is the claim that his detention prior to his arrest was unlawful. He argues that (1) the search cannot be justified as a search incident to lawful arrest for violating section 148 because the unlawful detention rendered the arrest unlawful (see Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818-819 [obstructing, delaying or resisting a peace officer in violation of section 148 requires that the officer was acting lawfully at the time the offense against him was committed]), and (2) the consent exception to the warrant requirement does not apply here because his consent was the product of his unlawful detention (see People v. Zamudio (2008) 43 Cal.4th 327, 341 ["Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure"]). The People counter that appellant was lawfully detained, and therefore his argument fails because its major premise is invalid. Thus, appellant's challenge to the denial of his suppression motion turns on the lawfulness of the detention. We turn now to consideration of that issue.
A "brief investigative stop[]" of a person, commonly referred to in the case law as a detention, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).) There is no dispute that appellant was detained at the point Officer Martin ordered him to stop. (See United States v. Mendenhall (1980) 446 U.S. 544, 554 [a detention occurs whenever "a reasonable person would have believed that he was not free to leave"].)
"To justify ... [a] detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer's subjective state of mind at the time of the stop or detention." (People v. Conway (1994) 25 Cal.App.4th 385, 388.) "Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity." (Id. at p. 389.) "The corollary to this rule is that an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith." (Ibid.)
"The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109.)
"Reasonable suspicion cannot be reduced to a neat set of legal rules, but must be determined by looking to 'the totality of the circumstances—the whole picture.'" (U.S. v. Jordan (5th Cir. 2000) 232 F.3d 447, 449, quoting United States v. Sokolow (1989) 490 U.S. 1, 7-8.) Under this standard, a detention requires only a "minimal level of objective justification" (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow)), and an officer may initiate one "based not on certainty, but on the need to 'check out' a reasonable suspicion" (United States v. Clark (D.C. Cir. 1994) 24 F.3d 299, 303 (Clark)). Moreover, "we 'judge the officer's conduct in light of common sense and ordinary human experience,' [citation], and we accord deference to an officer's ability to distinguish between innocent and suspicious actions." (U.S. v. Williams (10th Cir. 2001) 271 F.3d 1262, 1268.) "[W]hen circumstances are '"consistent with criminal activity," they permit—even demand—an investigation ....' [Citation.] A different result is not warranted merely because circumstances known to an officer may also be "'consistent with lawful activity."' [Citation.] ... 'The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal ....'" (Souza, supra, 9 Cal.4th at p. 233.)
In reviewing the denial of a suppression motion, "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. Glaser (1995) 11 Cal.4th 354, 362.)
As indicated above, a two-part showing is required. The facts must be sufficient to cause a reasonable officer to suspect that (1) criminal activity is afoot, and (2) the detainee is involved in that activity.
As to the first point, based on the police testimony, the court reasonably could have concluded as follows: Officers observed what they reasonably suspected to be a meeting of a criminal street gang in progress, just days after members of the gang had been shot and killed. It is common for gang members to be armed and to commit violent crimes in retaliation for violent acts against gang members. Upon seeing the police, gang members called out a warning to their fellow gang members that police were on the scene, at which point the meeting broke up as almost all of the participating gang members ran off in different directions.
This last point is significant because "flight from police is a proper consideration—and indeed can be a key factor—in determining whether in a particular case the police have sufficient cause to detain." (Souza, supra, 9 Cal.4th at p. 235.) Wardlow, supra, 528 U.S. 119 is instructive. In that case, a police officer was driving the last car in a four-car police caravan "converging on an area known for heavy narcotics trafficking ...." (Id. at p. 121.) The officer observed the suspect, Wardlow, "standing next to the building holding an opaque bag." (Id. at pp. 121-122.) Wardlow "looked in the direction of the officers and fled." (Id. at p. 122.) The officer stopped Wardlow and conducted a patdown frisk which revealed that Wardlow was carrying a loaded handgun.
In upholding the search, the Wardlow majority, noting that "[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime[,]" stated that "the fact that the stop occurred in a 'high crime' area [was] among the relevant contextual considerations" in determining the reasonableness of a detention. (Wardlow, supra, 528 U.S. at p. 124.) And, noting Wardlow's "unprovoked flight upon noticing the police[,]" the court also stated, "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight—wherever it occurs—is the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Ibid.) Based on the suspect's presence in a high-crime area, coupled with his flight from police, the majority in Wardlow "conclude[d] [the officer] was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further." (Id. at p. 125.)
On this record, given the "[h]eadlong flight" of multiple gang members upon being alerted to the presence of police, coupled with the other factors summarized above, a reasonable police officer could suspect that criminal activity, viz., violent, retaliatory action by armed gang members, was afoot.
We turn now to the second part of the showing required, i.e., the question of whether the information available to police was sufficient to give rise to a reasonable suspicion that appellant was, or was about to be, involved in criminal activity. Appellant suggests that because he was walking, rather than running, and did not engage in "headlong flight," the evidence was insufficient to support a reasonable suspicion that he was attempting to evade police. We disagree.
Running is not the only form of evasive conduct that may be indicative of consciousness of guilt. Courts have declined to establish any bright-line test regarding the assessment of police avoidance in the context of temporary detentions. (See Souza, supra, 9 Cal.4th at pp. 235-239 [rejecting the People's request for bright-line rule]; Wardlow, supra, 528 U.S. at p. 126 [conc. & dis. opn. of Stevens, J.] [noting majority's rejection of bright-line rule when assessing flight].) Rather, like other factors relevant to the reasonable suspicion standard, the overall significance of an individual's decision to avoid police contact must be weighed by looking to "'the totality of the circumstances—the whole picture.'" (Souza, at p. 239.) Here appellant was not merely strolling at a leisurely pace; he walked away from the officers at a fast pace. Moreover, he did so immediately upon his fellow gang members sounding the alarm that police were in the area, under circumstances—members of the gang recently being shot, the propensity of gang members to respond to such events with violence—that would suggest to a reasonable officer that criminal activity was afoot. A reasonable officer could have concluded that appellant's act of walking away from police was "nervous, evasive behavior" (Wardlow, at p. 124), suggestive of consciousness of guilt.
Appellant also argues that because all of the testifying officers "squarely testified that they did not suspect appellant was engaged in any criminal activity," the detention cannot be justified "based on a reasonable suspicion of criminal activity ...." However, as indicated above, we look not to the officers' subjective beliefs, but to whether it was objectively reasonable for officers to suspect appellant was engaged in, or about to engage in, criminal activity. Admittedly, appellant's conduct was consistent with innocent activity. But this point notwithstanding, when we examine the totality of the circumstances and apply our independent judgment, we conclude the officers were faced with an ambiguous situation which provided the "minimum level of objective justification" (Wardlow, supra, 528 U.S. at p. 123) necessary to allow the police to detain appellant and "'check out'" (Clark, supra, 24 F.3d at p. 303) whether some kind of violent retaliation for the shooting of his fellow gang members was in the offing, and whether appellant was involved.
We conclude further that because the police could lawfully detain appellant, his refusal to comply with Officer Martin's order to stop justified appellant's arrest for delaying a peace officer in violation of section 148, subdivision (a). Therefore, the search was justified as a search incident to a lawful arrest. And because appellant's consent was not rendered invalid by an unlawful detention, the search was also justified under the consent exception to the warrant requirement. The court therefore did not err in denying appellant's suppression motion.
Appellant also argues that the search was not justified as a search incident to his arrest for violating section 186.22, subdivision (a). Because we uphold the search on other grounds, we need not address this argument.
--------
DISPOSITION
The judgment is affirmed.