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In re Crystal K.

California Court of Appeals, Fourth District, Third Division
May 29, 2008
No. G038494 (Cal. Ct. App. May. 29, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DL018834, Donna L. Crandall, Judge.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RYLAARSDAM, ACTING P. J.

Crystal K. appeals the denial of her motion to suppress. We conclude that the police had reasonable suspicion to detain her and that the detention was not illegally prolonged. We also reject her contention that there was no basis for the police to search her person. There was no such search; she voluntarily removed the contraband from her clothing and handed it to the police. We therefore affirm the judgment.

FACTS

The trial court denied the motion to suppress after hearing the testimony of both Fountain Valley Detective Maldonado and the minor and receiving a stipulation that Officer Hartge would testify as to his observations and statements as reflected in the police report.

While Maldonado was in an undercover van conducting surveillance on Raji Dhaliwal, a suspected narcotics dealer, he saw a white Ford Mustang occupied by two women drive into the carport of the suspect’s building. Dhaliwal approached the Mustang, the passenger door was opened, and, after his brief conversation with the occupants of the car, Dhaliwal reached inside the car and then placed his hand in his pocket. The Mustang thereupon started to drive away. Maldonado believed a narcotics transaction had just taken place and informed a surveillance team what he had seen. Thereafter, while using binoculars from about 150 yards away, Maldonado observed the Mustang being stopped by two male officers in the parking lot of a fast food restaurant. Between 5 and 10 minutes later, a female officer arrived on the scene.

The police report discloses that officers Hartge and Luce, while working a two-person patrol unit, received a broadcast that Fountain Valley detectives needed assistance in stopping a vehicle witnessed to have been involved in what was believed to be a narcotics deal. They found the white Ford Mustang and after stopping it, Hartge spoke to the driver. Luce spoke with the minor who was the passenger. Hartge asked the two young women if there was anything illegal in the car. After denying this, the driver gave permission for Hartge to search the vehicle; he did so and did not find any narcotics in the car. The women denied having narcotics on their persons.

Sergeant Long, a female officer, arrived “to see whether [the driver and the minor] would consent to a further search of their person by a female officer.” Long spoke to the driver first as they walked approximately 15 feet away from the minor and the two investigating officers. While Long spoke with the driver, the minor asked Hartge whether the female officer was there to search them. When he responded in the affirmative, the minor removed a ziplock baggie from her brassiere. The material in the baggie appeared to be methamphetamine.

The minor testified that about 45 minutes to an hour after being pulled over, she was taken to the police station. According to her testimony, the female officer did not show up at the scene of her arrest until about 45 minutes after the officers had stopped the car. About 25 minutes earlier, she heard the officers talking about having a female officer come out. She stated that during the interval before the female officer arrived, “They were harassing me, having me sit on the curb and saying stuff to me.” She was not asked what “stuff” was being said.

DISCUSSION

1. Reasonable suspicion supports the stopping of the car.

The minor first argues the police lacked a reasonable suspicion that would justify their stopping of the car in which she was a passenger. The Attorney General concedes that she, as a passenger in the Mustang, has standing to raise this issue. (Brendlin v. California ___ U.S. ___ [127 S.Ct. 2400, 2403, 168 L.Ed.2d 132].) Citing Terry v. Ohio (1967) 392 U.S. 1, 30, the minor notes that “[t]he police may detain an individual for investigation when they have observed conduct that leads them to reasonably believe that ‘criminal activity may be afoot.’” The minor acknowledges that where the police can articulate 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[,]” an investigative detention is reasonable. (People v. Souza (1994) 9 Cal.4th 224, 231.)

The “totality of the circumstances” here included the following facts. Officer Maldonado had many years of experience and narcotics training. He saw the young women drive into the carport of a building occupied by a suspected narcotics dealer and apparently expecting someone to come to them. Almost immediately, the suspected narcotics dealer approached the car, the minor opened the passenger door, and, after a brief conversation with the occupants, the suspected narcotics dealer reached inside the car and then brought his hand to his pocket. This would raise a reasonable suspicion that money and narcotics changed hands.

The parties argue about whether three cases, each holding a detention to be reasonable, present facts analogous to those confronting us here. They do. Although one of these was disapproved by the Supreme Court, we discuss all three because of the parties’ reliance on them. These cases are People v. Limon (1993) 17 Cal.App.4th 524 (Limon), In re Frederick B. (1987) 192 Cal.App.3d 79 (Fredrick) disapproved on other grounds in In re Randy G. (2001) 26 Cal.4th 556, 567, fn. 2, and Santos v. Superior Court (1984) 154 Cal.App.3d 1178 (Santos).

In Limon the police observed the defendant remove something from the wheel well of a truck, walk about 10 feet to another person, and exchange something. The defendant then returned to his truck and put something back in the wheel well of the truck. The exchange took place in an area known for drug transactions.

The court concluded the defendant’s detention was justified. It cited People v. Wilkins (1986) 186 Cal.App.3d 804 in stating that “a police officer can detain a person when the officer is aware of ‘specific and articulable facts’ suggesting ‘that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity.’ [Citation.]” (Limon, supra, 17 Cal.App.4th at pp. 531-532.) So here, the minor and her companion’s stopping in the carport of a suspected drug dealer by apparent prearrangement, whereupon the suspected drug dealer comes to the car and appears to exchange something with her constitute such “specific and articulable facts.”

The minor seeks to distinguish Limon because there the activity took place in a location known for drug activity. But in our case the activity took place in the carport of a suspected drug dealer, an analogous situation. The minor also argues that we should not follow Limon because there the defendant engaged in a hand-to-hand exchange. But the movements of Dhaliwal, as observed by Detective Maldonado, demonstrated substantially similar conduct.

In Frederick, a school police officer detained the defendant after he saw him exchange money with another student in an area of the campus where the officer knew other narcotics transactions had taken place. This was sufficient to support a detention. Defendant distinguishes this on the basis that different rules apply on school grounds. They do now; but they did not when Frederick was decided, and its factual basis is instructive here. In In re Randy G., supra, 26 Cal.4th at p. 567, fn. 2, the California Supreme Court expressly disapproved of the holding in Frederick that reasonable suspicion was required before the detention of a student on school property was justified. (Frederick, supra, 192 Cal.App.3d at pp. 85, 86.)

Finally, in Santos, the court held that an exchange of unidentified objects in a high narcotics area and the possible violation of an anti-loitering ordinance constituted sufficient “reasonable suspicion” to justify the defendant’s detention. (Santos, supra, 154 Cal.App.3d at p. 1184.) Defendant seeks to distinguish this case on the ground that her detention did not take place in a high narcotics area. But the officer’s observation of the apparent exchange between a suspected narcotics dealer and the minor fills this gap.

The minor also argues that the record is silent as to the reasons why Dhaliwal was thought to be dealing in narcotics. But counsel stipulated that Dhaliwal was “a suspected narcotics dealer who the police believed was selling narcotics out of the apartment . . . .” The record is silent beyond this stipulation because the minor’s lawyer failed to accept an offer made by the court to continue the hearing to permit discovery on this issue.

The prosecutor started to question officer Maldonado why the surveillance was being conducted. The minor objected on grounds that this was not relevant. After the court overruled the objection, Maldonado stated, “We basically had a patrolman who made an arrest earlier in the month, and that arrest developed incorporating an informant providing information on that subject as being a supplier of narcotics in the area.” Then the minor objected, stating she had requested this information and it had not been supplied. After an exchange wherein the prosecutor stated that she only received the information that day, the court offered “to continue the matter and get the report, now that this is available.” Defense counsel responded rather ambiguously, stating inter alia, “since we have all the witnesses here, I don’t mind continuing at this point, with the understanding that I can’t effectively cross-examine on this area.” The court responded, “I am willing to allow you to continue the matter to have full discovery to satisfy yourself. . . .” That is when counsel stipulated that Dhaliwal was a suspected dealer believed to be selling narcotics from the apartment.

The record does not disclose that the minor ever sought to accept the court’s offer of a continuance. We view the stipulation that Dhaliwal was a suspected narcotics dealer, dealing from the apartment house where the minor was detained, as providing evidence analogous to the “areas of know narcotics activity” mentioned in the cited cases. And this fact, coupled with the exchange between the minor and Dhaliwal, constitutes sufficient “reasonable suspicion” to justify the minor’s detention.

2. The extent of the detention was not unreasonable.

An investigative stop must be “carefully tailored to its underlying justification . . . last[ing] no longer than is necessary to effectuate the purpose of the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500 [103 S.Ct. 1319, 75 L.Ed.2d 229].) For the first time in her reply brief, and in violation of California Rules of Court, rule 8.204(a)(1)(B), which requires each point to be stated under a separate heading, the minor argues that her detention was unreasonably prolonged. The evidence pertaining to the length of the detention was in conflict and the trial court was entitled to accept the testimony of the officer. And, as the minor acknowledges, “it is not the absolute length of a detention that determines whether or not it has been unduly prolonged. Instead, the pertinent questions are whether the officers completed their work within a reasonable time frame and whether they prolonged a detention after completing all investigative steps.”

Here the officers had reasonably suspected that the minor was in possession of narcotics. The consensual search of the car found none, suggesting that the narcotics were hidden on the minor’s person. It was no more unreasonable to request the assistance of a female officer under these circumstances than it was unreasonable to detain a defendant an additional 15 to 20 minutes to obtain a Spanish speaking officer where the defendant did not speak English, as was the case in People v. Avalos (1996) 47 Cal.App.4th 1569, 1577.

3. The minor voluntarily relinquished possession of the narcotics.

As the minor points out, except for a weapons search, the police may only search a suspect if they have probable cause to arrest. (People v. Mickelson (1963) 59 Cal.2d 448, 454.) But here there was no search. After Sergeant Long arrived, the minor voluntarily removed the ziplock baggie containing the methamphetamine from her brassiere and handed it to Long.

The Attorney General relies on People v. Houston (1958) 164 Cal.App.2d 396 (Houston) and People v. Michael (1955) 45 Cal.2d 751 (Michael) to demonstrate that the mere presence of the female officer and the minor’s fear that she might be searched does not render the relinquishment of the contraband involuntary. In Houston, an officer told the defendant, while driving him to jail, that if he had narcotics on his person, they would be found when he was booked. The defendant thereupon removed narcotics from his rectum. The case rejected the defendant’s contention that this constituted an illegal search and held there was a voluntary relinquishment of the contraband. (Houston, supra, 164 Cal.App.2d at p. 398.)

In Michael, after officers were admitted into defendant’s residence, they inquired whether the defendant had narcotics in the house, whereupon the defendant produced a container containing the drugs. The California Supreme Court rejected the defendant’s argument that she produced the contraband in submission to authority and that her consent was therefore ineffective. (Michael, supra, 45 Cal.2d at p. 754.) The minor argues that these cases must be distinguished.

She claims Houston does not apply because there the defendant was under arrest. She fails to explain why this should lead to a different result, but even if it does, Michael supports the decision of the trial court. In Michael, the court emphasized that “[w]hether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.” (Michael, supra, 45 Cal.2d at p. 753.) The court noted that these issues should not be determined as a matter of law (id. at p. 754) and that to do so “would seriously hamper officers in the reasonable performance of their duties” (ibid.). To prevent officers from seeking the disclosure of contraband “would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.” (Ibid.)

The trial court determined that the minor voluntarily relinquished the contraband. There is sufficient evidence to support such a conclusion and, as cautioned by the court in Michael, we may not determine this issue as one of law to reach a contrary result.

DISPOSITION

The judgment is affirmed.

WE CONCUR: O’LEARY, J., ARONSON, J.


Summaries of

In re Crystal K.

California Court of Appeals, Fourth District, Third Division
May 29, 2008
No. G038494 (Cal. Ct. App. May. 29, 2008)
Case details for

In re Crystal K.

Case Details

Full title:In re CRYSTAL K., a Person Coming Under the Juvenile Court Law. THE…

Court:California Court of Appeals, Fourth District, Third Division

Date published: May 29, 2008

Citations

No. G038494 (Cal. Ct. App. May. 29, 2008)