Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI700733. Annemarie G. Pace and Jules E. Fleuret, Judges.
Judge Pace denied defendant’s motion to suppress evidence under Penal Code section 1538.5. Judge Fleuret denied defendant’s motion to dismiss under Penal Code section 995.
Laurel M. Nelson, 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. Shons, Assistant Attorney General, James D. Dutton, Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Sammy Lee Lawson appeals from his conviction of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) on the ground the trial court erred in denying his motion to suppress evidence obtained in an allegedly illegal search and seizure. Defendant contends (1) the arresting officer’s contacts with defendant constituted unlawful detentions violative of the Fourth Amendment, (2) the search of defendant was not a valid parole search because it was arbitrary and capricious, and (3) in the alternative, his trial counsel provided ineffective assistance by failing to renew the motion to suppress. We find no error, and we affirm.
Defendant’s petition for writ of habeas corpus has been ordered considered—but not consolidated—with this appeal. We will resolve the petition for writ in a separate order.
II. PROCEDURAL FACTS AND BACKGROUND
A. Statement of the Case
Defendant was charged in a felony complaint with possession of marijuana for sale (Health & Saf. Code, § 11359; count 1), transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); count 2), and street terrorism (Pen. Code, § 186.22, subd. (a); count 3). In addition, a prior prison term conviction was alleged under Penal Code section 667.5, subdivision (b) as to all counts, and a gang enhancement (Pen. Code, § 186.22, subd. (b)) was alleged as to the first two counts.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a motion to suppress evidence on the ground it was obtained in an illegal search and seizure. The motion was denied following a combined preliminary hearing and suppression hearing. An information charging defendant with the three counts was filed and defendant initially pled not guilty to all charges.
Defendant filed a section 995 motion to set aside the information on the ground of insufficiency of evidence. The section 995 motion was denied, and defendant thereafter pled guilty to count 2, transportation of marijuana. The remaining counts and the enhancement allegations were dismissed. The trial court sentenced defendant to two years in prison.
B. Statement of the Facts
1. Background and Initial Contact
On the afternoon of April 13, 2007, Deputy Sheriff Ryan Peppler and Probation Officer Nate Scarano were in the area of Bartlett Avenue, west of Highway 395 in Adelanto, looking for a probationer with an active arrest warrant. Deputy Peppler was assigned to the Specialized Enforcement Division of the High Desert Gang Team and had substantial experience with criminal street gangs and marijuana investigations.
The facts are taken from the testimony presented at the preliminary hearing.
As he parked his patrol car in a convenience store parking lot and began walking toward the store’s entrance, Deputy Peppler spotted defendant sitting in the driver’s seat of a silver Chevrolet Impala. Defendant resembled the probationer the officers were looking for.
Deputy Peppler approached the Impala, and from a distance of about 10 feet, motioned and yelled to defendant, “‘Hey’ . . . ‘Can I talk to you for a minute?’” The Impala was moving at an “idle pace” as Deputy Peppler approached. After making eye contact with Deputy Peppler, defendant sped away at a high rate of speed and the officers followed. The officers saw defendant turn right onto Bartlett Avenue and then lost sight of him.
2. Second Contact
Deputy Peppler and Officer Scarano drove westbound on Bartlett Avenue for one to two minutes until they came upon defendant walking southbound across the street. Deputy Peppler pulled his car over, got out, and approached defendant. Deputy Peppler believed defendant was the wanted probationer because of defendant’s abrupt flight and nervous behavior. Deputy Peppler testified that through his training and experience, he knew that “people that are . . . wanted or that have warrants . . . oftentimes will run and act nervous . . . which [defendant] was doing.” Deputy Peppler “asked [defendant] what was going on . . . [and] what his name was,” as well as whether he was on parole. Defendant gave his name and admitted he was on parole.
Although defendant was not the probationer for whom they were searching, Deputy Peppler patted defendant down “for officer-safety reasons” because of defendant’s behavior, handcuffed defendant, and placed defendant in the police vehicle. Curious to see where defendant had been coming from, Deputy Peppler drove across the street to an open area behind a strip mall. There, the deputy spotted the Impala that he had seen defendant driving earlier.
Deputy Peppler observed footprints in the dirt leading toward where defendant was apprehended. The deputy concluded that the tread and the size of the footprints matched defendant’s shoes. Deputy Peppler searched the vehicle and found a baggie of marijuana hidden in the gas tank door and empty baggies in the console. The marijuana, including packaging, weighed 1.80 ounces. The deputy concluded from the amount and the packaging materials found that the marijuana was possessed for sale.
Deputy Peppler also searched defendant’s sister’s apartment in Adelanto, the address to which defendant was paroled. There, in a cabinet where defendant’s sister said defendant kept his belongings, Deputy Peppler discovered a digital scale and more packaging materials.
Deputy Peppler also observed tattoos on defendant’s hand and forearm indicative of membership in the “Rolling Thirties,” a subset of the larger Crips street gang. Defendant admitted having been a gang associate “‘back in the day.’” The deputy opined that because the Crips use drug sales to fund themselves, defendant was still a member and his activities likely benefited the Crips.
III. DISCUSSION
A. Was the Issue of Evidence Suppression Preserved for Appeal?
The People contend that the appeal should be dismissed because defendant failed to preserve, for appellate review, the issue of whether the trial court erred in denying his motion to suppress. Defendant responds that, despite his failure to reargue the suppression issue, his filing of a section 995 motion effectively renewed the suppression motion he had made during the preliminary hearing.
A defendant who has had a suppression motion heard at the preliminary hearing may “renew . . . the motion at a special hearing . . . .” (§ 1538.5, subd. (i).) “The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search and seizure . . . .” (§ 1538.5, subd. (m).) Failure to renew the suppression motion through one of these means results in waiver of that issue for appellate review. (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Richardson (2007) 156 Cal.App.4th 574, 591.)
To renew the motion to suppress at the superior court level, the section 995 motion must articulate at the very least the party’s intent to make a suppression motion, what evidence the defense wants suppressed, or the grounds for suppression. (See Smith v. Superior Court (1978) 76 Cal.App.3d 731, 734.) In his section 995 motion, defendant argued only that the evidence was insufficient to support count 3, the gang charge. He did not challenge the magistrate’s denial of his section 1538.5 motion or argue that the search and seizure were unlawful.
Defendant argues that his counsel was justified in failing to explicitly renew the motion, because section 1538.5 precludes a de novo hearing on the search and seizure issue if it has already been fully heard and disposed of in the preliminary hearing. He further suggests that because section 1538.5 limits the renewal hearing to the review of preliminary hearing transcripts and evidence that could not reasonably have been presented at the preliminary hearing, he was not required to present the arguments again, and it was implied that he was seeking reconsideration of the suppression issue.
Indeed, section 1538.5, subdivision (i) proscribes a full hearing of the suppression motion if the motion has already been made during the preliminary hearing. However, that section does not preclude a special hearing limited only to the review of the preliminary hearing transcript and evidence that could not reasonably have been presented at the preliminary hearing. (Ibid.) We have found no authority, and defendant has cited none, supporting the proposition that the mere mention of the suppression issue in the preliminary hearing transcript impliedly renewed the suppression issue upon the filing of a section 995 motion. As the Supreme Court stated in Lilienthal: “[I]t would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal, supra, 22 Cal.3d at p. 896, fn. omitted.) Because the trial court was never notified of defendant’s evidentiary challenge, it had no obligation to consider the issue in conjunction with the section 995 motion.
Accordingly, we conclude that any error in the denial of defendant’s suppression motion was not preserved for appeal. We will nonetheless exercise our discretion to address the merits of the case. (People v. Blanco (1992) 10 Cal.App.4th 1167, 1173.)
B. Standard of Review
In reviewing the denial of a motion to suppress evidence, this court employs a two-part standard of review. For issues of fact, we defer to the trial court’s findings if supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) For the application of law to those facts and for issues of reasonableness under the Fourth Amendment, we employ a de novo standard. (Ibid.)
C. Were the First and Second Contacts with Defendant Detentions?
Defendant contends both of Deputy Peppler’s contacts with him should be deemed detentions because defendant did not feel free to leave the deputy’s presence.
“Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) “Consensual encounters do not trigger Fourth Amendment scrutiny,” and “[u]nlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.” (Ibid.)
1. First Contact
Defendant argues that Deputy Peppler’s motioning and yelling, as well as his subsequent pursuit of defendant, indicate the deputy was attempting a detention in the first contact.
In United States v. Mendenhall (1980) 446 U.S. 544, 554, the United States Supreme Court set forth the test for determining whether a contact is a consensual encounter or a temporary detention. Under that test, a contact is a detention when, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Ibid., fn. omitted.) Cases distinguishing detentions from consensual encounters often turn on whether the officer requested or commanded the civilian to, for instance, engage in a conversation or provide identification. (See In re Manuel G., supra,16 Cal.4th at pp. 811, 822 [“‘Hey, can I talk to you?’” was deemed to be a request]; cf. People v. Verin (1990) 220 Cal.App.3d 551, 555 [“‘Hold it. Police’” or “‘Hold on. Police’” were deemed to be commands].)
The trial court characterized the first contact as an attempt at a consensual contact, not as an attempt at a detention. The uncontested evidence showed that Deputy Peppler did not command defendant to cooperate; rather, Deputy Peppler motioned to defendant and requested to have a word with him. Deputy Peppler did not park his patrol car behind defendant, did not order defendant to park or exit the vehicle, did not turn on his siren, shine his emergency lights at defendant’s vehicle, or draw his weapon. (See People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [blocking a parked car is a detention]; see also People v. Bailey (1985) 176 Cal.App.3d 402, 405 [shining squad car’s emergency lights onto a parked car is a detention].) Defendant obviously did not feel compelled to stay and chat since, after making eye contact with Deputy Peppler, he quickly sped off.
Defendant argues that Deputy Peppler’s pursuit of defendant after he abruptly sped away indicates that Deputy Peppler intended to detain defendant. The fact that defendant accelerated at a “high rate of speed” after making eye contact with the deputy instead supports an inference that the deputy was motivated to pursue defendant because of defendant’s suspicious behavior. We therefore conclude that substantial evidence supports the trial court’s finding that the first contact did not constitute a detention or an attempted detention, but rather an attempt at a consensual encounter.
2. Second Contact
The trial court held that defendant’s abrupt flight from the convenience store parking lot gave Deputy Peppler reasonable suspicion to justify detaining defendant. We will therefore assume the second contact was a temporary detention.
We address separately below defendant’s contention that he was arbitrarily and harassingly arrested and searched, after the deputy learned of his parolee status. See infra.
D. Was there Reasonable Suspicion to Effectuate an Investigatory Detention?
Defendant argues the deputy had no reasonable suspicion to detain him in the second contact. Terry v. State of Ohio (1968) 392 U.S. 1, 30,established that an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when the officer has a reasonable, articulable suspicion that the person stopped has committed or is about to commit a crime. (See also United States v. Hensley (1985) 469 U.S. 221, 234 [extending Terry to include suspicion of crimes committed in the past].) While “reasonable suspicion” is considerably less demanding than the probable cause needed for an arrest, the Fourth Amendment still requires a minimal showing of objective justification for making the stop. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow).) The totality of circumstances must be taken into account, including the officer’s experience and interpretation of the facts. (United States v. Cortez (1981) 449 U.S. 411, 417-418, 421-422.)
The trial court relied on defendant’s flight as one of the relevant considerations establishing a reasonable suspicion to detain him. Defendant fled upon seeing Deputy Peppler motioning and yelling at him. Although Deputy Peppler did not explicitly mention there was any loud screeching of tires or that defendant was driving recklessly, the deputy did testify that defendant accelerated at a high rate of speed out of the parking lot. The magistrate noted that, “from [Deputy Peppler’s] tone of voice and description . . . it was not the normal rate of speed one would leave a parking lot . . . . People don’t usually travel through parking lots at a high rate of speed in the normal course.”
The trial court likened the current case to the factual scenario in Wardlow, in which the Supreme Court held that the pursuit and detention of the fleeing defendant did not violate the Fourth Amendment because the circumstances established reasonable suspicion. (Wardlow, supra, 528 U.S. at pp. 124-125.) In Wardlow, the defendant had been standing in an area known for narcotics trafficking but fled upon seeing four police cars approaching the area. (Id. at pp. 121-122.) Officers then chased the defendant and detained him. (Id. at p. 122.)
Defendant contends Wardlow is distinguishable because there was no evidence he was in a high crime area, and the “location contributed nothing to any articulable facts on which to reasonably suspect criminal activity.” We reject the contention that Wardlow must be confined to its facts and that the existence of a high crime area is sine qua nonto a finding of reasonable suspicion based on flight. Although Wardlow did not state a bright-line rule that flight confers reasonable suspicion, courts in other cases have considered unprovoked flight as a key factor in determining reasonable suspicion to justify detention. (See, e.g., People v. Brown (1990) 216 Cal.App.3d 1442, 1450 [defendant was standing in front of a dance hall and fled when police approached; a few minutes later the police returned and he fled once more, justifying his detention].) As the Wardlow court stated, “any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ [Citation.] But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” (Wardlow, supra, 528 U.S. at p. 125.) A “high crime area,” as the court stated in Wardlow, is just one among a number of relevant circumstances in a Terry analysis. (Wardlow, supra, at p. 124.) Generally, flight and an additional indicium of wrongdoing validate a temporary detention. (See generally People v. Souza (1994) 9 Cal.4th 224, 240-242.)
Defendant’s nervous behavior provided another basis for suspicion. From Deputy Peppler’s experience, suspects with pending arrest warrants typically act nervous and try to evade police officers. Although nervousness alone does not establish reasonable suspicion necessary to detain a suspect, officers are allowed to use their experience as one of the bases for making a stop. (United States v. Cortez, supra, 449 U.S. at p. 418.) Deputy Peppler testified that moments after defendant’s evasive flight, defendant was behaving nervously as he crossed the street and spoke with the deputy.
Arguably the most significant source of suspicion was the similarity in appearance between defendant and the wanted probationer. Similarity in appearance to a suspect has been recognized as a valid basis for a temporary investigative detention. (People v. Mickelson (1963) 59 Cal.2d 448, 452-453 [holding that officer had legitimate authority to effect an investigatory stop of the defendant based upon the description of a wanted robbery suspect as a “fairly tall white man of large build with dark hair who was wearing a red sweater”]; People v. Flores (1974) 12 Cal.3d 85, 90-93 [holding that an officer was warranted to make an investigative detention based on the defendants’ matching descriptions of burglary suspects].)
Deputy Peppler and Officer Scarano were searching for a probationer with an active arrest warrant. The officers had a picture of the probationer on hand, and defendant’s appearance was “very similar” to that of the probationer. Deputy Peppler testified that even when he stepped out of his patrol car to speak with defendant, Deputy Peppler did not notice any dissimilarity in appearance between defendant and the wanted probationer.
Defendant argues, however, that because the source of Deputy Peppler’s initial information was never provided, the requisite level of suspicion was not established. Because of the People’s failure to submit the supporting evidence, defendant argues that the source was analogous to information from an anonymous informant, which has been held to be insufficient to justify a temporary detention.
Defendant alleges the prosecution’s failure to furnish the supporting evidence constituted a violation of the Harvey-Madden rule. In Madden, the arresting officer was informed by two officers in the narcotics division and a confidential informant that the defendant was peddling narcotics from his home. (People v. Madden, supra, 2 Cal.3d at p. 1019.) The officer searched the defendant’s residence and found marijuana, a pistol, ammunition, and methamphetamine. (Id. at p. 1020.) The court held that probable cause for the search was lacking because, “although an officer may make an arrest based on information received through ‘official channels,’ the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.” (Id. at p. 1021.)
People v. Harvey (1958) 156 Cal.App.2d 516, and People v. Madden (1970) 2 Cal.3d 1017.
In our view, the photograph of a wanted probationer was information received through official channels. Deputy Peppler had in hand the photograph and an arrest warrant, the validity of which he was in no position to question. Although the burden is on the prosecution to show proper justification for a warrantless seizure (People v. Manning (1973) 33 Cal.App.3d 586, 596), Deputy Peppler’s testimony that he was acting based upon defendant’s similar appearance to a wanted probationer met this burden.
Defendant did not, in his suppression hearing, challenge the validity or the existence of the arrest warrant. Defendant’s suppression motion had only five lines in its “Pertinent Facts” section (none of which questioned the existence or integrity of the warrant), and its “Discussion” section only reiterated that the prosecution bore the burden of justifying the warrantless detention. At the actual hearing, defense counsel argued that Deputy Peppler “did not go into detail, any detail whatsoever . . . as to what that suspect looked like . . . .” However, although it was not put in the police report or submitted with the motion papers, the deputy did present defense counsel with the photograph of the wanted probationer. Because the existence of the warrant was not raised as an issue, the People were not required to include it in the opposition motion. In People v. Collin (1973) 35 Cal.App.3d 416, superseded by statute on other grounds as stated in People v. Castaneda (1995) 35 Cal.App.4th 1222, 1229, an officer received a radio call describing the defendants the officer later detained. (People v. Collin, supra, at p. 418.) At the suppression hearing, the prosecution did not put on the stand the officer who made the original broadcast and furnished the information. (Id. at p. 420.) The court held that because the defense failed to challenge whether that officer was in “possession of facts amounting to circumstances short of probable cause which would have justified him making the detention,” “the prosecution was not required to present [him] as a witness . . . .” (Id. at pp. 420-421.)
We do not find that defense counsel’s argument at the preliminary hearing constituted a demand that the arrest warrant be produced. Moreover, we agree with the trial court that both counsel had adequate opportunity to question Deputy Peppler in regard to the description of the probationer and the specific characteristics that the deputy was looking for.
Defense counsel objected to Deputy Peppler supplying the photograph immediately before the preliminary hearing, saying “there’s nothing stopping an officer from going through photographs of wanted people after the fact and finding one that looks most like [defendant].” However, we do not see how requiring Deputy Peppler to furnish the picture in his motion papers rather than immediately before the hearing would have ameliorated that concern.
Physical likeness to a wanted probationer may serve as a reasonable basis for a temporary detention, and the prosecution was not required on its own accord to present testimony on the appearance of the wanted probationer or to present his picture or the warrant. Furthermore, the trial court found Deputy Peppler’s testimony credible, and on appeal, we defer to the trial court’s finding. (People v. Weaver, supra, 26 Cal.4th at p. 924.)
Thus, the totality of circumstances supports a conclusion that reasonable suspicion existed. (See United States v. Cortez, supra, 449 U.S. at pp. 417-418.) Deputy Peppler and Officer Scarano were in search of a wanted probationer whose picture they had on hand. After spotting defendant, who Deputy Peppler testified looked strikingly similar to the probationer, they attempted to initiate a consensual encounter with defendant. Rather than simply declining to cooperate, defendant evasively and abruptly fled from the parking lot. Because individuals do not generally speed through parking lots, especially when somebody is attempting to talk to them, any reasonable law enforcement officer would suspect that something suspicious was afoot, as Deputy Peppler did. Minutes later, Deputy Peppler spotted defendant again, nervously crossing the street, his vehicle nowhere to be seen. A reasonable officer in Deputy Peppler’s position would naturally wonder where and why defendant secreted his vehicle, as well as what was the cause of his nervous behavior.
In our independent review, we determine that reasonable suspicion sufficient for an investigatory detention existed. (See People v. Leyba (1981) 29 Cal.3d 591, 597, superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) A reasonable police officer in Deputy Peppler’s position would be justified in making an investigative stop.
E. Was the Parole Search Arbitrary and Harassing?
Defendant contends that Deputy Peppler’s arrest of defendant and search of defendant’s person, vehicle, and place of residence after learning of defendant’s parolee status was arbitrary and harassing. Because this issue was not raised in the section 1538.5 suppression motion, it is therefore forfeited. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1.)
Moreover, the contention lacks merit: Section 3067, subdivision (a), states, in relevant part, that all parolees “shall agree in writing to be subject to search or seizure by a . . . peace officer at any time of the day or night, with or without a search warrant and with or without cause.” As discussed above, Deputy Peppler had a reasonable suspicion to detain defendant, and during that detention, Deputy Peppler learned that defendant was on parole.
Law enforcement officers may not conduct parole searches for the sole purpose of harassment. (§ 3067, subd. (d).) To show that a search was conducted for harassment, however, there must be some evidence that the parolee was subjected to search too often, or that the searches took place at unreasonable hours, were unreasonably prolonged, or were motivated by animosity toward the parolee. (People v. Reyes (1998) 19 Cal.4th 743, 753-754.) Deputy Peppler reported he had never seen defendant before that day, and no evidence suggested that defendant’s search and seizure were carried out at an unreasonable time or for improper purposes.
F. Ineffective Assistance of Counsel
Because we have reached the merits of this case and have concluded that the motion to suppress was properly denied, we need not address the issue of ineffective assistance of counsel based on counsel’s failure to renew the motion to suppress.
IV. DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.