Opinion
H044307
06-08-2018
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1518809)
Defendant Eduardo Jimenez appeals from a judgment of conviction by negotiated plea of carrying a concealed firearm (Pen. Code, § 25400, subd. (a)(2)) and misdemeanor possession of ammunition by a person prohibited from owning or possessing a firearm (§ 30305, subd. (a)(1)). Defendant challenges the trial court's denial of his motion to suppress pursuant to section 1538.5. (§§ 1237, subd. (a), 1538.5, subd. (m).)
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant maintains that he was unlawfully detained in violation of the Fourth Amendment to the United States Constitution and that the exclusionary rule required the court to grant his motions to suppress and exclude officers' observations, defendant's statements, and items seized by police, including but not limited to a .40 caliber pistol, ammunition, methamphetamine, and "a meth pipe." He argues that the detaining officer lacked reasonable suspicion to justify his detention "[b]ecause there was no objective manifestation that [he] was engaged in any illegal activity."
We affirm the judgment.
I
Procedural History
By information filed on November 25, 2015, defendant was charged with committing seven offenses allegedly committed on or about August 26, 2017, including the two crimes to which he ultimately pleaded no contest—namely carrying a stolen concealed firearm (§ 25400, subd. (a)(2); see § 25400, subd. (c)(2)) (count 2) and possession of ammunition by a person prohibited from owning or possessing a firearm (§ 30305, subd. (a)(1)) (count 6). The information also alleged a prior conviction of robbery (§ 211) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12).
The five other crimes charged in the information were carrying a concealed firearm (§ 25400, subd. (a)(2)) (count 1), carrying a loaded firearm in public (§ 25850, subd. (a)) (count 3), carrying a stolen, loaded firearm in public (§ 25850, subd. (a); see § 25800, subd. (c)(2)) (count 4), unlawful possession of controlled substances while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1) (count 5), and possession of controlled substances paraphernalia (Health & Saf. Code, § 11364) (count 7).
Defendant filed a motion to suppress evidence pursuant to section 1538.5. After a hearing, the trial court denied the suppression motion.
Defendant subsequently filed a motion to "augment the record and reconsider the motion to suppress." Defendant argued that the trial court should reconsider its decision because "new evidence ha[d] come to light." Before the March 2016 hearing and the court's ruling on the suppression motion, the defense had received Officer's Silva's supplemental police report concerning a follow-up interview of the tenant in whose carport space defendant had been parked, a woman named Vanessa S. Vanessa's "identifying information, apartment number and address" had been redacted in the report. The defense represented that, after the suppression motion was denied, it had learned the "true identity" of "Vanessa."
The court (the same judge who heard the original motion to suppress) indicated that it was "going to reopen [the motion] and consider the additional evidence." After another hearing in which additional evidence was presented, the court again denied the motion.
Pursuant to a plea agreement, defendant pleaded no contest to count 2 and to a misdemeanor violation of section 30305, subdivision (a)(1) (count 6 as amended), and he admitted the Three Strikes allegation.
At sentencing, the trial court sentenced defendant to a county jail sentence of 240 days on count 6, with total credit of 240 days, and a consecutive 32-month term (double the lower term) on count 2, with total credit of 640 days. The minute order reflects that the remaining charges (counts 1, 3, 4, 5, & 7) were dismissed.
Defendant timely filed a notice of appeal.
II
Motion to Suppress
A. Evidence
1. March 2016 Suppression Hearing
At approximately 3:32 a.m. on August 26, 2015, Jonathan Silva, a San Jose State University police officer, was on duty in the vicinity of an alleyway located at 325 East Reed Street in San Jose. He was dressed in full uniform, and he responded to a "stop in the alleyway" to render assistance to other officers. Officer Silva parked his patrol vehicle behind the other officers' patrol vehicle at the Reed Street entrance to the alleyway. Officer Silva walked through the alleyway.
Two other officers were already dealing with two subjects when he arrived. For officer safety reasons, Officer Silva began conducting a sweep of the surrounding area because it was a high crime area, the alleyway was dark, and carports were places where people could hide. He was using a flashlight, which was his only light source.
Officer Silva was familiar with the area and the alleyway, which ran between 7th and 8th Streets, south of Reed Street. It was a high crime area known for its drug and gang activity. The area was part of Officer Silva's regular beat, and he routinely patrolled that area as part of his duties. He testified that officers had "pulled weapons off people in that alleyway." Prior to August 26, 2015, Officer Silva had personally seized controlled substances or narcotics from individuals and made drug arrests in that alleyway.
Officer Silva was wearing a body camera on August 26, 2015. The video recording was admitted into evidence, and it was played in court.
While conducting the safety sweep with a flashlight, Officer Silva noticed that a gold Toyota Camry was parked in a carport space associated with a female tenant with whom he had had previous dealings. Officer Silva had cited the woman's boyfriend for possession of methamphetamine in that very carport. Officer Silva was familiar with the female tenant's car, which was ordinarily parked in that carport space. She had a late model, blue-green Toyota Corolla. Officer Silva testified that prior to the night in question, the woman had told him that the carport was "strictly" hers, that people "hang out" in the carport "early in the morning," and that her Toyota Corolla was "the only one that's supposed to be in that spot."
Although there had been no complaint about someone parking in that carport space on the night in question, Officer Silva knew that the gold Toyota Camry did "not belong in that spot." The officer had never previously seen the Camry parked in that spot. The Camry's motor was not running and its interior lights were off. Officer Silva recognized the vehicles parked on either side of the Camry, a Dodge truck on the left and a van on the right, from his previous patrol checks.
While standing in the alleyway behind the parked gold Toyota Camry, Officer Silva, using his flashlight, could see two persons sitting in the vehicle's front seats. His patrol car was parked some distance away and not blocking the Camry in any way. For officer safety reasons, Officer Silva "signaled to Corporal Barns to take a walk with [him] so [they] could check the car," and he noticed the person in the driver's seat lie back into the driver's seat as if to hide. Officer Silva approach the driver's side of the vehicle and shined his flashlight in the window on the male sitting in the driver's seat. Corporal Barns approached and stood on the vehicle's passenger side.
Officer Silva said, "What's up guys?" He asked, "What are you doing?" Officer Silva pulled the driver's side, front door open "all the way" for officer safety reasons. He did not know what was going on inside the vehicle, and he was concerned that defendant, who was sitting in the driver's seat, might be reaching for something or might swing the door wide open and engage in a physical alteration or flee.
After Officer Silva pulled the car door fully open, smoke emanated from the car as the officer spoke to defendant. Officer Silva asked, "What are you doing back here?" Defendant said, "Nothing." For officer safety reasons, Officer Silva told defendant to keep both his hands on the wheel.
Officer Silva asked defendant whether he lived there. Defendant answered, "Yeah," and "pointed in the direction of the apartments associated with the carport." Defendant then amended, "Well, my friend does." Defendant volunteered that he was smoking cigarettes. Officer Silva responded, "Smoking cigarettes in this car? This is cigarettes?" Officer Silva did not detect any tobacco odor and thought that defendant was not being truthful. The officer told defendant to put his hands up on the steering wheel and to stop moving. He asked defendant, "Where's your ID."
At the suppression hearing, Officer Silva stated that, based on his training and experience, Officer Silva believed that defendant was smoking a controlled substance. He knew from his training and experience that people who want to use "illicit drugs" go somewhere private to do so, like the inside of a car.
After defendant asked, "What's the situation," Officer Silva told defendant that it was the sixth or seventh time that he had "stopped people" there and they were either "doing drugs" or engaged in "gang activity." The officer told defendant that it was "real suspicious" that he was there. The officer asked defendant why he was so nervous, and said, "Look at your hands." Defendant denied being nervous.
Defendant indicated that he lived there, and Officer Silva pointed out that defendant had already said that a friend lived there and that he did not live there. Defendant claimed that he stayed with his friend. When asked, defendant did not know the apartment number of the claimed friend. When Officer Silva asked defendant whether he had lain down in the driver's seat when he saw the officer's flashlight, defendant said, "No, I've been laying [sic] down." Officer Silva directed defendant to get his ID, and defendant retrieved his wallet from his back, right pants pocket and handed his ID to the officer.
As defendant was retrieving his ID from his back pocket, Corporal Barns, who was still standing on the passenger side of the vehicle, spotted a knife in defendant's pocket. Defendant put it in the cup holder. Corporal Barnes indicated that he was going to take it, and he retrieved the knife and put it on top of the vehicle for officer safety reasons. The corporal asked the vehicle's occupants whether they had any weapons or guns, and Officer Silva inquired whether anyone was on probation or parole. Defendant indicated that he did not have a weapon or a gun.
At some point after Officer Silva obtained defendant's driver's license, a records check was run.
Officer Silva saw an open beer can in the center console cup holder. After Officer Silva looked with his flashlight into the back seat, the officer asked, "How many open beer cans you got here?" Defendant acknowledged there was an open can in the middle console. Officer Silva told defendant that he was going to take defendant out of the vehicle because he now had probable cause based on the open container.
Officer Silva noticed four dots on each finger of defendant's left hand, which led the officer to believe, based on his training and experience, that defendant was affiliated with a gang. Officer Silva asked defendant whether he was a validated gang member, and defendant answered no, but when asked to confirm that he was not a gang member, defendant clarified that he was not validated. When asked whether he was a gang member, defendant replied, "Yeah." Upon further questioning defendant acknowledged that he was "a Northerner" and that he had "been for a while."
Corporal Barnes asked defendant whether the knife was a switchblade, and defendant responded that it was not a switchblade. Officer Silva asked defendant, "How come you're sweating?" Defendant said that he did not know and that he "wasn't doing nothing wrong." Officer Silva remarked, "You're like hella nervous for not doing anything wrong dude." The officer testified at the hearing that defendant seemed nervous because he was "fidgeting a lot with his hands," he was sweating profusely, and he kept looking away from the officer.
Officer Silva then asked, "Well, how come you're hanging out here at almost four in the morning, smoking, hot boxing in the car, and drinking beer?" Defendant responded that he was not driving around. The officer then asked, "Is it marijuana? What is it?" Defendant answered, "Yeah," but he admitted that he did not have a medical marijuana card. Officer Silva did not smell marijuana while he was talking to defendant.
At some point while defendant was still seated in the car, the record check disclosed that defendant was on "searchable probation for robbery."
Officer Silva had defendant step out of the car. His intention was to search defendant based on defendant's probation search term and to investigate the smoke and open container. At that point, defendant admitted that he had a handgun on his body. Defendant was handcuffed, and his gun was seized. The Camry was searched.
On December 14, 2015, Officer Silva spoke to the female tenant associated with the carport parking space in which defendant had been parked. In that follow-up conversation, she told the officer that she owned a green Toyota Corolla.
Officer Siva testified that the alleyway was public property. But the carport itself was on private property.
According to Officer Silva, defendant was detained in order to investigate the vehicle's presence in the carport where it did not belong, the billow of white smoke that escaped from the car, and the open container of beer.
In ruling on the motion to suppress, the trial court indicated that the case was "very close." It stated that "the manner in which the officer approache[d]—and it appears to me that he opened the door—is a detention." The court concluded that, although "there was a detention right from the get-go," "there was reasonable suspicion in the totality of circumstances." It denied the motion to suppress. 2. Reopened Suppression Hearing on August 31, 2016
At the hearing on August 31, 2016, the trial court indicated that they were there "for a reopening of evidence."
The defense called Vanessa to testify. She stated that she lived in an apartment complex that faced 7th Street in San Jose. The back of the complex faced an alley that ran between 7th and 8th Streets.
Vanessa claimed that, on August 26, 2015, she knew defendant as Gummy Bear; she did not know his name was "Eduardo." She said that she met defendant through the father of her two older sons. According to Vanessa's testimony, she "just had met him" around August 26, 2015 or she had known him only "a month or two" or perhaps "three, four months" at that time.
Vanessa indicated that she had had three to four contacts with Officer Silva and those included "multiple contacts" with Officer Silva in the alley behind her apartment. She briefly described them. During one of those incidents, Officer Silva shined his light on her while she was sitting in her car after "just getting home." According to Vanessa, in that instance, the officer informed her that "there was a guy running down the alley with a black hooded sweater on." But Vanessa claimed that the only contact with Officer Silva that had occurred before the August 26, 2015 incident involved a female friend of hers who "was coming out of [Vanessa's] car" and the officer had chased the friend to Vanessa's apartment. According to Vanessa, she had never complained to the San Jose State University Police, Officer Silva, or the San Jose Police Department about people parking in her spot.
Vanessa testified that she was contacted by Mary Ellen G., who was related to the father of her two older sons, and asked to write a letter indicating whether she had given defendant permission to park in her parking spot. After being contacted, Vanessa had written a letter, dated March 8, 2016, in which she stated that she had allowed defendant to park in her spot. Vanessa recalled turning the letter over to Mary Ellen.
Vanessa testified that no one besides her currently parked in that parking spot. According to Vanessa, defendant was one of a few people to whom she had given permission to park in her spot, which she had done the previous summer, about a year before the hearing at which she was testifying. She acknowledged that when she owned her green Toyota Corolla and she was at home, that car was parked in her carport parking spot.
Vanessa confirmed that Officer Silva had arrested her boyfriend, who lived next door to her. She acknowledged that she had spoken to a female officer regarding her concern "about the bums and all the traffic" in the alleyway behind her apartment.
The defense also called Mary Ellen to testify. She stated that she was the paternal great-grandmother of two of Vanessa's sons. Mary Ellen's grandson, the father of those two boys, was a friend of defendant and he had brought defendant to her house. Mary Ellen confirmed that she had watched the March 2016 suppression hearing and that after that hearing, she called Vanessa and asked whether Vanessa had allowed defendant to park in her space. After their conversation, Mary Ellen had received a sealed letter from Vanessa, and Mary Ellen had given it to defendant's family. Mary Ellen acknowledged that she did not want to see defendant go to prison.
The People called Laurence Turino, the public defender investigator, to testify. Turino had conducted a phone interview with Vanessa and prepared a report, dated March 24, 2016. Vanessa had told Turino that defendant had permission to park in her spot, that her first contact with university police had occurred at least one month after the August 26, 2015 incident, and that during that contact, she had spoken to an Officer Flores and identified her parking spot.
Officer Silva again testified on behalf of the People. Since May 2014, Officer Silva had regularly patrolled the alleyway where Vanessa's carport was located, and on the nights that he worked he was in that alleyway three to four times a night. In his experience, some people in the alleyway did not belong there.
Officer Silva testified that prior to August 26, 2015, he had had at least three contacts with Vanessa, including a contact on May 4, 2015. During one of those contacts, they had a conversation about her parking spot, Vanessa had described her vehicle and pointed out her spot, and Vanessa had made clear that her Toyota Corolla belonged in that spot and "no one else was supposed to be parked there." Vanessa had expressed concern about bums in the alleyway and people parking in her spot without permission.
Officer Silva reiterated that he had never seen a gold Toyota Camry parked in Vanessa's parking spot prior to August 26, 2015. On that date, defendant had been unable to tell him who had given him permission to park in that spot.
After the preliminary hearing, Officer Silva contacted Vanessa and prepared a report, dated December 15, 2015. Vanessa told him that "she did not give her permission to anyone to park in her spot." Vanessa showed her parking spot to him, and she said that the only vehicle that was supposed to be parked in her spot on the date of the incident was her green Toyota Corolla.
In ruling on the reopened motion, the trial court indicated that "the more persuasive evidence" was that the officer recognized the Camry as "not . . . belonging in that spot" when he decided to approach defendant's car on August 26, 2015. Although the court still thought that it was a close case, the court decided that it was "going to stick to [its] original ruling" and deny the motion. B. Standard of Review
Section 1538.5 provides in pertinent part that "if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing." (§ 1538.5, subd. (i).) The trial court reopened defendant's motion to suppress to allow the presentation of additional evidence and to reconsider its prior ruling. It appears that the trial court considered all the evidence presented to it in ruling on the motion a second time.
The record reflects that the August 31, 2016 hearing was not a "renewed" motion to suppress that followed a magistrate's denial of motion to suppress evidence at a preliminary hearing. Section 1538.5 provides in part: "If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing." (§ 1538.5, subd. (i).)
"Our review of issues related to the suppression of evidence seized by the police is governed by federal constitutional standards. [Citations.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28, subd. (f)(2).) "In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]" (Lenart, supra, at p. 1119.)
" 'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.' (People v. Woods (1999) 21 Cal.4th 668, 673.) We review its factual findings ' " 'under the deferential substantial-evidence standard.' " ' (People v. Ayala (2000) 23 Cal.4th 225, 255.) Accordingly, '[w]e view the evidence in a light most favorable to the order denying the motion to suppress' [citation], and '[a]ny conflicts in the evidence are resolved in favor of the superior court ruling.' [Citation.]" (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).) Thus, as the reviewing court, we " 'must accept the trial court's resolution of disputed facts and its assessment of credibility.' [Citation.]" (Ibid.) We "ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure . . . within the context of historical facts determined by the trial court." (Ibid.) C. Reasonable Suspicion Required for Detention
The Supreme Court recognized in Terry v. Ohio (1968) 392 U.S. 1, 22 (Terry) that " 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' [Citation.]" (Adams v. Williams (1972) 407 U.S. 143, 145 (Adams).) Accordingly, " 'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ,' the officer may briefly stop the suspicious person and make 'reasonable inquiries' aimed at confirming or dispelling his suspicions. [Citations.]" (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)
In Terry, a police officer stopped three men after he observed two men engage in what appeared to be a "casual" and "oft-repeated reconnaissance of [a] store window" and then saw the two stop in front of the store to talk to the third man, with whom they had previously conferred on a street corner. (Terry, supra, 392 U.S. at p. 6.) He suspected the two men had been casing the store (ibid.) and that the three men were "contemplating a daylight robbery." (Id. at p. 28.)
In Terry, the United States Supreme Court reasoned that, in order to assess the reasonableness of the officer's conduct, it was "necessary 'first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.' [Citation.]" (Terry, supra, 392 U.S. at pp. 20-21.) The Supreme Court identified the governmental interest of "effective crime prevention and detection." (Id. at p. 22.) In justifying a particular intrusion, it stated that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Id. at p. 21, fn. omitted.)
Terry established that an officer can, consistent with the Fourth Amendment, detain an individual to resolve ambiguous conduct where the officer reasonably concludes that criminal activity may be afoot. (See Terry, supra, 392 U.S. at pp. 22-23, 30; Illinois v. Wardlow (2000) 528 U.S. 119, 125 (Wardlow).) "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations.]" (Adams, supra, 407 U.S. at pp. 145-146.) "[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. [Citation.]" (Wardlow, supra, at p. 125.) But "the officer's action [must be] justified at its inception . . . ." (Terry, supra, at p. 20.)
To conduct an investigatory stop or detention, an officer must "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. [Citations.]" (Brown v. Texas (1979) 443 U.S. 47, 51 (Brown).) "Although a mere ' "hunch" ' does not create reasonable suspicion [citation], the level of suspicion the standard requires is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause [citation]." (Navarette v. California (2014) 572 U.S. ___, ___ [134 S.Ct. 1683, 1687] (Navarette).) "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." (Alabama v. White (1990) 496 U.S. 325, 330.)
The "reasonable suspicion" standard "takes into account 'the totality of the circumstances—the whole picture.' [Citation.]" (Navarette, supra, 572 U.S. at p. ___ ; see United States v. Cortez (1981) 449 U.S. 411, 417-418 (Cortez) ["Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Citations.]"].) D. Analysis
In this case, the parties do not dispute that defendant was detained when Officer Silva pulled open the driver's side door to the car in which defendant was sitting. (See Terry, supra, 392 U.S. at p. 19, fn. 16 ["Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred"].) Officer Silva, a uniformed officer, engaged in a show of authority by shining his flashlight into defendant's face and pulling open the driver's side door of the Camry, while at the same moment another uniformed officer was approaching on the passenger side of the vehicle, which was hemmed in between two parked cars.
Generally, the mere act of shining a flashlight or a spotlight on a person does not effect a detention or seizure. (See United States v. Hayden (8th Cir. 2014) 759 F.3d 842, 847 ["shining a flashlight to illuminate a person in the darkness is not a coercive act that communicates an official order to stop or comply"]; People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [use of high beams and spotlights did not effect a detention]; People v. Melnyk (1992) 4 Cal.App.4th 1532, 1537 [the officer's use of a flashlight at about 1:45 a.m. to check out an occupied automobile parked in a shopping center did not turn the encounter into a detention].) But use of illumination in addition to other conduct may effect a detention. (See People v. Brown (2015) 61 Cal.4th 968, 978-980 [detention occurred when deputy sheriff pulled his patrol car behind the defendant's parked vehicle and activated the vehicle's emergency lights]; People v. Garry (2007) 156 Cal.App.4th 1100, 1112 [detention occurred where the defendant was "suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status"].)
Here, under the totality of circumstances, "a reasonable person would have believed that he was not free to leave" (United States v. Mendenhall (1980) 446 U.S. 544, 554, fn. omitted) or "to decline the officers' requests or otherwise terminate the encounter." (Florida v. Bostick (1991) 501 U.S. 429, 438.) "[A]n initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, 'if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' [Citation.]" (I.N.S. v. Delgado (1984) 466 U.S. 210, 215; see Florida v. Royer (1983) 460 U.S. 491, 498 (plur. opn. White, J.) [a person "may not be detained even momentarily without reasonable, objective grounds for doing so"].)
Defendant argues that Officer Silva lacked reasonable suspicion to detain him because the officer merely had "an unfounded hunch" that he "was parked in a spot that did not belong to him" at night in a high crime area and that those circumstances were "insufficient to establish that criminal activity [was] afoot." The People argue that Officer Silva had reasonable suspicion that defendant was trespassing as soon as he saw defendant's car parked in Vanessa's carport.
Defendant points to many conflicts in the evidence regarding whether, before August 26, 2015, Vanessa had complained to Officer Silva about unauthorized persons parking in her carport space and had told him that only she was entitled to park there. As we must, we accept the trial court's implied assessment of credibility and its resolution of evidentiary conflicts against defendant and in favor of its ruling. (See Tully, supra, 54 Cal.4th at p. 979.)
"[R]easonable suspicion cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124 [individual's presence in an area of expected criminal activity not alone sufficient to support reasonable suspicion he or she is committing a crime].)" (People v. Casares (2016) 62 Cal.4th 808, 837-838 (Casares), italics added.) In Casares, a defendant's "mere presence in a car legally parked on the less illuminated north side of the convenience store, in an area without demarcated parking spaces at a time when other parking spaces were available, did not justify his detention" (id. at p. 838) even though the officer "was aware of prior robberies at the store and that in some instances robbers had exited the parking lot on the north side of the building." (Ibid.)
Likewise, the fact that a person is "in a neighborhood frequented by drug users" is not a basis by itself for concluding that the person was "engaged in criminal conduct." (Brown, supra, 443 U.S. at p. 52.) "In the absence of any basis for suspecting [such person] of misconduct, the balance between the public interest and [the person's] right to personal security and privacy tilts in favor of freedom from police interference." (Ibid.)
But in Wardlow, the United States Supreme Court determined that an officer was justified in suspecting that a man was involved in criminal activity where he was present in an area of heavy narcotics trafficking and, upon noticing police, he took flight without provocation. (Wardlow, supra, 528 U.S. at pp. 124-125.) The court regarded "[h]eadlong flight" as "the consummate act of evasion" and suggestive of wrongdoing. (Id. at p. 124.) Although the court did not identify circumstances indicative of a specific crime, it held that the "stop did not violate the Fourth Amendment to the United States Constitution." (Id. at p. 121.) The Supreme Court explained that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion[] [citations]" (id. at p. 124) and that "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." (Ibid.)
Thus, "[a]n area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. [Citations.]" (People v. Souza (1994) 9 Cal.4th 224, 240-241 (Souza); see Wardlow, supra, 528 U.S. at p. 124.) "The time of night is another pertinent factor in assessing the validity of a detention." (Souza, supra, at p. 241 [detention occurred at 3:00 a.m.].)
Certain relevant circumstances in this case were not tied to defendant, including the facts that the alley was a high crime area, it was about 3:30 a.m., the alley and carport were unlit, arrests for drug activity had been made in the area, and illegal drug use occurs in private places like cars. But those circumstances could be considered along with other facts known to Officer Silva. While the officer's observation that defendant reclined in his seat upon his approach is not on par with headlong flight upon the appearance of police, it is still suggestive of a desire to avoid police. Further, Officer Silva observed that defendant was sitting in the driver's seat of a car parked in the carport space of a female tenant who had previously told him that the space strictly belonged to her and only her Toyota Corolla should be parked there, and he knew the carport was private property.
Defendant maintains that the officer lacked reasonable suspicion that defendant was committing an offense because "parking in someone else's spot in a private apartment complex is not a crime." The trial court evidently agreed with defendant that he was not committing a crime by being in someone else's parking space. In explaining the court's initial ruling on March 4, 2016, the court stated: "I don't think that it's a crime to be in that [parking] spot. But I do think it is related to what the officer's perception is of other criminality; i.e., using drugs in a parked car in one of those stalls." In again ruling on defendant's motion to suppress after reopening it for further evidence, the trial court reiterated that it did not think that it was a crime to park in someone's else designated spot on private property.
Section 602 defines misdemeanor criminal trespass under various circumstances. Most forms of the crime were inapplicable to the circumstances of this case. Officer Silva did not see any "no trespassing" signs, and defendant did not refuse or fail to leave the carport after being asked to leave by the owner, the owner's agent, or the person in lawful possession or by Officer Silva at the behest of one of those persons. (See § 602, subds. (l)(1) & (o).) Nevertheless, the objective facts justified a reasonable suspicion that defendant had driven upon real property without permission in violation of section 602, subdivision (n) (602(n)).
Defendant seems to argue that section 602, subdivision (h)(1), is the relevant provision of California's criminal trespass statute. That subdivision had no application to the facts of this case, not only because there was no evidence that "signs forbidding trespass" were displayed. Under section 602, subdivision (h)(1), a person may commit criminal trespass by "[e]ntering upon lands or buildings owned by any other person without the license of the owner or legal occupant, where signs forbidding trespass are displayed, and whereon cattle, goats, pigs, sheep, fowl, or any other animal is being raised, bred, fed, or held for the purpose of food for human consumption; or injuring, gathering, or carrying away any animal being housed on any of those lands, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands." (Italics added.)
A person commits a misdemeanor criminal trespass under section 602(n) by "[d]riving any vehicle, as defined in Section 670 of the Vehicle Code, upon real property belonging to, or lawfully occupied by, another and known not to be open to the general public, without the consent of the owner, the owner's agent, or the person in lawful possession." (§ 602(n).) Vanessa's carport parking space was associated with an apartment complex and on private property, and therefore, Officer Silva had reason to believe that it was known not to be open to the general public. Subdivision (n) has no signage requirement. An exception to section 602(n) is made for service of process, but that exception was inapplicable. In California law, the term "driving" has been understood to mean any volitional movement of a vehicle. (See Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 764, 768; CALCRIM No. 2241.)
"This subdivision does not apply to any person described in Section 22350 of the Business and Professions Code who is making a lawful service of process, provided that upon exiting the vehicle, the person proceeds immediately to attempt the service of process, and leaves immediately upon completing the service of process or upon the request of the owner, the owner's agent, or the person in lawful possession." (§ 602(n).)
Accordingly, Officer Silva had a reasonable basis for suspecting that defendant had technically committed a misdemeanor criminal trespass in the recent past, but outside the officer's presence, by driving into the carport parking spot that the officer understood from Vanessa was strictly hers as a tenant of the apartment complex. Defendant was sitting in the driver's seat and the car was still parked in Vanessa's spot when Officer Silva contacted defendant. The officer knew that Vanessa had a different car and it was his understanding from her that she was "the only one" who was supposed to park there.
After Terry, the Supreme Court suggested in its opinions that an officer could conduct an investigatory detention where the officer had reasonable suspicion that criminal activity had already occurred as well as where the officer had reasonable suspicion that criminal activity was in progress or about to occur. (See e.g., United States v. Place (1983) 462 U.S. 696, 702; Cortez, supra, 449 U.S. at p. 417 & fn. 2.) In United States v. Hensley (1985) 469 U.S. 221 (Hensley), the Supreme Court squarely considered whether an investigatory stop was justified to investigate a completed crime.
The Supreme Court stated in Hensley: "The proper way to identify the limits [on investigatory stops to investigate past criminal activity] is to apply the same test already used to identify the proper bounds of intrusions that further investigations of imminent or ongoing crimes. That test, which is grounded in the standard of reasonableness embodied in the Fourth Amendment, balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion. [Citations.] When this balancing test is applied to stops to investigate past crimes, we think that probable cause to arrest need not always be required." (Hensley, supra, 469 U.S. at p. 228.)
The Supreme Court in Hensley reasoned: "The factors in the balance may be somewhat different when a stop to investigate past criminal activity is involved rather than a stop to investigate ongoing criminal conduct. . . . A stop to investigate an already completed crime does not necessarily promote the interest of crime prevention as directly as a stop to investigate suspected ongoing criminal activity. Similarly, the exigent circumstances which require a police officer to step in before a crime is committed or completed are not necessarily as pressing long afterwards. Public safety may be less threatened by a suspect in a past crime who now appears to be going about his lawful business than it is by a suspect who is currently in the process of violating the law. Finally, officers making a stop to investigate past crimes may have a wider range of opportunity to choose the time and circumstances of the stop. [Citations.]" (Hensley, supra, 469 U.S. at p. 228-229.)
In Hensley, the court further stated: "Despite these differences, where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes." (Hensley, supra, 469 U.S. at p. 229.)
Nevertheless, the Supreme Court in Hensley declined to decide "whether Terry stops to investigate all past crimes, however serious, are permitted." (Hensley, supra, 469 U.S. at p. 229.) The court held that "if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion." (Ibid., italics added.)
There is a split of authority in the federal and state courts as to whether the Fourth Amendment prohibits an investigatory detention to investigate a completed misdemeanor. (See e.g., United States v. Hughes (8th Cir. 2008) 517 F.3d 1013, 1015, [daytime investigatory detention and frisk of black man, who was standing near a public bus stop and across the street from an apartment complex (located in high crime area) to which police had been dispatched based on an anonymous complaint of "suspicious parties on the property" and who matched the description given by dispatch], 1017 [declining "to adopt a per se rule that police may never stop an individual to investigate a completed misdemeanor" and stating "the nature of the misdemeanor and potential threats to citizens' safety are important factors" in evaluating the reasonableness of an intrusion], 1019 [but concluding in this case initial stop not justified]; United States v. Moran (10th Cir. 2007) 503 F.3d 1135, 1141, fn. 4 (Moran) [rejecting rule that an investigatory stop "based on suspicion of a completed misdemeanor is per se unreasonable" and explaining that, "to determine whether a stop based on past criminal activity is reasonable, we engage in a fact-specific balancing test"], 1142-1143 [concluding that traffic stop of defendant to investigate completed misdemeanor trespass was reasonable under the Fourth Amendment where officers had reasonable suspicion that defendant had repeatedly trespassed, there was a history of confrontation and threats related to his trespassing, earlier that day police had received two reports that the defendant was trespassing for the purpose of hunting, it was reasonable to assume that the defendant was carrying a weapon and would offend again, and officers encountered the defendant "just minutes after the crime allegedly occurred"]; Gaddis v. Redford Township (6th Cir. 2004) 364 F.3d 763, 771, fn. 6 [stating in dicta that police may "make a stop when they have reasonable suspicion of a completed felony, though not of a mere completed misdemeanor"]; State v. Amburgy (Ohio Ct. App. 1997) 701 N.E.2d 728, 731 ["a fourth degree misdemeanor trespass committed outside the presence of the officers" did not justify investigatory stop because case did not fit within Hensley's "parameters"]; State v. Myers (La. Ct. App. 1986) 490 So.2d 700, 704 [state trooper's investigatory traffic stop of a driver, who had struck a traffic sign and left the scene of the accident, based on upon a teletype report of a completed misdemeanor not forbidden by the United States Constitution]; Blaisdell v. Commissioner of Public Safety (Minn. Ct. App. 1985) 375 N.W.2d 880, 884 [holding that "vehicle stops to investigate completed misdemeanors violate the [F]ourth [A]mendment of the United States Constitution"].)
According to the United States Court of Appeals, Ninth Circuit, "the reasoning of Hensley suggests that [courts] may properly consider the gravity of the offense in balancing the interest of crime prevention and investigation against the interest in privacy and personal security when a court assesses the reasonableness of a Terry stop." (United States v. Grigg (9th Cir. 2007) 498 F.3d 1070, 1077 (Grigg).) In Grigg, police officers found an SKS rifle during an investigatory traffic stop, which had been conducted based upon a suspicion that the defendant had played "his car stereo at an excessive volume earlier in the day in violation of a local noise ordinance." (Id. at p. 1072.) The defendant was convicted by a jury of "knowingly possessing the unregistered SKS automatic rifle" in violation of federal law. (Id. at p. 1074.)
"Despite the misdemeanor-felony distinction, and the fact that some courts have relied on this distinction to limit Hensley, [the Ninth Circuit] decline[d] to adopt a per se standard that police may not conduct a Terry stop to investigate a person in connection with a past completed misdemeanor simply because of the formal classification of the offense." (Grigg, supra, 498 F.3d at p. 1081.) It "adopt[ed] the rule that a reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger . . . , and any risk of escalation . . . ." (Ibid.) It stated that "[a]n assessment of the 'public safety' factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop." (Ibid.)
Although the Ninth Circuit recognized that "the police have a manifest interest in identifying the perpetrators of crime, whether the offense be minor or major" (Grigg, supra, 498 F.3d at p. 1083), "in the context of a completed misdemeanor [courts] should tend to give primary weight to a suspect's interests in personal security" (id. at p. 1080), especially with respect to a "a completed crime that is a misdemeanor that does not endanger the public." (Id. at 1083.) It held that, "under the balancing test set forth in Hensley, a court reviewing the reasonableness of a stop to investigate a past misdemeanor (or other minor infraction) must assess the potential risk to public safety associated with the nature of the offense." (Ibid.)
The California Supreme Court has declined to decide "under what circumstances, if any, the holding in Hensley extends to misdemeanor offenses. [Citations.]" (Brown, supra, 61 Cal.4th at p. 984, fn. 5.)
While we do not read Hensley as categorically barring investigatory detentions to investigate completed misdemeanors, a past offense of driving into a carport on private property in violation of section 602(n) would not ordinarily pose an ongoing threat to public safety. On the other hand, "a criminal trespass inherently involves some risk of confrontation with the property owner." (Moran, supra, 503 F.3d at p. 1142.) As the Ninth Circuit recognized in Grigg, "[a] practical concern that increases the law enforcement interest under Hensley is that an investigating officer might eliminate any ongoing risk that an offending party might repeat the completed misdemeanor or that an officer might stem the potential for escalating violence arising from such conduct, both of which enhance public safety." (Grigg, supra, 498 F.3d at p. 1080.)
In this case, the suspected completed criminal trespass was not remote in time or place, and it was not evident that defendant was necessarily "going about his lawful business." (Hensley, supra, 469 U.S. at p. 228.) While officers' ability to choose the time and circumstances of a detention or stop to investigate a past crime may militate against the reasonableness of such a detention or stop (see id. at pp. 228-229), in this case Officer Silva happened to encounter the Camry while it was still parked in a carport space where the officer had reason to believe it did not belong and defendant was sitting in the driver's seat. The known facts and the reasonable inferences therefrom that indicated defendant had committed a misdemeanor trespass may not have given rise to a strong governmental interest "in solving crimes and bringing offenders to justice" (id. at p. 229) since the completed crime was not an inherent threat to public safety. Nevertheless, those facts contributed to a reasonable suspicion that criminal activity was currently afoot and implicated governmental interests in crime prevention and detention under the totality of circumstances. "The reasonableness of a seizure under the Fourth Amendment is determined 'by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.' [Citation.]" (Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cty. (2004) 542 U.S. 177, 187-188.)
In this case, at approximately 3:30 a.m. in a dark area, Officer Silva, a uniformed police officer, saw defendant sitting in the driver's seat and another male sitting in the front seat of a gold Toyota Camry parked in a carport space. The officer had a reasonable basis for believing that the carport parking space was associated with the nearby apartment complex, it was on private property, and it belonged to a female tenant who had a different car. The carport was adjacent to an alley known to him for its high crime rate and drug activity. Officer Silva saw defendant, who was sitting in the dark, recline in the driver's seat at the officer's approach with a flashlight, and, as an officer, he knew that illicit drug use sometimes occurred in the privacy of cars. Additionally, the facts known to Officer Silva provided a reasonable basis for suspecting that defendant had committed misdemeanor trespass by driving into that carport. All the circumstances together established a particularized and objective basis for an investigatory detention, justified at its inception.
"[T]he possibility of innocent explanations for the factors relied upon by a police officer does not necessarily preclude the possibility of a reasonable suspicion of criminal activity. [Citations.] In determining whether a search or seizure was supported by a reasonable suspicion of criminal activity, ' "the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." ' [Citation.] Indeed, the United States Supreme Court has acknowledged that by allowing the police to act based upon conduct that was 'ambiguous and susceptible of an innocent explanation,' the court in Terry 'accept[ed] the risk that officers may stop innocent people.' [Citations.]" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146-147.) An officer is not "required to eliminate all innocent explanations that might account for the facts supporting a particularized suspicion. [Citation.]" (In re Raymond C. (2008) 45 Cal.4th 303, 308.)
Moreover, "[a]n action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant. [Citations.]" (Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 404-405.) "[T]he Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent. [Citations.]" (Whren v. United States (1996) 517 U.S. 806, 814.)
Of course, once the car door was opened and Officer Silva observed smoke, which did not smell like cigarettes or marijuana to him, wafting from the car, the circumstances additionally supported reasonable suspicion that defendant was smoking an unlawful controlled substance. Defendant does not argue that the scope or duration of his detention was unconstitutional. Our conclusions make it unnecessary to discuss the exclusionary rule.
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
MIHARA, J.