Opinion
NOT TO BE PUBLISHED
Appeal from a judgment (order granting probation) of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. SA065628 Cynthia Rayvis, Judge.
Mark Alan Hart for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
GRIMES, J.
Akram Khan appeals from the judgment (order granting probation) entered after he pled no contest to transporting marijuana (Health & Saf. Code, § 11360, subd. (a)) and cocaine (Health & Saf. Code, § 11352, subd. (a)). He was placed on probation for three years, the first 180 days to be served in county jail. Defendant contends the court should not have denied his motion under Penal Code section 1538.5, to suppress contraband seized after an allegedly unlawful patdown of his person and search of his car. We conclude that the searches and seizures were consistent with the Fourth Amendment and affirm the judgment.
FACTS
The sole witness at the Penal Code section 1538.5 hearing was Los Angeles Police Officer James Mankey, who testified as follows. At about 8:30 p.m., on October 5, 2007, he and his partner, Officer Ron Weaver, were in an unmarked vehicle, patrolling the neighborhood of Venice High School for motor vehicle burglary. The area had a high incidence of that offense. As Weaver drove slowly, Mankey observed defendant and another man in a dark alley, bent over and leaning into the open trunk of a Honda car. The men looked repeatedly to the left, right, and behind them, “very nervously, ” both apparently on the lookout.
The officers drove up behind them and got out of their car, wearing jackets that read “Los Angeles Police” on front and back. As they did so, defendant’s companion walked away from the Honda, toward trash cans at the back of some houses and apartments. Defendant remained at the Honda’s trunk, which at some point he closed. Officer Weaver approached him, while Officer Mankey walked over to speak to the other individual where he stood, next to a trash can.
The officers asked both men whether they lived in the area, and both answered no. The officers then asked why they were there. Defendant said he was visiting a friend, but when the officers asked where the friend was, defendant replied he had left earlier for Las Vegas. In response to Mankey’s question of whose car it was, defendant said it was his. Mankey was not yet satisfied this was true, explaining he did not intend just to take defendant’s word the car was his, walk back to the patrol car, and risk having defendant turn around and shoot his partner.
When asked why he was in the area, defendant’s companion said he was in the alley to “smoke out.” Based on his training and experience in narcotics matters, Officer Mankey recognized this phrase to mean to smoke marijuana, either alone or with others. At that point, Mankey testified, he began investigating a possible narcotics crime. The officers detained the two men and patted them down for weapons. Mankey testified he did so because the alley was dark, “possible illegal narcotic activity” was being conducted, and narcotics suspects commonly carry weapons.
Officer Mankey had defendant stand facing a wall near the rear of defendant’s car, and patted him down. At that point defendant was not free to leave. Mankey could smell the odor of marijuana in the general area of defendant and his car. Mankey felt a hard, cylindrical object in defendant’s pocket, which felt like a “medicine bottle.” From his training and experience, Mankey knew that narcotics were often carried in hard plastic containers. He did not know, however, that the item was not a weapon.
It seems likely that Officer Mankey was referring to a pill bottle. The bottle he retrieved resembled one.
Officer Mankey asked defendant what the object was. Defendant stated it was marijuana. Mankey proceeded to handcuff defendant. He then removed the “medicine bottle” from defendant’s pocket, opened it, and found inside a green, leafy substance resembling and smelling, from the officer’s training and experience, like marijuana. At that point the detention escalated to a higher level.
Mankey asked defendant if he had any other marijuana “on you.” Defendant replied that he did, in the trunk of his car. Mankey asked defendant whether he could recover it, and defendant replied, “Yes, my keys are in my pocket.” Mankey removed the keys and gave them to Officer Weaver, who opened the trunk and extracted a container and a baggie, both of which smelled of and apparently contained marijuana.
At that point, defendant was placed under arrest, and was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Intending to impound defendant’s car--which he later did--Officer Mankey proceeded to conduct an “inventory search” of it. In the driver’s side door he found a white, powdery substance, which he believed was cocaine.
In his arrest report, Officer Mankey stated the basis of the patdown was that narcotics suspects commonly carry weapons. At the hearing, he testified that in his experience of numerous arrests for possession, this was true of narcotics users. He also testified he first had probable cause to arrest defendant after he found the marijuana in his pocket.
The trial court denied defendant’s motion to suppress with respect to the marijuana found on his person and in the car trunk, and the cocaine found in the passenger compartment.
The court granted the motion with respect to contraband obtained by a subsequent search of defendant’s residence.
DISCUSSION
Defendant raises a series of claims by which he challenges the legality of his patdown and the seizure of marijuana that accompanied it, the seizure of marijuana from the trunk of his car, and the search of the car’s interior, which led to the seizure of cocaine. We consider these events in sequence.
1. The Patdown Search and the Seizure of Marijuana.
Defendant’s first contention is that Officer Mankey lacked constitutional grounds to subject him to the patdown search for weapons, after defendant’s companion informed the officers that he was in the alley to “smoke out.” We disagree.
Even absent probable cause for arrest, when the circumstances warrant a reasonable suspicion that an individual whom the police have lawfully, temporarily detained for investigation is armed and dangerous, the police may perform a limited search of the individual, by way of patdown or frisk, to determine whether the person is in fact carrying weapons. (Arizona v. Johnson (2009) __ U.S. __, __ [129 S.Ct. 781, 784, 786], citing Terry v. Ohio (1968) 392 U.S. 1.) Whether it is reasonable to suspect that the subject is armed must be determined from the totality of the circumstances. (People v. Osborne (2009) 175 Cal.App.4th 1052, 1059 (Osborne); People v. Avila (1997) 58 Cal.App.4th 1069, 1074 (Avila); see United States v. Arvizu (2002) 534 U.S. 266, 274.)
In the present case, defendant does not dispute that the officers were entitled initially to question him and his companion as they did, in pursuit of their investigation of auto burglary. Assuming without deciding that it involved an investigatory detention, the questioning was justified by defendant and his companion’s delving into the trunk of a car, in a dark alley of an area plagued by auto burglaries, while nervously looking around with the appearance of avoiding surprise by others. This appearance gave rise to the degree of suspicion of criminal activity necessary to justify a limited detention. (Illinois v. Wardlow (2000) 528 U.S. 119, 124; Osborne, supra, 175 Cal.App.4th at pp. 1058-1059.)
Defendant’s challenge, rather, is to Officer Mankey’s entitlement to frisk him for weapons. But the circumstances warranted that as well. First, auto burglary, like narcotics trafficking, is a crime that so frequently involves the carrying of weapons--or instruments capable of use as weapons--as to permit the frisk of a person detained on suspicion of it. (Osborne, supra, 175 Cal.App.4th at pp. 1060-1061.) Although Officer Mankey was primarily investigating a narcotics offense after defendant’s companion said he was in the alley to “smoke out, ” Mankey had not ruled out his initial suspicion of auto burglary, and that reasonable suspicion warrants consideration as among the objective factors justifying the patdown. (See, e.g., Scott v. United States (1978) 436 U.S. 128, 137-138.)
Once defendant’s companion said he was in the alley to “smoke out, ” the officers were justified in expanding their investigation to include narcotics, and therefore to pat down both men. As stated, narcotics suspects are properly subject to pat searches for weapons, because of the widespread carrying of them by those who deal in narcotics. (Osborne, supra, 175 Cal.App.4th at p. 1060.) Here, Officer Mankey testified that his experience in the field had confirmed that prevalence, with respect to possessors as well as sellers of drugs.
The evidence of ongoing drug activity here was at least as strong as in People v. Collier (2008) 166 Cal.App.4th 1374. There, officers smelled the odor of marijuana emanating from a car they had stopped for a license-plate violation. Directing a passenger out of the car, an officer patted him for weapons. Division Six of this district upheld the frisk--which yielded a handgun and drugs--in part because the rational suspicion that the passenger had possessed and used drugs (id. at p. 1377) supported the further suspicion he might be armed. Quoting U.S. v. Sakyi (4th Cir. 1998) 160 F.3d 164, 169, the court observed that “‘guns often accompany drugs.’” (People v. Collier, supra, at p. 1378.) Given also the factor of the nighttime alley location, the foregoing circumstances together supported and validated Officer Mankey’s election to pat down defendant for weapons.
Defendant next contends that, even if his patdown was lawful at its inception, Officer Mankey exceeded the permissible scope of the frisk when, upon feeling the medicine bottle through defendant’s pocket, he asked defendant what it was. Defendant relies principally on dicta in People v. Valdez (1987) 196 Cal.App.3d 799 (Valdez). Defendant’s position lacks merit.
In Valdez, supra, 196 Cal.App.3d 799, an officer executing a search warrant for narcotics at an auto body yard permissibly frisked for weapons one Torres. Feeling the outside of Torres’s pocket, the officer recognized inside a plastic, 35-millimeter film canister, of a type he had found during hundreds of searches in which they had either been empty or contained drugs. Knowing this was not a weapon, the officer asked Torres what it was, and in response “Torres removed the canister from his pocket and put it on the hood of the car” against which he was leaning. (Id. at p. 803.) The officer asked him to open the canister; Torres told the officer that he could do so if he wanted. The officer opened it and found cocaine inside. (Ibid.)
On appeal, the court held that the officer had conducted an illegal search and seizure, by effectively retrieving the canister from Torres’s pocket and then opening it. The court reasoned that the officer was not entitled to recover from Torres’s person items other than weapons, unless there existed probable cause for arrest, and search incident to it. (Valdez, supra, 196 Cal.App.3d at pp. 804-806.) There was no probable cause for arrest in Valdez, because the film canister was not “a distinctive drug-carrying item equivalent to a heroin balloon, a paper bindle, or a marijuana-smelling brick-shaped package, which may be seized upon observation. [Citations.]” (Id. at pp. 806-807.)
Having so ruled, the court in dicta opined that Torres’s reaction to the officer’s questions did not constitute a consent to search, because the questions sought “information and compliance, ” not permission to search. (Valdez, supra, 196 Cal.App.3d at p. 807.) Moreover, the court continued, the officer’s question, “What is this?” after discovering the canister was not investigative but rather “a preliminary step into the search of Torres’s person.” (Ibid.) In this regard, the court stated, “The question was not justified by the pat-search for weapons since [the officer] knew it was not a weapon.” (Ibid.)
Defendant contends that the quoted dicta in Valdez renders it unconstitutional for an officer who is performing a weapons frisk to ask the subject about the character of an object the officer feels during a patdown but knows is not a weapon. That is not the significance of Valdez, nor is it the law. In the present case, Officer Mankey’s patdown of defendant was the beginning of a detention for investigation of auto burglary and narcotics. In the course of that detention and investigation, the officer was entitled to question defendant, including about the nature of an object the officer legitimately perceived defendant to be carrying (and which might involve narcotics). (People v. Superior Court (Harris) (1969) 273 Cal.App.3d 459, 462-463.) Officer Mankey’s question about the object in defendant’s pocket validly sought information and did not constitute a search. (Avila, supra, 58 Cal.App.4th at p. 1075 [distinguishing Valdez where officer conducting patdown of leg felt hard object and asked what it was, without removing it, to which defendant replied “meth”].) And, as in Avila, defendant’s incriminating response gave the officer probable cause to arrest him and to search incident to the arrest. (Id. at p. 1076.)
2. Consent to Search.
After the marijuana from defendant’s pocket was seized and defendant had been handcuffed, Officer Mankey obtained his consent to open the trunk of defendant’s car and retrieve more marijuana, which defendant admitted was there. Defendant contends that his consent to this search and seizure was invalid, because it was obtained under “submission to authority, ” and was the product of custodial interrogation conducted without advisement and waiver of rights under Miranda, supra, 384 U.S. 436. Ambiguously, defendant sometimes appears to extend this contention to the search of the interior of his car, which followed the discovery of marijuana in the trunk. However construed, the claim of involuntary consent fails.
We review the trial court’s implied finding that the consent to search was voluntary under the substantial evidence test. (People v. Monterroso (2004) 34 Cal.4th 743, 758 (Monterroso).) Defendant presently asserts his agreement to the search of his trunk was an invalid submission to authority, in view of his having been handcuffed and not having received Miranda warnings. Our Supreme Court has held, however, that these facts do not invalidate consent to search, and are only among many factors eligible for consideration by a trial court in assessing voluntariness. (Monterroso, supra, at p. 758.)
Defendant seeks to piggyback onto these facts a claim that his identification of marijuana during the patdown was also a “submission to authority.” We have already held that response to an authorized inquiry was not improper. As stated in Avila, supra, 58 Cal.App.4th at page 1075, “The Fourth Amendment was not designed to protect a defendant from his own candor.” Defendant’s admission that the object in his pocket was marijuana does not taint the subsequent request for consent to retrieve the marijuana in the car.
As defendant recognizes, moreover, absence of Miranda warnings does not itself require suppression of physical evidence obtained as the result of statements that either confirm the presence of contraband or consent to its retrieval. (United States v. Patane (2004) 542 U.S. 630.) To have that effect, a statement must be coerced. (See id. at p. 639.) But here again, defendant’s attempted showing of coercion consists only of the fact that he was handcuffed and in lawful police custody. That is not a showing sufficient to overcome the finding of consent.
3. Validity of Car Search in View of Arrest.
In addition to the fact of consent, there were two further constitutional grounds for Officer Mankey’s searches of the car. First, the search of the passenger compartment was permissible as incident to defendant’s arrest. Second, under the principle of inevitable discovery, the evidence seized from the car was not subject to suppression. Both of these theories were advanced below; the trial court’s ruling manifested receptiveness to both; and both validate the search of the car.
After the patdown, defendant was already handcuffed, not free to leave, and eligible for arrest. He was formally placed under arrest after Officer Weaver discovered the marijuana in the trunk. Under New York v. Belton (1981) 453 U.S. 454, 460, and Thornton v. United States (2004) 541 U.S. 615, 620-623, Officer Mankey was entitled, incident to defendant’s arrest, to search the passenger compartment of his car, as he did when discovering cocaine at the driver’s door. Moreover, the officer would have been entitled to conduct that search even under the more restrictive rules of Arizona v. Gant (2009) __ U.S. __, [129 S.Ct. 1710], which was decided after the ruling below. Gant authorizes search of a vehicle’s interior incident to a recent occupant’s arrest “if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Id. at p.1723.) Given the discovery of marijuana on defendant’s person and in the trunk, it was certainly reasonable for Officer Mankey to believe the car’s interior would contain additional evidence of narcotics possession and transportation.
A second reason validating the search of the car is that, once it had been removed from the alley and impounded because of defendant’s arrest (see Veh. Code, § 22651, subd. (h)(1)), the passenger compartment would have been lawfully subject to an inventory search (People v. Green (1996) 46 Cal.App.4th 367, 373-375), by which the police would inevitably have found the contraband, just as they did following the arrest. In other words, assuming arguendo the search of the passenger compartment at the scene was improper, the contraband thereby recovered would not have been subject to suppression under the doctrine of inevitable discovery. (See 4 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Illegally Obtained Evidence, § 27, pp. 639-641.)
People v. Henry (2010) 184 Cal.App.4th 1313 is not to the contrary. In its dictum, the court emphasized that no impound or inventory search had been suggested or had occurred, and also noted that the prosecution had not advanced a claim of inevitable discovery. (Id. at. p. 1331 & fn. 21.)
DISPOSITION
The judgment (order granting probation) is affirmed.
We concur: RUBIN, ACTING P. J., FLIER, J.