People v. Harbison

THE PEOPLE, Plaintiff and Respondent, v. LAMAR HARBISON, Defendant and Appellant.

A148738

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

March 22, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 05-151863-8)

INTRODUCTION

Defendant Lamar Harbison entered a plea of no contest to carrying an unregistered, loaded handgun and was placed on probation. On appeal, he challenges the trial court's denial of his motion to suppress on the grounds that he was illegally arrested and searched after the car in which he was a passenger was legally detained. (Pen. Code, § 1538.5, subd. (m).)¹ We affirm.

STATEMENT OF THE CASE

Following a preliminary hearing at which defendant unsuccessfully moved to suppress the evidence against him, the Contra Costa District Attorney charged defendant by information with carrying an unregistered and loaded handgun on January 6, 2015. (§ 25850, subd. (a).) The trial court denied defendant's renewed motion to suppress evidence and motion to set aside the information on February 17, 2016. (§§ 1538.5, subd. (i), 995.) Defendant pleaded no contest to the information on May 11, 2016.

On June 3, 2016, the trial court granted defendant's motion to reduce his conviction to a misdemeanor, suspended imposition of sentence, and placed defendant on probation for three years.

Defendant timely filed a notice of appeal from the denial of his suppression motion.² (§ 1538.5, subd. (m).)

STATEMENT OF FACTS³

On January 6, 2015, at approximately 3:30 p.m., Richmond Police Officer Terry Thomas and his partner, Officer Augustin, were on duty and patrolling the area of Lancaster Drive and Birmingham Drive in Richmond. Officer Augustin was in a separate vehicle. That area is notable for its "high narcotic activity"; in addition, there had been several recent shootings in the area. Officer Thomas saw three people in an Infiniti parked alongside the curb on Lancaster. The car did not have license plates; it had "paper plates" from the dealer, but the car lacked a temporary operating permit in a window. Officers Thomas and Augustin pulled their patrol vehicles behind the Infiniti; Thomas stepped out of his car to investigate the Infiniti's registration.

Defendant, who was sitting in the front passenger seat, and another individual, who was sitting in a rear passenger seat, tried to exit the car on the passenger side, but Officer Thomas ordered them back inside the car. At that point he drew his firearm and pointed it in a "low ready position," i.e., pointed downward and in front of him at a 45-degree angle. Officer Augustin was also out of his vehicle at this point.

As Officer Thomas approached the driver's side of the car to contact the driver, he noticed a strong smell of fresh marijuana coming from inside the car. He asked the driver if they had consumed marijuana in the car and he said yes. At that point, all three men were handcuffed inside the car by Officers Thomas and Augustin and then removed from the car. The driver was removed first, then the rear passenger, and finally defendant. Just before making contact with defendant individually, Officer Thomas noticed defendant make "furtive movements." Defendant "appeared nervous and he was moving quickly in the front passenger seat of the vehicle."

After handcuffing defendant, Officer Thomas removed defendant from the car. While removing him, Officer Thomas noticed something, conducted a search of defendant's person, and located a loaded revolver in defendant's right front pocket. He searched all of defendant's pockets for contraband. Meanwhile, Officer Augustin conducted a search of the car. A loaded firearm was also located in the rear passenger compartment behind the driver's seat. The vehicle was searched after all three of the occupants were removed from it "due to the smell of marijuana coming from the passenger compartment, and because of the loaded firearm that was recovered from Mr. Harbison."

DISCUSSSION

"The Fourth Amendment of the federal Constitution requires state and federal courts to exclude evidence obtained from unreasonable government searches and seizures. [Citation.] Penal Code section 1538.5 allows a defendant to move to suppress evidence obtained in an improper seizure. [Citation.] Our standard of review 'is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' " (People v. Garry (2007) 156 Cal.App.4th 1100, 1105-1106.) We look for substantial evidence in the record of the de novo hearing—in this case, thetranscript of the preliminary hearing—to support the denial of the renewed motion to suppress. (People v. Torres, supra, 188 Cal.App.4th at p. 785.)

Defendant was detained during a traffic stop, and he concedes the detention was lawful based on reasonable suspicion of an invalid vehicle registration. (People v. Dotson (2009) 179 Cal.App.4th 1045, 1052; People v. Saunders (2006) 38 Cal.4th 1129, 1136.) He further concedes that Officer Thomas lawfully ordered defendant, a passenger, out of the detained vehicle with his gun drawn. (See Brendlin v. California (2007) 551 U.S. 249, 263; People v. Vibanco (2007) 151 Cal.App.4th 1, 9-12.) He contends the detention morphed into an illegal de facto arrest when Officer Thomas unnecessarily and unreasonably handcuffed defendant and placed him in the patrol car.⁴

" 'A seizure occurs whenever a police officer "by means of physical force or show of authority" restrains the liberty of a person to walk away.' " (People v. Celis (2004) 33 Cal.4th 667, 673.) Both detentions and arrests are seizures, and the distinction between them " 'may in some instances create difficult line-drawing problems.' " (Id. at p. 674.) "An arrest is defined in the Penal Code as 'taking a person into custody, in a case and in the manner authorized by law.' (§ 834.) It is made by 'an actual restraint of the person, or by submission to the custody of an officer.' (§ 835.) A detention, on the other hand, has been said to occur 'if the suspect is not free to leave at will—if he is kept in the officer's presence by physical restraint, threat of force, or assertion of authority.' "(Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 330.) "A police stop that began as an investigative detention may 'become so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. [Citation.] When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.' " (In re Antonio B. (2008) 166 Cal.App.4th 435, 440.) " '[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' [Citations.] Important to this assessment, however, are the 'duration, scope and purpose' of the stop." (People v. Celis, supra, 33 Cal.4th at pp. 674-675.)

In this case, defendant's detention did not exceed reasonable bounds. "With regard to the scope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period . . . do not convert a detention into an arrest." (People v. Celis, supra, 33 Cal.4th at p. 675.) Being forced out of the car, or held in the patrol car for a limited period of time, likewise do not transform a detention into an arrest. (Ibid., citing Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 991; United States v. Alvarez (9th Cir. 1990) 899 F.2d 833, 838-839.) Here, the odor of marijuana emanating from the passenger compartment of the car warranted further investigation and provided probable cause to search the car. (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059.) The fact the two police officers were outnumbered by the suspects justified use of the handcuffs. (Washington v. Lambert (9th Cir. 1996) 98 F.3d 1181, 1190; People v. Stier (2008) 168 Cal.App.4th 21, 28.) The fact that narcotics activity and recent shootings had occurred in the area where the detention was occurring is "among the relevant contextual considerations in a Terry [v.Ohio (1968) 392 U.S. 1, 21] analysis." (Illinois v. Wardlow (2000) 528 U.S. 119, 124; see People v. Souza (1994) 9 Cal.4th 224, 240.) Other proper considerations include the fact that defendant and the other passenger had attempted to leave the scene when Officer Thomas stepped out of his police vehicle (see People v. Turner (2013) 219 Cal.App.4th 151, 168), and defendant appeared nervous and fidgety ["moving quickly"] prior to the officer's approach (see In re H.M. (2008) 167 Cal.App.4th 136, 144). Under the totality of the circumstances, it was not unreasonable for Officer Thomas to handcuff defendant and place him in the patrol car while Officer Augustin conducted a search of the suspects' car for contraband. There is no evidence the duration of the detention was excessive; so far as this record shows it was contemporaneous with the search of the car, after which the police had probable cause to arrest. Defendant's detention was not an illegal de facto arrest.

Defendant also argues the search of his pockets was illegal, because it was not conducted...