People v. Gallegos CA3 ( 2022 )

Filed 9/13/22 P. v. Gallegos CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093509
Plaintiff and Respondent, (Super. Ct. No. 19FE017974)
v.
JOE MADRID GALLEGOS,
Defendant and Appellant.
SUMMARY OF THE APPEAL
During an encounter with defendant Joe Madrid Gallegos, police officers searched
defendant’s car and shortly thereafter, his girlfriend’s car, which defendant had been
driving two months earlier when arrested for drug sales. Prior to the search, the officers
confirmed defendant was on informal searchable probation. The officers found baggies
containing methamphetamine and two firearms in the girlfriend’s Honda.
1
The People filed a complaint charging defendant with four counts, including, in
count one, felony possession of methamphetamine while armed with a loaded, operable
firearm, in violation of Health and Safety Code section 11370.1, subdivision (a). The
complaint also alleged that defendant had a prior serious felony conviction, a strike,
within the meaning of Penal Code section 1192.7, subdivision (c) (statutory section
citations that follow are to the Penal Code unless otherwise stated) and that he fell within
the provisions of section 667, subdivisions (b)-(i), and section 1170.12.
Following the trial court’s denial of his motion to suppress evidence, defendant
entered a plea of nolo contendere to count one. Defendant also admitted to having a prior
strike. The trial court sentenced defendant to two years in prison on count one, and that
term was doubled to four years due to his prior strike offense. Defendant was given 844
days of credit for time served.
In his opening brief, defendant argues the trial court improperly denied his motion
to suppress. Defendant argues the trial court incorrectly concluded that his encounter
with the officers began as a consensual encounter, and he argues that the officers lacked
sufficient justification to detain him under the Fourth Amendment of the United States
Constitution. In his opening brief, defendant also argues that no intervening
circumstances attenuated the “taint” of the initial encounter to render the subsequent
searches constitutional.
In his supplemental brief, defendant argues he was denied effective assistance of
counsel because his attorney in the trial court did not try to admit additional body camera
video footage from his encounter with the officers into evidence, which he argues would
have supported his argument that the initial encounter with the officers was not
consensual.
We conclude that the initial encounter was a consensual encounter. Additionally,
we conclude that even if the initial encounter had not been consensual, the officers would
have been justified in detaining defendant. Because we conclude the initial encounter
2
was consensual and that the officers would have been justified in detaining defendant, we
need not consider defendant’s arguments regarding attenuation. We also find his
argument that his counsel was ineffective lacks merit and affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
In considering the merits of the trial court’s ruling on defendant’s motion to
suppress, we limit our review to the evidence before the court when it considered the
motion, and a concurrent motion brought by codefendant Alaniz Ortiz. (People v.
McKim (1989) 214 Cal.App.3d 766, 768, fn. 1.) We will integrate a few additional facts
as relevant in our discussion of defendant’s argument that his counsel was ineffective.
Testimony of Officer Anderson
The only witness at the hearing on the motions to suppress was Officer Maxwell
Anderson. At the time of the hearing, Officer Anderson had been a police officer with
the Sacramento Police Department for approximately five years. He worked in the north
gang enforcement team. The following is a summary of his testimony.
On July 5, 2019, at approximately 4:00 p.m., Officer Anderson was on duty,
driving a black SUV with lights but no police stickers, and he was wearing a full uniform.
He was with his partner, Officer Christopher Jensen. The officers were near the
intersection of Dixieanne Avenue and Oakmont Street, which is part of their normal
patrol area. Officer Anderson described the area as, “high crime,” one “where there’s
been multiple shootings, drug arrests, firearm arrests, [and] stolen vehicle arrests.” He
believes it to be “one of the most crime-ridden areas of the city.”
At the side of the road, there was a display that looked like a candlelight vigil. A
vacant building occupies the block. Officer Anderson noticed three to four people
standing in the open passenger doorway of a black Honda Accord. The Hond a was
legally parked. As the SUV approached the intersection, the people standing by the
Honda looked in the direction of the SUV, and they immediately began walking—but not
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running—away from the Honda. Officer Anderson did not see defendant in the Honda,
and he did not see defendant open the trunk of the Honda or lean into the Honda. He did
not see any of the group throw anything in the Honda or make furtive movements
towards the vehicle, but his view was also partially blocked by the door. Aside from the
group, there were about six other people in the area, which also seemed unusual to
Officer Anderson.
Officer Anderson recognized defendant in the group. He had been in contact with
defendant three to four times in the alleyway around the corner in the year leading up to
July 5, 2019. Defendant had told Officer Anderson that the vigil was for a brother or
someone close to defendant who had passed away and that was why he was always in the
area. Officer Anderson had driven by the area multiple times, and, as a result of his
experience patrolling the area, he believes defendant sits near the vigil multiple times a
week, if not every day. He estimated he had seen defendant there 50 to 100 times.
Officer Anderson had not seen a larger group or cars gathered in the area with defendant
before; defendant was normally alone at the vigil. Officer Anderson believed this could
signal something different was going on.
According to Officer Anderson, at the time of his prior contacts with defendant,
defendant had been on postrelease community supervision (PRCS), and possibly “another
form of probation.”1
On cross-examination, Officer Anderson admitted that vigils are typically places
where people bring items related to a deceased person’s memory, but he also testified that
“people can use vigils for all kinds of things, such as cover for drug dealings. So if we
want to--argue about it, that’s how I felt he was using the vigil . . . .” Officer Anderson
1 During most of his testimony, Officer Anderson used the word “probation” to describe
defendant’s supervised status during their prior encounters. We will use “probation” here
too.
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also stated that he believed there had been reports of drugs found underneath the candles
in the vigil, though those reports had not identified defendant or codefendant Ortiz.
Officer Anderson testified that given his familiarity with defendant’s probation
contacts, and the fact that the group was walking away from the car, which felt evasive to
Officer Anderson, he got out of his vehicle and tried to contact defendant. Officer
Anderson testified that he said, “hey . . . [y]ou in the red shirt, can you come talk to me?”
Officer Anderson stated that when he called to defendant, defendant kept walking, and it
was possible defendant had not heard him the first time. According to Officer Anderson,
he tried to get defendant’s attention again. Officer Anderson testified that when
defendant asked, “oh, who me?,” Officer Anderson said, “[y]eah, you are the one I’m
talking to.” Officer Anderson testified defendant then walked over to Anderson and they
began to chat. According to Officer Anderson, he definitely did not have his sirens on as
he approached the curb and he could not recall if he had turned on his lights. Officer
Anderson testified that he did not speak to the men over a loudspeaker and say something
like, “hey, stop right there.”
Officer Anderson stated that when he got out and yelled for the men to come talk
to him, he singled out defendant because he was aware that defendant was on probation,
because he had interacted with defendant when responding to various shootings and
firearms discharge reports in the area. Officer Anderson testified that under “the totality
of the circumstances”—which included, “[t]he fact that there [were] additional people
gathering in that area,” and that the area “is a high crime area,” and he believed he had
seen reports “listed of that actual intersection, where there’s been even drugs located
underneath the candles of the vigil”—he believed defendant was probably selling drugs at
the sight of the vigil.
On cross-examination, when asked if he knew the specific terms of defendant’s
probation, Officer Anderson admitted he was not sure of the specific start and stop dates
of defendant’s probation, but noted that defendant had been on probation during those
5
prior encounters and probation typically lasted three to five years. Officer Anderson also
stated that if he wanted to detain defendant due to his probation status, defendant would
be required to stop.
Officer Anderson testified that once he and defendant began talking, he explained
that the reason he was contacting defendant was defendant’s probation status. According
to Officer Anderson, defendant responded that he was no longer on probation or parole.
According to Officer Anderson, as he and defendant began to speak, Officer
Jensen ran defendant’s name through a system that allows police officers to check some
of an individual’s history, and the search confirmed that defendant was, in fact, on
informal searchable probation. Shortly thereafter, Officer Anderson looked at the results
of the search and confirmed defendant’s status for himself. When Officer Anderson
confirmed defendant was on informal searchable probation, he saw the end date was
June 2, 2022. After confirming defendant was on probation, Officer Jensen placed
defendant in handcuffs.
Officer Anderson testified that he and Officer Jensen then detained the two other
subjects who had been standing in the doorway of the Honda. Ortiz, who had been sitting
in the passenger seat of the Honda, then got out of the car, and the officers detained her
too. The officers detained the other people who had been standing near the Honda and
Ortiz by having them sit on the curb in front of the Honda. According to Officer
Anderson, it is typical—when a probationer sees officers then reacts evasively—to try to
freeze the situation to make sure nothing was dumped or left behind.
Ortiz described defendant as her fiancé. She said the Honda was her car and
defendant had his own car.
Officer Anderson spoke with defendant some more, and defendant indicated his
car was a silver Chevy Impala parked about 30 yards east of the Honda. The Chevy was
legally parked. Defendant did not admit to ever being in possession of the Honda.
Officer Jensen notified Officer Andersen he had run a records check on the Honda—
6
which officers perform by running license plate numbers—and the report showed
defendant had previously been arrested for drug sales while in the Honda.
Officer Anderson got the keys to the Chevy from defendant and searched the
vehicle. Officer Anderson estimated defendant was in handcuffs for five to 10 minutes
before the police officers searched the Chevy. On the front passenger floorboard, Officer
Anderson found two boxes of sandwich bags. In the center console, there was a black
digital scale, and in the armrest of the console there were two clear baggies. One was
tied and the other had what looked like a marijuana leaf inside. These items were
significant to Officer Anderson because it is common for drug dealers to use sandwich
baggies to package their drugs and the scale to weigh their drugs. Officer Anderson
believed the way the bags were tied was unique and the clear plastic bag was indicative
of narcotics sales or packaging. In the glove compartment of the Chevy was a purse with
documents with Ortiz’s name on them.
After searching the Chevy, based on the fact that defendant had been standing
close to the Honda, defendant’s reaction to seeing the police, the fact that defendant had
been arrested in the Honda before, and the fact that defendant’s car—which was parked
on the same curb line as the Honda—had multiple pieces of evidence that suggested drug
sales, the officers tried to get the key to Ortiz’s Honda in order to search it. They went
back to Ortiz and told her that, based on everything that had happened, they were going
to search her car. She was argumentative and uncooperative; Officer Jensen placed her in
handcuffs, then found the key to the Honda on her person as he walked her to a patrol
vehicle. Officer Jensen took the key from Ortiz.
The officers then searched the Honda. On the front passenger floorboard, Officer
Anderson found a female’s black wallet that was zipped open and contained two tied-off
plastic baggies which, in turn, contained methamphetamine. Officer Jensen searched the
driver’s side. Officer Jensen told Officer Anderson he found an orange pill bottle with
defendant’s name on it. The officers found a digital scale underneath the radio.
7
Officer Anderson assisted in searching the trunk of the Honda. There was a
grocery bag full of glass pipes that are typically used for smoking methamphetamine.
Officer Jensen found two firearms in the trunk. Officer Jensen told Officer Anderson he
found male clothing in the trunk.
Officer Anderson advised defendant of his Miranda (Miranda v. Arizona (1966)
384 U.S. 436) rights at the scene, and defendant waived those rights. Defendant admitted
the clothing in the trunk was his.
Based on the fact that defendant had been arrested in the Honda before, the fact
that defendant had been close to the Honda, the drugs and firearms in the Honda, the
indicia of drug sales in both the Honda and the Chevy, and audio from defendant and
Ortiz while in the cruiser, Officer Anderson arrested defendant and Ortiz.
The Body Cam Footage Entered into Evidence on the Motions to Suppress
In considering defendant’s and Ortiz’s motion to suppress evidence found in the
searches of their vehicles, the court watched 46 seconds of body cam footage taken from
Officer Anderson’s body cam when he encountered defendant. The following describes
what happened during those 46 seconds.
At the beginning of the video clip, there is no sound and Officer Anderson is
driving. Officer Anderson stops at a stop sign and turns left. Then, Officer Anderson
pulls over to the left side of the road and stops his vehicle. The audio recording for the
camera is activated and you hear the click as Officer Anderson opens the vehicle’s door.
No sirens can be heard, and it does not look like the vehicle was running any police lights
at this time. As Officer Anderson starts to step out of the car, he says, “come here.”
Based on when you can tell the audio recording was activated, and when you hear Officer
Anderson open the car door, it is unlikely Officer Anderson said anything to the group
before “come here.” Once Officer Anderson is out of the car, you see defendant in red
and his companions, one who is wearing a printed black shirt, walking away. Officer
8
Anderson says, “guy in the red,” and defendant and the male in the black printed shirt
both turn to look at Officer Anderson. When defendant’s companion looks at Officer
Anderson, Officer Anderson says, “you can come here too.” The companion asks, “me?”
and Anderson responds, “yeah.” Defendant then turns around and starts to walk away
again. Officer Anderson then makes a gesture with his left hand —as if beckoning
defendant to come towards him—and says, “hey.” Defendant—the only person in red—
responded, “oh, you’re calling me too?” Officer Anderson says, “yeah, guy in the red
shirt.” Defendant walks up to Officer Anderson and asks, “what’s going on?”
Ruling on the Motions to Suppress
The court denied both defendant’s and Ortiz’s motion to suppress evidence
obtained during the search of their vehicles.
The court said the following regarding defendant’s motion: “The initial contact
between officers and Mr. Gallegos was consensual. The officers stopped their vehicle
near the Honda. They did not use their sirens. They did not use the loud speaker [sic],
and there is no evidence that they activated any lights.
“Officer Anderson saw Mr. Gallegos walking away from the Honda. The officer
recognized him, having seen him 50 to 100 times in that area within the last year and also
having had personal contact with him on three to four occasions in that area. And the
officer called out to him saying, hey, can you come talk to me or words to that effect.
“And Mr. Gallegos did so. Mr. Gallegos walked over to him. Officer Anderson
asked him some questions, and Mr. Gallegos answered them. He identified himself, and
he told the officer he was not on probation or parole. All of that was a consensual
contact.
“The officer subsequently ran his name and confirmed he was on searchable
probation. It was at that point that he was handcuffed and detained.
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“The officers were justified in detaining him at that point because they knew or
had an objectively reasonable belief before handcuffing and detaining him that he was on
searchable probation.
“The officers did not need reasonable suspicion to detain him in light of their
advance[] knowledge of his probation status.
“From there, the subsequent search of the Chevy Impala was justified because it
fell under the probation search exception to the warrant requirement. [¶] . . . [¶]
“Mr. Gallegos identified the Chevy Impala as belonging to him. He had the keys
for it. The Chevy was in walking distance of the encounter, and the Chevy was identified
by Officer Anderson on the body-cam, and as such, clearly was visible to the officer at
the time of his initial contact with Mr. Gallegos. The location of the Chevy does not
militate against a finding of reasonableness.
“So, in conclusion, the Court finds the People have shown by a preponderance of
the evidence that both the detention of Mr. Gallegos and the search of the Chevy Impala
were justified, and neither his detention nor this search was arbitrary, capricious or
harassing. Therefore, Mr. Gallegos’ motion to suppress is denied.”
Thus, with respect to the detention of defendant and the search of the Chevy, the
court concluded that (1) the initial interaction between defendant and the officers was a
consensual encounter, and the officers did not detain defendant until they confirmed he
was on searchable probation (Finding 1), and (2) once the officers did confirm defendant
was on searchable probation, they were justified in detaining him and searching the
Chevy (Finding 2).
The court then turned its attention to Ortiz’s motion to suppress, and the questions
of whether she had been improperly detained and if the search of the Honda had been
permissible, ultimately concluding “there was an objectively reasonable nexus to
sufficiently connect Mr. Gallegos to the Honda; and therefore, to apply the probation
search exception to the Honda. [¶] Therefore, the search of the Honda was reasonable
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and lawful as a probation search based on his probation status. [¶] So, in conclusion, the
Court finds the People have shown by a preponderance of the evidence that Ms. Ortiz
was not unlawfully detained and the search of the Honda was justified” (Finding 3).
In analyzing Ortiz’s motion, the court included the following statements:
With respect to the initial interaction with Ortiz and other parties, the court stated:
“There was no threatening or intimidating language used by the officers at this point.
There were no weapons drawn. [¶] There were just the two officers on the scene, and
they were in a public place in broad daylight. If this was a detention, it was at most a
minimal investigative detention. And it would have been reasonable under the
circumstances to freeze and assess the situation. In part because they knew Mr. Gallegos
was a probationer and the officers were outnumbered.”
When discussing the officer’s justification for searching the Honda, the court
noted: “What officers knew at that point in time was that Mr. Gallegos had walked away
from the Honda, away from police. As soon as the police vehicle pulled up, and this was
something Officer Anderson had never seen or known Mr. Gallegos to do in his prior
contacts with him. [¶] So, walking away from the police like this was something
unusual for Mr. Gallegos in the officer’s experience with him.” The court also concluded
that Officer Anderson “believed based on his training, experience and familiarity with
that particular location that the nearby vigil might be used by some as a cover for drug
activity. [¶] Further, because Officer Anderson had been driving through this area
multiple times each week, if not everyday, he knew he had seen Mr. Gallegos at or near
the vigil on multiple occasions in the last year. And Officer Anderson knew this area to
be among the most crime-ridden areas within the City of Sacramento.”
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DISCUSSION
I
The Preliminary Contact Did Not Violate the Fourth Amendment
As a preliminary matter, we note what is not at issue in this appeal. Defendant
does not argue that had the officers discovered defendant’s searchable probation status
through a legal detention they would have still lacked authority to search his car. Quite
the contrary, defendant admits that his “suspicionless search condition gave the officers
authority to search his property.” Similarly, he is “not arguing that the evidence in
Ortiz’s Honda should be suppressed because he has privacy interests in Ortiz’s Honda.
. . . [Defendant] is arguing that but for his illegal detention, which produced the
information that he was on informal probation, Ortiz’s Honda would never have been
searched.” Thus, in framing this appeal, defendant does not focus arguments on the
merits of the trial court’s Finding 2 or Finding 3.
Instead, defendant focuses on Finding 1—i.e., on the trial court’s determination
with respect to the nature of his interaction with the officers from the time they pulled
over to the time they confirmed on their systems that he was on informal searchable
probation. Defendant argues that when Officer Anderson pulled over his vehicle and
engaged defendant in conversation by saying “come here,” he initiated a contact with
defendant that was a detention and not a consensual encounter. He further argues that a
reasonable suspicion did not support this detention and, therefore, the officer’s seizure of
defendant was illegal. He argues that because this initial detention was illegal, the results
of the subsequent searches of the vehicles ought to have been suppressed. In response,
the People argue that the initial contact between defendant and the officers was a
consensual encounter that did not rise to a detention until after the officers confirmed
defendant was on active searchable probation.
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We conclude the initial contact between defendant and the officers was
consensual. But, even if we were to find that the initial encounter between defendant and
the officers was not consensual, we would conclude the officers were justified in
detaining defendant in the short time between when the encounter began and when they
verified the details of his probation status.
A. Fourth Amendment Protections, Standards, and Principles of Review
“The Fourth Amendment of the federal Constitution requires state and federal
courts to exclude evidence obtained from unreasonable government searches and
seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) Penal Code section 1538.5
allows a defendant to move to suppress evidence obtained in an improper seizure. (Pen.
Code, § 1538.5.)” (People v. Garry (2007) 156 Cal.App.4th 1100, 1105-1106.)
“ ‘Pursuant to article I, section 28, of the California Constitution, a trial court may
exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the
federal Constitution.’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
365.)
A defendant who brings a motion to suppress has the initial burden of proving a
warrantless search or seizure occurred. (People v. Flores (2019) 38 Cal.App.5th 617,
626.) “There was no warrant in this case, so the burden shifted to the prosecution to
show any warrantless searches or seizures were justified under the Fourth Amendment to
the United States Constitution. . . . ‘[T]he controlling burden of proof at suppression
hearings . . . [is] proof by a preponderance of the evidence.’ (United States v. Matlock
(1974) 415 U.S. 164, 178, fn. 14.)” (Ibid.)
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is
governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial
court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies
the latter to the former to determine whether the rule of law as applied to the established
13
facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these
inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s
resolution of the first inquiry, which involves questions of fact, is reviewed under the
deferential substantial-evidence standard. [Citations.] Its decision on the second, which
is a pure question of law, is scrutinized under the standard of independent review.
[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is
however predominantly one of law, . . . is also subject to independent review.” (People v.
Williams (1988) 45 Cal.3d 1268, 1301.)’ (People v. Alvarez (1996) 14 Cal.4th 155, 182
(Alvarez); see also People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [the
trial court’s findings must be upheld if supported by substantial evidence].)” (People v.
Carter (2005) 36 Cal.4th 1114, 1140.) “The trial court’s ruling may be affirmed if it was
correct on any theory, even if we conclude the court was incorrect in its reasoning.
(People v. McDonald (2006) 137 Cal.App.4th 521, 529.)” (People v. Durant (2012)
205 Cal.App.4th 57, 62.)
Where, as here, in addition to presenting arguments about the reasonableness of
the search or seizure, a defendant disputes a finding that an encounter between a police
officer and defendant was consensual, we first determine the form of the encounter and
then determine if the requisite level of justification was present to support the encounter.
(See People v. Jones (1991) 228 Cal.App.3d 519, 523, 524.) This is so because the type
and level of justification required for a contact to pass constitutional muster varies
depending on the form of contact. (Id. at pp. 522-523.) “For purposes of Fourth
Amendment analysis, there are basically three levels of police contacts or interactions
with individuals. First are ‘consensual encounters.’ They are police-individual
interactions which result in no restraint of an individual’s personal liberty
whatsoever . . . . (In re James D. (1987) 43 Cal.3d 903, 911.)” (Ibid.) Consensual
encounters do not trigger Fourth Amendment scrutiny (Florida v. Bostick (1991)
501 U.S. 429, 434), and “may properly be initiated by police officers even if they lack
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any ‘objective justification.’ ” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
“Second are ‘detentions.’ They are seizures of an individual which are strictly limited in
duration, scope, and purpose, and which may be undertaken by the police if there is an
articulable suspicion that a person has committed or is about to commit a crime. (Ibid.)
Third are those seizures of an individual which exceed the permissible limits of detention,
seizures which include formal arrests and restraints on an individual’s liberty comparable
to an arrest, and which are constitutionally permissible only if the police have probable
cause to arrest the individual for a crime. (Id. at pp. 911-912.)” (Jones, at p. 523.)
B. The Initial Contact Was Consensual
Defendant argues the initial contact between defendant and the officers, before
they confirmed that he was on searchable probation, was a detention. The trial court
concluded, and the People argue, that the initial interaction was consensual and the
officers did not detain defendant until after they confirmed he was on searchable
probation. On this point, we agree with the People.
An interaction between a police officer and citizen changes from a consensual
encounter to a detention, and “a person has been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.” (United States v.
Mendenhall (1980) 446 U.S. 544, 554; see also Wilson v. Superior Court (1983)
34 Cal.3d 777, 790; People v. Rivera (2007) 41 Cal.4th 304, 309 [“There is no Fourth
Amendment violation as long as circumstances are such that a reasonable person would
feel free to leave or end the encounter”].) “This test assesses the coercive effect of police
conduct as a whole, rather than emphasizing particular details of that conduct in
isolation.” (In re Manuel G. (1997) 16 Cal.4th 805, 821, italics added.) A seizure occurs
when “by means of physical force or show of authority,” a law enforcement officer “has
15
in some way restrained the liberty of a citizen.” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn.
16. (Terry))
A central aspect of how the trial court and the parties characterize the nature of the
initial encounter between defendant and Officer Anderson is their conclusions about what
words Officer Anderson used to get defendant’s attention and engage him in the
encounter and the impact of those words on defendant. When it determined that
defendant’s interaction with the officers began as a consensual encounter, the court found
that the encounter started when Officer Anderson “called out to him saying, hey, can you
come talk to me or words to that effect. [¶] And Mr. Gallegos did so. Mr. Gallegos
walked over to him.” In their briefs, both of the parties argue about the correctness of
this conclusion, with defendant maintaining that Officer Anderson actually initiated the
encounter by assertively saying “come here.” In contrast, in their statement of facts, the
People quote Officer Anderson as beginning the conversation by asking, “[h]ey, you in
the red shirt, can you come talk to me?” Then, in their argument, the People
acknowledge the first words you hear on the audio are “come here,” but assert it is
unknown if anything was said before the words “come here.”
The body cam footage entered into evidence during the hearing on the motion to
suppress sheds some light on the actual words Officer Anderson used. Though Officer
Anderson may have testified that he began his efforts to get defendant’s attention by
saying, “hey . . . [y]ou in the red shirt, can you come talk to me?,” the body cam footage
shows otherwise. The first words Officer Anderson uttered in the group’s direction were
“come here.” Based on when you can tell the audio recording was activated, and when
you hear Officer Anderson open the car door, the People’s argument that Officer
Anderson said anything before “come here”—let alone that defendant heard it—is not
persuasive. (See Scott v. Harris (2007) 550 U.S. 372, 378-381 [declining to view facts in
favor of a nonmoving party when the parties asserted differing facts on a motion for
summary judgment, because there was a videotape capturing events at issue and “[t]here
16
are no allegations or indications that this videotape was doctored or altered in any way,
nor any contention that what it depicts differs from what actually happened. The
videotape quite clearly contradicts the version of the story told by respondent and
adopted by the Court of Appeal[].” Also, concluding, “[t]he Court of Appeal[] should
not have relied on such visible fiction; it should have viewed the facts in the light
depicted by the videotape”].)
However, our inquiry does not end in considering only the words Officer
Anderson used to initiate the interaction. Having determined Officer Anderson’s first
words to defendant were “come here,” we still must determine if “in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he
was not free to leave.” (United States v. Mendenhall, supra, 446 U.S. at p. 554, italics
added.) Put another way, we consider if all of the circumstances support the trial court’s
conclusion that “come here” as used by Officer Anderson had the same effect as calling
out and asking, “hey, can you come talk to me?” The circumstances courts look at to
determine the nature of an encounter between a law enforcement officer and a potential
defendant include more than just the words used. (In re Manuel G., supra, 16 Cal.4th at
p. 821.) “Circumstances establishing a seizure might include any of the following: the
presence of several officers, an officer’s display of a weapon, some physical touching of
the person, or the use of language or of a tone of voice indicating that compliance with
the officer’s request might be compelled.” (Ibid.)
We find People v. King (1977) 72 Cal.App.3d 346 (King) informative in assessing
the trial court’s finding that the encounter here was consensual. In King, a defendant
entered a plea of guilty to possession of heroin after the trial court denied his section 995
motion to set aside the charging information in his case, the validity of which “depended
upon the absence of a Fourth Amendment violation in the police seizure of certain
heroin . . . .” (Id. at p. 348.)
17
In King an officer saw the defendant standing with a group of seven or eight other
people, and as the officer drove in the direction of the group, the defendant walked away.
(King, supra, 72 Cal.App.3d at p. 348.) The officer got out of his vehicle and called out
to the defendant saying, “ ‘Danny, stop, I want to talk to you,’ ” but the defendant
continued to walk while speeding up. (Ibid.) The officer saw the defendant make a
throwing motion and grabbed the defendant to keep him from discarding any further
objects. (Ibid.) At a hearing, the officer testified that he was about six feet from the
defendant when he made the throwing motion. (Ibid.) When asked if he was going to
detain the defendant at that time, the officer testified, “ ‘[w]e were going to stop him and
talk to him, yes.’ ” (Id. at pp. 348-349.) However, when asked if the defendant was free
to go at this point, the officer responded, “ ‘[w]e hadn’t actually detained him at the time
so he was free to go if he wanted to.’ ” (Id. at p. 349.)
On appeal, the Court of Appeal ultimately concluded the record reasonably
supported an inference that there was no intended and actual detention when the officer
called out to the defendant to “stop” under the facts. (King, supra, 72 Cal.App.3d at
p. 349.) The court reasoned, “[t]he conduct of the police officer of the instant case--
calling out to someone known to him who was walking away at an accelerating pace,
‘Danny, stop, I want to talk to you’--was, in our opinion, ambiguous. From the apparent
command, ‘stop,’ an inference of an intended and actual detention might reasonably have
been drawn by the trial court. But just as reasonable, in our opinion, would be an
inference of no intention to detain, but rather of an appropriate means under the
circumstances of advising King of the officer’s desire to talk to him. It was the latter
inference that was presumably drawn by the trial court. [¶] As pointed out, where two or
more inferences can reasonably be drawn from the facts, we may not substitute our
deductions for those of the trial court. This latter rule is ‘expressly made applicable to
decisions of a trial court resolving Fourth Amendment issues.’ (See People v.
Escarcega[ (1974)] 43 Cal.App.3d 391, 394.)” (Id. at pp. 349-350.)
18
Here too, the use of the words “come here,” and Officer Anderson’s follow-up
efforts to get defendant’s attention, in this context, were somewhat ambiguous. The
words “come here” when read or heard alone could reasonably be seen to create a
detention, but an equally reasonable conclusion is that Officer Anderson’s words and
actions reflect that his intention was (1) to get the attention of a person with whom he had
spoken at least three to four times in the past year; and (2) to communicate to that person
that he wanted to talk with him, and not just the other individuals in the area. Other
aspects of the interaction support this conclusion: the officers did not run their sirens and
they did not use a loudspeaker; and Officer Anderson’s tone was not threatening and he
did not physically grab—or even touch—defendant. The trial court’s conclusion about
the meaning and tenor of Officer Anderson’s language is supported by the record, and the
trial court did not err in finding defendant’s interaction with the officers began as a
consensual encounter and did not rise to the level of a detention until the officers
confirmed defendant’s probation status.
C. The Detention Was Justified
Even if the initial contact between the officers and defendant had not been
consensual, the trial court’s decision could still be upheld because the officers had a
sufficient justification to stop defendant.
“The guiding principle in determining the propriety of an investigatory detention
is ‘the reasonableness in all the circumstances of the particular governmental invasion of
a citizen’s personal security.’ ([Terry], supra, 392 U.S. at p. 19; see In re Tony C.[
(1978)] 21 Cal.3d [888,] 892.)” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) “[I]n
determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual
one--whether the officer’s action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference in the
first place.” (Terry, supra, 392 U.S. at pp. 19-20.)
19
“There are two different bases for detaining an individual short of having probable
cause to arrest: (1) reasonable suspicion to believe the individual is involved in criminal
activity ([Terry, supra,] 392 U.S. [at pp.] 30-31 []) and (2) advance knowledge that the
individual is on searchable probation or parole (In re Jaime P. (2006) 40 Cal.4th 128,
136, 139 (Jaime P.); People v. Reyes (1998) 19 Cal.4th 743, 754 (Reyes)). . . . In meeting
a challenge to the lawfulness of a warrantless search or seizure, the People are obligated
to prove by a preponderance of the evidence that the search or seizure fell within one of
the recognized exceptions to the warrant requirement. (People v. James (1977) 19 Cal.3d
99, 106, fn. 4; People v. Rios (2011) 193 Cal.App.4th 584, 590.)” (People v. Douglas
(2015) 240 Cal.App.4th 855, 860 (Douglas).) Here, a short detention of defendant while
the officers confirmed his searchable probation would have been justified under both
bases.
1. The officers had reasonable suspicion to believe defendant was
involved in criminal activity
Under the first basis for a legal detention, “[a] detention is reasonable und er the
Fourth Amendment when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.” (People v.
Souza (1994) 9 Cal.4th 224, 231; see also United States v. Sokolow (1989) 490 U.S. 1, 7
[“the police can stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause”].) In considering if circumstances render
a detention objectively reasonable, we ask if the facts are “such that any reasonable
officer in the detaining officer’s position would suspect the same criminal activity and the
same involvement by the person in question.” (People v. McDonald (2006)
137 Cal.App.4th 521, 530, italics added.)
20
“As [the U.S. Supreme Court] said in Cortez: [¶] ‘The process does not deal with
hard certainties, but with probabilities. Long before the law of probabilities was
articulated as such, practical people formulated certain common-sense conclusions about
human behavior; jurors as factfinders are permitted to do the same -- and so are law
enforcement officers.’ [United States v. Cortez (1981) 449 U.S. 411,] 418.” (United
States v. Sokolow, supra, 490 U.S. at p. 8.) When an action is consistent with criminal
activity, it can support reasonable cause to detain an individual, even if that action might
also be consistent with an innocent activity. (See id. at pp. 9-10; see also People v.
Souza, supra, 9 Cal.4th at p. 233.) Hence, an area’s reputation for criminal activity and
whether an individual engages in an act of flight when approached by an officer are both
permissible factors to consider in the totality of circumstances which may or may not
suggest to a trained officer that the fleeing person is involved in criminal activity. (See
Souza, at pp. 239-240; People v. Moore (2021) 64 Cal.App.5th 291, 301-302 [“while
certainly not enough on its own, ‘[t]he reputation of an area for criminal activity is an
articulable fact upon which a police officer may legitimately rely. [Citations.]’
[Citation.] [¶] . . . [¶] Nervous, evasive behavior is undoubtedly a potentially significant
factor to be considered in determining whether probable cause (or reasonable suspicion)
exists”].)
Here, Officer Anderson pointed to a set of articulable facts, which when taken
together, could objectively cause an experienced officer to conclude defendant was
engaged in a criminal activity, specifically drug sales, when he decided to stop and speak
with him. The area where defendant was found was one Officer Anderson had come to
consider a high crime area. One of the crimes Officer Anderson had encountered in the
area was drug sales. Officer Anderson understood that candlelight vigils could serve as a
front for drug sales, and believed someone had reported finding drugs at this particular
vigil location. Officer Anderson had seen defendant at this particular location 50 to 100
times, and usually defendant was alone and made no movement when Officer Anderson
21
approached him or went by. In contrast, on this day, Officer Anderson saw defendant
standing in the doorway of a car that had pulled over with a group of other people, and
when defendant saw Officer Anderson he began walking away from the scene. All of
these details, taken together—regardless of defendant’s PRCS or probation status—could
objectively have given Officer Anderson a reasonable suspicion to believe defendant was
engaged in drug sales at the time he made contact with him.
2. The officers had advance knowledge that defendant was on
searchable probation
In light of Officer Anderson’s degree of advance knowledge of defendant’s
probation or PRCS status, the officers could reasonably have detained him for a brief
period of time.
“Suspicionless searches”—i.e., searches when an officer does not have reasonable
suspicion to believe the individual is involved in criminal activity—“are lawful in
California for both probationers and parolees, so long as they are not conducted
arbitrarily, capriciously, or for harassment. (People v. Bravo (1987) 43 Cal.3d 600, 610
[probationers]; [People v. ]Reyes[ (1998)] 19 Cal.4th [743, ]752 [parolees].)” (Douglas,
supra, 240 Cal.App.4th at p. 861.) “Because a search condition is statutorily mandated
for all parolees (§ 3067; [People v.] Schmitz[ (2012)] 55 Cal.4th [909,] 916; see fn. 6,
post), the officer need only know that the individual is on parole.” (Id. at p. 862.) In
contrast, “in the case of probation searches, the officer must have some knowledge not
just of the fact someone is on probation, but of the existence of a search clause broad
enough to justify the search at issue,” before the officer can rely on a probation search
condition to justify a detention and search of an individual. (Id. at p. 863.)
In California, in addition to traditional probation and parole, upon release from
prison, some individuals are subject to another form of supervision, postrelease
community supervision or PRCS. (See § 3450 et seq.) “The Postrelease Community
22
Supervision Act of 2011, adopted as part of the 2011 realignment legislation addressing
public safety (Realignment Act), provides for local post-incarceration supervision of less
serious offenders released from state prison, transferring their supervision from state
parole authorities. (§ 3450 et seq., added by Stats. 2011, ch. 15, § 479.) . . . A PRCS
search condition, like a parole search condition, is imposed on all individuals subject to
PRCS. (§ 3465.)” (Douglas, supra, 240 Cal.App.4th at pp. 863-864.) Thus, “[a]s in the
case of a parole search, an officer’s knowledge that the individual is on PRCS is
equivalent to knowledge that he or she is subject to a search condition.” (Id. at p. 865.)
Accordingly, for a law enforcement officer to justify a detention and search because a
person is on PRCS, the officer only needs to know the person is on PRCS; no separate
knowledge of a search condition is required.
Though Officer Anderson’s testimony suggests he may not have had a clear
recollection of whether defendant was on PRCS or probation that subjected him to search
during their prior encounters, we do know (a) those encounters are what led Anderson to
believe defendant was on a form of supervision that required him to stop and respond to
police questioning—i.e., that he was subject to a degree of searchability and detention;
and (b) when the officers checked defendant’s status on July 5, 2019, they confirmed he
was then on informal searchable probation.
In People v. Hill (2004) 118 Cal.App.4th 1344, the defendant argued that a trial
court had erred in denying his motion to suppress because, at the time of the search, the
officer who performed the search had been erroneously informed by a dispatcher that the
defendant was on parole and not probation, when, in fact, the defendant had been on
probation with a search condition. The dispatcher had misread a form that showed the
defendant’s parole had recently expired, but he was still on probation with a search
condition. (Id. at pp. 1347-1348.) Noting that the exclusionary rule “serves ‘ “to compel
respect for the constitutional guaranty in the only effectively available way—by
removing the incentive to disregard it” ’ (Mapp v. Ohio (1961) 367 U.S. 643, 656)” the
23
First District Court of Appeal concluded “[n]othing in this officer’s conduct manifests
any such disregard. [The officer’s] actions do not present us with the danger of
‘legitimiz[ing] unlawful police misconduct.’ ([People v.] Sanders [(2003)] 31 Cal.4th
[318,] 335.) To punish the responsible officer and the inept dispatcher in these
circumstances creates a windfall for the defendant who was legitimately subject to a
search condition. Therefore, . . . we . . . conclude the trial court did not err in denying
defendant’s motion to suppress.” (Hill, at p. 1351.) Here, as the court did in Hill, we
focus on the fact that Officer Anderson believed, based on his prior contacts that
defendant was on a form of supervision that allowed for his detention and search, and not
on the fact that Officer Anderson was not entirely clear in his testimony about whether
that form of supervision was PRCS or searchable probation.
When he testified, Officer Anderson stated he believed he could stop defendant
because defendant was on probation. During his testimony, he explained he was aware of
defendant’s probation status because he had been in contact with defendant three to four
times in the prior year. At the prosecutor’s prompting, he clarified that defendant had
actually been searchable during prior contacts because he had been on PRCS during their
prior contacts. In short, based on three or four contacts with defendant in the prior year,
Officer Anderson believed on the date of the encounter that defendant was on some sort
of community supervision that included a term that allowed Officer Anderson to detain
defendant.
Douglas is instructive in helping us determine if this belief was objectively
reasonable enough to constitute advance knowledge of defendant’s searchable status. In
Douglas, supra, 240 Cal.App.4th at pages 857-858, an officer traveling in a patrol car
investigating recent gun violence recognized Douglas sitting behind the wheel of a
parked car. The officer had arrested Douglas one to two years earlier for a firearm-
related offense. The officer testified he knew the suspect was on PRCS because as part
of his job he monitored who was on probation or parole. (Ibid.) The officer further
24
admitted that he could not recall the last time he had checked Douglas’s status, but did
recall having seen Douglas’s name on a list of active probationers within the prior two
months. (Ibid.) When the officer approached Douglas on foot, Douglas moved his car
forward a few feet. (Ibid.) The officer ordered Douglas to stop and exit the car. (Ibid.)
When Douglas exited the car, the officer pinned Douglas to the car’s door and frame,
which led to a quick scuffle that ended in the officer handcuffing Douglas. (Ibid.) A
loaded gun then fell from Douglas’s hand or arm area. (Ibid.) After the officer
handcuffed Douglas, the officer asked Douglas if he was on probation and Douglas
confirmed he was on probation. (Ibid.)
Douglas filed a motion to suppress the gun as evidence, arguing it had been the
fruit of an unlawful detention. (Douglas, supra, 240 Cal.App.4th at p. 859.) The trial
court denied the motion, Douglas entered a guilty plea as part of an agreement, then
Douglas filed an appeal. (Ibid.) On appeal, Douglas challenged the constitutionality of
the detention, arguing that the officer “did not have actual, current knowledge he was on
searchable PRCS and also did not have reasonable suspicion he was engaged in criminal
activity.” (Ibid., fn. omitted.)
Based on the facts available, the Court of Appeal concluded the officer had an
objective belief that Douglas was on PRCS at the time he initiated the detention.
(Douglas, supra, 240 Cal.App.4th at pp. 858, 871.) Under the facts in Douglas, the court
concluded that knowledge was sufficient to justify Douglas’s detention. (Id. at p. 873.)
It reasoned, “the adequacy of the officer’s knowledge must be assessed in the context in
which the decision to detain and search arose. We consider in this appeal not whether
[the officer] sought out all available information or undertook the best possible course of
action, but whether his decision to detain Douglas was objectively reasonable in light of
the knowledge he had. [The officer] had to make a rapid evaluation of the circumstances
of his encounter with Douglas through the filter of his preexisting knowledge of him—
which called for judgment, and was not simply a binary matter of whether [the officer]
25
subjectively knew of Douglas’s PRCS status or not. In light of the immediacy of the
events, the failure to run a computer check to determine the currency of Douglas’s PRCS
status did not render [the officers]’s actions—or his belief in Douglas’s PRCS status—
objectively unreasonable.” (Id. at pp. 871-872.) The court found, “[t]he information
possessed by [the officer] was reasonably reliable, ultimately proved to be accurate, and
led to an objectively reasonable conclusion that Douglas was on PRCS and therefore
subject to detention and search. His failure to run a current [records] check did not
render his preexisting belief in Douglas’s PRCS status objectively unreasonable. We
therefore conclude the court properly denied the section 1538.5 motion based on [the
officer]’s advance knowledge of Douglas’s PRCS search condition.” (Id. at p. 873.)
Here too, Officer Anderson’s belief that defendant was on probation or PRCS and
that the terms of that probation allowed officers to detain defendant was based on fairly
recent prior contacts with defendant. That knowledge allowed for an objective belief that
defendant remained subject to search, and that belief was sufficiently strong to justify
Officer Anderson commanding defendant to stop and speak with him long enough for the
officers to confirm the precise term and length of defendant’s probation of PRCS.
II
Attenuation Issue
In his opening brief, defendant argues, assuming the officers’ initial interaction
with defendant was illegal, that the confirmation of defendant’s searchable status did not
constitute an intervening circumstance that attenuated the alleged Fourth Amendment
violation from the search that produced the methamphetamine and firearms. Because we
conclude that the initial interaction between the officers and defendant did not violate the
Fourth Amendment, we do not consider this argument.
26
III
Ineffective Assistance of Counsel Claims
In supplemental briefing, defendant argues that if this court were to conclude
defendant’s interaction with the police officers was consensual based on the 46 seconds
of body cam video entered into evidence at the motion to suppress hearing, then his
counsel was ineffective for failing to introduce additional portions of the video into
evidence. Specifically, defendant argues that the additional footage would show that the
way Officer Anderson parked his SUV “blocked the Honda—a show of nonverbal police
authority,” and that “the tenor of this encounter was anything but consensual.” In his
reply brief, defendant again asserts additional video ought to have been admitted because,
“the words [Officer] Anderson used and the way he parked were both factors that the
[trial] court explicitly considered when it determined whether this was a detention or
consensual encounter,” and, therefore, “it was pertinent that counsel marshal these facts
in appellant’s favor or, at the very least, direct the court’s attention to the portions of the
video that directly contradicted the prosecution’s case and the court’s findings.”
“To show ineffective assistance of counsel, defendant has the burden of proving
that counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different.” (People v. Kelly
(1992) 1 Cal.4th 495, 519-520.) “ ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 333.)
If we consider the question of whether counsel’s actions caused prejudice to
defendant, that “prejudice must be affirmatively proved; the record must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
27
sufficient to undermine confidence in the outcome.’ (Strickland v. Washington [(1984)]
466 U.S. [668,] 694.)” (People v. Maury (2003) 30 Cal.4th 342, 389.)
Given the officers would have been justified in detaining defendant while
verifying his probation status, the result would be the same even if additional footage had
been admitted into evidence that demonstrated the encounter was not consensual.
Moreover, we disagree with defendant’s characterization of the impact the
additional evidence would have had on the court’s determination regarding the
consensual nature of the encounter —the admission of additional footage would not
change the finding that the encounter leading up to the verification of defendant’s
searchable status was consensual. For example, the still shot of the SUV parked before
the Honda used in the opening brief, which came from after the 46 seconds admitted
during the motion to suppress, shows the Honda and SUV were parked on a street that
did not have heavy traffic, that the SUV was not particularly close to the Honda, and that
the Honda could have easily and safely maneuvered around the SUV into traffic.
Similarly, the dialogue that follows the first 46 seconds and ends when Officer Anderson
verified defendant’s searchable status shows Officer Anderson indicating he just wants
“to talk” with defendant, Officer Anderson calmly asking defendant if he is on probation
and defendant insisting he is not on any probation or parole, Officer Anderson asking
defendant what he and his companions are doing in a calm tone, Officer Anderson telling
defendant he sees him at the site every day, and Officer Anderson telling Officer Jensen
defendant had said he was not on probation or parole. During that timeframe, Officer
Anderson does not move closer to defendant, raise his voice, or otherwise exert his
authority in a way that would have conveyed to defendant that he was not free to end the
conversation. The court would have been just as likely, if not more likely, to find the
initial encounter consensual if it had considered the extra footage.
28
DISPOSITION
We affirm the trial court’s ruling on the motion to suppress and the judgment that
followed.
HULL, Acting P. J.
We concur:
MAURO, J.
DUARTE, J.
29