People v. Brown CA4/1

Filed 8/15/14 P. v. Brown CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064372
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245750)
STEVEN BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia
Eyherabide, Judge. Affirmed.
Joshua H. Schraer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alastair J.
Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
Steven Brown was charged with one count of attempting to transport more than
28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)), and it was alleged the
attempted transport was not for personal use (Pen. Code, § 1210, subd.(a)). After the
magistrate denied his Penal Code section 1538.5 motion to suppress evidence, and the
trial court denied his renewed motion to suppress, he pleaded guilty to the charge and
allegation. On appeal, Brown argues his motion to suppress should have been granted
because he was unlawfully detained, and his subsequent consent to a search was the fruit
of the unlawful detention.
I
TRIAL COURT PROCEEDINGS ON MOTION TO SUPPRESS
Brown moved to suppress the evidence obtained when he was stopped by the
authorities outside a Postal Annex store after he delivered a box for mailing at the store.
A. Evidence Relevant to Motion to Suppress
The testimony at the preliminary hearing, which served as the factual showing for
Brown's motions to suppress, showed that on January 18, 2013, San Diego County
Deputy Sheriff Stein, along with United States Drug Enforcement Agency Special Agents
Wells and Beauchamp, was watching a Postal Annex in Lemon Grove, California, as part
of an undercover narcotics interdiction operation. This Postal Annex was located in a
"high narcotics area," and drug traffickers had previously used this Postal Annex to ship
narcotics around the country. Stein had seen narcotics-related activity at this particular
Postal Annex at least a "couple [of] dozen times" during the previous year.
Stein, Wells and Beauchamp were wearing civilian clothes and driving separate,
unmarked cars. Around 1:30 p.m., they arrived and parked across the street from the
strip mall in which the Postal Annex was located. Around 3:00 p.m., Stein saw Brown
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drive into the parking lot for the strip mall. Another person was sitting in the front
passenger's seat. Although there were open parking spaces directly in front of the Postal
Annex, Brown parked in a space approximately 40 feet west of the entrance to the Postal
Annex. Stein testified drug traffickers prefer to park at a distance from the shipping
location, rather than in front of it, to avoid detection. Stein also explained that drug
traffickers who use commercial shipping facilities like Postal Annex prefer to deliver
packages later in the day, close to 4:00 p.m., because mail carriers collect packages for
shipping around that time and, by leaving packages close to the normal collection time,
the traffickers avoid having the package "sitting around for long periods of time,"
exposed to scrutiny.
Stein observed Brown get out of his car, using both hands to carry a 12 inch by 12
inch cardboard box that appeared to be "heavily taped," and walk from his car to the
Postal Annex. Stein explained packages containing narcotics are often heavily taped to
avoid detection by law enforcement or deter "alerting on the package" by dogs. When he
saw Brown enter the Postal Annex, Stein radioed Wells and Beauchamp and stated,
"Hey, look at that guy walking up with the box . . . . [¶] . . . [¶] . . . Let's take a look at
this guy." Stein then drove into the parking lot, parked, and went into the Postal Annex.
Stein watched as Brown told the clerk the box was going to Chicago. 1 Brown gave the
box to the store clerk and paid cash to ship the box, which was already prepared for
1 Stein testified traffickers from San Diego often ship marijuana to Midwest c ities
such as Chicago because marijuana sells for two to three times more there than on the
West Coast.
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shipping with both a mailing and a return address label affixed to its exterior. Brown
then left the store.
After Brown left the store, Stein quickly looked at the box Brown left with the
clerk. Stein saw the mailing address was to a Chicago address, and the name on the
return address was "Austin Rivers," a well-known professional basketball player. He
could not detect the smell of marijuana and did not open the box at that time. After
quickly looking at the box, Stein left the Postal Annex and saw Agents Beauchamp and
Wells contact Brown. Within a few seconds, Stein made his way to the passenger side of
Brown's vehicle and began talking to Brown and the passenger.
Wells saw Brown emerge from the Postal Annex, walk to his car and get into the
driver's seat. Beauchamp drove into the lot and parked, then approached Brown's car on
foot. She went up to the driver's window and identified herself as law enforcement.
Meanwhile, Wells also drove his car into the lot. He stopped his car in the throughway
several feet behind Brown's car, blocking Brown from easily backing out of the parking
stall. Wells, wearing a badge around his neck, got out of his car and stood near the back
of Brown's car while Beauchamp spoke to Brown. Within moments of Beauchamp's
initial contact with Brown, Stein emerged from the Postal Annex store and went to the
passenger's window of Brown's car.
Stein identified himself as law enforcement to Brown and the passenger, and
explained the officers were conducting a narcotics interdiction operation. Brown and the
passenger seemed nervous when Stein identified himself as a police officer, and Brown
was "stuttering quite a bit" when he spoke to the officers. Stein also noticed an odor of
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marijuana coming from Brown's car. Stein then asked whether Brown or the passenger
were on probation or parole, and both answered no. In fact, Brown was on formal
probation, and his terms of probation included a search condition and Fourth Amendment
waiver. Stein testified that, if Brown had answered truthfully, Stein would have first
confirmed Brown's probation status and then proceeded to search Brown and the box
Brown left at the Postal Annex.
Stein then asked what was in the box and Brown replied he was sending clothing
to someone. Stein told Brown he did not believe him and instead believed Brown was
shipping marijuana, and asked for permission to look inside the box to confirm Brown's
claim. Brown said he did not want Stein to look inside the box. After Stein repeated that
he and the agents were investigating narcotics activity and asked again for permission to
search the box to confirm Brown's claim, and Brown said "go ahead and search it." Less
than five minutes elapsed during the course of Stein's conversations with Brown before
Brown agreed to the search. Stein searched the box, which contained approximately 13.5
pounds of marijuana.
II
ANALYSIS
A. Standard of Review
" ' "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
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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. Ayala (2000) 23 Cal.4th 225, 255.)
When assessing the first step of determining the historical facts, we must "accept
the trial court's resolution of disputed facts and inferences, its evaluations of credibility,
and the version of events most favorable to the People, to the extent the record supports
them." (People v. Zamudio (2008) 43 Cal.4th 327, 342 (Zamudio).) Because Judge
Gallagher "heard the evidence, saw the demeanor of witnesses and was in a position to
judge credibility" (People v. Woods (1993) 12 Cal.App.4th 1139, 1147), we disregard
"the superior court ruling and directly examine[] the magistrate's. [Citations.] We . . .
must draw every legitimate inference in favor of the magistrate's ruling and cannot
substitute our judgment, on the credibility or weight of the evidence, for that of the
magistrate." (Id. at pp. 1147-1148.)
B. Relevant Substantive Framework
In In re James D. (1987) 43 Cal.3d 903, our Supreme Court, quoting at length
from United States Supreme Court's decision in Florida v. Royer (1983) 460 U.S. 491,
delineated the different types of police contacts with citizens ranging from the least to the
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most intrusive. " 'First, there are . . . "consensual encounters" [citation], which are those
police-individual interactions which result in no restraint of an individual's liberty
whatsoever . . . and which may properly be initiated by police officers even if they lack
any "objective justification." [Citation.] Second, there are what are commonly termed
"detentions," 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." [Citation.] Third, and
finally, there are those seizures of an individual which exceed the permissible limits of a
detention . . . .' " (In re James D., at pp. 911-912.)
There is thus a two-step analysis a court employs to determine whether the fruits
of a police stop of a citizen were lawfully obtained: first, did the stop exceed the
permissible limits on consensual encounters and become a detention or seizure; and, if so,
did police have an adequate basis for conducting the initial detention.
The Detention Standards
On the first question, our Supreme Court in Wilson v. Superior Court (1983) 34
Cal.3d 777 followed Royer's analysis for determining when the line has been crossed
between a consensual encounter and a detention. Royer involved the detention and arrest
of a person who matched a law enforcement "drug courier profile." Royer noted "[L]aw
enforcement officers do not violate the Fourth Amendment by merely approaching an
individual . . . in [a] public place, by asking him if he is willing to answer some
questions, [or] by putting questions to him if the person is willing to listen . . . .
[Citations.] Nor would the fact that the officer identifies himself as a police officer,
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without more, convert the encounter into a seizure requiring some level of objective
justification." (Wilson, at p. 789.) However, Wilson also concluded the appropriate test
for determining whether a consensual encounter has crossed the line and become a
detention, which is permissible only if police have specific and articulable facts
generating an objectively reasonable suspicion that the person has committed or is about
to commit a crime (see, e.g., In re Tony C. (1978) 21 Cal.3d 888, 893), is the standard
articulated by Justice Stewart in his separate opinion in U.S. v. Mendenhall (1980) 446
U.S. 544: " '[A] person has been "seized" within the meaning of the Fourth Amendment
only if, in view of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.' [Quoting U.S. v. Mendenhall, at
p. 554.]" (Wilson, at p. 790, fn. omitted.)
A seizure occurs only when the officer, either by means of physical force or by a
show of authority, terminates or restrains the person's freedom of movement, and the
dispositive question is whether, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he or she was not free to leave.
(Zamudio, supra, 43 Cal.4th at p. 341.) The test is objective rather than subjective, and
requires an examination of all the circumstances surrounding the encounter to determine
"whether the police conduct would have communicated to a reasonable person that the
person was not free to decline the officers' requests or otherwise terminate the
encounter." (Florida v. Bostick (1991) 501 U.S. 429, 439.) Among the circumstances to
be considered are "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
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that compliance with the officer's request might be compelled." (In re Manuel G. (1997)
16 Cal.4th 805, 821.)
The "Reasonable Suspicion" Standards
When a stop becomes more than a consensual encounter and constitutes "a seizure
requiring some level of objective justification" (Wilson v. Superior Court, supra, 34
Cal.3d at p. 789), the court must determine whether police had "specific articulable facts
that, considered in light of the totality of the circumstances, provide[d] some objective
manifestation that the person detained may be involved in criminal activity." (People v.
Souza (1994) 9 Cal.4th 224, 231.) Although a detention may not be premised on a "mere
hunch" (People v. Durazo (2004) 124 Cal.App.4th 728, 736), the standard of reasonable
suspicion is "less demanding 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.' " (Souza, at pp. 230-231.)
Importantly, when evaluating whether the totality of the circumstances gave rise to
an objectively reasonable suspicion, the court must remain cognizant that law
enforcement officers are entitled to " 'draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that "might well elude an untrained person." [Citations.]' " (People v.
Hernandez (2008) 45 Cal.4th 295, 299, quoting U.S. v. Arvizu (2002) 534 U.S. 266, 273.)
Thus, the evidence collected "must be seen and weighed not in terms of library analysis
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by scholars, but as understood by those versed in the field of law enforcement" (U.S. v.
Cortez (1981) 449 U.S. 411, 418 [officer may consider "objective observations . . . and
consideration of the modes or patterns of operation of certain kinds of lawbreakers "])
because "a trained officer [may] draw[] inferences and make[] deductions . . . that might
well elude an untrained person." (Ibid.) Moreover, when the objective circumstances are
consistent with criminal activity, a temporary detention for investigative purposes is
permitted even if the circumstances are also consistent with lawful activity, and "[t]he
possibility of an innocent explanation does not deprive the officer of the capacity to
entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his
investigation is to resolve that very ambiguity and establish whether the activity is in fact
legal or illegal―to 'enable the police to quickly determine whether they should allow the
suspect to go about his business or hold him to answer charges.' " (In re Tony C., supra,21 Cal.3d at p. 894.)
III
ANALYSIS
A. The Stop Was a Detention
The People contend the stop was a consensual encounter because it involved no
restraint on Brown's liberty, and therefore it is unnecessary to examine whether the
officers had sufficient objective justification for Brown's detention. Brown contends the
stop constituted a detention because, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he or she was not free to leave.
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We first resolve this dispute because resolution in the People's favor would obviate the
need to consider the second step in the analysis.
The fact Beauchamp approached the driver's window on foot and identified herself
as law enforcement to Brown did not alone escalate the encounter into a detention.
(People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) However, within seconds of
Beauchamp's first contact with Brown, Wells had driven his car into the lot and stopped
behind Brown's car in a position that blocked Brown from easily backing out of the
parking stall, and Stein had also approached the car and positioned himself at the
passenger's window. Under these circumstances, we agree that a reasonable person,
whose car was flanked on both sides by officers and whose car was blocked from leaving
by a third officer's car, would not have felt free to ignore the officers and simply drive
away. (See People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [occupants of car were
"seized" when officer stopped marked vehicle behind parked car in such a way that exit
of parked car was prevented because "[u]nder these circumstances, a reasonable person
would have believed that he was not free to leave"]; cf., People v. Castaneda, at p. 1227
[defendant not detained simply because an officer approached him and began talking to
him, but "test is at what point in the conversation would 'a reasonable person [no longer]
feel free to leave' "].)
The People assert there was no seizure of Brown because, when the officers
approached Brown, they were in plain clothes and driving unmarked vehicles, acted in a
"friendly" manner, and the contact was during daylight hours in a public place, all of
which persuaded the court in People v. Sanchez (1987) 195 Cal.App.3d 42 to find there
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was no seizure in that case. However, Sanchez is distinguishable because the defendant
in Sanchez was on foot when approached by the officers (id. at p. 45), and there was no
evidence in Sanchez that the officers blocked or impeded the defendant from continuing
on his way, whereas here Brown's car was flanked by two officers and blocked in by a
third officer's car. The People also suggest Wells' blocking action was irrelevant because,
when Wells moved his car into the blocking position, there was no evidence Brown was
preparing to leave or was aware that another officer's car had blocked his egress.
However, the test for whether a reasonable person would have believed that he was not
free to leave is an objective test (Zamudio, supra, 43 Cal.4th at p. 341), and "[n]either the
officer's uncommunicated state of mind nor the subjective belief of the individual citizen
is relevant . . . ." (In re Christopher B. (1990) 219 Cal.App.3d 455, 460, italics added.)
Whether Brown was actually aware Wells had blocked his car from freely backing up is
irrelevant. We conclude, under all of the circumstances, Brown was detained when,
within moments of sitting in his car and closing the door, his car was flanked on both
sides by officers and was blocked from leaving by a third officer's car.
B. The Facts Known to the Officers Justified the Detention
The facts, viewed most favorably to the People (Zamudio, supra, 43 Cal.4th at
p. 342), showed that by the time Brown was detained, the officers were aware of the
following facts: this specific Postal Annex was located in a "high narcotics area" and was
used by drug traffickers to ship narcotics to other areas of the country; Brown arrived at a
time of day consistent with the time of day drug traffickers elected to deliver their
shipments (to purposefully narrow the time window in which the package would sit idle
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and therefore be subjected to closer scrutiny); Brown declined to park in an open parking
stall directly in front of the Postal Annex but instead elected to park 40 feet from the
business (consistent with a desire to avoid detection); and, Brown was using both hands
to carry a package that appeared from afar to be "heavily taped" (consistent with a desire
to avoid detection by police or trained dogs). Brown asserts, based on these facts, the
officers could not have had a reasonable suspicion that Brown was doing anything mo re
than shipping a box in the same manner as anyone else would legally ship a box.
Even assuming the foregoing facts would not by themselves have permitted the
officers, "draw[ing] on their own experience and specialized training" (People v.
Hernandez, supra, 45 Cal.4th at p. 299), including "consideration of the modes or
patterns of operation of certain kinds of lawbreakers" (U.S. v. Cortez, supra, 449 U.S. at
p. 418), reasonably to make "make inferences . . . that might well elude an untrained
person" (Hernandez, supra) that Brown was engaged in wrongdoing, Brown ignores that
the facts, viewed most favorably to the People, shows Stein obtained additional facts
before Brown was detained.2 By the time Brown was detained, Stein had also learned:
2 Brown was not detained when he left the store, but instead was first approached by
Beauchamp (and shortly thereafter by Wells pulling into the parking area), after he got
back into his car and closed the door. Stein testified that, as soon as Brown walked
outside (i.e. before Brown reached his car and was subsequently detained), Stein
inspected the package "quickly [and] exited the store as well," saw agents Beauchamp
and Wells contact Brown in the car, and "seconds later I was already outside speaking to
both of them as well." Although Brown asserts on appeal that Stein emerged from the
store "within 30 seconds" after Beauchamp's initial contact, Stein testified he had made
his way to the vehicle five seconds after he saw Brown go to the car. Thus, the facts
viewed most favorably to the ruling shows Stein was in possession of all the facts
concerning the package before Brown was detained.
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Brown paid the package shipping fees in cash rather than with a credit card (which made
Stein suspect the box might contain drugs); the box was relatively heavy 3; the box was
destined for Chicago (consistent with marijuana being moved from the relatively lower -
profit market on the West Coast to the much higher-profit markets in the Midwest); and,
the pre-prepared label contained what Stein believed to be inaccurate information as to
the shipper's identity because the shipper was named as "Austin Rivers," a well known
professional basketball player.
Brown appears to assert these additional facts must be disregarded when
evaluating whether the facts justified the detention because the officers who made the
initial detention (Beauchamp and Wells) were unaware of these additional facts at the
time they commenced the detention. However, the reasonable suspicion element may be
met based on the collective knowledge of the officers working together: "when police
officers work together to build 'collective knowledge' . . . , the important question is not
what each officer knew . . . , but how valid and reasonable the probable cause was that
developed in the officers' collective knowledge." (People v. Ramirez (1997) 59
Cal.App.4th 1548, 1555; accord, People v. Gomez (2004) 117 Cal.App.4th 531, 538.)
The "collective knowledge" rule, which imputes the knowledge of all of the officers to
each other when (as here) they are working together as a team even though the actual
facts were not communicated among officers (see, e.g., U.S. v. Sutton (9th Cir. 1986) 794
3 Stein testified that, immediately after Brown left the Postal Annex, Stein picked up
the box and looked at the label. The box, which was only 12 inches by 12 inches,
contained 6.38 kilos of marijuana, which means the box weighed no less than 14 pounds.
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F.2d 1415, 1426 ["We look to the collective knowledge of all the officers involved in the
criminal investigation although all of the information known to the law enforcement
officers involved in the investigation is not communicated to the officer who actually
makes the stop."]; accord, U.S. v. Ramirez (9th Cir. 2007) 473 F.3d 1026, 1032 ["we
have been willing to aggregate the facts known to each of the officers involved at least
'[w]hen there has been communication among agents' "]), is equally applicable to
determining whether investigatory detentions were justified by the facts known
collectively to the team of officers. (U.S. v. Merritt (10th Cir. 1982) 695 F.2d 1263, 1268
& fn. 9.)
We conclude the collective knowledge of all the officers, as known to them before
Brown was detained, must be taken into account in assessing whether, under the totality
of the circumstances, the objective circumstances were sufficiently consistent with
criminal activity to permit a temporary detention for investigative purposes. We
conclude the timing and location of Brown's delivering the package, which appeared to
be heavily taped and destined for a place consistent with drug-trafficking patterns, and
that contained other indicia of misdirection (its return sender's name) and concealment
(payment of the fees in an untraceable manner), justified the initial temporary detention
for investigative purposes. Although these circumstances may also have been consistent
with lawful activity, "[t]he possibility of an innocent explanation does not deprive the
officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed,
the principal function of [such an] investigation is to resolve that very ambiguity and
establish whether the activity is in fact legal or illegal―to 'enable the police to quickly
15
determine whether they should allow the suspect to go about his business or hold
him . . . .' " (In re Tony C., supra, 21 Cal.3d at p. 894.)
C. The Subsequent Search of the Package Was Valid
Brown argues the fruits of the search to which he consented, as well as his
incriminating statements to officers, must be suppressed. However, the sole basis for
Brown's argument is that his consent was involuntary as a matter of law because it was
the product of an unlawful detention, and he makes no other argument that his consent
was involuntary. Because we have rejected Brown's predicate and concluded the initial
detention was not unlawful, and Brown makes no other claim on which his consent to the
search might be invalidated, we conclude the search was valid.
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
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