The People v. Leath

Filed 6/20/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B239508
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA376905)
v.
BRANDON LEATH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A.
Swain, Judge. Affirmed.
Michael Chelvam for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Elaine F.
Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5),1
defendant Brandon Leath pled guilty to two counts of second degree robbery. (§ 211.)
He now appeals from the judgment of conviction, urging that the trial court erred in
denying his motion to suppress. We affirm.
FACTUAL AND PROCEDURAL HISTORY
I. The October 7, 2010 Armed Robbery
On October 7, 2010, Osmara Merlo, Jorge Vasquez, and Daniel Guillen were
robbed at gunpoint near the corner of 43rd Place and Sixth Avenue in Los Angeles. Two
suspects approached in a dark SUV, pointed a gun at Merlo‟s head, and told her to give
them her purse. When Vasquez and Guillen approached, the suspects pointed the gun at
them and told them to empty their pockets. Vasquez handed the suspects an iPod,
iPhone, and a Zune player, and the suspects took Guillen‟s phone and wallet from his
pockets. The suspect with the gun then told Merlo, Vasquez, and Guillen to turn around
and run.
Officers arrested defendant and codefendant Timothy Brewer shortly after the
robbery. A subsequently filed information charged defendant with three counts of second
degree robbery; it also alleged defendant had committed a serious or violent felony as a
juvenile.
II. The Suppression Motion
On March 2, 2011, defendant moved to suppress all physical evidence seized from
his person and vehicle, as well as all statements he made to the arresting officers, on the
grounds that the arresting officers lacked probable cause or a reasonable suspicion to
detain him.
1
All further statutory references are to the Penal Code.
2
The court held a hearing on the motion on April 29, 2011. Officer John Ishigami
testified at the suppression hearing that on October 7, 2010, at about 11:30 p.m., he and
his partner, Officer Quinata, were dispatched to investigate an armed robbery at
43rd Street and 6th Avenue in Los Angeles. The officers spoke to the three victims, who
said they had been walking home when a dark SUV came towards them. The person on
the passenger side of the SUV got out first, approached Merlo, pointed a gun at her, and
said, “Give me your stuff.” She handed over her purse. Merlo‟s friends, Vasquez and
Guillen, ran towards her to see what was going on, and the suspects “pocket checked”
them at gunpoint. The suspects then said, “Four-Eighth Street. Start running.” Officer
Ishigami said that “Four-Eighth Street” refers to a street gang in the area.
The victims described the suspects as African-American men, approximately 20
years of age. One suspect was wearing a blue Cardinals jacket. The victims said the
SUV was either burgundy or dark in color. They were not able to otherwise describe the
SUV.
While Officers Ishigami and Quinata were speaking to the suspects, two additional
officers, Leary and Holliman, arrived. Officer Ishigami told Officers Leary and Holliman
what they had learned—i.e., that the suspects were members of the Four-Eighth Street
gang and were driving a dark SUV. Officers Leary and Holliman spoke to the victims for
about two minutes and then left to search for the suspects‟ vehicle.
Several minutes later, Officer Ishigami learned that Officers Leary and Holliman
had detained defendant about two blocks from the crime scene. He immediately drove to
where defendant was detained. Officer Leary told Officer Ishigami that “this SUV never
quite made it to the curb itself and the back passenger door was open. He said defendant
Leath was walking up the driveway towards the house at that time and that‟s when
[Officer Leary] says, „Hey, you know, you left your back door open.‟ To which he said,
„Oh, thanks. I did[,]‟ or something to that effect. And that‟s when they end up taking
him into custody, thinking that something was a little weird at that situation.” Officer
Leary said he detained defendant because “the situation just seemed weird, this Four-
Eighth Street, that was the area that the defendant or the suspects indicated that they were
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from. 48th Street was the street they just happened to be crossing upon. They were one
block west of the location itself when they see a dark colored SUV traveling the other
direction. They figure it‟s good enough for a stop. They pull around the corner. By then
that car had already parked and people were already out of the vehicle, so they never got
a chance to light them up or anything. They just talked to them.”
After defendant was taken into custody, Officer Quinata found victim Merlo‟s
driver‟s license near defendant‟s vehicle. As Officers Ishigami and Quinata drove back
to tell the victims that they might have a suspect in custody, they learned from a police
broadcast that another suspect had been discovered underneath a car near defendant‟s
SUV.
Officer Leary testified at the suppression hearing that when he arrived at the crime
scene, Officers Ishigami and Quinata were speaking to the robbery victims. Officer
Leary spoke to both the victims and the officers. The officers asked him to canvas the
area for a dark SUV in the 48th Street clique area. He looked in that area because the
suspects had said they were “Four-Eighth Street,” which is street vernacular for the 48th
Street clique of the Rollin 40‟s street gang. As Officer Leary and his partner crossed the
intersection of 48th Street and 4th Avenue, they saw a dark SUV traveling northbound on
3rd Avenue. The officers turned onto 48th Street and then onto 3rd Avenue. As they
turned onto 3rd Avenue, they saw that the dark SUV had parked near the curb, “but not
close, but kind of like it looked like in a hurry. And we saw the rear passenger door of
the SUV open and we saw one male Black walking from the driver‟s side door up a
driveway.” Officer Leary identified defendant as the individual he saw walking away
from the vehicle. The officers got out of the car and Officer Leary said, “Hey, sir, you
left your rear door open.” Defendant said, “Oh, oh, shit, I did,” and walked back toward
the car. Officer Leary asked if the SUV was his, and defendant said yes. Officer Leary
then asked what defendant was doing in the area. Defendant said either, “This is my
friend‟s house” or “my cousin‟s house.” Officer Leary asked defendant‟s name and
asked him if he had any identification. Defendant handed Officer Leary his identification
card. At that point, the officers had not detained defendant. The officers ran defendant‟s
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name through their database and discovered “about a hundred thousand dollars worth of
traffic warrants.” The officers then arrested defendant on the outstanding warrants.
Approximately five to seven minutes passed from the time the officers arrived on the
scene until they handcuffed defendant.
Officer Leary explained why he asked for defendant‟s identification as follows:
“[W]e were investigating a robbery that just occurred. We had a — we heard the crime
broadcast of a dark SUV. We have a dark SUV that we observed. It‟s not, I guess,
normal to see a vehicle hit or park that fast on the curb and then have a rear door left open
as one, you know, one person‟s walking away from the driver‟s side on [the] complete
opposite end of the vehicle.”
When they realized defendant had open warrants, they arrested him. Minutes
later, Officer Ishigami saw a California identification card on the grass. Officer Leary
picked it up and saw that it belonged to the victim Merlo. Officer Leary then started
canvassing the area and found several items in the grass, including an iPod. As he did so,
he saw something moving under a nearby vehicle and discovered codefendant Brewer
hiding under the vehicle. Brewer was wearing a red St. Louis Cardinals jacket. After
Brewer was taken into custody, Officer Leary continued searching the area and found
several items of the victims‟ property under the car where Brewer had been hiding.
The court denied the motion to suppress. It explained that when Officer Leary
initially approached defendant, “in my estimation, [he] has a consensual encounter with
Mr. Leath. He doesn‟t tell him to stop. He doesn‟t — he just calls out to him „Hey, you
left your back door open. You left your car door open.‟ He says it twice. And then
Mr. Leath says, „Oh, yeah, I did.‟ He voluntarily returns. The officer didn‟t order him to
come back. He voluntarily returns. At this point I think . . . the officer clearly is within
his right to suspect that this defendant who is a young male Black who looks — who
could clearly look to be in his twenties, I think — I would think that he could be in his
twenties. He asked him his name. He asked him for — the defendant voluntarily hands
him his I.D. He decides to run him and he comes back with [outstanding] warrants. At
that point would there have been probable cause to believe he was the person engaged in
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the robbery? I don‟t think so, but at that point he — had it bec[o]me known that he had a
hundred thousand dollars in arrest[] warrants, I think the officer was — had probable
cause to investigate this, but notwithstanding that, I think the encounter with the
defendant was consensual. . . . I think the Williams[2] case is distinguishable because in
that case the police pulled over the car because they were merely — they had a mere
curiosity, which the law does not favor. And then while — and then [they] took a bunch
of time to inquire of them about the robbery. That didn‟t happen in this case. I believe
the defendant was stopped . . . in a legal fashion. I think what happened thereafter clearly
led to probable cause to arrest them for the robbery, that is, the recovery close to the car
of the property from the robbery victims.”
III. Defendant’s Plea, Conviction, and Appeal
On July 28, 2011, defendant pled no contest to counts 1 and 2 and admitted the
prior conviction. The court sentenced defendant to two concurrent 6-year terms in state
prison (calculated as the midterm of three years, plus three additional years under the
“Three Strikes” law), for a total aggregate term of six years. Defendant appealed.
DISCUSSION
Defendant contends: (1) Officers Leary and Holliman detained him when they
asked for and retained his identification card; and (2) the detention was illegal because
the officers lacked probable cause or reasonable suspicion to believe he had committed a
crime. We consider these issues below.
The denial of the suppression motion may be challenged by an appeal from the
judgment entered after defendant‟s guilty or no contest plea. (§ 1538.5, subd. (m);
People v. Walker (2012) 210 Cal. App. 4th 1372, 1379-1380.) “„The standard of appellate
review of a trial court‟s ruling on a motion to suppress is well established. We defer to
2
Will. v. Superior Court (1985) 168 Cal. App. 3d 349 (Williams).
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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. Leyba (1981) 29 Cal. 3d 591, 596-597; People v. Lawler (1973) 9 Cal. 3d 156,
160.)‟ (People v. Glaser (1995) 11 Cal. 4th 354, 362; accord, People v. Redd (2010) 48
Cal. 4th 691, 719.)” (People v. Corrales (2013) 213 Cal. App. 4th 696, 699-700.)
I. The Officers Did Not Detain Defendant When They Asked to See His
Identification Card and He Handed It to Them
Defendant contends the officers detained him when they asked him for his
identification card and retained it. For the following reasons, we do not agree.
A. Case Law
“The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures of persons, including unreasonable investigative stops. (Terry v.
Ohio (1968) 392 U.S. 1, 19 & fn. 16; United States v. Sharpe (1985) 470 U.S. 675, 682;
see also People v. Souza (1994) 9 Cal. 4th 224, 229.) With respect to seizures, „[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. Souza, supra, at
p. 229, citing Terry v. Ohio, supra, at p. 19; see also California v. Hodari D. (1991) 499
U.S. 621, 625-626.)” (People v. Vibanco (2007) 151 Cal. App. 4th 1, 8.)
In People v. Jenkins (2004) 119 Cal. App. 4th 368 (Jenkins), the court considered
the issue raised here—whether a seizure occurs when police officers ask for and receive a
suspect‟s identification card. There, police officers received information that a woman
named Lynn Jenkins was on parole for transportation of controlled substances. The
officers knocked on a hotel room door and asked the woman who answered if she was
Lynn Jenkins. She said she was. The officers then asked if she was on parole and to see
her driver‟s license. When Jenkins went to retrieve the driver‟s license, the officers asked
if they could search the room, to which Jenkins said, “yes.” Both officers had entered the
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room when Jenkins gave them her driver‟s license; while searching the bathroom, an
officer saw an off-white crystalline substance, stipulated to be methamphetamine. (Id. at
pp. 370-371.) Jenkins was arrested and charged with unlawful possession of a controlled
substance. (Id. at p. 370.)
Jenkins moved to suppress the evidence, arguing that the “knock and talk”
procedure employed by the officers violated her Fourth Amendment rights. The trial
court granted the motion and dismissed the case. (Jenkins, supra, 119 Cal.App.4th at
p. 370.) The Court of Appeal reversed, concluding that the “knock and talk” procedure
did not require an articulable suspicion of criminal activity as a matter of law. (Id. at
p. 372.) Instead, the proper inquiry was whether the officers‟ encounter with Jenkins was
consensual. Because the trial court had not made a finding as to Jenkins‟s consent, the
Court of Appeal remanded the matter to the lower court “for the limited purpose of
determining whether the officers‟ conduct would have communicated to a reasonable
person that he or she was not free to decline their requests to enter and search the motel
room or otherwise terminate the encounter.” (Id. at p. 374.)
This court reached a similar result in People v. Terrell (1999) 69 Cal. App. 4th 1246(Terrell). There, officers observed two men, one of whom seemed to be under the
influence of a controlled substance, sitting on a park bench. An officer spoke briefly to
the defendant and then asked whether he had any identification. Defendant responded by
producing a California driver‟s license. The officer discovered defendant had an
outstanding warrant and arrested him. Incident to his arrest, officers searched defendant
and discovered a hypodermic syringe containing heroin. (Id. at p. 1251.) Defendant
subsequently was convicted of possession of a controlled substance.
On appeal, defendant contended that his arrest was unlawful as the product of an
illegal detention. The panel disagreed: “The totality of circumstances surrounding
appellant‟s arrest reveals that appellant‟s initial encounter with the police was consensual,
including appellant‟s spontaneous and voluntary action in handing Officer Trevino his
driver‟s license. At no time did he ask the officer for his driver‟s license back. During
the entire encounter, which lasted about three minutes, neither Officer Trevino nor his
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partner, by words or conduct, indicated that appellant was not free to leave. No
reasonable inference therefore could be drawn that the encounter was a detention rather
than a consensual encounter. Appellant‟s counsel therefore had no factual basis for
challenging the validity of the arrest as the product of an illegal detention, i.e., the
temporary seizure of appellant without a reasonable suspicion that criminal activity was
afoot and appellant was involved.” (Terrell, supra, 69 Cal.App.4th at p. 1254; see also
People v. Lopez (1989) 212 Cal. App. 3d 289 (Lopez) [no reasonable suspicion required to
ask defendant questions or request identification unless a reasonable person would not
feel free to leave].)
Another court reached a different result in People v. Castaneda (1995) 35
Cal. App. 4th 1222 (Castaneda). There, officers approached the defendant while he was
seated in the passenger seat of an illegally parked car. One officer requested
identification and asked who owned the car. The defendant handed the officer his
identification card and said the car belonged to a friend. While one officer wrote a
parking citation, the other ran a warrant check and learned there was an outstanding
warrant for defendant‟s arrest. The officers arrested defendant and, incident to the arrest,
found marijuana and cocaine in his pockets. (Id. at pp. 1225-1226.)
Defendant urged on appeal that the officers unreasonably detained him by running
a warrant check. (Castaneda, supra, 35 Cal.App.4th at p. 1226.) The court agreed that
defendant was detained once he relinquished his identification card: “Although
Castaneda was not restrained by the officer asking for identification, once Castaneda
complied with his request and submitted his identification card to the officers, a
reasonable person would not have felt free to leave.” (Id. at p. 1227.)3
3
The court concluded that the detention was reasonable, however, because the
officers reasonably suspected defendant was not being honest about the car‟s ownership,
and they ran the warrant check simultaneously with a check of the car‟s ownership.
(Castaneda, supra, 35 Cal.App.4th at p. 1227.)
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B. Analysis
Each of the cases discussed above concludes that the Fourth Amendment is not
implicated when a police officer asks to see an individual‟s identification card. They
differ, however, on the constitutional implications if the individual complies with the
request. Castaneda holds that a detention occurs once the individual relinquishes his or
her identification card because, having done so, he or she would not feel free to leave.
Jenkins and Lopez reach a different result, concluding that there is no detention so long as
the card is voluntarily relinquished.
We think Jenkins and Lopez articulate the better rule. As one court has said, the
Castaneda holding essentially “eviscerate[s] the rule that a law enforcement officer may
ask an individual for identification without having any suspicion that he or she has
committed a crime, because as soon as the individual complies with the constitutional
request, an unconstitutional seizure will have occurred.” (Harrison v. City of Oakland
(N.D.Cal. 2008) 2008 U.S. Dist. LEXIS 95179, *13.) We agree: The right to ask an
individual for identification in the absence of probable cause is meaningless if the officer
needs probable cause to accept the individual‟s proof of identification. Moreover, we
agree with the analysis of the Fourth Circuit Court of Appeals, that an individual‟s
voluntary cooperation with an officer‟s request for identification does not convert the
request into a detention because the individual is “free at this point to request that his
[identification] be returned and to leave the scene.” (United States v. Analla (4th Cir.
1992) 975 F.2d 119, 124, quoted in People v. Bouser (1994) 26 Cal. App. 4th 1280, 1285.)
We thus adopt the rule articulated in Jenkins and Lopez and hold that a voluntary
relinquishment of one‟s identification card does not constitute a seizure as long as the
encounter is consensual under the totality of the circumstances.
In the present case, the trial court concluded that defendant voluntarily complied
with the officers‟ request for identification. This conclusion is supported by substantial
evidence. The officers did not accuse defendant of any illegal activity when they first
addressed him—they merely told him his car door was open and asked if the car
belonged to him. They then asked for—but did not demand—identification. There is no
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evidence that the officers used or threatened defendant with any physical force. Nor is
there any evidence that, had defendant asked the officers to return his identification card
to him, they would not have complied. Thus, the record supports the trial court‟s
conclusion that a reasonable person in defendant‟s situation would have felt free to leave.
II. In Any Event, Officers Had Reasonable Suspicion That Defendant Had
Committed a Crime
In any event, even if officers detained defendant when they took his identification
card, the detention was lawful because they reasonably suspected that he had committed a
crime. As our Supreme Court has said, “[r]easonable suspicion is a lesser standard than
probable cause, and can arise from less reliable information than required for probable
cause.” (People v. Wells (2006) 38 Cal. 4th 1078, 1083.) “„[I]n order to justify an
investigative stop or detention the circumstances known or apparent to the officer must
include specific and articulable facts causing him to suspect that (1) some activity
relating to crime has taken place or is occurring or about to occur, and (2) the person he
intends to stop or detain is involved in that activity.‟ (In re Tony C. (1978) 21 Cal. 3d
888, 893, superseded on other grounds by Cal. Const., art. I, § 28.) In determining the
lawfulness of a temporary detention, courts look at the „“totality of the circumstance” of
each case to see whether the detaining officer has a “particularized and objective basis”
for suspecting legal wrongdoing.‟ (United States v. Arvizu (2002) 534 U.S. 266, 273; see
also People v. Souza (1994) 9 Cal. 4th 224, 239.)” (Arburn v. Department of Motor
Vehicles (2007) 151 Cal. App. 4th 1480, 1487.) Further, “„[law enforcement] officers
[may] draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to [him or her] that “might well
elude an untrained person.”‟” (People v. Corrales, supra, 213 Cal.App.4th at p. 699.)
In the present case, officers had a reasonable suspicion that defendant had
committed a crime. They had been informed that a robbery had been committed by two
African-American men who appeared to be in their 20‟s, were driving a dark SUV, and
had identified themselves as members of the 48th Street clique of the Rollin 40‟s street
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gang. Minutes later, as the midnight hour approached, defendant, an African-American
man in his early 30‟s, hastily parked a dark SUV in 48th Street clique territory just blocks
from the crime scene and then exited the vehicle, leaving the rear passenger door open.
The open rear door was consistent with the presence of a passenger who had hastily
exited the vehicle. These facts gave rise to a reasonable suspicion that defendant had
committed a crime and supported the officers‟ further investigation.
Defendant contends that the present case is analogous to Williams, supra, 168
Cal. App. 3d 349. We do not agree. In Williams, an officer was on a routine patrol when
he saw a white Monte Carlo sedan driven by the defendant on a residential street.
Believing the ages and physical descriptions of the occupants and the vehicle matched
recent broadcasts of local robberies he had heard over the police radio, the officer began
following the vehicle. When he saw it roll through an intersection without stopping at a
stop sign, he stopped the vehicle and conducted a field interview. He then searched the
vehicle and discovered cocaine and two pistols. Defendant and the others were arrested
and charged with cocaine possession. (Id. at pp. 353, 354-355.)
Defendant contended on appeal that the officer lacked sufficient cause to conduct
an investigative detention, and the Court of Appeal agreed. It noted that neither
defendant nor his passengers matched the description of the robbery suspects: “The
officers‟ recollection of the „Palmer‟ robbery was materially distorted. He selectively
took off 20 years and a full beard from the description of one robber and reduced the
6-foot-3-inch, 249-pound robber to „average-to-above-in-height-and-weight‟ to meet the
general physical appearance of defendants. Neither [defendants] Williams nor Holmes
was nearly so large and neither had any beard. The magistrate believed that Holmes
looked more like 45 than 25 years old.” (Williams, supra, 168 Cal.App.3d at p. 360.)
Further, the robbers‟ car had been described as yellow, while defendant‟s was white.
Such a distorted recollection, the court said, “may not serve as a valid basis for
suspecting persons who coincidentally meet the conglomerate description. If such
subjective editing of dispatch reports by the officer were allowed to justify the
investigative detention of two black males who in fact bear no reasonable resemblance to
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the actual separate descriptions broadcast, then police could by their own creativity
manufacture cause to conduct an investigative detention upon an unconstitutionally broad
range of persons who commit a traffic infraction in the area of recent serious crimes.”
(Ibid.)
Defendant contends that the facts of the present case are analogous to those of
Williams because in both cases “the police had a slightly erroneous description of a
vehicle, a vague and inaccurate description of the defendants (appellant was described
only as a black male in his 20‟s and his co-defendant was described as wearing a blue
Cardinals jacket), . . . and prior to the detention the police saw nothing in the vehicle or
on the defendant‟s person, nor did the defendants say anything implicating themselves in
a robbery.” We do not agree. In Williams, the robberies had taken place at least a day
before the suspects were arrested, while in the present case the robbery occurred just
minutes before and just several blocks away from the location where defendant was
stopped. Further, the description of the robbery suspects much more closely resembled
defendant in the present case than was the case in Williams. Here, the robbery suspect
was described to be an African-American man in his 20‟s (defendant was actually 32
years old); in Williams, the suspects were described to be in their mid-20‟s, while
defendant Holmes “looked more like 45.” (Williams, supra, 168 Cal.App.3d at p. 360.)
Finally, in the present case the defendant‟s vehicle—a black SUV—closely matched the
victim‟s description of the suspects‟ vehicle; in Williams, in contrast, the robbers had
been described as driving a yellow sedan, while defendant‟s sedan was white. (Id. at
p. 354.)
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DISPOSITION
The denial of the motion to suppress evidence and judgment of conviction are
affirmed.
CERTIFIED FOR PUBLICATION
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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