People v. Barclay CA2/1

Filed 9/21/23 P. v. Barclay CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B323347
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA486877)
v.
DYLAN ANDREW BARCLAY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael Garcia, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General for Plaintiff and Respondent.
Defendant Dylan Andrew Barclay challenges the trial
court’s denial of his motion to suppress evidence obtained
when police detained him and searched his vehicle. We affirm.
FACTUAL SUMMARY
A. Procedural Background
In April 2020, the People charged defendant by complaint
with: possession of a firearm by a felon (count 1; Pen. Code,
§ 29800, subd. (a)(1));1 unlawful possession of ammunition
(count 2; § 30305, subd. (a)(1)); and misdemeanor vandalism
by graffiti (§ 594, subd. (a)). The complaint further alleges that
the crimes were committed for the benefit of a criminal street
gang (§ 186.22, subds. (b)(1)(A) & (d)), that defendant had a
prior strike conviction in 2015 (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), and that he had been previously convicted of a
serious felony (§ 667, subd. (a)(1)).
The charges were based in part on a shotgun, shotgun
ammunition, and cans of spray paint found during a search
of defendant’s car. Prior to the preliminary hearing, defendant
moved to suppress the seized evidence. On April 14, 2021,
a magistrate denied the motion and held defendant to answer
the charges.
On June 29, 2021, defendant filed a motion in the trial
court for a “special hearing” to suppress the seized evidence
pursuant to section 1538.5, subdivision (i). After a hearing held
on November 3, 2021, the court denied the motion.
1 Subsequent unspecified statutory references are to the
Penal Code.
2
On June 9, 2022, defendant pleaded no contest to
possession of a firearm by a felon (§ 29800, subd. (a)(1)) and
felony vandalism (§ 594, subd. (a)). The court accepted the plea,
found the defendant guilty of these charges, and dismissed the
remaining possession of ammunition count and the enhancement
allegations. The court sentenced defendant to a prison term
of 3 years 8 months, suspended execution of the sentence, and
placed him on probation for two years.
Defendant timely appealed.
B. The First Motion To Suppress
Defendant’s first motion to suppress and the preliminary
hearing were heard together on April 14, 2021. Los Angeles
Police Department Officer Daniel Guevara testified as follows.
Officer Guevara was assigned to investigate gang crime and,
specifically, to monitor gangs in the Boyle Heights community
of Los Angeles, including the White Fence gang and a rival gang,
the Indiana Dukes. He has testified in criminal prosecutions as
a gang expert 20 times, including 12 times concerning the White
Fence gang. The primary activities of White Fence include
vandalism, weapons possession, robberies, assault with a deadly
weapon, and murder.
Officer Guevara is familiar with White Fence’s and its
rivals’ territorial claims. According to Officer Guevara, graffiti
vandalism by gang members in rival gang territory is ordinarily
conducted in groups of two or more armed members. Typically,
one gang member will graffiti—or tag—a wall while one or more
other members act as “look-outs.”
On the night of April 25, 2020, Officer Guevera was driving
with his patrol partner, Officer Guendyke, eastbound on Olympic
Boulevard. As they approached Indiana Street, Guevara saw a
3
man run from a gas station southbound across Olympic, approach
a wall, and begin “to write ‘White’ on the wall with graffiti.” The
area is within territory claimed by Indiana Dukes. When the
tagger noticed Officer Guevera’s patrol vehicle, he “tossed the can
of ‘graffiti’ ” into a neighboring residential yard, jumped over the
wall, and ran.
Officer Guevara did not pursue the tagger. Because he
was aware that the incident took place in territory claimed by a
White Fence rival, he told Officer Guendyke to “look for the layoff
vehicle”—that is, the vehicle in which other gang members would
be acting as lookouts.
Officer Guevara looked at the gas station from where he
had seen the tagger running, and saw defendant getting out of a
vehicle at the station. A woman was sitting in the passenger seat
of the car.
Officer Guevara drove to the gas station. Officer Guevara
“shared brief words with [defendant], and immediately . . .
recognized” him as a White Fence gang member. Officer Guevara
explained that, in testifying as a gang expert, he had previously
used defendant’s prior robbery conviction as evidence of a
predicate offense in a case involving a gang allegation. Upon
recognizing defendant as a White Fence gang member, Officer
Guevara “confirmed” in his “mind” that defendant was acting as
a lookout for the graffiti perpetrator.
Officer Guevara informed defendant that he “was going
to detain [defendant] pending a vandalism investigation.” Officer
Guevara then placed defendant “in handcuffs in order to prevent
the situation from escalating and for officer safety.”
As Officer Guevara placed defendant in handcuffs, he
observed a spray paint can—“a tool that’s often used in gang
4
graffiti”—on the rear seat behind the driver’s seat. Meanwhile,
Officer Guendyke ordered the female passenger to exit the
vehicle and placed her in handcuffs.
Officer Guevara then approached the passenger side of
the car and saw the “pistol grip of a shotgun in the floorboard.”
He removed the shotgun from the vehicle and removed four live
12-guage rounds of ammunition from the firearm.
Officer Guevara then searched defendant and found an
additional 12-guage round of ammunition in his pocket.
The female passenger had a notebook containing
“handwritten graffiti with White Fence associated writing,”
including gang member monikers.
On cross-examination, Officer Guevara testified that he
did not see the tagger exit defendant’s car. He further stated
that, in addition to the spray paint can he saw in the back seat,
he saw a spray paint can in the front seat; the police, however,
collected only one spray paint can as evidence. Officer Guevara
also admitted that in his written report of the incident, he stated
that he searched the car to look for marijuana, and his report
did not mention that he saw a spray paint can prior to searching
the car. The reason he wanted to search for marijuana, Officer
Guevara explained, was because defendant told him he had some
marijuana in his pocket.
The magistrate denied the motion to suppress. The court
characterized the initial restraint of defendant as a “detention,”
and said it was based on a reasonable suspicion of criminal
activity. The court explained that the detention was supported
by the facts that a White Fence tagger had run from the direction
of the gas station to commit vandalism in a rival gang’s territory
and defendant’s car was “parked there at the gas station waiting
5
for the suspect to finish his deed”; and because Officer Guevara
recognized defendant as a White Fence gang member, and
gang members who act as backup for another gang member
“usually . . . have firearms,” the court continued, the officers
could use handcuffs during the detention and “frisk and search.”
But, the court added, Officer Guevara’s “credibility” about
the spray paint cans goes “out the window.” The court noted that
Officer Guevara referred to a spray paint can in the back seat
and a second can in the front seat, but police took only one can
into evidence. The court then asked rhetorically, “So which is it?
Is there two cans or one can or is this made up? Was there one
in the front seat or one in the back seat? That’s just ridiculous.”
The court also initially expressed doubt as to whether the
shotgun was in plain view because the defendant’s “moving
papers” state that the shotgun “is under a rag.” The court,
however, appeared to accept the prosecutor’s argument that
the firearm’s “grip” was “sticking out from the rag” and was in
plain view. Ultimately, the court concluded that, “even with the
credibility issues,” it “would deny the motion.”
C. Defendant’s Motion for a Special Hearing
In June 2021, defendant filed a motion for a “special
hearing” under section 1538.5, subdivision (i) to suppress
“all evidence obtained in this prosecution.” The People filed
opposition on September 10, 2021, and defendant filed a reply
three days later.
The special hearing was held on November 3, 2021.
During the hearing, Officer Guevara authenticated a video of
the detention and arrest of defendant recorded by a “body worn
video” camera attached to Officer Guevara’s uniform. The video
6
recording, together with Officer Guevara’s explanatory
testimony, shows the following.
It appears that Officer Guevara is driving eastbound on
Olympic Boulevard. Although the video at this point shows little
more than the steering wheel of the patrol car, Officer Guevara
testified that he saw a Hispanic male running southbound across
Olympic. He saw the man using a spray paint can to vandalize a
wall with the word, “White,” which Officer Guevara understood
as a reference to the White Fence street gang. Officer Guevara
looked back across Olympic in the direction from which the
tagger ran, and then turned his car sharply left across the
westbound lanes of Olympic into a gas station. Defendant can be
seen on the video recording standing outside the driver’s side
front door of a car parked adjacent to the gas pumps. A female
passenger is in the front passenger seat. Neither of them makes
any furtive gestures or attempt to flee.
Officer Guevara exits the patrol car and immediately
places defendant in handcuffs. Meanwhile, Officer Guendyke
walks to the other side of the car and directs the female
passenger out of the front seat. He leaves the car door open.
After defendant is placed in handcuffs, Officer Guevara activates
the audio on his body worn camera.
Officer Guevara conducts a pat-down frisk of defendant,
then looks at defendant’s driver’s license and asks, “Why are
you back in town, man? Don’t you live in Ontario or something?”
Defendant tells Officer Guevara that he lives in San Bernardino
and that he is in the area because his grandfather, who
“lives over here,” “had [defendant] bring him his medicine.”
Approximately 1 minute 10 seconds after Officer Guevara began
to handcuff defendant, Officer Guevara informs defendant that
7
he was “being detained right now for this vandalism
investigation.”
Officer Guevara shines a flashlight inside the front driver’s
side of the car for about two seconds, then into the back seat
area for about four seconds. What appears to be a can of spray
paint is briefly visible on the back seat of the car behind the
driver’s seat. During the time Officer Guevara is looking into
the car with the flashlight, he does not mention the paint can.
During the special hearing, Officer Guevara was shown a
still photo excerpted from another officer’s body worn video that
shows a can of spray paint on the back seat of the car. Officer
Guevara testified that “[i]t is the spray can I saw in the back
seat.”
Officer Guevara then returned to his patrol car for several
minutes where he checked defendant’s identifying information
through a computer system.
As Officer Guevara returns from his patrol car and walks
toward the front passenger side of defendant’s car, defendant
tells Officer Guevara that he has some “weed on [him].” As
Officer Guevara approaches the open front passenger door, a
can of spray paint is visible on the front passenger seat. Officer
Guevara then shines a flashlight into the front passenger area
of the car and sees the pistol grip of a shotgun protruding from a
cloth or rag on the floorboard. He pulls the gun from the car and
removes four shotgun shells from the gun. After placing the gun
and shells in the trunk of his car, Officer Guevara returns to the
front passenger side of the car and removes a spray paint can and
places it on top of the car.
When Officer Guevara informed defendant that he will be
taken “to the station,” defendant informed Officer Guevara that
8
he has “a shell” in his coat pocket. Officer Guevara found and
removed a shotgun shell.
Meanwhile, additional officers arrive and, at Officer
Guevara’s direction, search the trunk and back seat area of
defendant’s car where they find spent and live shotgun shells.
Officer Guevara looked into the driver’s side back seat
area (the door to which is now open) and removed from the seat
a can of spray paint. He places it on the top of the car with the
comment, “[w]e have a couple cans of spray paint.”
On cross-examination, counsel again elicited from Officer
Guevara that he had stated in his report that he had searched
the car for marijuana and did not mention that he saw a spray
paint can. Officer Guevara further stated that he did not see the
tagging suspect “coming from a vehicle.” When defense counsel
asked Officer Guevara to confirm that there was “[n]othing to
link anything that the tagger did to what [defendant] was doing,
except for [his] training and experience,” Officer Guevara agreed.
Counsel then asked, “You had a hunch?” Officer Guevara
responded, “Yes.”
The court heard argument and denied the motion. The
court explained: “The facts from the preliminary hearing as
well as the special hearing demonstrate[ ] that Officer Guevara
handcuffed the defendant because he was present at an area of
suspected criminal activity. Handcuffing the defendant elevated
the initial encounter to the factual arrest requiring probable
cause.” The court stated that “Officer Guevara lacked probable
cause to arrest the defendant since the only articulable and
particularized facts he relied on in arresting the defendant was
his presence.”
9
Relying on the “attenuation doctrine,” however, the court
denied the motion, stating: “[N]otwithstanding the findings of
the preliminary hearing judge as to the facts, based on the new
evidence and the total presentation of the evidence, the court
finds that there are intervening circumstances that interrupted
the connection between the legal [sic] arrest or detention and
the seized evidence.”2 In particular, the court relied on the
body worn video, which shows Officer Guevara “looking into the
vehicle with his flashlight,” and his testimony that he saw the
spray paint can in the rear seat in plain view. He then walks
to the other side of the vehicle and, “again shining his flashlight,
sees the butt of a firearm and another spray can in plain view.”
DISCUSSION
A. Standards of Review
A defendant may file a motion to suppress at the
preliminary hearing based on the evidence introduced at that
hearing. (§ 1538.5, subd. (f)(1).) The prosecution has the burden
of proving by a preponderance of the evidence that the search
and seizure are valid. (People v. Johnson (2006) 38 Cal.4th 717,
723 (Johnson).)
If, as here, the defendant was held to answer at the
preliminary hearing, the defendant may renew his motion to
2 Under the attenuation doctrine, “[e]vidence is admissible
when the connection between unconstitutional police conduct
and the evidence is remote or has been interrupted by some
intervening circumstance, so that ‘the interest protected by the
constitutional guarantee that has been violated would not be
served by suppression of the evidence obtained.’ ” (Utah v. Strieff
(2016) 579 U.S. 232, 238.)
10
suppress or “make the motion at a special hearing relating to
the validity of the search or seizure.” (§ 1538.5, subd. (i).) At
the hearing, “the people may recall witnesses who testified
at the preliminary hearing.” (Ibid.) “The court shall base its
ruling on all evidence presented at the special hearing and
on the transcript of the preliminary hearing, and the findings
of the magistrate shall be binding on the court as to evidence
or property not affected by evidence presented at the special
hearing.” (Ibid.)
“A defendant may seek further review of the validity of
a search or seizure on appeal from a conviction in a criminal
case notwithstanding the fact that the judgment of conviction
is predicated upon a plea of guilty.” (§ 1538.5, subd. (m).)
On appeal, “ ‘we defer to that court’s factual findings,
express or implied, if they are supported by substantial
evidence. [Citation.] We exercise our independent judgment
in determining whether, on the facts presented, the search
or seizure was reasonable under the Fourth Amendment.’ ”
(People v. Silveria and Travis (2020) 10 Cal.5th 195, 232;
accord, Ornelas v. United States (1996) 517 U.S. 690, 697.)
B. Discussion
1. Legal Principles
“The Fourth Amendment protects against unreasonable
searches and seizures.” (People v. Casares (2016) 62 Cal.4th
808, 837; People v. Hernandez (2008) 45 Cal.4th 295, 299
(Hernandez).) A seizure for purposes of the Fourth Amendment
includes temporary detentions as well as arrests, and “occurs
whenever a police officer, ‘by means of physical force or show
of authority,’ restrains the liberty of a person to walk away.”
11
(People v. Souza (1994) 9 Cal.4th 224, 229 (Souza), quoting
Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 (Terry); accord,
People v. Brown (2015) 61 Cal.4th 968, 974.)
Although an officer must have probable cause to believe
that a suspect is committing or has committed a crime before
arresting the suspect (Hunter v. Bryant (1991) 502 U.S. 224, 228),
police may conduct a brief investigative detention when there is
“ ‘ “some objective manifestation” that criminal activity is afoot
and that the person to be stopped is engaged in that activity.’ ”
(People v. Celis (2004) 33 Cal.4th 667, 674 (Celis).) A valid
investigatory detention must be supported by “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.” (Souza, supra, 9 Cal.4th
at p. 231.) The “totality of the circumstances” (United States v.
Cortez (1981) 449 U.S. 411, 417 (Cortez)), may include the
officer’s knowledge “of the modes or patterns of operation of
certain kinds of lawbreakers.” (Id. at p. 418.) Officers are thus
permitted “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.’ ” (United States v. Arvizu (2002)
534 U.S. 266, 273; accord, Hernandez, supra, 45 Cal.4th at
p. 299.) Although police may not detain someone based solely
on the person’s suspected gang membership (People v. Rodriguez
(1993) 21 Cal.App.4th 232, 238–240), an officer’s knowledge
that the detained person is a gang member “on another gang’s
‘turf ’ ” may be considered together with other relevant facts in
assessing whether there is reasonable suspicion for detention
(In re Hector R. (1984) 152 Cal.App.3d 1146, 1153).
12
When officers lawfully detain an individual based on a
reasonable suspicion, the officers may, incident to the detention,
undertake “investigative methods,” provided they are “the
least intrusive means reasonably available to verify or dispel
the officer’s suspicion in a short period of time.” (Florida v.
Royer (1983) 460 U.S. 491, 500; see Celis, supra, 33 Cal.4th
at pp. 675–676 [valid investigatory methods during temporary
detention are “those necessary to effectuate the purpose of the
stop, that is, to quickly dispel or confirm police suspicions of
criminal activity”].) Looking into the windows of a detained
suspect’s car with or without a flashlight does not violate
the Fourth Amendment. (Texas v. Brown (1983) 460 U.S.
730, 739–740; Wimberly v. Superior Court (1976) 16 Cal.3d
557, 564; United States v. Orozco (9th Cir. 1979) 590 F.2d
789, 792.)
If a detaining officer has a reasonable suspicion that
the detained person might be armed and dangerous, the officer
“may conduct a limited protective search for concealed weapons.”
(Adams v. Williams (1972) 407 U.S. 143, 146; see Michigan v.
Long (1983) 463 U.S. 1032, 1050 (Long).) To undertake a search
for weapons, an “officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” (Terry, supra,392 U.S. at p. 27.) As with determining whether an officer
had a reasonable suspicion to justify an investigatory detention,
determining whether an officer acted reasonably in searching
a detainee’s vehicle for weapons, “due weight must be given . . .
to the specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.” (Ibid.)
13
If, while conducting a lawful detention, the officer observes
incriminating evidence that is in plain view, the evidence may be
admissible against the defendant, provided the officer did not
violate the Fourth Amendment in arriving at the place from
where the evidence could be plainly viewed and the incriminating
character of the evidence is immediately apparent. (Horton
v. California (1990) 496 U.S. 128, 136 (Horton).) If evidence
lawfully observed in plain view, together with other facts and
circumstances known to the officer, provides the officer with
probable cause to believe that contraband or evidence of a
crime will be found in a vehicle, the officer may search the
vehicle and “every part of the vehicle and its contents that may
conceal the object of the search.” (United States v. Ross (1982)
456 U.S. 798, 825 (Ross); see Ornelas, supra, 517 U.S. at p. 696;
People v. Lee (2019) 40 Cal.App.5th 853, 861–862.)
2. Analysis
We initially address defendant’s argument that the trial
court was required at the special hearing, and we are required
on appeal, to defer to and accept the magistrate’s finding that
Officer Guevara’s testimony regarding the spray paint cans is
not credible. We disagree.
The magistrate appeared to have made his credibility
finding based on Officer Guevara’s testimony that he saw
two spray paint cans in different areas of the car even though
the police booked only one can into evidence. The apparent
inconsistency, the magistrate concluded, rendered Officer
Guevara’s testimony regarding the paint cans “ridiculous.”
The special hearing by the trial court on defendant’s
motion to suppress was conducted pursuant to section 1538.5,
subdivision (i). Under that subdivision, the magistrate’s findings
14
on the original motion are binding on the trial court “as to
evidence . . . not affected by evidence presented at the special
hearing.” (Ibid.) As to such findings, the trial court defers to
“the magistrate’s power to judge credibility, resolve conflicts,
weigh evidence and draw inferences, [and] . . . draws all
presumptions in favor of the magistrate’s factual determinations,
express or implied, and upholds them if they are supported by
substantial evidence.” (People v. Bishop (1993) 14 Cal.App.4th
203, 214 (Bishop).)
If, however, a magistrate’s findings are “affected by
evidence presented at the special hearing” (§ 1538.5, subd. (i)),
the trial court is not bound by such findings; the trial court
reviews the findings de novo. (Bishop, supra, 14 Cal.App.4th
at p. 210.) A magistrate’s findings are “affected by evidence
presented at the special hearing” (id. at p. 209) if the new
evidence would probably have materially influenced the
magistrate’s finding in light of “the total evidence, new and old.”
(Id. at p. 212.)
In this case, the magistrate made his credibility findings
without the benefit of viewing Officer Guevara’s body worn video,
which was played during the subsequent special hearing. The
body worn video indisputably shows two spray paint cans in the
locations Officer Guevara had identified: one on the back seat
and one in the front passenger seat area. The body worn video
corroborates Officer Guevara’s testimony and undermines the
magistrate’s foundation for his credibility finding. Thus, the
video evidence would probably have materially influenced the
magistrate’s credibility finding and, therefore, neither the trial
court nor this court is bound by it. (§ 1538.5, subd. (i); Bishop,
supra, 14 Cal.App.4th at p. 212.)
15
Turning to the merits, the People have the burden of
proving the constitutional validity of defendant’s detention by
pointing to specific articulable facts, viewed in light of the totality
of the circumstances, that provide an objective manifestation that
defendant may be involved in a crime. (Cortez, supra, 449 U.S.
at pp. 417–418; Johnson, supra, 38 Cal.4th at p. 723.) That
burden is met here.
Officer Guevara is a police gang expert who monitors
the White Fence gang. He is familiar with the territory claimed
by White Fence and its rival, the Indiana Dukes. He is also
aware that vandalism, as well as violent felonies, is a primary
activity of the White Fence gang and that when a gang member
ventures into a rival gang’s territory to commit vandalism, he
or she ordinarily does so with one or more armed accomplices
nearby acting as lookouts.
Officer Guevara saw an individual cross Olympic Boulevard
in an area claimed by the Indiana Dukes and write the word
“White” on a wall with spray paint. Officer Guevara could
reasonably infer from this act that the tagger was a White Fence
gang member and, based on his experience and knowledge of
how gang members commit such acts in a rival’s territory, could
reasonably expect to find the tagger’s accomplice nearby. Officer
Guevara looked in the direction from where the tagger had come
and spotted defendant’s car at the gas station. He drove to the
gas station and immediately recognized defendant as a White
Fence gang member. These facts, we conclude, are sufficient
to support a reasonable suspicion that defendant was involved
in the vandalism Officer Guevara had just witnessed. Officer
Guevara could therefore temporarily detain defendant and
conduct an investigation “to quickly dispel or confirm [his]
16
suspicions of criminal activity.” (Celis, supra, 33 Cal.4th at
p. 676.)
The fact that Guevara handcuffed defendant did not
transform the detention into a de facto arrest. Because Officer
Guevara, based on his training and experience, could reasonably
infer that defendant might be armed, he was permitted to
handcuff defendant during the brief detention. (See Celis, supra,33 Cal.4th at p. 675; People v. Glaser (1995) 11 Cal.4th 354,
369.)3
After placing defendant in handcuffs, Officer Guevara
used a flashlight to look through the front and rear windows
of the driver’s side of defendant’s car. This action is permissible
whether viewed as a lawful search for weapons incident to a
detention (see Long, supra, 463 U.S. at pp. 1049–1052)4 or as
3 To the extent the trial court based its determination
that defendant had been arrested on the fact that he was placed
in handcuffs, we disagree. Reviewing the issue de novo, we
conclude that defendant was detained, not arrested, while he was
in handcuffs up until the point, after the discovery of the shotgun
and spray paint can, that Officer Guevara informed him of his
arrest.
4 Because Officer Guevara was aware that gang members
acting as lookouts for other gang members who are committing
vandalism in the gang’s rival’s territory are typically armed and
he could reasonably infer that defendant was acting as such a
lookout, Officer Guevara could lawfully search the defendant’s
car for weapons. (See Terry, supra, 392 U.S. at p. 27.) The
fact that defendant could not access a weapon inside the car
at the time Officer Guevara was looking inside the car because
defendant was handcuffed outside the car does not invalidate
the search. If, at the conclusion of the investigatory detention,
17
conduct outside the purview of the Fourth Amendment (see Texas
v. Brown, supra, 460 U.S. at pp. 739–740). As Officer Guevara
looked into the rear seat area of the car, he saw a spray paint
can in plain view, which is visible in his body worn video. In
the context of an investigation relating to the criminal use of
spray paint occurring immediately prior to the detention and the
absence of any evidence suggesting a lawful purpose for the spray
paint can, the incriminating nature of the spray paint can was
immediately apparent. (See Horton, supra, 496 U.S. at p. 136.)
Based on the plain view sighting of the spray paint can
in the back seat of defendant’s car together with the other facts
known to Officer Guevara discussed above, Officer Guevara
arguably had probable cause to conduct a search of the interior
of the car under the automobile exception to the Fourth
Amendment’s warrant requirement. (See Ross, supra, 456 U.S.
at p. 825; Ornelas, supra, 517 U.S. at p. 696.) We need not decide
whether Officer Guevara had probable cause for such a search
at that point, however, because he did not enter the car or
seize the spray paint can at that time. Instead, after checking
defendant’s identifying information through the police computer,
he walked to the open door of the front passenger seat where,
from his position outside the car, he saw another spray paint can
in plain view—which can be seen in the body worn video—and
the handgrip of a shotgun on the floorboard.
defendant was not placed under arrest, he would have been
permitted to reenter his vehicle while the officers were present
and access any weapons inside. The acts of looking through
the windows and the open front door for weapons was therefore
permissible. (See Long, supra, 463 U.S. at pp. 1051–1052.)
18
At this point, Officer Guevara, who was aware that
defendant had been previously convicted of a felony and that
his possession of the shotgun is therefore a felony (§ 29800,
subd. (a)(1)), has probable cause to believe “that contraband or
evidence of a crime will be found” in the car (Ornelas, supra, 517
U.S. at p. 696), and the authority to undertake a search of the
car’s interior (Ross, supra, 456 U.S. at p. 825). The subsequent
seizures of the shotgun, the spray paint can in the front seat,
the spray paint can in the back seat, and the ammunition found
elsewhere in the car were thus permitted under the Fourth
Amendment.5
On appeal, defendant points to Officer Guevara’s
agreement with defense counsel that he had “a hunch” about
defendant to argue that “Officer Guevara only arrested
[defendant] because he had a hunch that [defendant] was
connected with the unidentified individual seen spray painting
a nearby wall.” The argument lacks merit.
During defense counsel’s cross-examination of Officer
Guevara during the special hearing, the following colloquy
occurred:
“[Counsel:] You actually didn’t see anywhere, where this
person was coming from a vehicle, or you saw a general area he
was coming from, right?
“[Officer Guevara:] That’s correct.
5 Because we conclude that the detention, searches,
and seizures of defendant and the evidence defendant sought to
suppress were lawful, we do not address the attenuation doctrine,
on which the trial court relied.
19
“[Counsel:] Nothing to link anything that the tagger did
to what Mr. Barclay was doing, except for your training and
experience, correct?
“[Officer Guevara:] Correct.
“[Counsel:] You had a hunch?
“[Officer Guevara:] Yes.”
Although defendant is correct that “officers are not
entitled to rely on mere hunches” when conducting a traffic stop
(Hernandez, supra, 45 Cal.4th at p. 299), the fact that Officer
Guevara had a hunch that defendant was involved in the tagging
Officer Guevara witnessed does not mean that he did not also
have a reasonable suspicion that defendant was involved. In any
event, Officer Guevara’s characterization of his justification for
the detention is not dispositive; the validity of the officer’s actions
under the Fourth Amendment “turns on an objective assessment
of the officer’s actions in light of the facts and circumstances
confronting him at the time” (Scott v. United States (1978) 436
U.S. 128, 136), “not on the officer’s actual state of mind at the
time the challenged action was taken” (Maryland v. Macon (1985)
472 U.S. 463, 470–471). As explained above, the facts “provide
some objective manifestation that the person detained may be
involved in criminal activity” (Souza, supra, 9 Cal.4th at p. 231),
and thus support the defendant’s detention.
For all the foregoing reasons, we affirm the court’s order.
20
DISPOSITION
The order denying defendant’s motion to suppress evidence
is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
21