People v. Gatison CA1/3 ( 2014 )

Filed 1/13/14 P. v. Gatison CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A137180
v.
KENNETH GATISON, (Contra Costa County
Super. Ct. No. 5-120821-4)
Defendant and Appellant.
This is an appeal from final judgment following entry of a no contest plea by
appellant Kenneth Gatison after the trial court denied his combined motion to suppress
(Pen. Code, § 1538.5) and to dismiss the information (Pen. Code, § 995).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2012, an information was filed charging appellant with one felony
count of possession of marijuana for sale (Health & Saf. Code, § 11359).2 This charge
stemmed from appellant’s arrest on the afternoon of May 2, 2011 near the campus of
Riverview Middle School in Bay Point. At about 2:20 p.m. on that date, just as students
were being dismissed, Officer Leah Stabio, the school resource officer, was on duty in
1
Unless otherwise stated, all statutory citations herein are to the Penal Code.
2
On August 15, 2011, a complaint based on the same charge was filed in criminal
court. Appellant pleaded not guilty to this charge and, on December 5, 2011, filed a
motion to suppress evidence (§ 1538.5). This motion was heard by a magistrate in
conjunction with a preliminary hearing on December 7, 2011. Following the magistrate’s
denial of this motion, the district attorney filed the above-referenced information on
May 30, 2012.
1
uniform with the assignment to ensure students safely left school. Officer Stabio was
approached by Rhonda Moncrief, a school employee who also helped ensure student
safety during afternoon dismissal. Moncrief directed Officer Stabio’s attention towards
appellant, an adult male standing on school grounds whom she identified as “Kenny.”
Specifically, Moncrief told Officer Stabio: “[T]here was a gentleman that sells drugs on
campus. She pointed in the direction of a certain gentlemen that was crossing the street.
She said, ‘That’s him right there. That’s Kenny. He sells weed to all the kids at
school.’ ”
Based on this information, Officer Stabio walked towards appellant to investigate
whether he was a student at the school and whether he was on school grounds for an
unlawful purpose. As Officer Stabio explained, “nonstudents are not allowed on
campus.” However, when Officer Stabio approached, appellant looked at her and walked
off campus in the direction of an ice cream truck. Officer Stabio confronted him there,
introducing herself and asking in a conversational tone why he was on campus and
whether he had identification. When appellant queried why he needed to provide
identification since he had done nothing wrong, Officer Stabio explained that, for her
own safety, the school’s safety and the public’s safety, she had a duty to identify
nonstudents on campus to make sure they were not violent or the subject of any active
warrants.3 Officer Stabio also explained to appellant that she had received information
from a school employee identifying him as a possible drug dealer.
Appellant cooperated with Officer Stabio’s request by providing his high school
identification card, which Officer Stabio used to search the CLETS database for
information confirming his identity and the existence of any outstanding warrants (there
were none). Officer Stabio then asked appellant whether he was carrying any drugs.
Appellant responded, “no,” and Officer Stabio then asked whether he “had any weed on
him,” to which appellant responded that he may have “a little.” Officer Stabio asked
whether she could search him for the marijuana, and appellant stated: “I don’t care.” As
3
Riverview Middle School is a “closed campus” from which nonstudents are
generally barred.
2
such, Officer Stabio conducted a search, finding, among other things, a plastic container
in appellant’s right vest pocket with a pill bottle and 19 individual baggies of marijuana.
Officer Stabio thus arrested appellant for possessing marijuana for sale, read him
his Miranda rights and placed him in her patrol car. During the drive to the station,
Officer Stabio continued to question appellant, asking whether he was selling the
marijuana. Appellant responded, “no.” When Officer Stabio then asked him how much
one of the baggies of marijuana found on his person sold for, he answered: “sometimes
ten, sometimes eight.” Officer Stabio continued questioning, asking how much appellant
could make in a single day selling marijuana. Appellant answered: “I don’t know,
sixty.”
On August 1, 2012, appellant filed the combined motion to suppress the evidence
seized from his person on the afternoon in question and to dismiss the information, which
is now the subject of appeal. At the August 16, 2012 hearing on appellant’s combined
motion, the trial court accepted argument from both parties before ultimately denying it.4
In doing so, the trial court found that “the evidence clearly shows that the defendant
voluntarily consented to the search. Because his consent was voluntary, and his detention
was lawful, the court declines to suppress the evidence. It does not do so, and the motion
to dismiss is denied.”
On November 5, 2012, appellant withdrew his not guilty plea and pleaded no
contest to the charge. The trial court thereafter sentenced appellant to two years of
probation. This timely appeal followed.
DISCUSSION
Appellant raises one issue on appeal. He contends Officer Stabio lacked
reasonable suspicion to detain him and, thus, that her subsequent search of his person was
illegal. As such, appellant reasons, his motion to suppress all evidence derived from her
4
Officer Stabio testified regarding appellant’s detention and arrest at the
December 7, 2011 combined preliminary hearing and suppression motion hearing. No
further evidence was presented at the August 16, 2012 hearing on appellant’s motion to
suppress that was heard by the trial court in conjunction with his related motion to
dismiss the information.
3
illegal search should have been granted. He thus asks this court to reverse the judgment
and remand the matter to the trial court to allow him to withdraw his no contest plea. The
following legal principles govern his contention.
“When reviewing the grant or denial of a motion to suppress, an appellate court
must uphold the [lower] court’s express or implied findings of fact if the facts are
supported by substantial evidence.” (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.)
We then employ our independent judgment to decide whether, under those facts, the
search and seizure was legal. (People v. Ruiz (1990) 217 Cal.App.3d 574, 580; People v.
Ayala (2000) 23 Cal.4th 225, 255.) Otherwise stated, the legality of a search or seizure is
measured by “the facts, as found by the trier [of fact], against the constitutional standard
of reasonableness. [Citations.] Thus, in determining whether the search or seizure was
reasonable on the facts found by the [trier of fact], we exercise our independent
judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d
729].)” (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Slightly altering this procedure, in cases like this one, where “a magistrate rules on
a motion to suppress . . . raised at the preliminary examination, he or she sits as the finder
of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw
inferences. In reviewing the magistrate’s ruling on a subsequent motion under Penal
Code section 995, the superior court sits as a reviewing court — it must draw every
legitimate inference in favor of the information, and cannot substitute its judgment for
that of the magistrate on issues of credibility or weight of the evidence. On review of the
superior court ruling by appeal or writ, we in effect disregard the ruling of the superior
court and directly review the determination of the magistrate. In doing so we draw all
presumptions in favor of the magistrate’s express or implied factual determinations and
must uphold them if they are supported by substantial evidence.” (People v. Shafrir
(2010) 183 Cal.App.4th 1238, 1244-1245 [fn. omitted].)
With respect to the substantive law, “state and federal claims relating to exclusion
of evidence on grounds of unreasonable search and seizure are measured by the same
standard. (In re Tyrell J. (1994) 8 Cal.4th 68, 76 [32 Cal.Rptr. 2d 33, 876 P.2d 519]; In re
4
Lance W. (1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744].) ‘Our state
Constitution [Cal. Const., art. I, § 13] thus forbids the courts to order the exclusion of
evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is
required by the federal Constitution [U.S. Const., 4th Amm.] as interpreted by the United
States Supreme Court.’ (In re Tyrell J., supra, at p. 76.)” (People v. Camacho (2000) 23
Cal.4th 824, 830.)
Under binding United States Supreme Court authority, Terry v. Ohio (1968) 392
U.S. 1, 19, “the judicial inquiry into the reasonableness of a detention 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.”
(People v. Brown (1998) 62 Cal.App.4th 493, 496.) Consistent with this rule and
relevant to our case, the officer is justified in briefly detaining an individual if, at its
inception, the officer had “a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity.” (California v. Hodari D. (1991) 499 U.S.
621, 636, fn. 10; People v. Hernandez (2008) 45 Cal.4th 295, 299.) In other words, even
where “there is no probable cause to make an arrest,” an officer can initially detain an
individual for purpose of an investigation if the officer reasonably suspects unlawful
activity has or will occur. (Terry v. Ohio, supra, 392 U.S. at p. 22.)
Applying these principles to the facts at hand, we thus must determine whether
Officer Stabio had reasonable suspicion to detain appellant based on the information she
received from Rhonda Moncrief that he sold drugs to students on campus.5 (People v.
White (2003) 107 Cal.App.4th 636, 642.) Affording all presumptions in favor of the
lower court’s factual findings, as the law requires (People v. Shafrir, supra, 183
Cal.App.4th at pp. 1244-1245), we conclude that she did.
5
The People do not dispute the meeting between appellant and Officer Stabio was a
detention rather than a consensual encounter. (See In re Manuel G. (1997) 16 Cal.4th
805, 821 [unlike consensual encounters, detentions require an articulable suspicion that
the person has committed or is about to commit a crime].)
5
First, with respect to Officer Stabio’s initial encounter with appellant, it is “well
settled that a police officer may approach a citizen, identify himself as a police officer
and ask questions even without any objective justification.” (People v. Rosales (1989)
211 Cal.App.3d 325, 330; see also People v. Vibanco (2007) 151 Cal.App.4th 1, 14.)
“Detention, not questioning, is the evil at which Terry’s second prong is aimed.
[Citation.]” (People v. Brown, supra, 62 Cal.App.4th at p. 496.) “ ‘[A]n officer has
every right to talk to anyone he encounters while regularly performing his duties . . . .’
(People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 [42 Cal.Rptr.2d 18].) [¶] . . .
‘[A]sking questions is an essential part of police investigations. In the ordinary course a
police officer is free to ask a person for identification without implicating the Fourth
Amendment.’ (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542
U.S. 177, 185 [159 L.Ed.2d 292, 124 S.Ct. 2451] (Hiibel).)” (People v. Vibanco, supra,
151 Cal.App.4th at p. 13.) As such, Officer Stabio was undoubtedly entitled, as a school
resource officer on duty and in uniform, to approach appellant after seeing him on
campus to ask him for identification and whether he was a student. (See In re Joseph F.
(2000) 85 Cal.App.4th 975, 986 [“unlike the rules applicable to public places in general,
school officials, including police who assist in maintaining general order on school
campuses, need not articulate a specific crime which appears to be violated in order to
detain an outsider for the limited purpose of determining the fundamental factors
justifying an outsider’s presence on a school campus, such as who he is, why he is on
campus, and whether he has registered”]; see also § 626.7 [“If a person who is not a
student . . . of a public school, and who is not required by his or her employment to be on
the campus . . . enters a campus or facility outside of the common areas where public
business is conducted, and it reasonably appears to . . . an officer or employee designated
by the chief administrative officer to maintain order on the campus or facility, that the
person is committing any act likely to interfere with the peaceful conduct of the activities
of the campus or facility, or has entered the campus or facility for the purpose of
committing any such act, the chief administrative officer or his or her designee may
direct the person to leave the campus”].)
6
Further, with respect to Officer Stabio’s subsequent questions regarding whether
appellant was carrying drugs or marijuana, the law is likewise clear that a “detention is
reasonable under 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.’ [Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145-146.) Here,
appellant’s detention was justified because, as the record reflects, Officer Stabio had
discovered specific, articulable facts that, considered in light of the surrounding
circumstances, indicated appellant may have been present on school grounds to sell drugs
to students. These facts, quite simply, were that appellant, who was standing on campus
just as students were being dismissed, “sells weed to all the kids at school.”
Appellant, of course, disputes these “facts,” received by Officer Stabio from
Rhonda Moncrief, were sufficient to establish reasonable suspicion. Rather, appellant
insists that, because Moncrief was “not a witness to any crime,” her statements to the
officer were mere hearsay and too conclusory and non-specific to justify a detention. We
disagree.
As the People accurately note, Officer Stabio testified at the preliminary hearing
that Moncrief was a school employee whose responsibilities included helping to ensure
students safely left school at dismissal time. Officer Stabio also confirmed Moncrief was
present at school daily, and was regularly in contact with Officer Stabio, who, like
Moncrief, was responsible for the students’ safe departure. On the day in question,
Moncrief specifically told Officer Stabio “there was a gentlemen that sells drugs on
campus,” and that, in fact, this “gentleman” was presently on campus. Moncrief then
pointed to this person, and identified him to Officer Stabio by the name of “Kenny.”
When Officer Stabio testified under oath regarding the information she received
from Moncrief, Officer Stabio did not indicate that Moncrief had told her she learned
about “Kenny” and his student drug sales from another person. Rather, her testimony
reflects that Moncrief directly told her the information in a manner suggesting that it was
based on firsthand knowledge; and nothing she said on cross-examination suggested
7
otherwise. As such, the magistrate hearing Officer Stabio’s testimony could reasonably
have interpreted it to have come from Moncrief’s personal observations of appellant
during the course of her daily school duties. Given that the magistrate, unlike this court,
observed this testimony firsthand, we decline to second guess his judgment that it was
“reasonable, credible and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578;
see also In re Arturo D. (2002) 27 Cal.4th 60, 77 [“ ‘the power to judge the credibility of
the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual
inferences, is vested in the trial court’ ”].)
Accordingly, based on this factual record, we conclude that Officer Stabio did in
fact have grounds to reasonably suspect appellant was on campus to sell drugs, thereby
justifying her decision to detain him for purposes of an investigation. The law required
nothing more. 6 (In re Justin K. (2002) 98 Cal.App.4th 695, 699-700 [the law requires a
reasonable suspicion, not proof beyond reasonable doubt, to warrant an investigatory
stop]. Compare In re Joseph G. (1995) 32 Cal.App.4th 1735, 1741 [information from an
unnamed mother of a student that her son had seen the appellant at a school event the
previous week in possession of a gun was sufficiently reliable to demonstrate reasonable
6
We easily distinguish appellant’s authority, Bailey v. Superior Court (1992) 11
Cal.App.4th 1107 (Bailey). There, information from a citizen informant was held
unreliable, and thus insufficient to establish probable cause for obtaining a search
warrant, where there were no facts showing that the informant personally observed
criminal activity. (Id. at pp. 1111-1113; see also People v. French (2011) 201
Cal.App.4th 1307, 1317-1318 [an informant’s mere “assertions of criminality” held
insufficient to support a probable cause showing to obtain a warrant].) Here, of course,
we are concerned with whether Moncrief’s statements to Officer Stabio (which, in any
event went beyond mere assertions of criminality based on hearsay) sufficed to establish
reasonable suspicion, not, as in Bailey, probable cause. As such, appellant’s authority is
inapposite. (Adams v. Williams (1972) 407 U.S. 143, 145 [“The Fourth Amendment does
not require a policeman who lacks the precise level of information necessary for probable
cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to
escape. On the contrary, Terry recognizes that it may be the essence of good police work
to adopt an intermediate response. [Citation.] A brief stop of a suspicious individual, in
order to determine his identity or to maintain the status quo momentarily while obtaining
more information, may be most reasonable in light of the facts known to the officer at the
time”].)
8
suspicion justifying a search of the appellant’s locker].) Moreover, because the facts as
found by the lower court provided an objective legal basis for Officer Stabio’s decision to
detain appellant for a possible drug offense, there was no violation of appellant’s Fourth
Amendment rights.
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
9