People v. Batok, A120299 (Cal. App. 2/26/2009)

• Decision Date: 26 February 2009
• Docket Number: A120299.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ROBERT WILLIAM BATOK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent, v. ROBERT WILLIAM BATOK, Defendant and Appellant.

A120299.

Court of Appeals of California, First Appellate District, Division Three

February 26, 2009

Not to be Published in Official Reports

Appeal from the Contra Costa County, Super. Ct. No. 05-070376-9.

McGUINESS, P.J.

Robert William Batok (appellant) appeals from a judgment entered after the trial court denied his motion to suppress evidence and he entered a no contest plea. He contends the court erred in denying his motion to suppress because the arresting officer performed an illegal weapons search. We reject the contention and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An information filed March 23, 2007, charged appellant with possession of marijuana for sale (Health & Saf. Code, § 11359, count one), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), and possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140.) The information also alleged appellant had suffered two prior strikes (Pen. Code, § 1170.12) and had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).

Appellant filed a motion to suppress evidence (Pen. Code, § 1538.5). At the hearing on the motion, Contra Costa County Deputy Sheriff Michael Tegeler testified that at about 8 a.m. on Friday, December 1, 2006, he was dispatched to an area in the city of Martinez where trailer parks are located. The dispatcher told Tegeler that an anonymous citizen had called in about a suspicious man who was possibly "casing the area," i.e., "looking to burglarize some of the trailers in the area or break into vehicles." The caller described the suspicious man as "a white male, wearing a baseball cap and a denim coat and boots." According to the dispatch report, the caller described the man as being about five feet seven inches tall and "not wearing proper clothing." The caller was also "concerned about [the man's] health."

Tegeler arrived in the area approximately five minutes after receiving the dispatch call and saw "an older pickup truck" legally parked on the side of the road. The passenger's side door was open and the driver's side window was rolled down. A man, later identified as appellant, was "laying partially across the front [bench] seat with his feet hanging out the passenger door." Appellant "had a guitar in his hand" and was wearing a baseball cap, work boots and a jacket. Tegeler said he "really couldn't tell" how tall appellant was but he "figured he was probably [five feet ten inches tall]." There were no other people around.

The truck was "filled with stuff," including magazines, newspapers and household items. Tegeler "wasn't sure if [appellant] was asleep of having some kind of a medical condition," but said he "wouldn't feel right driving past somebody and then finding out . . . he had a medical condition." When asked whether he believed the man matched the description given by the dispatcher, Tegeler responded, "Well, . . . just seeing somebody slumped over in a car like that, whether they match a description or not, I'm going to investigate anyways." He also testified: "Just seeing somebody in that state in a vehicle[] seemed suspicious, whether they were asleep [or] having a medical condition . . . [¶] I patrol that area . . . [W]e do have a lot of thefts at the trailer park. So that's going to draw my attention to him anyways, whether he's asleep, faking to be asleep, having a medical condition. Either way, I felt I needed to check that out." Before contacting appellant, Tegeler "r[a]n the plate on the truck" and learned it was registered to a Robert Batok.

Tegeler decided to contact appellant, but before waking him up, he "stuck [his] head in" the open driver's side window to make sure there were no weapons in the truck. He explained he did so for officer safety reasons: "I figured the subject was in there either asleep or [in] medical distress. To me, it was worth taking the couple of seconds to make sure that he didn't have access to a knife, a gun, or anything like that before I went to wake him up or to see exactly if he needed medical attention. [¶] I didn't want to wake him up and then — quickly wake him up, like, he grabs a gun and turns at me." He testified he had worked as a peace officer for 16 years and had contacted individuals in vehicles "thousands" of times. He knew weapons can be hidden inside a vehicle and are not "immediately apparent" to him as he stands outside the vehicle. Tegeler "scan[ned]" the inside of the truck for "20, 30 seconds, tops." As he looked inside, he saw hypodermic syringes and a baggie of white crystal material that looked like methamphetamine.

Tegeler then opened the driver's seat door, which was unlocked, and "nudged [appellant] to see if he was asleep, see if he needed medical attention, anything like that." Another officer who had arrived at the scene conducted a cursory search of appellant and sat him down on the curb. Tegeler searched the truck and found 30 syringes in a shaving kit and a plastic grocery bag with several more syringes and 19 bags of what appeared to be marijuana. Tegeler arrested appellant and while searching appellant found $408 in cash and a leather pouch around appellant's neck that had another baggie of what appeared to be methamphetamine.

The trial court denied appellant's motion to suppress evidence, finding Tegeler acted reasonably under the circumstances and that the weapons search was legal. On November 5, 2007, appellant entered a negotiated plea in which he pleaded no contest to one count of possession of marijuana for sale. The remaining counts and enhancements were dismissed on motion of the prosecutor and the court sentenced appellant to the lower term of 16 months in accordance with the plea bargain. Because appellant had 16 months of custody credits, the sentence was a "paper commitment" in which he was immediately paroled.

DISCUSSION

Appellant contends that Tegeler's act of "st[icking] [his] head" inside the window¹ constituted an illegal search because information received from a "vague" and "uncorroborated" call about a man "casing the area" was insufficient to justify a weapons search. We reject the contention.

Penal Code section 1538.5, subdivision (a)(1), provides in part: "A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable." "The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists." (People v. Curley (1970) 12 Cal.App.3d 732, 746.)

"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. [Citation.]" (People v. Miranda (1993) 17 Cal.App.4th 917, 922; see also People v. Ingram (1993) 16 Cal.App.4th 1745, 1750.) "`There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances. [Citations.]'" (People v. Berutko (1969) 71 Cal.2d 84, 93.) In determining reasonableness, "a court is ill-advised to apply hard and fast rules. Rather we must be concerned, in a case-by-case analysis, with whether the extent of the search exceeded the attainment of the objectives which justified its inception. [Citation.]" (Miller v. Superior Court (1981) 127 Cal.App.3d 494, 506.)

The totality of the facts and circumstances in this case show it was reasonable and lawful for Tegeler to "scan" the inside of the truck for weapons for officer safety reasons. "In making Fourth Amendment reasonableness assessments, courts have regularly considered the safety risks confronting investigating officers." (People v. Wilson (1997) 59 Cal.App.4th 1053, 1060; see also, e.g., Maryland v. Wilson (1997) 519 U.S. 408, 410 [for officer safety, officer making traffic stop may order passengers out of car]; Maryland v. Buie (1990) 494 U.S. 325, 327 [officers serving arrest warrant may conduct limited protective sweep for hidden persons inside residence]; Michigan v. Summers (1981) 452 U.S. 692, 702 [interest in minimizing risk of harm to officers significant factor in Fourth Amendment analysis]; Terry v. Ohio (1968) 392 U.S. 1, 24 [officer may conduct a patdown search for weapons if there are reasonable grounds to believe the suspect is "armed and presently dangerous"]; Michigan v. Long (1983) 463 U.S. 1032, 1049-1050 [applying the same standard to a search of the passenger compartment and other parts of a vehicle in which weapons may be hidden].) These decisions make clear that "`it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.' [Citation.]" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.)

When Tegeler arrived in the area to which he had been dispatched, he came across a suspicious situation in which appellant was lying partially across the bench seat of a truck with his legs "hanging out" of an open passenger door. The driver's side window was rolled down and Tegeler could not tell whether appellant was sleeping, pretending to be asleep, or having a medical condition. Appellant's physical appearance matched the dispatcher's description, and the fact that there was no one else in the area, and that appellant was "passed out" in a truck after the caller had said she was "concerned about [the man's] health," suggested appellant was...