People v. Ellis

• Court: California Court of Appeals
• Writing for the Court: SEGAL, J.
• Decision Date: 07 June 2017
• Docket Number: B271284
• Citation: People v. Ellis, B271284 (Cal. App. Jun 07, 2017)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ELLIS, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ELLIS, Defendant and Appellant.

B271284

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

June 7, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA110467)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Reversed and remanded.

Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

This case turns on whether Deputy Gilbert Lozano detained Matthew Ellis or knew he was on parole before Ellis dropped a knife that ultimately led to his conviction for carrying a concealed dirk or dagger. The trial court concluded Deputy Lozano and Ellis engaged in a consensual encounter before Ellis dropped the knife "simultaneously" with his admission he was on parole. We conclude that Deputy Lozano detained Ellis without reasonable suspicion, and did not have advance knowledge Ellis was on parole, before Ellis dropped the knife. Therefore, because law enforcement obtained the knife as a result of an illegal detention, we reverse the judgment and remand to the trial court with directions to grant Ellis's motion to suppress evidence of the knife.

FACTUAL AND PROCEDURAL BACKGROUND

A. Ellis Drops a Knife During an Encounter with Police

On the afternoon of August 19, 2015 Ellis and another man sat on a curb outside the entrance to a bar in Pomona. Deputy Lozano drove by while conducting "patrol checks" in the area "for local transients that hang out and loiter." Deputy Lozano targeted the area for its "high narcotics activity." He stated that "a lot of local transients go [to the bar] when they buy their meth." Deputy Lozano knew Ellis as a transient in the area who frequented the area near the bar.

Deputy Lozano observed Ellis for less than five minutes while traveling in his patrol car. During that time Ellis did not stand or "stumbl[e] around." After passing Ellis, Deputy Lozanomade a U-turn. The deputy parked his patrol car "right next" to Ellis, within a foot or two, and may have turned on his lights and siren. Deputy Lozano asked Ellis and the other man if they were doing any business at the bar or a liquor store next door to the bar, and the men told him they were not. Deputy Lozano then directed the men's attention to a "no loitering" sign less than two feet from them. The deputy "went ahead and told [Ellis] it's a violation of loitering and that we've gotten numerous complaints from the [bar] of transients just loitering in front of the business."

What happened next is not clear from the record. Deputy Lozano originally testified that Ellis told him he had nowhere else to go and was on parole. But Deputy Lozano also testified that he first asked Ellis to approach the front hood of the patrol car, after which Ellis told him he was on parole. In yet another description of their encounter, Deputy Lozano said Ellis did not volunteer that he was on parole until after Deputy Lozano had asked Ellis to put his hands on the hood of the patrol car and Ellis had complied. At some point Deputy Lozano heard something drop to the ground. Deputy Lozano handcuffed Ellis, conducted a pat search, and put Ellis in the backseat of his patrol car. Deputy Lozano walked over to where Ellis had been standing and found a knife inside a black sheath. Back in the patrol car, Deputy Lozano confirmed that Ellis was on parole.

B. The Trial Court Denies Ellis's Motion To Suppress

The People charged Ellis with one count of carrying a concealed dirk or dagger in violation of Penal Code section 21310¹ and alleged he suffered two prior serious or violent convictions.Ellis pleaded not guilty and filed a motion to suppress evidence of the knife found by Deputy Lozano.

At a hearing on the motion to suppress, Deputy Lozano testified that on the day he detained Ellis he was not responding to a call from anyone at the bar. He said he knew of Ellis from one or more previous encounters five to six months earlier when he saw Ellis collecting recyclables from a dumpster in an alley near the bar. At that time, Deputy Lozano said he had reason to believe Ellis may have been on probation or parole, but he "wasn't too sure." Counsel for Ellis asked Deputy Lozano to clarify his testimony:

Q: "So on that day -- you knew in the past he had been on probation or parole; but on this day, you didn't know if he was on probation or parole, currently?"

A: "Correct, ma'am."

Q: "So you were actually not detaining him for that but detaining him because there was a 'no loitering' sign?"

A: "Yes, ma'am."

Q: "Correct?"

A: "Yes, ma'am."

Q: "So that's why you initially parked, ordered him [to the car], because he was sitting under the 'no loitering' sign, correct?"

A: "Yes, ma'am."

Q: "And it was after you had detained him that you found out -- or confirmed that he was on parole, correct?"

A: "Yes, ma'am."

Counsel for Ellis asked Deputy Lozano several additional questions about whether the deputy's request that Ellis move toward the patrol car was a command. For example, she twiceasked Deputy Lozano whether he "ordered" Ellis to "come to you" or "come here." Deputy Lozano responded affirmatively. Deputy Lozano also testified that he detained Ellis for loitering in violation of Los Angeles County Code section 13.56.010, one of two code provisions identified on the "no loitering" sign that hung near where Ellis had been sitting.

At the conclusion of Deputy Lozano's testimony, counsel for Ellis argued that "the initial detention happened at the time that the officer pulled up to the curb [and] ordered [Ellis] to come to him." She argued Deputy Lozano lacked reasonable suspicion to detain Ellis at that time because the deputy merely observed Ellis sitting on a curb. Deputy Lozano did not see Ellis attempt to buy or sell drugs, nor did he observe any drug activity in the area at the time. Counsel for Lozano further argued that the loitering provision Deputy Lozano identified in his police report did not justify Ellis's detention because that provision applied only to minors, and Deputy Lozano testified he knew Ellis was not a minor. The other code section identified on the "no loitering" sign, section 647, subdivision (e), applied only to a person "who lodges in a building, structure, vehicle or place . . . without the permission of the owner or person entitled to possession or in control of it," and Ellis was neither "lodging" in the bar or the nearby liquor store, nor did Deputy Lozano testify that anyone from the bar or store had called to complain about Ellis. Finally, counsel for Ellis argued that, because Deputy Lozano did not know Ellis was on parole until after he had detained Ellis, Ellis's parole status did not validate the suspicionless search.

The trial court denied Ellis's motion to suppress. The court identified the "critical issue" as "whether the officer's request that [Ellis] approach constitutes a detention." The court reasoned it was not because "there was no show of force" and "the officer indicated he asked [Ellis] to approach," as opposed to commanding him to do so. The court found that, "simultaneously" with asking Ellis to approach, "there was a sound, his statement verifying his parole status; and the officer was entitled at that point for his own security to pat down and detain the defendant to find out what was happening there." With regard to the loitering statute and its application to minors only, the trial court ruled that Deputy Lozano's mistake was negated by his good faith belief the statute applied.

During the subsequent trial, Deputy Lozano testified he had done more than simply "ask" Ellis to approach him. He said he had in fact told or ordered Ellis to put his hands on the hood of the patrol car. Counsel for Ellis renewed the motion to suppress, and the trial court denied it again.

C. Ellis Is Convicted and Sentenced

A jury convicted Ellis of violating section 21310, as charged. In a separate hearing, the court found true the allegation that Ellis suffered two prior serious or violent convictions under the three strikes law (§§ 667, subds. (b)-(j); 1170.12). The court sentenced Ellis to the middle term of two years, doubled under the three strikes law, for a total prison term of four years. Ellis timely appealed.

DISCUSSION

A. Standard of Review and Applicable Law

"'In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated.'" (People v. Brendlin (2008) 45 Cal.4th 262, 268; see People v. Linn (2015) 241 Cal.App.4th 46, 56.) "'As the finder of fact in a proceeding to suppress evidence [citation], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.'" (Linn, at p. 56, quoting People v. Woods (1999) 21 Cal.4th 668, 673.)

"'We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law...