People v. Hammond

• Decision Date: 05 June 2017
• Docket Number: B271293
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JEFFREY HAMMOND, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY HAMMOND, Defendant and Appellant.

B271293

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

June 5, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA422855)

APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval and Dorothy B. Reyes, Judges. Reversed and remanded with directions.

Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Los Angeles police officers detained Jeffrey Hammond for a traffic violation. They searched his van, his person, and a tattoo shop from which they had seen him leave. They discovered marijuana in the van, cocaine in his pockets, and guns in the tattoo shop.

When Hammond moved to suppress this evidence at his preliminary hearing, the preliminary hearing court denied the motion. Hammond unsuccessfully renewed the motion in the trial court. Hammond then pleaded no contest to unlawful transportation or sale of marijuana in violation of Health and Safety Code section 11360, subdivision (a), possession for sale of a controlled substance in violation of Health and Safety Code section 11351, and possession of a firearm by a felon in violation of Penal Code section 29800, subdivision (a)(1). The court placed him on formal probation with various terms and conditions, including serving 365 days in county jail.

Hammond challenges the constitutionality of the detention and the searches of his van, himself, and the tattoo shop. We reverse and remand for a new hearing on Hammond's motion to suppress the evidence seized from the search of the shop.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Detention and the Searches

Officer Michael Hofmeyer and his partner were near a tattoo shop on 2206 South San Pedro Street. The officers had "received information" Hammond was selling drugs there. Officer Hofmeyer observed Hammond walk out of the tattoo shopand get into a parked van. The front windows of the van were tinted "to the point of not really being able to see inside of the van to see who was inside," and when Hammond got into the van Officer Hofmeyer was unable to see him. Hammond made a U-turn and drove down the street, where he double-parked the van 50 to 75 yards east of San Pedro Street. He got out of the van, went into a parked truck, and moved the truck one car length forward. Hammond then got out of the truck.

The officers got out of their patrol car, displayed their badges, and began speaking to Hammond. Officer Hofmeyer's partner told Hammond why the officers had stopped him, and they asked for his registration and driver's license. Hammond "was very upset" and "very belligerent," asked why the officers had stopped him, and accused them of harassing him. Although Hammond engaged in a "verbal altercation" with the officers, he did not threaten them. Hammond showed the officers his driver's license, told the officers his registration and license were inside the van, and offered to retrieve them. Officer Hofmeyer's partner told Hammond he could not go inside the van, but the officers would retrieve the registration from the van. The officers prohibited Hammond from getting the registration "for officer safety" reasons because they were concerned there might be weapons inside the van.

The officers placed Hammond in handcuffs "once he became belligerent" and was "yelling" at them. Hammond told the officers he did not want the officers to retrieve the documents from his van and he asked the officers to call a supervisor. After two supervisors arrived, Officer Hofmeyer walked to the van and "immediately when [he] opened up the van [he] smelled a strong [odor] of marijuana." Officer Hofmeyer searched the van anddiscovered a large bundle on the folded-down back seat. He cut it open and saw a compressed plant-like material resembling and smelling like marijuana.

The officers arrested Hammond and searched him. They recovered from the pockets of his shorts a plastic sandwich bag, containing a white powdery substance resembling cocaine, and $1,145 in cash. Officer Hofmeyer concluded Hammond possessed the drugs with the intent to sell because of the "sheer quantity" of the drugs, the absence of any paraphernalia used to smoke marijuana, and the fact the money the officers found was in miscellaneous denominations.

Officer Hofmeyer's partner asked Hammond if the officers could search the tattoo shop. Officer Hofmeyer could not recall the exact words Hammond used, but testified that Hammond, who "had calmed down somewhat by then," said, "Yes, go ahead and search it. Anything that you find in there is mine." The officers did not ask Hammond whether he owned the tattoo shop.

The officers searched the shop and found boxes containing three handguns. Inside one of the boxes was paperwork with Hammond's name on it and the address of 2206 South San Pedro Street. The officers also found paperwork in the shop with the names of other people. The officers ran a check on the guns and found that none of them was stolen or registered to Hammond.

B. The Motion To Suppress

Following his arrest, Hammond filed a motion to suppress under Penal Code section 1538.5 in the preliminary hearing court. At the hearing on the motion to suppress, counsel for Hammond objected to Officer Hofmeyer's testimony that Hammond gave the officers permission to search the tattoo shopand that Hammond said anything they found was his. The trial court sustained Hammond's objection to the admission of his statement that the officers could search the tattoo shop because they obtained it in violation of Miranda v. Arizona (1966) 384 U.S. 436. Counsel for Hammond also asked the court about having Hammond testify only about the search of the tattoo shop and whether he gave consent to the search, with a corresponding limitation on the scope of cross-examination:

"[Counsel for Hammond]: I may put on my client for a limited question as to whether he gave consent to search the shop. But before I get there, I will like to argue what we have done so far, because I can ask him one question and they have no right to go into -

"The Court: Yes, they do. If he is on the stand and he testifies, they can ask him what they wish.

"[Counsel for Hammond]: I can put him [on] for the limited purpose of the search.

"The Court: That's your choice.

"[Counsel for Hammond]: But they can't - All right. Will you stipulate he'll testify that he did not give permission?

"[The Prosecutor]: No.

". . . .

"[Counsel for Hammond]: Then it will be beyond the scope - that's the only question I'm going to ask him.

"The Court: That's your choice and it's his right to testify or not.

"[Counsel for Hammond]: I understand that, but they have no right to go into the entire scenario of events as to what he owns, what he doesn't own. I'm only putting him on for thislimited issue. I want to make that clear. I have cases that will suggest that's the law.

"The Court: That's not the law. And if you want to put your client on, he agrees to testify, that's fine, but you can't decide what they're going to ask him.

"[Counsel for Hammond]: I understand that, but I am not putting him on for all purposes.

"The Court: But that's your choice.

"[Counsel for Hammond]: I'm not putting him on under those circumstances."

Counsel for Hammond argued that Hammond did not give the officers consent to search the van and that the court should suppress the evidence the officers seized, including the bundle of marijuana and the cocaine in Hammond's pocket. Counsel for Hammond further argued that any consent Hammond may have given to search the tattoo shop was invalid because the arrest was illegal. Finally, counsel for Hammond argued that, because the officers found paperwork in the tattoo shop belonging to other individuals, the court could not conclude Hammond possessed the guns.

The prosecutor argued that officer safety justified the officers' entry into the van to retrieve the vehicle registration and that the search of Hammond's person was a valid search incident to his arrest for possession of marijuana. Finally, with respect to the search of the tattoo shop, the prosecutor argued that, after the court struck Hammond's statement that anything the officers found in the tattoo shop was his, Hammond could not move to suppress evidence of the guns because he had no reasonable expectation of privacy in the shop.

The court denied the motion to suppress. The court ruled there was "probable cause" for the stop, given Officer Hofmeyer's testimony describing the illegal U-turn and double-parking. Noting the "dark tinting" on the windows of the van precluded the officers from "see[ing] inside the van," the court ruled it was "reasonable" for the officers to retrieve the registration and proof of insurance "in light of officer safety." The court further stated there was "probable cause" to search the van. As for the guns, the court ruled that, although there was no evidence Hammond owned the tattoo shop, there was evidence he possessed at least one of the guns because the officers discovered a letter addressed to Hammond in the box where they found the gun.

C. The Renewed Motion To Suppress and the Motion To Set Aside the Information Under Penal Code Section 995

Pursuant to Penal Code section 1538.5, subdivision (i), Hammond renewed his motion to suppress in the trial court before a different...