People v. Leath

• Decision Date: 20 June 2013
• Docket Number: B239508
• Citation: 217 Cal.App.4th 344,158 Cal.Rptr.3d 449
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brandon LEATH, Defendant and Appellant.

217 Cal.App.4th 344
158 Cal.Rptr.3d 449

The PEOPLE, Plaintiff and Respondent,
v.
Brandon LEATH, Defendant and Appellant.

B239508

Court of Appeal,
Second District, Division 4, California.

Filed June 20, 2013

See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 325 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA376905)

Michael Chelvam for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

SUZUKAWA, J.

[217 Cal.App.4th 346]

Following the denial of his motion to suppress evidence (Pen.Code, § 1538.5),¹ defendant Brandon Leath pled guilty to two counts of second degree robbery. (§ 211.) He now appeals from the judgment of conviction, urging that the trial court erred in denying his motion to suppress. We affirm.

FACTUAL AND PROCEDURAL HISTORY I. The October 7, 2010 Armed Robbery

On October 7, 2010, Osmara Merlo, Jorge Vasquez, and Daniel Guillen were robbed at gunpoint near the corner of 43rd Place and Sixth Avenue in Los Angeles. Two suspects approached in a dark SUV, pointed a gun at Merlo's head, and told her to give them her purse. When Vasquez and Guillen approached, the suspects pointed the gun at them and told them to empty their pockets. Vasquez handed the suspects an iPod, iPhone, and a Zune player, and the suspects took Guillen's phone and wallet from his pockets. The suspect with the gun then told Merlo, Vasquez, and Guillen to turn around and run.

Officers arrested defendant and codefendant Timothy Brewer shortly after the robbery. A subsequently filed information charged defendant with three

[217 Cal.App.4th 347]

counts of second degree robbery; it also alleged defendant had committed a serious or violent felony as a juvenile.

II. The Suppression Motion

On March 2, 2011, defendant moved to suppress all physical evidence seized from his person and vehicle, as well as all statements he made to the arresting officers, on the grounds that the arresting officers lacked probable cause or a reasonable suspicion to detain him.

The court held a hearing on the motion on April 29, 2011. Officer John Ishigami testified at the suppression hearing that on October 7, 2010, at about 11:30 p.m., he and his partner, Officer Quinata, were dispatched to investigate an armed robbery at 43rd Street and 6th Avenue in Los Angeles. The officers spoke to the three victims, who said they had been walking home when a dark SUV came towards them. The person on the passenger side of the SUV got out first, approached Merlo, pointed a gun at her, and said, “Give me your stuff.” She handed over her purse. Merlo's friends, Vasquez and Guillen, ran towards her to see what was going on, and the suspects “pocket checked” them at gunpoint. The suspects then said, “Four–Eighth Street. Start running.” Officer Ishigami said that “Four–Eighth Street” refers to a street gang in the area.

The victims described the suspects as African–American men, approximately 20 years of age. One suspect was wearing a blue Cardinals jacket. The victims said the SUV was either burgundy or dark in color. They were not able to otherwise describe the SUV.

While Officers Ishigami and Quinata were speaking to the suspects, two additional officers, Leary and Holliman, arrived. Officer Ishigami told Officers Leary and Holliman what they had learned—i.e., that the suspects were members of the Four–Eighth Street gang and were driving a dark SUV. Officers Leary and Holliman spoke to the victims for about two minutes and then left to search for the suspects' vehicle.

Several minutes later, Officer Ishigami learned that Officers Leary and Holliman had detained defendant about two blocks from the crime scene. He immediately drove to where defendant was detained. Officer Leary told Officer Ishigami that “this SUV never quite made it to the curb itself and the back passenger door was open. He said defendant Leath was walking up the driveway towards the house at that time and that's when [Officer Leary] says, ‘Hey, you know, you left your back door open.’ To which he said, ‘Oh, thanks. I did[,]’ or something to that effect. And that's when they end up taking him into custody, thinking that something was a little weird at that

[217 Cal.App.4th 348]

situation.” Officer Leary said he detained defendant because “the situation just seemed weird, this Four–Eighth Street, that was the area that the defendant or the suspects indicated that they were from. 48th Street was the street they just happened to be crossing upon. They were one block west of the location itself when they see a dark colored SUV traveling the other direction. They figure it's good enough for a stop. They pull around the corner. By then that car had already parked and people were already out of the vehicle, so they never got a chance to light them up or anything. They just talked to them.”

After defendant was taken into custody, Officer Quinata found victim Merlo's driver's license near defendant's vehicle. As Officers Ishigami and Quinata drove back to tell the victims that they might have a suspect in custody, they learned from a police broadcast that another suspect had been discovered underneath a car near defendant's SUV.

Officer Leary testified at the suppression hearing that when he arrived at the crime scene, Officers Ishigami and Quinata were speaking to the robbery victims. Officer Leary spoke to both the victims and the officers. The officers asked him to canvas the area for a dark SUV in the 48th Street clique area. He looked in that area because the suspects had said they were “Four–Eighth Street,” which is street vernacular for the 48th Street clique of the Rollin 40's street gang. As Officer Leary and his partner crossed the intersection of 48th Street and 4th Avenue, they saw a dark SUV traveling northbound on 3rd Avenue. The officers turned onto 48th Street and then onto 3rd Avenue. As they turned onto 3rd Avenue, they saw that the dark SUV had parked near the curb, “but not close, but kind of like it looked like in a hurry. And we saw the rear passenger door of the SUV open and we saw one male Black walking from the driver's side door up a driveway.” Officer Leary identified defendant as the individual he saw walking away from the vehicle. The officers got out of the car and Officer Leary said, “Hey, sir, you left your rear door open.” Defendant said, “Oh, oh, shit, I did,” and walked back toward the car. Officer Leary asked if the SUV was his, and defendant said yes. Officer Leary then asked what defendant was doing in the area. Defendant said either, “This is my friend's house” or “my cousin's house.” Officer Leary asked defendant's name and asked him if he had any identification. Defendant handed Officer Leary his identification card. At that point, the officers had not detained defendant. The officers ran defendant's name through their database and discovered “about a hundred thousand dollars worth of traffic warrants.” The officers then arrested defendant on the outstanding warrants. Approximately five to seven minutes passed from the time the officers arrived on the scene until they handcuffed defendant.

Officer Leary explained why he asked for defendant's identification as follows: “[W]e were investigating a robbery that just occurred. We had a—we

[217 Cal.App.4th 349]

heard the crime broadcast of a dark SUV. We have a dark SUV that we observed. It's not, I guess, normal to see a vehicle hit or park that fast on the curb and then have a rear door left open as one, you know, one person's walking away from the driver's side on [the] complete opposite end of the vehicle.”

When they realized defendant had open warrants, they arrested him. Minutes later, Officer Ishigami saw a California identification card on the grass. Officer Leary picked it up and saw that it belonged to the victim Merlo. Officer Leary then started canvassing the area and found several items in the grass, including an iPod. As he did so, he saw something moving under a nearby vehicle and discovered codefendant Brewer hiding under the vehicle. Brewer was wearing a red St. Louis Cardinals jacket. After Brewer was taken into custody, Officer Leary continued searching the area and found several items of the victims' property under the car where Brewer had been hiding.

The court denied the motion to suppress. It explained that when Officer Leary initially approached defendant, “in my estimation, [he] has a consensual encounter with Mr. Leath. He doesn't tell him to stop. He doesn't—he just calls out to him ‘Hey, you left your back door open. You left your car door open.’ He says it twice. And then Mr. Leath says, ‘Oh, yeah, I did.’ He voluntarily returns. The officer didn't order him to come back. He voluntarily returns. At this point I think ... the officer clearly is within his right to suspect that this defendant who is a young male Black who looks—who could clearly look to be in his twenties, I think—I would think that he could be in his twenties. He asked him his name. He asked him for—the defendant voluntarily hands him his I.D. He decides to run him and he comes back with [outstanding] warrants. At that point would there have been probable cause to believe he was the person engaged in the robbery? I don't think so, but at that point he—had it bec[o]me known that he had a hundred thousand dollars in arrest[ ] warrants, I think the officer was—had probable cause to investigate this, but notwithstanding that, I think the encounter with the defendant was consensual.... I think the Williams [²] case is distinguishable because in that case the police pulled over the car because they were merely—they had a mere curiosity, which the law does not favor. And then while—and then [they] took a bunch...