People v. Limon

• Citation: 21 Cal.Rptr.2d 397,17 Cal.App.4th 524
• Decision Date: 28 June 1993
• Docket Number: No. H010016,H010016
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Victor Manuel LIMON, Defendant and Respondent.

Page 397

21 Cal.Rptr.2d 397

17 Cal.App.4th 524

The PEOPLE, Plaintiff and Appellant, v. Victor Manuel LIMON, Defendant and Respondent.

No. H010016.

Court of Appeal, Sixth District, California.

June 28, 1993.

Review Denied Sept. 29, 1993.

George W. Kennedy, Dist. Atty., Santa Clara County, Jay P. Dufrechou, Deputy Dist. Atty., for plaintiff and appellant.

Stuart Rappaport, Public Defender, Stephen Elrick, Deputy Public Defender, for defendant and respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

An information charged defendant Victor Manuel Limon with possessing heroin for sale (count one; Health and Saf.Code, § 11351) and possessing cocaine for sale (count two; Health and Saf.Code, § 11351). Defendant made an unsuccessful suppression motion at his preliminary hearing. He renewed the suppression motion in the superior court based on the transcript of the preliminary hearing and on further testimony. (Pen.Code, § 1538.5, subd. (i).) The superior court granted defendant's motion and concluded that the police did not have probable cause to remove a closed key box from defendant's pocket. The People indicated they were unable to proceed in light of the court's ruling and the superior court dismissed the case.

On appeal the People contend that the police had probable cause to remove the closed key container from defendant's pocket. For the reasons stated below, we agree and reverse the order of dismissal.

Facts

The facts are essentially uncontradicted. " 'Insofar as the evidence is uncontradicted, we do not engage in a substantial evidence review, but face pure questions of law.' [Citation.]" (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1224, 266 Cal.Rptr. 473.) Any conflicts in the evidence are resolved in favor of the superior court ruling. (Ibid.)

On March 9, 1992, at 12:30 p.m. San Jose Police Officer Paul Panighetti and his partner Officer Shuper were walking to their patrol car across a grassy field of the Arbuckle Elementary School. Officer Panighetti testified that he saw the following events occur about 200 yards away. Defendant wearing a red cap, was standing near another male at the rear of a carport of an apartment complex near the elementary school. Defendant walked about 10 feet away to a pickup truck, bent down near the right front wheel well, removed something, and walked back to the other male. The men touched hands. At the preliminary examination, Panighetti testified that he saw the men exchange something, although he could not see what they exchanged. At the superior court hearing, he clarified that he could not see what was in their hands. Defendant walked back to the truck and placed something where he had previously removed something. The other fellow walked out of the carport and out of Panighetti's view. This took a minute or less.

Panighetti and his partner, Officer Shuper, walked over to investigate. They were in plain clothes.

Panighetti lost sight of defendant for about a minute as Panighetti walked around some apartments. When he next saw defendant, defendant was wearing the same red cap, standing at his original location, and talking to a woman who was sitting in a car.

As Panighetti and Shuper approached defendant, Panighetti saw two other males standing about ten to fifteen feet from defendant near a car in the carport. Other individuals were twenty to thirty feet away in a walkway between two apartment buildings.

Shuper approached defendant while Panighetti walked up to the two men. Shuper asked defendant to step away from the car containing the woman. Panighetti asked the two men to step away from the building. While Panighetti was talking with the two men, he noticed a syringe on a pile of junk next to an open car in the carport.

When all three suspects were together, Panighetti pat-searched them. Defendant was cooperative and not aggressive. Defendant did not reach for his pocket.

In defendant's left front pants pocket, Panighetti felt a hard, rectangular object about three inches long, one and one-half inches wide, and three-quarters of an inch deep. Panighetti did not recognize it by touch.

Panighetti asked defendant in English what was in his pocket. Defendant did not appear to understand the question. Panighetti pulled defendant's pocket open and looked in. Panighetti saw a hide-a-key box with a magnet on the back.

Panighetti removed the box from defendant's pocket and told Shuper to ask defendant in Spanish if he could look inside. Shuper talked to defendant. Defendant replied. Shuper told Panighetti to go ahead and look inside. Inside Panighetti found four packages of heroin and two packages of cocaine. Shuper found nothing in the truck's wheel well.

The above observations of defendant's conduct had a special significance to Officer Panighetti due to his training and experience in investigating drug crimes. He had been working in the narcotics unit for four years and had participated in over seven hundred investigations involving heroin and cocaine. He explained as follows.

Panighetti thought he saw a drug transaction when defendant removed something from near the truck's wheel well and handed something to a man who then left. When he saw defendant talking to a woman sitting in a car, Panighetti thought it was another buyer.

In Panighetti's experience, street-level drug dealers sell drugs on the streets and in carports. Buyers walk or drive up, engage in a quick transaction, and leave. The dealers often hide their drugs nearby and retrieve them as needed.

Panighetti was familiar with defendant's location. It was designated in San Jose as a crackdown area for drugs and weapons. The area is known for gang activity, violence, and drugs. Although Panighetti could not provide statistics, he had seen about 20 drug transactions in that large block of apartment buildings.

Employees of the nearby elementary school told Panighetti they had seen drug transactions in the carports. Panighetti had seen three or four drug transactions in the same carport over the past six and one-half years. He had arrested someone in the past three months for buying crack cocaine in the same carport.

When Panighetti saw a syringe in the carport, it confirmed his suspicion about drug activity. Syringes are commonly used to inject narcotics.

Panighetti had three reasons for pat-searching defendant. One was that Panighetti and his partner were outnumbered not only by the three suspects but also by the other people in the immediate area. The second reason was that drug dealers often carry weapons, although Panighetti could not give a percentage. The third reason was that the area was known for weapons. Panighetti had arrested people carrying firearms, knives, and baseball bats in the area.

Panighetti testified: "I didn't know if he was armed and dangerous at that time, but I did believe that the propensity for him being armed was significant enough for me to pat search him." Panighetti acknowledged that he saw no weapon on defendant and had no idea whether he had a weapon.

When Panighetti felt the hard, rectangular object in defendant's pocket, he thought it might have been a knife, either folded or in a case.

When Panighetti saw the hide-a-key box in defendant's pocket, he "had a pretty good suspicion" that narcotics were inside. Panighetti had seen narcotics in a key case once before, although he could not recall the details.

Was defendant's detention justified?

Officer Panighetti acknowledged that what he observed was consistent with a person retrieving a key from a hide-a-key container for an associate. However, it also had a criminal connotation in light of Officer Panighetti's experience.

As this court explained in People v. Wilkins (1986) 186 Cal.App.3d 804, 231 Cal.Rptr. 1, a police officer can detain a person when the officer is aware of "specific and articulable facts" suggesting "that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity." (Id. at p. 809, 231 Cal.Rptr. 1.) A police officer's expertise can attach criminal import to otherwise innocent facts. (Cf. People v. Mims (1992) 9 Cal.App. 4th 1244, 1248, 12 Cal.Rptr.2d 335; People v. Medina (1972) 7 Cal.3d 30, 37, 101 Cal.Rptr. 521, 496 P.2d 433.)

Panighetti knew defendant's location as a site for drug activity. While a person cannot be detained for mere presence in a high crime area without more (People v. Aldridge (1984) 35 Cal.3d 473, 478-479, 198 Cal.Rptr. 538, 674 P.2d 240; People v. Loewen (1983) 35 Cal.3d 117, 124, 196 Cal.Rptr. 846, 672 P.2d 436; People v. Wilkins, supra, 186 Cal.App.3d at p. 811, 231 Cal.Rptr. 1; People v. Gallant (1990) 225 Cal.App.3d 200, 210, 275 Cal.Rptr. 50), this setting is a factor that can lend meaning to the person's behavior. (People v. Holloway (1985) 176 Cal.App.3d 150, 155, 221 Cal.Rptr. 394--detention; In re Frederick B. (1987) 192 Cal.App.3d 79, 86, 237 Cal.Rptr. 338--detention; People v. Mims, supra, 9 Cal.App. 4th at p. 1248, 12 Cal.Rptr.2d 335--arrest.)

Defendant was not merely present in a drug-ridden area. Defendant engaged in what appeared to be a hand-to-hand exchange. Though an exchange of an unrecognizable object for money on a street in a high crime area does not justify arrest (Cunha v. Superior Court (1970) 2 Cal.3d 352, 357, 85 Cal.Rptr. 160, 466 P.2d 704; Remers v. Superior Court (1970) 2 Cal.3d 659, 665-666, 87 Cal.Rptr. 202, 470 P.2d 11), it may justify detention if the area is known for drug sales.

In In re Frederick B., supra, 192 Cal.App.3d 79, 237 Cal.Rptr. 338, relied on by the People, a school security officer saw two high school students exchanging paper currency on school grounds. The officer was aware of two prior narcotics-related incidents in the same area. The court (1st Dist., Div. 4) held that the students' detention was justified since the students' behavior was consistent with the particular type of...