People v. Osborne

• Decision Date: 14 July 2009
• Docket Number: No. A121195.,A121195.
• Citation: 96 Cal. Rptr. 3d 696,175 Cal.App.4th 1052
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE OSBORNE, Defendant and Appellant.

175 Cal.App.4th 1052

96 Cal. Rptr. 3d 696

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE OSBORNE, Defendant and Appellant.

No. A121195.

Court of Appeals of California, First District, Division Four.

July 14, 2009.

Clifford Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Sharon Wooden and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SEPULVEDA, J.—

Defendant was convicted¹ of possession of a controlled substance for sale (Health & Saf. Code, § 11378) with an enhancement for being personally armed with a firearm (Pen. Code, § 12022, subd. (c)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)),² with an enhancement for being personally armed with a firearm (Pen. Code, § 12022, subd. (a)(1)), and was sentenced to six years in state prison.³ He appeals, challenging the trial court's denial of his motion to suppress pursuant to Penal Code section 1538.5. We find no error and affirm.

BACKGROUND

The following evidence was adduced at the motion to suppress.⁴ Officer Michael Malone of the Antioch Police Department was on patrol with his partner Officer Ryan Andelin on the afternoon of December 21, 2006. As they drove on West Sixth Street they observed defendant standing next to a green Lexus. The trunk of the Lexus was open and defendant appeared to be handling exposed wires in the trunk. Defendant looked up and, apparently seeing the patrol car, immediately shut the trunk of the Lexus and walked away from it. Defendant appeared "real nervous."

Officer Malone saw a second man in a driveway nearby; this individual ran when he observed the patrol car. The officers pursued this individual (later identified as "Pierce") and quickly apprehended him. Defendant approached the officers from the rear and Officer Malone ordered him to step back. Malone was concerned because defendant was quite large—approximately six feet tall and 240 pounds. Malone indicated that defendant was larger in stature than he.

Defendant walked back to the Lexus, about 10 yards away; he sat in the driver's seat. Meanwhile, Officer Andelin told Officer Malone that he thought defendant was on parole. Malone walked over to the Lexus and looked inside, observing that the interior front passenger door panel was stripped off, and that the trim on the dashboard around the stereo system had also been removed. There were loose wires protruding from both areas, and tools, including screwdrivers and pliers, were strewn about in the front passenger area. Officer Malone, who had been a police officer for some four years, suspected that defendant was burglarizing the Lexus, based upon his knowledge from investigating "thousands" of auto burglaries. While the type of tools observed could have been consistent with doing repair work on a car, they were also consistent with use in burglarizing a vehicle.

Officer Malone was concerned for his safety and asked defendant to get out of the Lexus; defendant complied. Malone prepared to patsearch defendant by placing defendant's hand toward the rear of his body, and noticed that defendant was "real nervous." The officer therefore handcuffed defendant and asked if he had a gun. Defendant indicated that he had a gun in his left front pants pocket and volunteered that he had been released from parole recently. When Officer Malone patted down defendant's left front pants pocket, he did not feel a gun, but did locate one in his right front pants pocket. Malone removed a loaded nine-millimeter semiautomatic handgun.

Officer Malone then removed a backpack from the right front floor of the Lexus and opened it, finding a pouch containing a loose, white crystal substance, a green plantlike substance, and several pills. He learned that the Lexus was registered to defendant and that defendant had been released from parole a few months earlier. Initially, Malone said he learned this information "contemporaneous with" the detention, but later indicated that it was shortly after the arrest of defendant. Malone did know that defendant owned the Lexus prior to his opening of the backpack. His patsearch of defendant occurred within 20 to 30 seconds of his approaching the Lexus.

Defendant testified at the motion to suppress, and he indicated that after he exited the Lexus at the officer's request, as soon as Malone started to move his hand behind his back, defendant raised his hands in the air and said, "I am not on probation or parole. I have my discharge card in my wallet. I refuse consent and you don't have a right to search me." Defendant testified that Officer Malone replied, "Oh, it doesn't matter," and then handcuffed and searched him.

Based on this evidence, the trial court denied defendant's motion to suppress, finding that the officer was justified in detaining defendant and in patsearching him. Once the officer located the gun on defendant's person, he had probable cause to arrest him and search the vehicle pursuant to arrest.

DISCUSSION

Defendant contends that Officer Malone's actions in detaining him and conducting a patsearch were in violation of the Fourth Amendment. Our standard of review on such issues is clear: we defer to the trial court's factual findings, whether express or implied, if supported by substantial evidence, and independently apply the law in evaluating the reasonableness of the police conduct. (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].) Applying these standards, we disagree with defendant's contentions and affirm the decision of the trial court.

A. Initial detention of defendant was justified.

(1) Defendant first contends that Officer Malone was not justified in detaining him. A suspect may be detained if an officer has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. (Terry v. Ohio (1968) 392 U.S. 1, 30 [20 L.Ed.2d 889, 88 S.Ct. 1868] (Terry).) The officer "`must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant'" his action. (People v. Glaser, supra, 11 Cal.4th at p. 363.) This is a totality of the circumstances evaluation, in light of the officer's training and experience. (United States v. Cortez (1981) 449 U.S. 411, 417-418 [66 L.Ed.2d 621, 101 S.Ct. 690].) As our high court has reiterated, "we have said repeatedly that they [reviewing courts] must look at the `totality of the circumstances' of each case to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.' [Citations.] Although an officer's reliance on a mere `hunch' is insufficient to justify a stop [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard [citation]." (United States v. Arvizu (2002) 534 U.S. 266, 273-274 [151 L.Ed.2d 740, 122 S.Ct. 744].) Finally, as the court in Arvizu cautioned, a reviewing court should not apply a "divide-and-conquer" analysis in determining if the officer's conduct was reasonable, as factors which by themselves were "`quite consistent with innocent'" activity may collectively amount to reasonable suspicion. (Id. at pp. 274-275.)

Applying this standard of review, we find that Officer Malone's initial detention of defendant was more than reasonable. Defendant was first observed standing by the open trunk of the Lexus, holding loose wiring. Defendant looked up and saw the police car; he then quickly closed the trunk and walked away from the car. Malone indicated defendant appeared "real nervous."⁵ Another individual who was close by ran upon seeing the officers. Defendant came up behind the officers as they detained this individual. Defendant obeyed Officer Malone's command to step back, and went and sat in the Lexus. When Malone contacted him there, the officer observed several tools (screwdrivers, pliers, etc.) strewn across the passenger compartment and the right side interior passenger door panel "was completely stripped off with exposed wires." The trim in the dashboard area surrounding the stereo system had been removed and wires were exposed there, as well. Based upon these facts, Officer Malone, who had been a police officer for some four years and who had participated in thousands of auto burglary investigations, suspected that defendant was either burglarizing or stripping the Lexus. He ordered defendant out of the vehicle and detained him for further investigation. Under the totality of these circumstances, Officer Malone's action in detaining defendant was more than reasonable. Indeed, a reasonable officer would arguably have been remiss in his duties had he not detained under these circumstances.

B. Patsearch of defendant was justified.

Defendant next contends that Officer Malone was not justified in conducting a patsearch of his person. As Officer Malone explained, he conducted the patsearch because "individuals involved in the stripping and/or burglary of cars or ... involved in auto thefts are often armed with objects or dangerous instruments, which could be a hazard to me. [¶] Also there was [sic] pliers or screwdrivers adjacent to his arm wingspan, which could be potentially dangerous and threatening toward me."

(2) The basic rule is agreed upon by all: in order to patsearch a suspect, an officer must have a reasonable suspicion that he is presently armed and dangerous. (Terr...