People v. Profit

Decision Date24 July 1986
Citation229 Cal.Rptr. 148,183 Cal.App.3d 849
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Appellant, v. Dwayne Irvine PROFIT et al., Defendants and Respondents. Crim. B010122.

Wilbur F. Littlefield, Los Angeles County Public Defender, Laurence M. Sarnoff, Thomas Case, and Victor Salerno, Deputy Public Defenders, under appointment by the Court of Appeal, for defendant and respondent Dwayne Irvine Profit.

James M. Hallett, Manhattan Beach, under appointment by the Court of Appeal, for defendant and respondent Robert Maurice Dawkins.

No appearance for defendant and respondent Bernie Raymond Manuel.

L. THAXTON HANSON, Associate Justice.

INTRODUCTION

The People appeal from the superior court's granting defendants' motion made pursuant to Penal Code section 995 1 to dismiss the information based on the ground of violations of defendants' Fourth Amendment rights.

Pursuant to California Rules of Court, rule 12a, we have augmented the record on appeal by ordering up the superior court file with all exhibits (file No. A 909742) and have examined same.

PROCEDURAL HISTORY

On October 30, 1984, a preliminary hearing was conducted in Division 91 of the Los Angeles Municipal Court (Hon. Richard G. Berry, Judge Presiding). Motions by defendants Profit, Dawkins and Manuel to dismiss the complaint based on violation of their Fourth Amendment rights were denied. Defendants were held to answer. Bail was set at $50,000 each.

On November 13, 1984, the District Attorney of Los Angeles County filed an information charging all three defendants with the felony of "possession for purpose of sale of a controlled substance, to wit, phencyclidine" [PCP] on October 15, 1984, in violation of Health and Safety Code section 11378.5. In a second count, defendant Profit was charged with assault with a deadly weapon (PCP) by means of force likely to produce great bodily harm upon a peace officer (Justin Moore) in violation of section 245, subdivision (b). The court appointed separate counsel at public expense to represent each of the defendants.

On January 8, 1985, all three defendants made a motion to dismiss the information (charges) in the superior court, department SWK (Hon. Edward A. Hinz, Jr., Judge Presiding) pursuant to section 995 on the grounds that their Fourth Amendment rights were violated. By stipulation of all counsel, the hearing was based solely on the testimony contained in the transcript of the preliminary hearing. The court granted the motion of all three defendants. The People appeal.

FACTS

As noted, the section 995 motions in the superior court to set aside the information were submitted solely upon the transcript of the preliminary hearing conducted in the municipal court on October 30, 1984.

At the preliminary hearing, Federal Agent Lynn Wood was the only witness who testified about events leading to defendants' arrest. Wood, a special agent with the United States Department of Justice, Drug Enforcement Administration (DEA), had 16 years of training and experience in the investigation of controlled substances, including about 100 cases involving possession for sale of PCP. Wood was assigned to the Los Angeles International Airport detail.

Agent Wood's testimony is undisputed. The defendants called no witnesses and did not personally testify at either the preliminary hearing in the municipal court or the section 995 hearing in the superior court.

Agent Wood's testimony, in relevant parts, can be summarized substantially as follows:

At the time of the events under review--October 15, 1984 at approximately 1:15 p.m.--Agent Wood was near the American Airlines ticket counter at Los Angeles International Airport when he observed defendants Profit, Dawkins and Manuel enter the American Airlines ticket counter area. They appeared extremely nervous, carried very little luggage, and separated as they approached the ticket counter, with Dawkins and Manuel staying behind while Profit paid cash for three airline tickets. He noted especially that Dawkins was looking all around the area and on several occasions turned his back on Profit. After the tickets were purchased, all three defendants continued looking around and over their shoulders as they departed the ticket area through the luggage scanning mechanism and walked down a long hallway toward the boarding gates.

In the American Airlines boarding area, defendants were unable to board because no seats were available in the aircraft. The three defendants showed signs of "extreme nervousness." Agents Wood and Woessner walked toward the three defendants. Defendant Profit was in front, followed by defendant Manuel. Agent Wood, in plain clothes, approached defendant Profit. Agent Wood said, "I am a federal narcotics agent, I would like to talk to you a minute," displayed his badge, and advised Profit that "you are not under arrest, I am not detaining you, you are free to leave and not speak to me if you don't want to."

As Agent Wood was identifying himself to Profit, with Manuel close by, defendant Dawkins dropped back behind defendants Profit and Manuel and changed his direction of movement. Agent Wood motioned for Dawkins to join the other two, which he did. (Wood testified that he motioned Dawkins over to join Profit and Manuel because it was his opinion that all three defendants were together and Dawkins was trying to avoid apparent association with the other two.)

Agent Wood then spoke to all three defendants as a group. Wood identified himself and explained to all three defendants that he was conducting a narcotics investigation; that he would like to talk to them; and that if they did not wish to talk with him they were free to leave at any time. All three defendants acknowledged that they understood by saying "Yes, I understand," nodding of a head, or responding "uh-uh" in a positive manner. "None of them made an attempt to leave".

When Agent Wood asked all three defendants if they had any identification, they stated that they did not have any. Defendant Profit handed over the three airline tickets he had purchased with cash and said "here are our tickets." After looking at the tickets, Agent Wood gave them back to Profit. 2

When asked how long they had been in Los Angeles, all three defendants responded that they had been in Los Angeles about two weeks, visiting relatives. Agent Wood then asked all three if they were carrying narcotics in their luggage; all said "no."

Agent Wood then asked defendant Profit if he could look in his briefcase and he (Profit) said, "Yeah," whereupon Profit opened his briefcase "by turning the combination lock and pulling the latches." After the briefcase was opened, Agent Wood observed "immediately inside the briefcase, laying on top, a large, legal-sized, yellow tablet with certain notations on it in pencil." [People's Exhibit 1--see Appendix A]. (Agent Wood testified that based on having seen similar "pay-and-owe" and price per ounce notations on several hundred occasions and investigations, he believed that the yellow tablet was a narcotics sales ledger sheet.)

Agent Wood also observed in the open briefcase an American Airlines ticket coupon bearing the name "Robert Webb," indicating travel from Dallas, Texas on October 13, 1984 [People's Exhibit 2--See Appendix B]. This name did not match "Haywood Hill," the name on the American Airlines ticket Profit had handed Wood and the name by which Profit identified himself to Wood. Agent Wood then asked Profit if he was Mr. Webb and had in fact traveled to Los Angeles two days prior.

Profit became noticeably more nervous, "gave no verbal response and began to perspire heavily and his hands began to shake." Profit said, "This is pretty embarrassing." Agent Wood asked Profit if he would like to continue the conversation in Wood's office. Profit replied, "Yeah, let's do that," or "Yeah, that's a good idea." Agent Wood turned to Dawkins and Manuel and said, "Is that okay with you?" Both gestured affirmatively. Agent Wood a third time told defendants that they were not under arrest and were not being detained, that this was strictly a voluntary situation on their part, and that they could leave at any time they wished.

The party--Agents Wood and Woessner, and the three defendants--then started walking toward the front of the terminal to the DEA office, with Profit carrying his briefcase 3 and the three airline tickets (see fn. 2, supra ). When Agent Moore joined them en route, Profit asked who he was. Agent Wood answered that Moore was another federal agent working with them.

When they stopped near the Trans World Airlines area, Profit asked if he was free to leave and Agent Wood told him that he was. Profit then asked what would happen if he had just a little marijuana in his pocket. Agent Wood advised him that if it was under an ounce a citation would be written and he could still catch the next American Airlines flight, which was at 3:30 p.m. (Agent Wood testified that initially the three defendants were not suspects but rather subjects of an investigation. After Profit asked Agent Wood what would happen to him if he had a small amount of marijuana in his pants or in his possession, he (Profit) became a suspect.)

The group walked 100 or 150 yards further. When they arrived in the vicinity of the door of the DEA office, Profit again wanted to know if he was under arrest. Agent Wood again told him that he was not under arrest and that all three were free to leave. 4 Suddenly Profit struck Agent Moore in the chest and face with his hands and started to run away at full speed. Agent Moore regained his balance and began to pursue Profit. When Agent Moore was about ten feet behind Profit, Profit (who was wearing a sport coat) reached into his waistband, produced a...

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