People v. Rios

• Decision Date: 19 March 2014
• Docket Number: B248098
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. VICTOR ANTHONY RIOS, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. VICTOR ANTHONY RIOS, Defendant and Appellant.

B248098

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

Filed: March 19, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA100642)

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Victoria B. Wilson, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Victor Anthony Rios appeals from a judgment following a negotiated plea to possession of a controlled substance. Rios contends that the trial court erred by denying his motion to suppress methamphetamine recovered following a patdown search by police. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At 10:17 p.m. on January 12, 2013 the El Monte Police Department received a report of loud music at an apartment complex. Officer Jesus Rojas and his partner, Officer Bryan Tromp, were dispatched to the complex. Pulling into a driveway, the officers saw Rios standing about five feet away from Nathaniel Gonzalez, who was holding a gun. The men appeared to be together. Gonzalez looked surprised when he saw the officers and threw the gun over a block wall as Rios stepped away from him. The officers heard the gun hit the ground and then a gunshot. They immediately placed Rios and Gonzalez in handcuffs. Officer Rojas subjected Rios to a "fairly quick" patdown search for weapons because he "was in fear that [Rios] might be associated with [Gonzalez] and might be in possession of a weapon . . . ," and had Rios sit on the pavement next to him. Officer Tromp placed Gonzalez in the backseat of the patrol car. Officers Rojas and Tromp, the only officers present, were intent on locating the gun and trying to control the scene until additional officers arrived. At the time, there were other individuals in the area of the driveway.

Officer Victor Ruiz arrived at the apartment complex at 10:25 p.m. to provide backup. Officer Ruiz took Officer Rojas' place beside Rios, who was still sitting on the pavement, so that Officer Rojas could interview a potential witness. Three to five minutes later, Rios began shifting his weight and moving around on his buttocks, leading Officer Ruiz to suspect that Rios might be concealing something.

Officer Ruiz asked Officer Tromp if Rios had been patted down for weapons. Officer Tromp replied Rios had been subjected to a "quick cursory search for weapons" because he and Officer Rojas had been focused on Gonzalez. At that point, Officer Ruiz was not confident Rios had been properly patted down. Officer Ruiz knew that the officers had seen Gonzalez with a gun, which they were in the process of recovering. Officer Ruiz also understood from the other officers that they ultimately might release Rios depending on the results of their investigation. Officer Ruiz wanted to make sure that if the officers released Rios, he was unarmed.

Officer Ruiz asked Rios to stand up so he could pat him down for weapons. Officer Ruiz testified at the suppression hearing that at that point he was searching for "[w]eapons or obvious contraband. When I say contraband, it could be anything that could be used as a weapon." When Officer Ruiz asked Rios to place his legs shoulder-width apart, Rios initially complied but then moved his legs back together three separate times. Officer Ruiz suspected Rios had placed an object in his rectum or groin area and was trying to keep it from dropping to the ground. When Officer Ruiz patted down Rios he felt a hard object about an inch-and-a-half long in the area of Rios' rectum or groin. Officer Ruiz stated, "I ran my hand up the leg [and] ran it up high into the groin, and that's when I felt a hard object . . . high up in the groin and/or rectum area, and at that point I knew . . . that there was something that was unusual there and I asked him what it was." Rios said it was a piece of glass he had picked up. Officer Ruiz explained at the hearing, "I didn't manipulate the object. All I can tell you is that I felt a hard object in a region that was uncommon on the human body to have a hard object there, which is what caught my attention."

After Officer Ruiz asked if he "could get it," and Rios consented, the officer tugged on the object over Rios' clothing in an attempt to remove it. When that proved unsuccessful, Officer Ruiz asked Rios if he had "keistered" the object or secreted it in hisrectum.¹ Rios said, "No." Rios then said that the object was loose in his pants. Officer Ruiz "unbuckled [Rios'] pants and opened the waistband and looked down into the pants to see if it was loose like he said," but Officer Ruiz "did not see it." Moments later the item came out of Rios' pant leg onto the ground and shattered. Rios attempted to step on it, and Officer Ruiz removed him from the area. Officer Tromp retrieved the object, which was a broken glass pipe. Inside the pipe was a plastic bag containing methamphetamine.

Vivian Hernandez, a defense witness at the suppression hearing, testified that she lived at the apartment complex on the night Rios was detained, handcuffed, and searched. She initially testified that the officers put on gloves, pulled down Rios' pants, and searched his buttocks. On cross-examination, however, Hernandez indicated she did not have a clear view of the events and did not see the officers put their hands inside Rios' pants or into his buttocks.

At the conclusion of the hearing, counsel for Rios moved to suppress the methamphetamine and any statements by Rios, contending that the patdown search Officer Ruiz conducted was the fruit of an unduly prolonged detention. In the alternative, counsel for Rios argued that Officer Ruiz subjected Rios to an impermissible patdown search for weapons without articulable facts indicating Rios might be armed.

In denying the motion, the trial court determined that the serious nature of the underlying criminal activity coupled with the discarded weapon and gunfire justified Rios' brief detention. The court stated, "I think what's serious here is the underlying crime that was being investigated . . . . [Rios was] standing within a few feet of a man who, upon see[ing] police, throws a gun over the fence and [the] gun goes off and expels a bullet. I think the police were more than justified in detaining both people and conducting an investigation to make sure that—to find out who was involved with that weapons violation." As for the patdown search of Rios, the court concluded it waswarranted for officer safety where Rios was squirming on the ground and the initial patdown search may have not been sufficiently thorough to discover a weapon. The court explained, "So I think the officer that did the search, Ruiz, testified that the purpose of the search was he felt uncomfortable because [Rios] was sitting on the ground squirming around. They were investigating a gun possession discharge . . . . I think the second patdown search was justified because there are situations where an initial pat down search may not be thorough and may not reveal a weapon. . . . So I think the officer was justified for his safety reasons to conduct a patdown search, and then when he found the hard object and [Rios] said it was glass, there are cases . . . where objects that feel like weapons are upheld, one of them a large bottle, a flashlight. . . . So I think in this situation the officer was justified in conducting the search. When he felt the object he asked [Rios] what it was, [and] he said, glass. I think at that point it becomes more dangerous because we don't know what type of glass it was, and then retrieving the object was part and parcel of that."

DISCUSSION

A. Standard of Review

In reviewing the trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, when supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979.) The trial court has the authority to judge credibility, weigh evidence, and draw factual inferences. (Ibid.) In determining whether the search or seizure was reasonable under the facts found by the trial court, however, we exercise our independent judgment. (Ibid.; see Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.)²

B. Law Governing Detentions and Patdown Searches

"'Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty.'" (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 319, quoting In re Manuel G. (1997) 16 Cal.4th 805, 821.)

A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains the individual's liberty. (Brendlin v. California (2007) 551 U.S. 249, 254 [127 S.Ct. 2400, 168 L.Ed.2d 132]; People v. Zamudio (2008) 43 Cal.4th 327, 341; People v. Bates (2013) 222 Cal.App.4th 60, 65.) A police officer may detain an individual only if the officer has a reasonable, articulable suspicion the detainee has been, currently is, or is about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889...