The People v. Perkins, A126656

CourtCalifornia Court of Appeals
Writing for the CourtDondero, J.
Decision Date20 August 2010
PartiesTHE PEOPLE, Plaintiff and Respondent, v. BRANDON JAMAL PERKINS, Defendant and Appellant.
Docket NumberA126656,No. FCR-262801

THE PEOPLE, Plaintiff and Respondent,
v.
BRANDON JAMAL PERKINS, Defendant and Appellant.

A126656
No. FCR-262801

Court Of Appeal Of The State Of California
First Appellate District
Division One

Filed: August 20, 2010


Dondero, J.

After defendant's motion to suppress was denied, he entered a plea of no contest to possession of a concealed weapon (Pen. Code, § 12025, subd. (a)(2)). In this appeal he renews his challenge to a detention and patsearch that resulted in the seizure of a firearm from inside his jacket. We find that the detention and patsearch were based upon adequate cause, and affirm the judgment.

STATEMENT OF FACTS

On the night of January 23, 2009, Mark Scharz, an armed security guard at the Suisun Village Apartments in Suisun, observed defendant standing with "two other males" at the intersection of Almond Street and Whispering Bay Lane. Defendant was wearing a camouflage jacket and baggie blue jeans. From about 50 or 60 yards away, "three times" Scharz noticed that vehicles "pulled up" in proximity to defendant. Each time, defendant went to the passenger side window and put his arm inside, after which the vehicles left and defendant returned to his two companions at the concrete dividers.

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Due to the darkness and his distance from the activity, Scharz could not see an exchange of anything between defendant and the occupants of the vehicles.

Scharz believed that he had witnessed drug transactions. During the two and a half years he worked at the Village Apartments as a security guard, he observed defendant engage in the same activity "[n]umerous times." The area, known as "the Maze," is "very well known for narcotics sales," domestic violence and shootings. On many previous occasions Scharz called the police to report drug transactions, which resulted in arrests. He was "not trained in narcotics," but had been "trained to observe and report criminal activity."

Scharz called the cell phone number of Officer Souza of the Suisun Police Department to leave a message that he believed narcotics transactions were taking place. When Officer Souza called back around 9:45 p.m., Scharz reported that he observed narcotics "sales going on," and provided a description of the "three males that were out there."

Officers arrived at the scene about 10 to 15 minutes later. Officer Eric Riley received information from Officer Souza that three African-American males "at the end of Almond Street, at the concrete dividers," were "possibly selling narcotics." He was also given "clothing descriptions," including information that one "male had a camouflage jacket on."

Officer Riley arrived with Officer Arroyo; they met Officers Souza and Martinez at the scene. Officer Riley observed defendant, who was wearing a "camouflage rain coat," walking with two other "Black males" on the concrete dividers at the end of Whispering Bay Lane. They "looked a little nervous and were kind of trying to get away" from the officers at a "fast pace." Defendant appeared to throw something away. Officer Riley decided to conduct "a pedestrian stop and contact[] the individuals."

Officer Jose Martinez testified that he also received a report from Officer Souza of "four Black males possibly dealing drugs" at the Village Apartments. When Officer Martinez arrived at the scene he received another broadcast from Officers Riley and Arroyo that "there were three individuals walking away" quickly from Whispering Bay

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Lane and Josiah Circle. Martinez observed defendant "wearing a camouflage rain coat with jeans," standing on the corner with two other individuals. Defendant seemed to be "nervous" as Officer Martinez approached him. Defendant raised his hands and "was shifting his head side-to-side, scanning the area." With defendant's hands raised, Officer Martinez noticed a "bulge in his waist line" that appeared to be in the form of a gun. He thought defendant was "trying to conceal a weapon," because of his "demeanor," behavior, and the "type of call, drug dealing." Officer Martinez was aware from experience that "drug dealers often armed themselves" for protection.

Officer Martinez informed defendant that he "was going to pat him down for weapons." The bulge turned out to be a back brace "sticking out" of defendant's jacket. The officer followed the back brace inside defendant's jacket up to his rib cage, and "felt the butt of the gun or the handle of a gun." He secured the gun, a loaded Smith and Wesson semi-automatic, and placed defendant in custody. No drugs were found during a search of defendant.

DISCUSSION

Defendant presents two objections to the warrantless patsearch and resulting seizure of the gun. First, he argues that the officers did not have the requisite reasonable suspicion of criminal activity to detain him. He adds that the subsequent patsearch and seizure of the gun was the product of the unlawful detention. He requests that we vacate the judgment and suppress the evidence of the gun.

As with all Fourth Amendment inquiries, we evaluate the search in accordance with the ultimate standard of reasonableness by balancing the scope of the particular intrusion upon defendant's privacy, the manner in which it is conducted, the justification for it, and the "degree to which it is needed for the promotion of legitimate governmental interests." (Wyoming v. Houghton (1999) 526 U.S. 295, 300; see also Michigan v. Summers (1981) 452 U.S. 692, 699-701; People v. Smith (2009) 172 Cal.App.4th 1354, 1364.) "In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We

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independently review the trial court's application of the law to the facts." (People v. Jenkins (2000) 22 Cal.4th 900, 969.) "Because the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences is vested in the trial court, on appeal all presumptions favor the trial court's proper exercise of that power." (People v. Bowers (2004) 117 Cal.App.4th 1261, 1271.)

The "determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional." (People v. Coulombe (2000) 86 Cal.App.4th 52, 56.)" 'We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so.' " (People v. Lim (2000) 85 Cal.App.4th 1289, 1296, quoting from People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)

I. The Timing of the Detention.

Defendant claims that the officers "lacked an adequately particularized and articulable suspicion" that he "had committed or was about to commit a crime." He observes that the initial informant, security guard Scharz, did not observe any weapons, violent activity, or an exchange of items between defendant and the "three vehicles that passed by his location." He proceeds to argue that when Officers Riley and Martinez received the information from Scharz through Officer Souza that "three males were 'possibly selling narcotics' near the concrete dividers," they were unaware of the origin "or the reliability of that information." The officers subsequently "did not observe anything remotely resembling criminal conduct," complains defendant. Therefore, his argument concludes, no cause to initiate a detention existed when Officer Riley "activated his red police light and illuminated" defendant.

Our first task is to determine when the detention occurred." 'Although there is no "bright-line" distinction between a consensual encounter and a detention... "the police can be said to have seized an individual 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " ' [Citations.] ' "The test is necessarily imprecise, because it is designed to

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assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." ' [Citation.] 'The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.' [Citation.]" (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) We must make a realistic assessment of appellant's encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287; People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) "What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs." (People v. Ross (1990) 217 Cal.App.3d 879, 884.) "Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a...

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