PEOPLE v. BERMUDEZ

Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Julian BERMUDEZ and Roman Esteban Dovalina, Defendants and Appellants.

No. B082586.

Decided: December 28, 1994

Joseph B. de Illy, Sacramento, for defendant and appellant Julian Bermudez. Michael D. Abzug, Los Angeles, for defendant and appellant Roman Esteban Dovalina. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Kenneth N. Sokoler, Deputy Atty. Gen., for plaintiff and respondent.

Julian Bermudez and Roman Esteban Dovalina each appeal their convictions by plea to conspiracy (Pen.Code, § 182) to possess a controlled substance for sale (Health and Saf.Code, § 11351) and to possess over $100,000 obtained as a result of the unlawful sale of cocaine (Health and Saf.Code, § 11370.6(a)).   The convictions resulted from pleas in which each appellant also admitted the allegations of a large quantity enhancement (over 10 kilograms;  Health and Saf.Code, § 11370.4, subd. (a)(3)).   The pleas and admissions were taken after the court denied Penal Code section 1538.5 suppression motions.   Arising as they do from pleas following denial of motions to suppress, appellants' claims that the trial court erred in denying the motions are cognizable on appeal despite their guilty pleas.  (Pen.Code, § 1538.5, subd. (m).)

The sole issues on appeal concern claims that the trial court erred in refusing to suppress evidence.   We find no error and affirm.

FACTUAL SUMMARY

The evidence before the trial court on the suppression motions consisted of the search warrant affidavit and evidence presented at the felony preliminary hearing.   Following is a summary of that evidence.

Agents of the California Department of Justice, Bureau of Narcotic Enforcement, were conducting an investigation on April 29, 1993.   All of the events pertinent to this appeal happened on that date.

The surveillance was initiated on the basis of information received “from a confidential reliable informant that the occupants of the residence were involved in narcotic trafficking.”   The residence is located on Clark Street in Van Nuys, a suburb of the City of Los Angeles.   The surveilling officers saw Bermudez exit the back door of the residence and get into a white Toyota Celica, which he drove to the corner of Clark Street and Van Nuys Boulevard.   He stopped at a restaurant there, where he made several calls from a set of pay telephones.   He then returned to the Toyota and drove to El Monte, eventually arriving at a residence on Cogswell Road.

Jerry Hunter, the agent in charge of the investigation, qualified as an expert in the field of narcotics, narcotics packaging, and narcotics trafficking.   He stated under oath that, based on this training and experience, Bermudez' driving was anti-surveillance, i.e., driving designed to avoid surveillance.   Bermudez took an indirect route to the Cogswell address, driving through residential areas, monitoring traffic through his side and rear-view mirrors, and stopping at corners for no apparent reason other than to monitor traffic before turning.

On arriving at the Cogswell address, Bermudez exited the Toyota and went inside a residence there.   A short time later a man (not identified in the record) came out and drove the Toyota to a burger place on Lower Azusa Road.   He met two other men there, and the three of them returned to the Cogswell address, taking an indirect route through residential areas and monitoring traffic before each turn.   They exited the Toyota and, a short time later, Bermudez and Dovalina came out of the residence and got into the Toyota.

With Dovalina driving, they proceeded to an auto repair shop on Peck Road, where Dovalina went over to a set of pay telephones and made a call.   Bermudez came up to him, handed him a pager and a small amount of currency, and then went over to a blue-gray Ford Aerostar van.   He drove the van off the lot.   Dovalina returned to the Toyota and followed Bermudez.   The two drove in tandem to the parking area at the Pace store on Lower Azusa Road in Santa Anita.

Once there, Dovalina parked the Toyota and remained inside while Bermudez drove through the lot into the lot of an Alpha Beta store, looking around all the while and monitoring through his mirrors.   He then returned and parked in the Pace lot.   He exited the van and walked into a McDonald's restaurant where he stayed about five minutes (according to the search warrant affidavit;  it was about one-and-a-half minutes according to testimony of a surveilling officer), then he came out, having made no purchases.   He looked around and returned to the van.

Bermudez drove the van through the lot, speaking on a cellular phone while doing so.   He drove out of the lot to an Arco station on Lower Azusa Road and El Monte Street, where he parked next to some pumps.   About five minutes later, a man later identified as Mario Cadavid (a codefendant in the case) drove up in a pickup with a small camper shell.   Cadavid parked behind the van, and Bermudez walked over to him.   The two men then returned to their respective vehicles and drove to a nearby residential area.   They parked and exited their vehicles, walking to the rear of the pickup.   There, Cadavid took a gray plastic shopping bag containing square objects, and gave it to Bermudez.   Bermudez returned to the van and drove away in the residential neighborhood.

Cadavid drove the pickup through the neighborhood, back to Lower Azusa Road.   While driving, he constantly monitored his mirrors, made several U-turns, and stopped to watch traffic pass.   He drove the pickup into a particular residential area, passing Ranchito Road (which ends in a cul-de-sac) twice before turning into it and stopping inside a detached garage at a residence there.

In the meantime, Bermudez was followed as he drove the van.   He returned to the auto repair shop on Peck Road.   Once there, he spoke to a man who appeared to be an employee.   The man got inside the van, which Bermudez drove to a residential area behind the shop.   He pulled over, and traded places with the man from the shop, who then drove the van back to the shop.   At that point, Bermudez exited the van with the bag he had received from Cadavid.   He sat on a bench (according to the affidavit;  a chair according to his testimony) and watched traffic on Peck Road.

After about ten minutes, Dovalina was seen walking up to Bermudez.   The two men then crossed a street and walked over to the Toyota, parked in front of or near a Von's store.   Dovalina got into the driver's seat, and Bermudez sat on the front passenger side, placing the bag on the back seat.   They drove southbound on Peck Road to the lot of a Goodyear Tire store.   Dovalina exited the Toyota and went to a set of pay telephones, where he took out a piece of paper and appeared to make a call.   He spoke for a time, then returned to the Toyota and drove off.

The Toyota drove to downtown Los Angeles, taking Interstate 10 to U.S. 101, and exiting at Broadway.   The vehicle then pursued a circuitous route.   The intricacy of the route can only be understood by reviewing its details, which we next set out.

From Broadway, Dovalina and Bermudez traveled on Fourth eastbound past San Pedro (where they parked and let traffic pass, Dovalina monitoring through his side-view mirror);  then made a U-turn and proceeded westbound on Fourth, traveling the wrong way on this one-way street;  then made another U-turn and traveled eastbound on Fourth to San Pedro, where the vehicle turned onto Crocker, now going southbound;  they next turned right onto San Pedro, where they again pulled over.   At that point Bermudez exited, spoke to a man, walked around a corner, and returned after a few minutes.   He re-entered the car, and Dovalina drove westbound on Fifth to Wall, where he turned right (northbound) onto Fourth.   He turned onto Fourth (eastbound).   As he passed San Pedro, he pulled over once again, watched traffic and allowed it to pass, then resumed driving eastbound to Hewett, where he again pulled over.   This time, Dovalina exited, made some calls at a pay telephone, and got back into the car.   They continued eastbound on Fourth.   During the driving, Bermudez was constantly using a cellular phone.

Agent Hunter, pursuing the Toyota, ran a red light at the corner of Fourth and San Pedro.   A Los Angeles Police Officer, assigned to traffic patrol, came up along side the agent to cite him for the violation.   At that point, Agent Hunter, who was in an unmarked vehicle, identified himself and explained that he was following the Toyota in connection with a narcotics investigation.   He asked the officer to make a traffic stop on the Toyota if he found probable cause to do so.   The officer followed the Toyota, going northbound to Third, where he turned left (westbound) and eventually stopped the vehicle at Fourth and Boyd.   The reason for the stop was that the passenger (Bermudez) was not wearing a safety belt, an infraction in violation of Vehicle Code, section 27315, subdivision (e).   He spoke to the driver and passenger, and asked for identification, which they produced.   Shortly after that, a car with agent Wilfredo Cid pulled up.   The officer asked Dovalina and Bermudez to stay in the car, and said that he would be with them in a minute.   He walked back to the car with agent Cid and advised him of the infraction violation.

At that point the narcotics agents took over the investigation.   Agent Cid, a supervising special agent of the Bureau of Narcotic Enforcement, was the first agent on the scene.   He approached on the passenger side of the Toyota and spoke in Spanish with Bermudez and Dovalina.   He informed them that he was a police officer conducting a narcotics investigation.   Neither he nor any of the other agents who later arrived had drawn guns.

He told Bermudez and Dovalina that they had been seen in the area, driving in circles.   He asked them where they were going.   Bermudez said they were going to buy flowers for his girlfriend.   Agent Cid then asked Bermudez to step out of the car and they walked about ten feet away.   The agent then asked Bermudez where he was coming from and who owned the car.   Bermudez gave an address on Kittridge, said that he was coming from the San Fernando Valley to buy flowers at a flower shop, and that the car belonged to a friend.   The agent asked for permission to search the vehicle for cocaine, and Bermudez gave the consent.   Agent Cid then told him that he was going back to talk to Dovalina.   He left Bermudez standing in the street by himself, and not handcuffed.

Agent Cid returned to the Toyota and spoke to Dovalina.   Dovalina told him Bermudez had picked him up in the Van Nuys area about one-half hour before, and they were going to a flower shop at 429 San Pedro.   The agent asked Dovalina if he made any stops on the way, and he said they had not but had come directly to the Los Angeles area.   He said the car belonged to a friend of Bermudez in the Valley.   The agent asked for permission to search the car for cocaine, and consent was given.   Dovalina was asked to stay to the agent's left, about six or seven feet from Bermudez.   Dovalina was not handcuffed.   Agent Hunter and another agent then approached, and they watched the two men as agent Cid proceeded to search inside the car.

He found two cellular phones in the glove compartment, and two pagers in the center console.   He then opened the gray plastic bag that had been handed to Bermudez by Cadavid.   There were six large bundles of U.S. currency inside.

Bermudez said the money was not his, that he did not know to whom it belonged, and that he did not know it was in the car.   Agent Cid then asked Dovalina about the money.   He denied having seen the money, said it was not his, and that he did not know to whom it belonged.

At that point, appellants were given their Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   Agent Hunter stated, in his declaration in support of the search warrant, that based on his training and experience and observations, appellants were engaged in money laundering activities.   He mentioned their counter-surveillance driving, the indirect routes they took in going from place to place, and their use of public pay telephones, pagers, and cellular phones, a practice often used to avoid tapping.   He also mentioned their use of residences with detached garages (on Cogswell and Ranchito), the delivery of the bag to Bermudez, the lies told on questioning, and, of course, the large amount of currency found in the Toyota and appellants' denials with respect to it.   A warrant was issued commanding search and seizure of contraband and described materials in the vehicles (the Toyota and the Aerostar van), and at all three residences (on Clark, Cogswell, and Ranchito).

A garage door opener was found in the van.   It activated a garage door at the Ranchito residence.   In the southwest bedroom of that home an agent found a box containing 16 kilograms of cocaine, and a large amount of currency.   That currency, together with the currency in the gray plastic bag, was counted.   It came to over $376,600.   Other incriminating evidence was also found.

The trial court denied the Penal Code section 1538.5 suppression motions.   It found the stop of the Toyota to be lawful, and that the consents to search were validly obtained.   The court also found that the residence search was supported by the search warrant, and the declaration sufficiently supported the warrant.   The court concluded that “there was more than a fair probability that the narcotics were the fruits of the crime or that evidence would be found in that residence.”

DISCUSSION

As we noted at the outset, the only issues raised on these appeals concern the trial court's ruling denying the suppression motions.   The rules guiding review of trial court suppression motion rulings, and of detention questioning, are well established.   We recount them briefly.

 The factual issues are determined by the trial court;  the reviewing court decides whether, on the facts found, a search was reasonable within the Constitution.  (People v. Leyba (1981) 29 Cal.3d 591, 596, 174 Cal.Rptr. 867, 629 P.2d 961.)   With respect to trial court fact finding, the rule is that “ ‘[o]n appeal all presumptions favor the exercise of that power, and the trial courts findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ”  (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621, quoted in People v. Leyba, supra, 29 Cal.3d at 596, 174 Cal.Rptr. 867, 629 P.2d 961;  see also People v. Carvajal (1988) 202 Cal.App.3d 487, 495, 249 Cal.Rptr. 368.)

 The traffic infraction was a pretext for stopping the Toyota.   At oral argument, appellant Dovalina's counsel argued the Ninth Circuit's recent decision in U.S. v. Millan (1994) 36 F.3d 886 supports the proposition that the fruits of a pretextual stop—i.e., a stop that would not have been made for the reason advanced in its justification—are inadmissible.   There is language in the majority opinion in that case supporting appellant's argument, even though the reason given for the stop (a cracked windshield) was not shown to be an infraction under the law of the state where the stop occurred.  (36 F.3d at p. 889.)   The court also acknowledged that Ninth Circuit precedent on the issue “has not been entirely consistent․”  (36 F.3d at p. 888.)

To the degree that Millan supports the pretext doctrine ascribed to it, we decline to follow the case.   We believe the United States Supreme Court has pointed to an objective test in this situation.  (See Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168;  Maryland v. Macon (1985) 472 U.S. 463, 470, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370;  United States v. Villamonte–Marquez (1983) 462 U.S. 579, 584, 103 S.Ct. 2573, 2577, 77 L.Ed.2d 22;  see also Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 [subjective opinion of interrogating officer that person questioned is a suspect, not disclosed to that person, does not bear on whether questioning is custodial for purposes of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602].)

In this, we agree with the analysis in People v. Uribe (1993) 12 Cal.App.4th 1432, 1436, 1438, 16 Cal.Rptr.2d 127.   In that case, after a discussion of U.S. Supreme Court precedent, the court concluded that a traffic stop that is reasonable based on the objective facts is not made unreasonable because of the officer's subjective belief.  (We also note the concurring opinion of Judge Hall in Millan, in which she takes issue with the majority's treatment of Ninth Circuit precedent.)

 In the leading case on detentions, Terry v. Ohio (1968) 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, the U.S. Supreme Court explained the difference between probable cause needed for an arrest, and the standard required for detentions:  “[In order to justify] the particular intrusion [of a detention], the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  (392 U.S. at p. 21, 88 S.Ct. at p. 1880;  statement in brackets added.)   That standard has been consistently followed by later cases.  (See, e.g., United States v. Cortez (1981) 449 U.S. 411, 417, 418, 101 S.Ct. 690, 694, 695, 66 L.Ed.2d 621;  United States v. Sokolow (1989) 490 U.S. 1, 7, 8, 109 S.Ct. 1581, 1585, 1586, 104 L.Ed.2d 1;  In re Tony C. (1978) 21 Cal.3d 888, 895, 148 Cal.Rptr. 366, 582 P.2d 957.)   As explained in Cortez, “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”   It has not been easy to capture the concept in terms, but its essence is that “the totality of the circumstances—the whole picture—must be taken into account.   Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  (449 U.S. at pp. 417–418, 101 S.Ct. at p. 695.)

The totality of the circumstances includes “consideration of the modes or patterns of certain kinds of lawbreakers.   From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.”   Probabilities, not certainties, are required.   Practical people, including law enforcement officers, formulate common-sense conclusions about human behavior.   The evidence collected is not weighed in the precise terms of the scholar, but as understood by those versed in the field of law enforcement.  (449 U.S. at p. 418, 101 S.Ct. at p. 695.)

There was abundant justification for pulling over the Toyota and questioning its occupants in this case.   Putting aside the traffic infraction, which was merely the basis for effecting a peaceful stop of the vehicle rather than justification for the questioning of its occupants, the narcotics agents' pertinent observations included the following:  counter-surveillance driving over long distances and sustained periods of time;  driving into and out of residential areas for no apparent reason;  frequent brief stops at a succession of locations;  meetings with persons followed by drives to relatively secluded areas, at one of which a bag containing rectangular objects was handed over after which the transferor and transferee left by different routes;  constant use of pay telephones and cellular phones;  driving in circles, with U-turns and doubling back, in downtown Los Angeles;  lying about the route of travel;  and furnishing an improbable story as to the purpose of the travel.

 Of course, each of these circumstances could have an innocent, or relatively innocent, explanation.   But that does not prevent the inference of illegal activity.  (United States v. Sokolow, supra, 490 U.S. at p. 8, 9, 109 S.Ct. at p. 1585, 1586.)   Even aside from the information from the reliable informant, there was sufficient evidence for the trained agents to entertain a reasonable suspicion that appellants were engaged in illegal narcotics activity.   That is enough to justify the detention of appellants.

 The court found that appellants each consented to a narcotics search of the Toyota.   Consent to search is a proper basis for a search.  (Florida v. Jimeno (1991) 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297.)   This is true even if the person consenting is under arrest—which these appellants were not.  (People v. Robinson (1957) 149 Cal.App.2d 282, 286, 308 P.2d 461.)   The consent search led to confirmation of the agents' suspicion that the gray plastic bag contained evidence of criminal activity.   It did:  the large amount of currency found in six bundles inside.   That, together with Bermudez' untruthful denial of knowledge about the bag, the denials of both appellants about any information (or ownership), and the agents' observations during the day, justified the search warrant, which led to discovery of a very large amount of currency and narcotics.

The factual setting of the case is remarkably like that in People v. Carvajal, supra, 202 Cal.App.3d at 496, 249 Cal.Rptr. 368.   There, too, the persons detained engaged in counter-surveillance driving, appeared to contact people by pager or beeper, and stopped briefly at a number of residences, and were involved in the transfer of objects (large boxes).   They also met with a suspected narcotics dealer.  “Although these activities might appear innocent to the uninitiated, [the detective's] special training and experience, together with the informant's tip, furnished a reasonable basis for [the detective's] conclusion criminal activity was afoot.”

 Besides these circumstances, there also is a question of standing with respect to the large amount of currency found in the vehicle.   Both appellants denied knowing anything about it, let alone having possession or ownership of it.   Since the Fourth Amendment's protection against unreasonable searches and seizures cannot be vicariously asserted (Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387;  U.S. v. Padilla (1993) 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635), these denials justify a conclusion that appellants have no standing to challenge search and seizure of the currency.  (See People v. Stanislawski (1986) 180 Cal.App.3d 748, 757, 225 Cal.Rptr. 770;  People v. Dasilva (1989) 207 Cal.App.3d 43, 49, 254 Cal.Rptr. 563.)   Respondent raises that issue here, as it did in the trial court.   The trial court found Dovalina lacked standing, but it recognized standing on Bermudez's part.  (Bermudez had testified that Cadavid had paid him to deliver the bag, but that he did not know its contents.)   The trial court's finding with respect to Dovalina's lack of standing is amply supported.   Even if we were to agree Bermudez had standing with respect to the bag, it would not matter since he consented to the search that led to discovery of its contents.

 Dovalina argues that the declaration supporting the search warrant failed to furnish an adequate nexus to illegal activity at the Cogswell residence to justify the search at that location.  (Bermudez' attorney specifically disclaimed standing with respect to the Cogswell search.)   He is mistaken.   Bermudez employed a circuitous route to get to the Cogswell house where he picked up Dovalina.   The house had a detached garage, and was on a curving street, factors that lend themselves to avoidance of effective surveillance.   Bermudez and Dovalina were obviously working together, and it is reasonable to suspect that each of the residences involved during the day's driving (Cogswell and Ranchito) contained evidence of illegal narcotics trafficking (as they did).   In addition, the agents had been informed by a reliable informant that the occupants of the Clark residence were engaged in drug trafficking.   While we have no more information than that about the informant, his information became more credible as the day wore on and Bermudez and his companions engaged in an increasingly suspicious pattern of activity.  (See Illinois v. Gates (1983) 462 U.S. 213, 244, 103 S.Ct. 2317, 2335, 76 L.Ed.2d 527.)

 Finally, Dovalina argues that his statements to agent Cid should have been suppressed as the product of an illegal arrest and were made without Miranda rights having been given.   But Dovalina was not under arrest when he made them.   He had been stopped for a traffic infraction, and was questioned by a narcotics agent.   He was not restrained, and no force was applied or threatened.   The fact that he was a focus of suspicion in the agent's mind is irrelevant.  (Stansbury v. California, supra, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293.)   Beyond that, Dovalina consented to the car search, at which the major incriminating evidence was found.   No Miranda admonition is required for a valid consent.  (People v. James (1977) 19 Cal.3d 99, 114, 137 Cal.Rptr. 447, 561 P.2d 1135.)

We conclude that neither Bermudez nor Dovalina suffered any violation of his right to be free of unreasonable search and seizure.

DISPOSITION

The judgments are affirmed.

EPSTEIN, Acting Presiding Justice.

CHARLES S. VOGEL and HASTINGS, JJ., concur.