THE PEOPLE v. DAVID ENRIQUEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Appellant David Enriquez appeals from a judgment of conviction following a plea of no contest after the trial court denied his motion to suppress evidence of heroin.   Appellant contends that the trial court improperly denied his motion to suppress.

The series of events leading to appellant's arrest began when an officer stopped appellant for an unsafe lane change.   Upon talking briefly to appellant, the officer believed that appellant was under the influence of narcotics and placed handcuffs on him.   The officer then obtained appellant's consent to search his vehicle.   In the course of the search, the officer located a navigational device and laptop computer, which he found to be suspicious for a variety of reasons.   The officer then questioned appellant and appellant's friend about the items.   Approximately 35 to 40 minutes after the initial traffic stop, the officer concluded his investigation and arrested appellant for possession of stolen property—specifically, the navigational device and laptop computer.   During a search of appellant's person at the police station, another officer discovered a plastic bag containing heroin.   Appellant was charged with possession of heroin for sale and transportation of heroin.

We hold that the detention and search at issue were reasonable and that the officer had probable cause to arrest appellant.   We therefore conclude that the trial court's denial of the motion to suppress was correct and affirm the judgment.

PROCEDURAL HISTORY

Appellant was charged with possession of heroin for sale (Health & Saf.Code, § 11351) and transportation of heroin (Health & Saf.Code, § 11352, subd. (a)).  He was also charged with having served one prior prison term without remaining free of prison custody for a period of five years after completing that term (Pen.Code, § 667.5, subd. (b)) and having three prior narcotics convictions (Health & Saf.Code, § 11370.2, subd. (a)).  He pled not guilty.

Appellant moved to suppress all evidence seized from his person under Penal Code section 1538.5, and the trial court denied the motion.   He then pled no contest to transportation of heroin and admitted the special allegations against him.   The trial court sentenced him to a prison term of three years.   On the prosecution's motion, the court dismissed the count against him for possession of heroin for sale.   The court ordered appellant to pay standard fines and fees.

Appellant filed a timely notice of appeal.

FACTS

1. Prosecution Evidence

On January 2, 2009, at approximately 7:00 p.m., Officer Tyrone Gribben observed a vehicle cross two lanes of traffic without signaling in a highly congested area.¹  Officer Gribben stopped the vehicle based on the unsafe lane change in violation of Vehicle Code section 22107.   Officer Gribben had appellant, the driver of the vehicle, exit the car and go to the curb, so that the officer could safely conduct his investigation out of the way of traffic.   He noted immediately upon talking to appellant that appellant appeared to be very nervous and fidgety, he was sweating profusely even though it was a cool January evening, and his eyes appeared to be constricted.   When the officer asked appellant whether he was under the influence of narcotics, appellant initially denied it, but then he admitted to snorting methamphetamine approximately a day and a half earlier.   Appellant also stated that he had not slept since having snorted methamphetamine.

Officer Gribben handcuffed appellant shortly after observing appellant's behavior, believing that he was under the influence of narcotics and that appellant could be dangerous if that was the case.   In addition, the officer did not want appellant to flee.   At this point Officer Gribben was alone, though within three to four minutes other officers arrived to assist.   In making the determination that appellant was under the influence, Officer Gribben was drawing on his academy training, approximately 60 hours of formal under-the-influence training, and several dozen under the influence arrests.

After handcuffing appellant, Officer Gribben asked him if there was anything illegal in the vehicle and asked for permission to search the vehicle.   Appellant responded that he had nothing illegal in the vehicle and that the officer could search the vehicle.   Officer Gribben had the four other occupants of the vehicle exit it.   He then conducted a search of the vehicle.   The officer thought that there might have been illegal substances in the vehicle.   During the search, Officer Gribben found a TomTom navigational unit and a laptop computer.

The navigational unit raised red flags in Officer Gribben's mind because he found the unit with the power on, but it was not affixed to the vehicle in any way consistent with it being used, such as on the dashboard or windshield.   Instead, he found the navigational unit in the driver's side door panel.   In addition, Officer Gribben knew that navigational devices are commonly stolen in car burglaries, having personally handled approximately 15 to 20 auto burglaries in which such devices were stolen.   Appellant told Officer Gribben that the navigational unit was his and that he had gotten the unit from a friend for $60.   This made Officer Gribben suspicious because the units are generally more costly.   The officer asked appellant if he could call the friend to verify appellant's story, and appellant then changed his story, saying that he had purchased the navigational device from someone on the street for $75, but he did not know the person and so could not call him.   This change in story made Officer Gribben even more suspicious.   The officer also asked appellant if he could identify any routes that would be on the navigational unit—for instance, to appellant's home, to a friend's home, or to a store.   Appellant could not provide any routes, he said, because he had only purchased the unit a few days prior and had not used it yet.

Officer Gribben found the laptop computer under the driver's seat.   He knew that laptop computers were also a common target in auto burglaries, along with navigational devices.   Appellant said he had borrowed the laptop from a friend named “Marcelo,” but that he was going to return it soon because he could not access the internet on the computer.   Officer Gribben turned on the laptop computer and noticed that the name “Monica” appeared on the main screen.   When he opened up some of the documents on the computer, the name “Duke” also appeared.   Appellant provided Officer Gribben with a phone number for Marcelo.   Officer Gribben called Marcelo, identified himself as an officer, and explained that he was on a traffic stop and wanted to verify appellant's story about the laptop.   Marcelo told Officer Gribben that he had, indeed, lent the computer to appellant, but he did not know Monica or Duke. Within a minute or so, Marcelo had changed his story and said Duke was actually his son.   When Officer Gribben asked Marcelo from whom he had acquired the computer, Marcelo's story changed three times—first it was from a friend's wife, then it was from a different friend, and so forth.   At that point, Officer Gribben felt that Marcelo was tailoring his story to say whatever necessary to “get his friend out of whatever trouble,” and he ended the conversation with Marcelo.

Based on the suspicious circumstances surrounding the TomTom navigational unit and the laptop computer, Officer Gribben arrested appellant for possession of stolen property.   The arrest took place approximately 35 to 40 minutes after the initial stop, and Officer Gribben and appellant arrived at the police station at approximately 8:06 p.m.

At the police station, Officer Chris Bargar searched appellant.   Officer Bargar had appellant remove his sweatshirt, and as appellant handed the sweatshirt to the officer, the officer heard the sound of something hitting the ground.   Officer Bargar looked down and saw appellant trying to kick something underneath the bench on which he was sitting.   Officer Bargar recovered the item that appellant was kicking underneath the bench.   The item was a small plastic bag containing heroin.

2. Defense Evidence

The testimony of Kristina Zink, a witness for appellant, corroborated Officer Gribben's testimony.   Ms. Zink witnessed Officer Gribben stop appellant from approximately 11 feet away.   Ms. Zink saw Officer Gribben tell appellant to exit the vehicle, and within a few seconds the officer had appellant sitting on the curb and handcuffed.   She then saw the other occupants of the vehicle exit it and Officer Gribben search the vehicle.   She believes the officer took appellant away approximately 20 to 30 minutes after the initial stop.

DISCUSSION

1. Standard of Review

In reviewing the trial court's ruling on a motion to suppress, we accept the court's express and implied factual findings so long as they are supported by substantial evidence.  (People v. Woods (1999) 21 Cal.4th 668, 673.)  “All presumptions favor the proper exercise of the trial court's power to judge the credibility of witnesses, resolve conflicts, weigh evidence, and draw factual inferences.”  (People v. Llamas (1991) 235 Cal.App.3d 441, 447.)   We exercise our independent judgment, however, in selecting the applicable rule of law and in applying that law to the facts.  (People v. Alvarez (1996) 14 Cal.4th 155, 182.)   Thus, in determining the legality of a search or seizure under the Fourth Amendment of the United States Constitution, we exercise our independent judgment.  (People v. Glaser (1995) 11 Cal.4th 354, 362.)

2. The Trial Court Properly Denied Appellant's Motion to Suppress

The trial court did not err in denying appellant's motion to suppress.   The detention of appellant and search of the vehicle were reasonable.   Moreover, appellant's arrest was supported by probable cause.²

a. Reasonable Suspicion for Search and Seizure

Officer Gribben's handcuffing and detention of appellant and his search of the vehicle were not an unreasonable search and seizure.   In the seminal case, Terry v. Ohio, the United States Supreme Court made clear that “ ‘what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.’ ”  (Terry v. Ohio (1968) 392 U.S. 1, 9, quoting Elkins v. United States (1960) 364 U.S. 206, 222.)  Terry articulated that a search or seizure is reasonable if the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  (Terry, supra, at p. 21.)

Our Supreme Court similarly has stated that “[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.”  (People v. Souza (1994) 9 Cal.4th 224, 231.)

Officer Gribben was experienced in identifying the signs of intoxication, having had approximately 60 hours of formal training on the topic, and having made several dozen under the influence arrests.   The trial court found that he was mistaken when he identified appellant's constricted pupils as a sign of methamphetamine use;  the court found that dilated pupils are actually a sign of methamphetamine use.   Nevertheless, Officer Gribben identified other specific and articulable facts that, taken together, warranted his conclusion that appellant was under the influence of narcotics—namely, that appellant was unusually sweaty, fidgety, and nervous.   In addition, appellant admitted that he had taken methamphetamine a day and a half earlier.   These facts provided “some objective manifestation” (People v. Souza, supra, 9 Cal.4th at p. 231) that appellant may have been involved in criminal activity, thus rendering the detention of appellant and search of the vehicle reasonable.

Although handcuffing increases the intrusiveness of a detention and typically is not part of a detention, an officer “may take reasonable precautions to ensure safe completion of the officer's investigation.”  (People v. Stier (2008) 168 Cal.App.4th 21, 27.)   Handcuffing during a detention does not automatically transform the detention into an arrest.  (Ibid.) “The issue is whether the handcuffing was reasonably necessary for the detention.”   (Ibid.) Handcuffing has been sanctioned in cases where the officer has a reasonable basis for believing the suspect poses a present physical threat or might flee.  (Ibid.) In light of Officer Gribben's determination that appellant was under the influence of narcotics, and the fact that Officer Gribben was a one-man unit while appellant was accompanied by four other people in the vehicle, the officer had a reasonable basis for believing that appellant posed a physical threat or might flee.

Appellant admits he consented to Officer Gribben's search of the vehicle, though appellant urges us to consider that his consent was coerced.   We find otherwise.  “In every case, the voluntariness of a consent is a factual question to be decided in light of all the circumstances.”  (People v. Aguilar (1996) 48 Cal.App.4th 632, 639.)   Thus, we will uphold the trial court's findings on the issue of consent, whether express or implied, if supported by substantial evidence.  (Ibid.) In this case, there was substantial evidence to support the trial court's finding that consent was voluntary.   Consent is not obviated simply because someone was handcuffed or even under arrest at the time.  (United States v. Watson (1976) 423 U.S. 411, 424;  People v. Llamas, supra, 235 Cal.App.3d at p. 447.)   As the trial court noted, there was no evidence at all that appellant's consent was involuntary.   Appellant did not testify to being coerced, there was no evidence that Officer Gribben threatened him or tricked him into consenting, and there was no other indication that appellant was led to believe he must consent.   (People v. Llamas, supra, at p. 448.)   Indeed, the mere request for permission to search the vehicle carried with it the implication that appellant could withhold his consent.  (People v. James (1977) 19 Cal.3d 99, 116.)

Appellant also urges that the detention was unlawful because it was unduly prolonged.   We disagree.  “ ‘[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ ”   (People v. Soun (1995) 34 Cal.App.4th 1499, 1516.)   But there is no set time limit for a permissible investigative detention.  (People v. Russell (2000) 81 Cal.App.4th 96, 102.)   The issue is whether the officers “diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.”  (Ibid.) We judge the reasonableness of each detention period based on its particular circumstances.  (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.)   Moreover, circumstances that come to light during an investigative detention may provide reasonable suspicion to prolong the detention.  (People v. Russell, supra, at p. 102;  People v. Suennen (1980) 114 Cal.App.3d 192, 200–201 [holding that a rational suspicion of criminal activity developed after the initial traffic stop justified prolonging the detention to investigate further].)

The length of appellant's detention was reasonable, in light of the circumstances.   As discussed above, Officer Gribben had a reasonable suspicion that appellant was under the influence of narcotics.   After that suspicion arose, Officer Gribben “diligently pursued a means of investigation reasonably designed to confirm or dispel” his suspicions (People v. Russell, supra, 81 Cal.App.4th at p. 102)—he began to search the vehicle for illegal substances.   In the course of that search, evidence came to light that provided a reasonable suspicion of different criminal activity.   He found the TomTom navigational device on, but tucked away in a manner inconsistent with use.   He found the laptop computer hidden under the driver's seat, and when he opened it up, he found the names “Monica” and “Duke” on the computer, not appellant's name.   Also, Officer Gribben knew that both devices, the computer and the navigational unit, were frequent targets in auto burglaries.   After finding these items, Officer Gribben diligently pursued an investigation designed to confirm or dispel these new suspicions that appellant either possessed stolen property or had received stolen property—he questioned appellant and Marcelo.   The circumstances only became more suspicious from there.   Appellant changed his story about where he purchased the navigational device and how much he paid for it.   He could not identify any routes on the device because it was supposedly too new.   As to the laptop, Marcelo could not provide a consistent story about where he acquired the laptop.   He changed his story three times and seemed to be tailoring his story to help appellant, first not recognizing the names on the computer, then suddenly remembering that “Duke” was his son.   Officer Gribben concluded the whole investigation—stopping the car, searching the car, questioning appellant, and questioning Marcelo—and arrested appellant within 35 to 40 minutes.   Given the evidence of possible stolen property that Officer Gribben uncovered in his search of the car, and his continual unearthing of suspicious circumstances, his additional investigation was warranted and not unduly prolonged.

As this court has previously stated, “[w]hen circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning, designed to bring out the person's explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.”  (People v. Manis (1969) 268 Cal.App.2d 653, 665.)   Officer Gribben's investigation was consistent with this description of permissible officer conduct.

b. Probable Cause to Arrest Appellant

Last, appellant contends his arrest was not supported by probable cause.   Once again, we disagree.

Probable cause exists when the facts known to the arresting officer “would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”  (People v. Ingle (1960) 53 Cal.2d 407, 412.)  “Each case must be decided on its own facts and circumstances [citations] ․ and on the total atmosphere of the case.”  (Ibid.) We hold that the totality of the circumstances discussed above relating to the TomTom navigational device and the laptop computer provided not just reasonable suspicion but also probable cause to arrest appellant for possession of stolen property.

The trial court properly denied the motion to suppress.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

FOOTNOTES

FN1. At the hearing, the prosecutor misstated the date of the incident as January 1, 2009, when questioning Officer Gribben..  FN1. At the hearing, the prosecutor misstated the date of the incident as January 1, 2009, when questioning Officer Gribben.

FN2. There does not appear to be any dispute between the parties that the initial traffic stop for appellant's unsafe lane change was reasonable..  FN2. There does not appear to be any dispute between the parties that the initial traffic stop for appellant's unsafe lane change was reasonable.

BIGELOW, P. J. GRIMES, J.