Filed 1/23/14 P. v. Velles CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A136938
v.
CLARENCE LARRY VELLES, (Napa County
Super. Ct. No. CR161532)
Defendant and Appellant.
Defendant Clarence Larry Velles pleaded no contest to a drug possession charge
after police found methamphetamine in his pocket. Defendant was detained and searched
when police watched him walk through a deserted commercial parking lot in the early
hours of the morning, only to reverse course suddenly upon spotting them. He contends
the detention was not based on a reasonable suspicion of criminal activity. We affirm.
I. BACKGROUND
In an amended information filed June 15, 2012, defendant was charged with
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and drug
paraphernalia (Health & Saf. Code, § 11364). Following the trial court’s denial of
defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5, he
pleaded no contest to the methamphetamine possession charge and was placed on three
years’ probation.
The sole issue at the hearing on defendant’s motion to suppress was whether his
detention was justified by a reasonable suspicion of criminal activity. The primary
witness, Officer Curtis Madrigal of the Napa Police Department, testified he was driving
a patrol car at 1:30 a.m. when he spotted defendant walking across a commercial parking
lot serving several different businesses, including a grocery store and restaurant. The
businesses appeared to Madrigal to be closed, and the area was very dark. During
narcotics enforcement training two years earlier, Madrigal had been told the parking lot
was one of the “areas [officers] might want to pay more attention to” because drug
transactions had occurred there.
When defendant saw Madrigal’s patrol car turn into the parking lot, he “went out
of his way” to make a “quick” turn and begin walking toward the back of the grocery
store, away from the car. He appeared to pass through some shrubbery, although later
investigation revealed defendant had taken a path that led behind the shrubbery, rather
than cut through it. Madrigal concluded defendant was attempting to “conceal[] himself”
and “avoid contact” with him. He and his partner left the patrol car, and Madrigal told
defendant to “come over here.” Defendant complied. He was calm but avoided eye
contact with Madrigal.
At this point in Madrigal’s direct examination, defense counsel told the court,
“[M]y motion is based on the initial detention. So I don’t think . . . [the prosecutor] needs
to go into all of what happened after the initial detention,” and the prosecutor ended his
examination. At the preliminary hearing, Madrigal had testified he searched defendant
and found suspected methamphetamine and a glass pipe with residue.
In explaining its denial of the motion to suppress, the trial court cited the late hour,
the closed businesses, the officer’s knowledge of prior drug transactions in the area, and
defendant’s change of direction upon seeing the officers, which appeared to Madrigal to
constitute evasion.
II. DISCUSSION
Defendant contends the arresting officer lacked reasonable suspicion to justify his
detention.
“ ‘The Fourth Amendment prohibits “unreasonable searches and seizures” by the
Government, and its protections extend to brief investigatory stops of persons or vehicles
that fall short of traditional arrest. [Citations.] Because the “balance between the public
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interest and the individual’s right to personal security,” [citation], tilts in favor of a
standard less than probable cause in such cases, the Fourth Amendment is satisfied if the
officer’s action is supported by reasonable suspicion to believe that criminal activity
“ ‘may be afoot,’ ” [citation].’ [Citation.] In making determinations of reasonable
suspicion to justify a detention, reviewing courts ‘must look at the “totality of the
circumstances” of each case to see whether the detaining officer has a “particularized and
objective basis” for suspecting wrongdoing. [Citation.] This process allows officers to
draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that “might well elude an
untrained person.” [Citations.] . . . [T]he likelihood of criminal activity need not rise to
the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.’ ” (People v. Barnes (2013) 216 Cal.App.4th
1508, 1514.) “[T]he possibility of innocent explanations for the factors relied upon by a
police officer does not necessarily preclude the possibility of a reasonable suspicion of
criminal activity. [Citations.] In determining whether a search or seizure was supported
by a reasonable suspicion of criminal activity, ‘ “the relevant inquiry is not whether
particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to
particular types of noncriminal acts.” ’ ” (People v. Letner and Tobin (2010) 50 Cal.4th
99, 146–147.)
“ ‘An appellate court’s review of a ruling on [a Penal Code section 1538.5 motion
to suppress] is governed by well-settled principles: We defer to the trial court’s findings
of fact that are supported by substantial evidence, but in all other respects the court’s
ruling is subject to independent review. [Citation.]’ ” (People v. Perrusquia (2007)
150 Cal.App.4th 228, 232–233 (Perrusquia).)
The circumstances described above are materially indistinguishable from those of
People v. Souza (1994) 9 Cal.4th 224 (Souza), in which the Supreme Court affirmed the
trial court’s finding of a reasonable suspicion to support a detention. The officer in Souza
was patrolling a high-crime area in the wee hours when he noticed two people, one later
identified as the defendant, standing near a parked car. The area was almost completely
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dark. The defendant appeared to be talking to someone in the car. Suspecting an auto
burglary in progress, the officer stopped his car and turned the spotlight on the parked
car. The defendant ran away, while the persons in the car ducked down. (Id. at p. 228.)
In affirming, the court held: “[A]n area’s reputation for criminal activity is an
appropriate consideration in assessing whether an investigative detention is reasonable
under the Fourth Amendment. [Citations.] . . . [¶] The time of night is another pertinent
factor in assessing the validity of a detention. . . . [¶] When in the course of investigating
what he thought to be an auto burglary in progress, [the officer] directed his patrol car’s
spotlight toward the parked Ford, the car’s occupants immediately bent down, and
defendant fled. These evasive actions added support to the officer’s suspicion that
criminal activity was afoot, and that defendant was involved in that activity.” (Id. at
pp. 240–241.)
Similarly, defendant was found early in the morning in a commercial parking lot
known by the arresting officer to be of particular concern for narcotics trafficking.
Because the stores served by the parking lot were closed, there was no obvious reason for
defendant’s presence there, other than transit to another location. When defendant saw
the patrol car, he turned quickly and walked in the opposite direction, conduct
inconsistent with his merely passing through. Defendant’s sudden turnabout was the type
of evasive action that, when combined with the early hour and the particular location,
raised a reasonable suspicion of criminal activity.
In arguing to the contrary, defendant cites a number of cases holding that, in
isolation, the various factors cited by the trial court do not support a reasonable suspicion.
(E.g., People v. Walker (2012) 210 Cal.App.4th 1372, 1391 [presence in high-crime area
alone insufficient]; Perrusquia, supra, 150 Cal.App.4th at p. 234 [avoidance of contact
with officer alone insufficient]; People v. Valenzuela (1994) 28 Cal.App.4th 817, 831
[same]; People v. Roth (1990) 219 Cal.App.3d 211, 215 [early morning presence in
deserted parking lot with closed businesses alone insufficient].) While this is certainly
true, the combination of these various factors can create sufficient suspicion to justify a
brief detention, as Souza holds.
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Defendant also argues his conduct did not constitute “flight,” since he merely
turned and walked away. While the United States Supreme Court has recognized
“headlong flight” as the “consummate act of evasion” (Illinois v. Wardlow (2000)
528 U.S. 119, 124), classic flight—that is, running or driving away from police at high
speed—is not required to create a reasonable suspicion of criminal activity. The bare fact
of evasive conduct, whether or not of the headlong variety, gives rise to some suspicion.
(Souza, supra, 9 Cal.4th at p. 241.) Defendant did not merely “walk[] away” from police,
as he argues. He stopped on a dime and reversed course upon seeing them, eventually
walking out of sight behind the shrubbery. In isolation, this might not justify detaining
him. (Perrusquia, supra, 150 Cal.App.4th at p. 234.) When combined with the other
factors present here, however, this milder form of evasion created a reasonable
suspicion.1 (Souza, at p. 241.)
Defendant also challenges the legality of the subsequent search. As noted above,
however, defendant’s counsel specifically told the court he was not challenging the
legality of “what happened after the initial detention.” He has therefore forfeited an
appellate challenge to the legality of the search. (See People v. Williams (1999)
20 Cal.4th 119, 136.)
III. DISPOSITION
The judgment of the trial court is affirmed.
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Defendant also faults Madrigal’s testimony about the reported past drug sales in
the parking lot. While this testimony was certainly too vague to support a reasonable
suspicion on its own, it was sufficient under these circumstances.
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_________________________
Margulies, Acting P.J.
We concur:
_________________________
Banke, J.
_________________________
Sepulveda, J.*
*
Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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