Filed 6/5/15 P. v. Taylor CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061081
v. (Super.Ct.No. FSB1302599)
MONTRELL LAMONTE TAYLOR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno,
Judge. Affirmed.
Eric A. Dumars, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and
Respondent.
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Defendant and appellant Montrell Lamonte Taylor was charged by information
with possession of ammunition. (Pen. Code, § 30305, subd. (a)(1), count 1.) The
information also alleged that defendant was prohibited from owning or possessing a
firearm, having been previously convicted of certain offenses. (Welf. & Inst. Code,
§§ 8100, 8103.) It was further alleged that defendant had one prior strike conviction
(Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and that he had served three
prior prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant moved to suppress the
prosecution’s evidence against him. (Pen. Code, § 1538.5.) The trial court denied the
motion. Defendant then pled guilty to count 1 pursuant to a plea agreement. Upon the
People’s motion, the court dismissed the remaining allegations. The court sentenced
defendant to two years in state prison with credit for time served. The court subsequently
acknowledged that defendant had served his sentence in full and released him from
custody.
On appeal, defendant contends that the trial court erred in denying his motion to
suppress evidence, since the police were not justified in detaining him and subsequently
searching his car. We disagree and affirm.
FACTUAL BACKGROUND
The following statement of facts is derived from the hearing on the motion to
suppress: Officer Brian Olvera was patrolling an area near a specific apartment complex
in San Bernardino, where he had observed people loitering the day before. That area had
a high volume of PCP sales and possession arrests, and the apartment complex was
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known for its high amount of narcotics and gang-related activity. There were several
“‘no loitering’” signs posted in the apartment complex. Officer Olvera had just seen
defendant loitering at that apartment complex the day before, and had warned him not be
at that location. He had also contacted defendant the week prior, concerning him being at
that location. Officer Olvera went to the complex on the evening of March 6, 2013, and
he observed six to eight individuals, including defendant, in front. They were all huddled
around what appeared to be a game, where they were rolling dice on the ground and
yelling with regard to certain rolls of the dice. They had money in their hands. As he got
closer, Officer Olvera noticed that several of the subjects had open alcohol containers.
He noticed some open containers near defendant. Officer Olvera testified that there was
a municipal code in the City of San Bernardino prohibiting gambling, loitering, and
having open containers of alcohol in public.
After observing the municipal code violations, Officer Olvera pulled his patrol car
up to the front of the apartment complex. He used his white lights and spotlight to
illuminate the males gathered in front. He then got out of his patrol car to contact the
subjects. Officer Olvera and his partner wanted to detain everyone who was there to cite
them. Officer Olvera’s attention was immediately drawn to defendant when he observed
him duck down behind several other males and then run back toward a white van.
Defendant appeared to be holding something, and Officer Olvera’s partner yelled out,
“He has a gun.” Defendant ran around the front portion of the van and ducked down, out
of Officer Olvera’s view. Officer Olvera went around the other end of the van to contact
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him and yelled, “Stop. Police.” Defendant failed to comply with the command. Officer
Olvera continued to pursue defendant and approached the driver’s side door, which was
open. Defendant was hunched over in the doorway of the van. Once Officer Olvera was
facing defendant, he told him to show his hands since they were out of view. At that
point, Officer Olvera saw defendant toss or place something in the van. The officer
asked him to show his hands again. Defendant did not immediately respond, but he
eventually showed his hands. Once defendant did so, Officer Olvera asked him to turn
around so he could place him in handcuffs.
When Officer Olvera initially observed defendant standing in the doorway of the
van, he observed a glass vial in the door panel, in plain view. The vial had a black plastic
top, was about three inches tall, and contained a liquid substance. Inside the liquid was
some debris from cigarette tobacco. Officer Olvera was trained in recognizing PCP,
including its substance, color, and packaging. Based upon his training and experience,
Officer Olvera knew that PCP was normally packaged in either a plastic or glass vial. He
had also seen cigarette debris inside vials on his prior arrests. He said it was common
practice to ingest PCP by use of a cigarette; people dipped cigarettes into PCP in order to
smoke and ingest the PCP. He thus recognized that the substance in the vial was
consistent with PCP. Officer Olvera searched the van for more drugs. While searching,
he located two shotgun shells in a cubby compartment in the rear of the van.
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ANALYSIS
The Trial Court Properly Denied the Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress the
evidence of the shotgun shells. He contends Officer Olvera lacked reasonable suspicion
to detain him. Even if the detention was lawful, he argues that the warrantless search of
his van was unlawful. As a result, he claims the shotgun shells should have been
suppressed. We disagree.
A. Standard of Review
In reviewing the denial of a motion to suppress evidence, “we defer to the trial
court’s factual findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was reasonable under
the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v.
Glaser (1995) 11 Cal.4th 354, 362.)
B. The Detention Was Reasonable
At the outset, we note defendant’s argument that he was not involved in a
consensual encounter with the police. The trial court did not make a determination about
whether or not the encounter between defendant and Officer Olvera was consensual.
Instead, the court just found that the officer detained defendant. Assuming arguendo that
the encounter was not consensual, we agree with the trial court that the detention was
lawful.
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“An investigative detention is lawful where there are specific and articulable facts
which reasonably cause the officer to believe that (1) some activity out of the ordinary
had taken place or was occurring or was about to occur; (2) the activity was related to
crime; and (3) the individual under suspicion was connected to the activity.” (People v.
Dolliver (1986) 181 Cal.App.3d 49, 56.) In other words, “[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 (Souza).) The reasonable suspicion standard “is not a
particularly demanding one, but is, instead, ‘considerably less than proof of wrongdoing
by a preponderance of the evidence.’” (People v. Letner and Tobin (2010) 50 Cal.4th 99,
146.) “‘[T]he determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior.’ [Citation.] Further, as the high court
repeatedly has explained, the 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.” (Id. at p. 146.)
Defendant argues that his detention was illegal because it was unsupported by
specific, articulable facts. We disagree. Officer Olvera detained defendant because he
observed several municipal code violations. Specifically, he observed defendant loitering
in front of an apartment complex where he had just warned defendant not to loiter the day
before. He also observed defendant with a group of males participating in a dice game.
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They were all huddled around, holding money in their hands, rolling the dice on the
ground, and yelling and screaming. Officer Olvera additionally observed that several of
them were holding open alcohol containers, and he saw defendant near the open
containers. There were municipal codes in San Bernardino against loitering, gambling,
and having open alcoholic containers in public. Thus, Officer Olvera could have
detained defendant on these facts alone, since they “provide[d] some objective
manifestation that the person detained may be involved in criminal activity.” (Souza,
supra, 9 Cal.4th at p. 231.)
Furthermore, when Officer Olvera got out of his patrol car to contact the subjects,
his attention was immediately drawn to defendant. He recognized defendant from
previous contacts, and he noticed defendant duck down behind the other males and then
run away toward a van. Officer Olvera considered these movements suspicious. “[E]ven
though a person’s flight from approaching police officers may stem from an innocent
desire to avoid police contact, flight from police is a proper consideration—and indeed
can be a key factor—in determining whether in a particular case the police have sufficient
cause to detain.” (Souza, supra, 9 Cal.4th at p. 235.) The other factor that caught Officer
Olvera’s attention was that defendant appeared to be holding something, and Officer
Olvera’s partner yelled out, “‘He has a gun.’”
Moreover, when Officer Olvera pursued defendant and yelled, “‘Stop. Police.’”
Defendant failed to comply with his command. Then, when Officer Olvera caught up
with defendant at the van and told him to show his hands, Officer Olvera saw him toss or
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place something in the van. “This penchant for flight, coupled with the toss of an item
during a police pursuit is certainly suggestive of wrong doing. It supports the reasonable
suspicion requirement for a lawful detention.” (People v. Rodriguez (2012) 207
Cal.App.4th 1540, 1544.)
Defendant claims that Officer Olvera “did not testify to any reasonable articulable
facts indicating that [he] committed an infraction.” He further argues that “[s]uspicion of
[his] involvement in these city infractions appear[ed] objectively unreasonable.” In his
reply brief, defendant asserts that the officer did not know if he was present in the
apartment complex with permission of the residents. However, as discussed ante,
defendant was observed in a high crime area, participating in what appeared to be
gambling, and was near open alcohol containers. “An area’s reputation for criminal
activity is an appropriate consideration in assessing whether an investigative detention is
reasonable under the Fourth Amendment.” (Souza, supra, 9 Cal.4th at p. 240.)
Moreover, “the possibility that the circumstances are consistent with lawful activity does
not render a detention invalid, where the circumstances also raise a reasonable suspicion
of criminal activity. The public rightfully expects a police officer to inquire into such
circumstances; indeed the principal function of the investigative stop is to resolve that
ambiguity.” (People v. Dolliver, supra, 181 Cal.App.3d at p. 56.)
Considering all of the circumstances, Officer Olvera had reasonable suspicion to
detain defendant and investigate.
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C. The Search of Defendant’s Van Was Lawful
Defendant next argues that, even if the detention was reasonable, Officer Olvera
lacked probable cause to search his van without a warrant. We disagree.
“Under the automobile exception, police who have probable cause to believe a
lawfully stopped vehicle contains evidence of criminal activity or contraband may
conduct a warrantless search of any area of the vehicle in which the evidence might be
found. [Citations.] Such a search ‘is not unreasonable if based on facts that would justify
the issuance of a warrant, even though a warrant has not actually been obtained.’
[Citation.] . . . ‘If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the
object of the search.’” (People v. Evans (2011) 200 Cal.App.4th 735, 753.) “Probable
cause to search thus exists when the ‘known facts and circumstances are sufficient to
warrant a [person] of reasonable prudence in the belief that contraband or evidence of a
crime will be found . . . .’” (Ibid.) In other words, “[p]robable cause to search is ‘a fair
probability that contraband or evidence of a crime will be found in a particular place
. . . .’” (People v. Hunter (2005) 133 Cal.App.4th 371, 378.)
Here, the People established that probable cause existed to search defendant’s van
pursuant to the automobile exception. When Officer Olvera caught up to defendant at the
van, he observed defendant standing in the doorway of the van. Directly next to where
defendant was standing, Officer Olvera observed a glass vial in the door panel, in plain
view. The vial contained a liquid substance with cigarette tobacco debris. Based upon
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his training and experience, Officer Olvera believed the substance in the vial was PCP.
He knew from his training and experience that PCP was normally packaged in either a
plastic or glass vial. He had observed the partial debris of cigarettes inside vials of PCP
on prior arrests. Since he believed the vial contained PCP, it was reasonable for him to
search the van for more drugs. He knew that drugs could be stored in various locations,
as he had previously seen narcotics stored for transportation inside small compartments in
vehicles. Thus, it was also reasonable for him to search the compartments in defendant’s
van. While searching, Officer Olvera located the two shotgun shells in a cubby
compartment in the rear of the van.
Defendant contends that Officer Olvera merely found “an innocuous brown liquid
in suspect packaging,” and that he gave a “very broad and unspecific accounting” of his
experience in identifying drugs. Defendant further asserts that Officer Olvera “did not
name a single time when he found actual PCP in a similar package.” Defendant claims
that the packaging “could have been anything,” such as menthol flavoring, massage oil,
or smoking oil. In support of his argument, he cites Thomas v. Superior Court (1972) 22
Cal.App.3d 972 (Thomas). However, Thomas is distinguishable. In that case, a police
officer stopped a vehicle to ascertain the identities of the persons in it. (Id. at p. 975.)
The officer observed a “hand-rolled cigarette in white paper” on the back seat. (Ibid.)
Based on that observation, the officer arrested the defendant for possession of marijuana.
He then entered the defendant’s car and seized the cigarette. (Ibid.) The appellate court
held that the arrest for possession and seizure of the cigarette were unlawful because
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there was no evidence of circumstances indicating that the cigarette contained marijuana.
(Id. at pp. 979-980.) The court noted that there was no evidence concerning the
circumstances, or the officer’s prior experience in telling the difference between the
appearance of hand-rolled tobacco cigarettes and hand-rolled marijuana cigarettes. (Id. at
p. 976.) The court also stated that it was “inherently impossible for the contents of a
closed opaque container to be in plain view . . . .” (Id. at p. 977.)
In contrast, here, Officer Olvera specifically testified about his prior experience
and training in identifying PCP. He stated that he had completed the San Bernardino
County Sheriff’s Academy, and had since had ongoing training with other organizations
such as the California Narcotics Officer’s Association. He also said he had been
involved in countless arrests regarding possession and transportation of controlled
substances, including PCP. Furthermore, Officer Olvera testified that, on prior arrests, he
had seen cigarette debris inside glass vials containing liquid PCP. He further explained
how users commonly ingested PCP by use of a cigarette. Moreover, we note that the
cigarette in Thomas was covered by white paper, which made it impossible for the officer
to know, or even suspect, that it was a marijuana cigarette. Here, the glass vial was clear,
and the contents of it were plainly visible to Officer Olvera. In other words, the evidence
established what led Officer Olvera to form his opinion that the vial contained PCP.
In sum, defendant was observed loitering in an area where he had been warned not
to loiter, he was seen participating in what appeared to be a dice gambling game, and he
was near open alcohol containers. Then, when the police approached, he ducked behind
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his cohorts and ran away. In addition, Officer Olvera’s partner thought defendant had a
gun, and defendant failed to comply with Olvera’s commands to stop running. Thus,
Officer Olvera had reasonable suspicion to stop defendant and investigate. Furthermore,
the police were justified in searching defendant’s van. They had probable cause to
believe it contained contraband, based on Officer Olvera’s observation of a vial
containing what appeared to be liquid PCP in the door of the van. Thus, since Officer
Olvera acted in an objectively reasonable manner in stopping and detaining defendant for
investigation, the trial court properly denied the motion to suppress evidence. (See
People v. Conway (1994) 25 Cal.App.4th 385, 390.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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People v. Taylor CA4/2
Combined Opinion