Filed 5/14/13 P. v. Lomax CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C071006
Plaintiff and Respondent, (Super. Ct. No. SF115071A)
v.
NATHAN LOUIS LOMAX,
Defendant and Appellant.
After the denial of his motion to suppress, defendant Nathan Louis Lomax pled no
contest to possession of cocaine base for sale and misdemeanor resisting arrest and
admitted two prior prison terms and one prior strike. The trial court dismissed a charge
of possession of heroin for sale and several other enhancement allegations.
Sentenced to state prison, defendant contends the trial court erred by denying his
motion to suppress because the evidence against him was obtained through an illegal
detention. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
One night in June 2010, Stockton police officers drove past an apartment complex
on East Oak Street several times because the complex was a very high-crime area; there
1
had been several recent shootings there, including one five days before; and there were
frequent drug sales. The complex was posted for no loitering, including tenants, and the
building manager appreciated the officers doing special checks on the complex.
Each time the officers drove by (several times), they saw defendant loitering in
front of the apartment complex. As they got closer, he would walk into the complex and
close the door behind him. People at that complex often loitered out front, then went
inside the complex and closed the security door behind them, making it hard to approach
them safely. Approaching police cars were easily visible from the building; whenever a
police car looked as though it was coming to a stop, people would walk away very
quickly. Therefore, around 2:00 a.m., several officers approached on foot to do a walk-
through of the complex.
After the officers walked up to the complex, one of the officers saw defendant in
the hallway “just standing there” for a short period of time. When the officers opened the
door and defendant saw them in full uniform, he ran down the hallway, “[taking] off
really fast.” The officers caught him on the stairwell inside the complex. Upon
searching him, they found what appeared to be heroin and rock cocaine.
In an unorthodox procedure, defendant filed a motion to suppress after the
criminal complaint was filed against him but before the preliminary examination was
held. The motion was based on facts set forth in the moving papers that had apparently
been drawn from the police reports. Judge William Johnson denied the motion, finding
that the totality of the circumstances gave the police a sufficient basis to detain defendant.
Before the preliminary examination, defendant refiled his motion to suppress
without change. At the preliminary examination, Judge Terrence Van Oss declined to
consider the renewed motion to suppress, concluding that defendant was not entitled to
have the motion heard a second time before he was held to answer.
After defendant was held to answer, he refiled his motion to suppress without
change, except that this time he attached police reports of the incident. Judge Seth Hoyt
2
subsequently heard and denied the motion, finding that a sufficient showing had been
made to justify defendant‟s detention.
DISCUSSION
Defendant contends the trial court erred by denying his motion to suppress. We
disagree.1
On review of a motion to suppress, we view the facts most favorably to the
respondent and uphold the magistrate‟s factual findings if supported by substantial
evidence. (People v. Woods (1999) 21 Cal.4th 668, 673; People v. Watkins (2009)
170 Cal.App.4th 1403, 1408.) However, we decide independently whether the search or
seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001)
26 Cal.4th 876, 924.)
In arguing that the trial court erred in denying his suppression motion, defendant
first asserts that the officers did not have grounds to detain him for attempting to flee
their presence because his flight was not “headlong.” This argument is specious.
Although the Supreme Court in Illinois v. Wardlow (2000) 528 U.S. 119 [145 L.Ed.2d
570] at one point used the term “headlong” to describe the defendant‟s flight in that case
(id. at p. 124 [145 L.Ed.2d at p. 576]), nothing in the court‟s holding turned on that
adjective. What the Supreme Court held was that “unprovoked flight upon noticing the
1 In addition to defending the denial of the suppression motion on the merits, the
People contend that because of the unorthodox procedure whereby defendant moved to
suppress even before the preliminary examination was held, “it is difficult to determine
what the factual basis was for the original suppression motion . . . before Judge Johnson”
and “[i]t is further difficult to determine [what] the factual basis was for the renewed
suppression motion before Judge Hoyt.” On that basis, they contend “the appellate
record . . . is not amenable to intelligible review and [therefore] this appeal should be
rejected.”
While the procedure here was certainly unorthodox, we find no difficulty in
reviewing the denial of the suppression motion because the facts before Judge Johnson
were not materially different from the evidence elicited at the preliminary examination.
3
police” or “nervous, evasive behavior” can be pertinent to determining reasonable
suspicion. (Ibid.) Here, defendant engaged in evasive behavior several times before the
officers came back to enter the building on foot. Then, when defendant saw the police
entering the complex, he engaged in unprovoked flight, running away up the nearest
staircase. Nothing about the nature of defendant‟s flight in this case distinguishes it from
the flight at issue in Wardlow.
As for defendant‟s argument that the facts of this case are “remarkably different”
from those in People v. Souza (1994) 9 Cal.4th 224 -- another “flight” case -- that
argument is also meritless. According to defendant, while there were “several factors
[including flight] which were weighed in the „reasonable suspicion‟ of criminal activity
calculation” in Souza, “[a]ll that can be said [here] is that at night [defendant] ran off
when the police approached.” Not so. The evidence showed that defendant was loitering
late at night in front of an apartment complex where loitering was forbidden and which
was known for a high amount of criminal activity, including drug sales. Several times
when he saw police approaching in patrol cars, he evaded them by disappearing into the
complex. Then, when he saw them approaching him on foot, he ran. All of these factors,
taken together, supported a reasonable suspicion that defendant was involved in criminal
activity, justifying his limited detention.
Defendant‟s final contention is that “[t]he factor of „high crime area‟ can only be
considered in the calculus of reasonable suspicion if the crimes in the area can be tied to
the defendant,” and “[t]he prosecution never provided this causal link in the hearing on
the motion to suppress.” Defendant is mistaken. It is true that mere presence in a high-
crime area, without more, is not a legitimate basis for concluding that a person found in
that area is engaged in criminal conduct. (See People v. Pitts (2004) 117 Cal.App.4th
881, 887.) A person‟s presence in a high-crime area, however, can provide context to
that person‟s behavior in a way that supports a reasonable suspicion that the person is
involved in criminal activity, and such was the case here. Defendant was seen repeatedly
4
loitering where no loitering was allowed in a place where “everyone was aware of the
drug sale[s] in that area.” That fact, along with his repeated evasions of police in their
patrol cars, and his immediate flight from them when they arrived on foot, gave the
police a reasonable basis for suspecting that defendant was loitering for the purpose of
engaging in the sale of illegal drugs. Thus, there was a sufficient nexus between
defendant‟s conduct and the previous crimes committed in that area to make the high-
crime nature of the area a legitimate factor in the determination of reasonable suspicion.
DISPOSITION
The judgment is affirmed.
ROBIE , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
5