People v. Guajardo

23 Cal. App. 4th 1738, 94 Daily Journal DAR 4678, 29 Cal. Rptr. 2d 21, 94 Cal. Daily Op. Serv. 2504, 1994 Cal. App. LEXIS 308

• Court: California Court of Appeal
• Decided: March 9, 1994
• Docket: No. B074726
• Status: Published

Opinions

Opinion

VOGEL, (Miriam A.), J.

On the People’s appeal, we find the search of defendant Margarito Espinoza Guajardo was incident to a lawful arrest and therefore reverse the order dismissing the information charging him with one count of possessing cocaine base for sale.

Facts

Los Angeles County Sheriff’s Deputy Steve Kim and his partner stopped in front of a house while they were on patrol in an area Kim knew to have a high level of narcotics activity. Kim saw Guajardo (who Kim knew because he had arrested him a month earlier for selling narcotics) and two other men standing by the side of the house. As Kim watched, Guajardo handed a small object to lids companion and the companion, in turn, put the object inside a cigarette pack, which he then put in his shirt pocket. Based on his experience and training, Kim formed the opinion that Guajardo was selling drugs to the other man.

Guajardo and his companion then walked toward the patrol car, with a nervous Guajardo looking around as if he was anxious to walk away. Kim detained the men and performed a patdown search of Guajardo, during which he removed a small, rock-like object and $926 in cash from Guajardo’s pockets. Kim then searched the companion, retrieved the cigarette pack from his pocket and, from inside the pack, retrieved a small plastic baggie which contained a white powdery substance. Kim asked the companion what was in the baggie but the companion, instead of responding to Kim, asked Guajardo the same question. Guajardo said it was cocaine (in fact, the baggie contained .19 grams of cocaine base and cocaine).

Guajardo was charged with one count of possessing cocaine base for sale, with two prior convictions alleged as enhancements. Guajardo moved to suppress, claiming the search was illegal, and the issue was submitted to the trial court on the basis of the preliminary hearing transcript (which includes Deputy Kim’s testimony to the facts set out above). The trial court granted the motion and dismissed the information. The People appeal.

Discussion

The People contend Guajardo’s suppression motion should have been denied. We agree.¹

In this post-Proposition 8 era, relevant evidence which may have been “unlawfully” seized under pre-Proposition 8 California law is nevertheless admissible unless exclusion is required by the United States Constitution. (In re Lance W. (1985) 37 Cal.3d 873, 890 [210 Cal.Rptr. 631, 694 ].) There is no constitutional basis for excluding the evidence seized from Guajardo.²

Probable cause to arrest exists if facts known to the arresting officer would lead a person 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. Bowen (1987) 195 Cal.App.3d 269, 274 [240 Cal.Rptr. 466].) A lawful arrest, in turn, justifies a full custodial search of the person. (United States v. Robinson (1973) 414 U.S. 218, 235 [38 L.Ed.2d 427, 440-441, 94 S.Ct. 467] [defendant stopped based on officer’s belief he was driving without a license; in searching his person, the officer felt an object in his coat pocket, removed it and found drugs in a cigarette case]; People v. Gutierrez (1984) 163 Cal.App.3d 332, 334-335 [209 Cal.Rptr. 376] [defendant stopped for suspicion of drunk driving and arrested; custodial search revealed small cardboard box containing stolen jewelry]).

No exact formula tells us how to decide whether there was probable cause to arrest. Instead, we look to the totality of the surrounding circumstances and decide each case on its own facts, taking into account such things as (1) the officer’s experience (which may render suspicious that which appears innocent to a layman); (2) the officer’s prior contacts with the suspect; (3) the officer’s awareness that the area is one known for street drug transactions; (4) the defendant’s conduct (such as a covert or secretive display, transfer or exchange); (5) a caching of an object given or received in a peculiar receptacle designed for a different, specialized purpose; (6) some indication by the defendant of a consciousness of guilt; and so on. (People v. Ingle (1960) 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d 577]; Cleaver v. Superior Court (1979) 24 Cal.3d 297, 307 [155 Cal.Rptr. 559, 594 P.2d 984]; People v. Mims (1992) 9 Cal.App.4th 1244, 1247-1250 [12 Cal.Rptr.2d 335]; People v. Martin (1973) 9 Cal.3d 687, 692 [108 Cal.Rptr. 809, 511 P.2d 1161]; People v. Handy (1971) 16 Cal.App.3d 858, 860-861 [94 Cal.Rptr. 387]; People v. Mendez (1973) 35 Cal.App.3d 606, 609 [110 Cal.Rptr. 894]; People v. Nonnette (1990) 221 Cal.App.3d 659, 668 [271 Cal.Rptr. 329]; People v. Limon (1993) 17 Cal.App.4th 524, 532 [21 Cal.Rptr.2d 397].)

It is not difficult to apply these criteria to this case. Deputy Kim had substantial experience with drug transactions and, based on his experience, concluded that Guajardo was selling drugs to his companion when, standing at the side of a house in an area known for a high rate of street drug transactions, he handed him a small object which the companion, in turn, secreted in a cigarette case which he then placed in his pocket.³ When we add to Kim’s experience the fact that he had, just a month earlier, arrested Guajardo for the sale of narcotics, it becomes clear that a person of ordinary care and prudence would conscientiously entertain an honest and strong suspicion that Guajardo was selling or at least furnishing narcotics. Any doubt Kim might have had would have been resolved by Guajardo’s demonstrated consciousness of guilt (he kept looking around as he approached the patrol car, appearing nervous and anxious to leave the area).

The question is not whether these facts would be sufficient to support a conviction, and the fact that there may be some room for doubt is immaterial. (People v. Howell (1973) 30 Cal.App.3d 228, 234 [105 Cal.Rptr. 748].) Giving Guajardo the benefit of every doubt, there is nevertheless probable cause because a succession of events proceeded to the point where any prudent person would say that an innocent course of conduct was substantially less likely than a criminal one. (People v. Andrino (1989) 210 Cal.App.3d 1395, 1402 [259 Cal.Rptr. 17].) In sum, there was probable cause to arrest and the search incident to that arrest was lawful.

For these reasons, the suppression motion should not have been granted and the information should not have been dismissed.

Disposition

The order is reversed and the cause is remanded to the trial court with directions to enter a new order denying the motion to suppress.

Masterson, J., concurred.

1 Where, as here, the evidence presented at a suppression motion is uncontroverted, we review the matter de novo, without deference to the trial court’s findings. (People v. Workman (1989) 209 Cal.App.3d 687, 694 [257 Cal.Rptr. 753]; People v. Koury (1989) 214 Cal.App.3d 676, 685 [262 Cal.Rptr. 870].)

2 The trial court suppressed not only the items seized from Guajardo, but also those taken from his companion. Independent of the conclusion we reach with regard to the search of Guajardo, the cigarette pack (and its contents) taken from the companion’s pocket should not have been suppressed because Guajardo did not have standing to object to the companion’s search. (In re Lance W., supra, 37 Cal.3d at p. 882.)

3 It is immaterial that Deputy Kim did not testify to the fact that, in this area, cigarette packs are common receptacles for drugs. This fact is one of common knowledge (People v. Torres (1990) 224 Cal.App.3d 763, 767 [274 Cal.Rptr. 117] [it is common practice for drug dealers to secrete narcotics in cigarette packages]) and it would be the height of naivete not to recognize this fact. Times have changed since 1976 and we cannot in this day and age (at least in Los Angeles County) give serious consideration to the holding in People v. Knisely (1976) 64 Cal.App.3d 110, 117 [134 Cal.Rptr. 269], that, in the absence of some evidence showing a cigarette pack is a common hiding place for narcotics, the fact that a small object is placed in the pack is not a suspicious circumstance.