THE PEOPLE, Plaintiff and Respondent, v. CURTIS MARQUIS TURNER, Defendant and Appellant.
A147603 (Contra Costa County Super. Ct. No. 5-151786-1)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 7/10/2017
CERTIFIED FOR PUBLICATION
On appeal, Turner contends that the trial court erred by (1) denying his motion to suppress the contraband and (2) admitting evidence of a previous arrest during which he was found in possession of the identical type of ammunition. We hold that the court properly denied the motion to suppress because the contraband was discovered in an inventory search after an arrest supported by probable cause. We also hold that the court properly admitted evidence of Turner‘s prior possession of the same type of ammunition because it impeached his specific testimony suggesting that the police planted the contraband in this case. Therefore, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Preliminary Hearing and the Motion to Suppress.
The following facts are drawn from the preliminary hearing and formed the basis for Turner‘s motion to suppress.
Officer Niemi approached the booth and “called out to [the man] several times,” but the man did not respond. Officer Niemi then touched the man‘s shoulder and continued speaking to him, and the man eventually told him to go away. Officer Niemi lifted the man‘s jacket off his head and recognized the man as Turner, whom the officer had frequently seen “near or in front of Nation‘s restaurant” after “being dispatched there for the same reason.”
After pulling the jacket off Turner‘s head, Officer Niemi told Turner that he needed to leave. Turner did not respond. Officer Niemi then noticed a cell phone charger plugged into an outlet behind Turner‘s booth, unplugged the charger, and put it on top of Turner‘s jacket while again informing Turner that he needed to leave.
Turner eventually began searching for his cell phone, first around his booth and then in nearby garbage cans and unoccupied booths. After Turner was unable to find it, Officer Niemi told him he could file a lost property report, but Turner responded that he did not want to do so. Then, in “[s]omewhat of an agitated tone, not overly loud,” Turner accused the officer of stealing the phone. Officer Niemi told Turner yet again that he needed to leave the restaurant, and the officer then picked up Turner‘s duffel bag and carried it outside. On the way, Turner asked the restaurant manager to call his cell phone, which she did. Turner then followed Officer Niemi outside.
Once outside, Officer Niemi put Turner‘s duffel bag next to a planter box outside the front door. Officer Niemi again told Turner that he needed to leave, but Turner instead began looking into the restaurant‘s windows and checking the planter boxes. As Turner continued to do this for three or four minutes, Officer Niemi advised him that he needed to leave or he would be arrested. Some customers began to walk into the restaurant, and Turner asked them “to keep an eye out for his cell phone[,] and he asked another customer to try to call his cell phone.” After the customers had gone inside, Turner opened the door and again asked one of the customers to try to find his cell phone.
Officer Niemi went back inside and asked the restaurant manager “if she wanted [Turner] removed from the property,” and she said “she wanted him arrested for trespassing.” She then signed a form for a citizen‘s arrest and
Officer Niemi returned outside, where Turner was standing in front of the restaurant‘s windows and now holding the duffel bag. The officer took the bag and placed Turner in handcuffs. Officer Almir Dugonjic arrived and transported Turner and his bag to the police station, where Turner was booked.
Officer Niemi testified that the San Pablo Police Department has a standard policy when arresting someone of “conduct[ing] an inventory search on any property logged in for safekeeping . . . to create a list of any valuable items that might possibly be in the property, as well as anything that might potentially be dangerous.” Due to a “miscommunication” between him and Officer Dugonjic, Officer Niemi did not conduct an inventory search of Turner‘s duffel bag until about 18 hours after the arrest. Officer Niemi had asked Officer Dugonjic to conduct an inventory search before putting the bag in an evidence locker, but Officer Dugonjic did not do so. When Officer Niemi searched Turner‘s duffel bag, he found a fully loaded .38 caliber six-shot revolver that appeared to be functioning, a 50-round box containing 44 rounds of .38 caliber ammunition, which matched the ammunition in the revolver, and a niacin pill bottle with a white crystalline
substance inside that was later determined to be slightly over three grams of methamphetamine.
Turner filed a motion to suppress that the magistrate heard at the preliminary hearing. After considering the parties’ argument on whether there was probable cause to arrest Turner for various forms of trespass, the magistrate denied the motion without giving its reasons for doing so. The People then filed an information charging Turner with a felony count of possession of a firearm by a felon, a felony count of possession of ammunition by a felon, and a misdemeanor count of possession of methamphetamine.1
Before trial, Turner filed a renewed motion to suppress and a motion to dismiss the information under
B. The Trial and Sentencing.
At trial, the prosecution‘s case focused on the circumstances surrounding Turner‘s arrest and the search of his duffel bag. Turner testified in his own defense and admitted that the niacin bottle was his but denied that the revolver, ammunition, or methamphetamine were his or had been in his duffel bag before the arrest. According to Turner, after Officer Niemi went back inside the Nation‘s restaurant to speak with the manager, he remained outside talking with Officer Dugonjic. When Officer Niemi came back outside, he seemed “upset,” and he placed Turner under arrest once he saw Turner talking to the other officer. Turner testified that after being placed in Officer Dugonjic‘s
car, he saw Officer Niemi “thoroughly” search the duffel bag and then put it in the trunk. According to Turner, he did not learn that the revolver, ammunition, and methamphetamine were found in the duffel bag until he returned to the police station to claim the bag. The trial court allowed the prosecution to impeach Turner‘s testimony with evidence that he possessed the same type of ammunition when arrested for an unrelated crime a month earlier.
The jury found Turner guilty of all three charges. The trial court suspended imposition of the sentence and placed him on probation for three years.
II. DISCUSSION
A. The Trial Court Properly Denied the Motion to Suppress.
1. General legal standards.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. (People v. Macabeo (2016) 1 Cal.5th 1206, 1212.) ” ’ “[W]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” ’ ” (Id. at p. 1213.) One exception, however, is an inventory search after a lawful arrest. (Illinois v. Lafayette (1983) 462 U.S. 640, 643.) This exception permits “police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect.” (Ibid.)
A defendant may file a motion to suppress at the preliminary hearing based on the evidence introduced at that hearing. (
” ‘In ruling on a motion to suppress, the [magistrate] must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the [magistrate‘s] resolution of the factual inquiry under the deferential substantial evidence standard. Whether the relevant law applies to the facts is a mixed question of law and fact that is subject to independent review.’ ” (People v. Casares (2016) 62 Cal.4th 808, 835.)
2. Officer Niemi had probable cause to arrest Turner.
Turner claims his arrest was not supported by probable cause. We disagree.
“Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and
into percentages because it deals with probabilities and depends on the totality of the circumstances.” (Maryland v. Pringle (2003) 540 U.S. 366, 370-371.) ” ’ [T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,’ ” and “the belief of guilt must be particularized with respect to the person to be searched or seized . . . .” (Id. at p. 371.) In determining whether probable cause to make an arrest existed, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause . . . .” (Ibid.)
Although the parties discussed several trespass-related statutory provisions as possible bases for Turner‘s arrest in litigating the motions below, the Attorney General exclusively relies on section 602.1(a) in arguing that probable cause existed.
Turner argues that there was “no evidence he intentionally interfered with [the restaurant‘s] business by obstructing or intimidating any of its employees or customers.” He acknowledges that he refused to leave when asked to do so, but he contends that this refusal alone does not establish his intent to interfere with the restaurant‘s business, relying on Dubner v. City & County of San Francisco (9th Cir. 2001) 266 F.3d 959. In
Dubner, an action under
We are not persuaded. Even assuming that Turner‘s intent to interfere could not be inferred solely from his refusal to leave, there were sufficient other facts known to Officer Niemi to establish probable cause. First, unlike the plaintiff in Dubner, Turner was asked multiple times over a span of hours to leave the restaurant. (See Dubner v. City and County of San Francisco, supra, 266 F.3d at p. 963 [police gave general dispersal order and plaintiff testified she did not hear it].) Second, the restaurant‘s manager had to interrupt her duties not only to ask Turner to leave, but also to call the police, talk to Officer Niemi, and fill out paperwork. Finally, Officer Niemi testified that he had been called to the restaurant several times before because Turner refused to leave. These circumstances were sufficient to create a reasonable suspicion that Turner was guilty of violating section 602.1(a).
B. The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of Turner‘s Prior Possession of Ammunition to Impeach Specific Testimony.
Turner claims that the trial court prejudicially erred by admitting evidence that he was found in possession of the same type of ammunition during an earlier arrest. We conclude there was no abuse of discretion.
1. Additional facts.
The prosecution filed a motion in limine under
Immediately after Turner‘s direct examination, the prosecution renewed its request to admit evidence of his prior possession of ammunition on the theory that Turner had now “essentially . . . said that this is [an] officer frame-up or this is an officer conspiracy, because his testimony directly contradict[ed that of] Officer Niemi.” The prosecutor argued the evidence was therefore admissible to impeach Turner‘s testimony. The trial court reaffirmed its ruling that the evidence was inadmissible on the issue of Turner‘s knowledge of his possession of the revolver. The court ruled that the evidence was
admissible, however, to impeach Turner‘s testimony that “on this occasion . . . he did not have ammunition in his bag,” explaining,
“But certainly if a month before he had the exact type of ammunition that is being referenced here and he was found with . . . such ammunition in his possession, then that would impeach his credibility on that issue. So I think because of our opening the door here with respect to the officer framing him . . . somehow[,] the implication being that [the officer] placed this ammunition in [Turner‘s] bag[,] that certainly [Turner‘s] credibility should be tested on this issue, given that he . . . had the exact type of ammunition in his possession 30 days earlier.”
Turner indicated that he would not invoke his Fifth Amendment privilege not to testify about the earlier arrest, which was associated with an open case. On cross-examination, he then reaffirmed that the ammunition in the duffel bag was not his and that it had not been in his bag on the day Officer Niemi arrested him. Turner also testified that he had never seen the ammunition before, had never opened the box, and had not loaded the revolver. He indicated that he thought it was possible that Officer Niemi had framed him but stated, “I can‘t say what happened at the station. All I can tell you is what doesn‘t belong to me and what was in my bag at the time. But as far as who did what, I wasn‘t there for that part, for that matter, so I couldn‘t state.”
The prosecutor then questioned Turner about his earlier arrest. Turner denied that he had possessed a box of identical ammunition on that occasion or that he had ever possessed such ammunition. In rebuttal, another San
2. Evidence that Turner previously possessed ammunition was admissible to impeach his testimony on specific points.
speaking, evidence “that has any tendency in reason to prove or disprove the truthfulness of a [witness‘s] testimony” is admissible. (
Prior misconduct can also be admissible to impeach a witness under
The trial court has broad discretion in determining whether to admit impeachment evidence, including whether it is subject to exclusion under
directly contradict any of his testimony on cross-examination. Instead, his answers were confined to the particular box of ammunition found in his duffel bag. Thus, we agree with Turner that this case is distinguishable from cases holding that “a specific instance of conduct is admissible as impeachment evidence when it rebuts a broad statement by the witness” because, unlike the witnesses in those cases, he “did not make a sweeping claim, such as that he had never possessed ammunition,” that evidence of his prior possession of ammunition would contradict. (See, e.g., Andrews, supra, 205 Cal.App.3d at pp. 941-943, 945-946 [evidence of complaints against officer for violent behavior admissible to impeach his testimony that he was generally “patient” with arrestees]; People v. Cooks (1983) 141 Cal.App.3d 224, 324 [cross-examination of defendant about his conviction for handgun possession admissible to impeach his testimony that he had never possessed a gun].)
But there is no requirement that impeachment evidence directly contradict a witness‘s testimony to be admissible; it need only tend to prove that the witness is not credible. (See
occurred only 48 hours later.”3 (Id. at p. 131.) Thus, the testimony from the earlier case was valid impeachment evidence because it cast doubt on the defendant‘s story, even though it did not necessarily establish that the defendant was lying since it was theoretically possible that both shootings were accidental.
Likewise, evidence that Turner possessed the same type of ammunition a month before his arrest in this case cast serious doubt on his defense that the police planted the ammunition here. As Millwee suggests, evidence impeaches a witness‘s testimony if it reveals that the believability of that testimony depends on the occurrence of a major coincidence. We agree with the trial court that evidence of Turner‘s prior possession of ammunition was valid to impeach his testimony because it undermined his credibility about the incident in question.4
Turner claims that the trial court should have nevertheless excluded the evidence of his prior possession of ammunition because it was unduly prejudicial under
effect” to the extent ” ‘it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome.” ’ ” (People v. Tran (2011) 51 Cal.4th 1040, 1047.) ” ‘The prejudice that
In arguing that the standard for exclusion under
Turner also argues that two other factors weighed in favor of excluding the evidence of his prior possession of ammunition, but neither is relevant here. He contends that “because possessing ammunition does not reflect on [his] honesty or veracity, its value as impeachment evidence [was] minimal.” The trial court admitted the evidence on the basis that it specifically undermined Turner‘s defense that the police may have planted ammunition in his bag, however, not that it tended to disprove his general truthfulness. Similarly, he questions “whether simple possession of ammunition involves moral turpitude,” but again, there was no requirement that the prior misconduct involve moral turpitude for it to be admitted to impeach specific testimony as opposed to general truthfulness. That the prior misconduct may have reflected little on Turner‘s honesty or moral character did not reduce its relevance to impeach his specific testimony.
The evidence of Turner‘s prior possession of ammunition was relevant to cast doubt on his defense that the police may have planted the
III. DISPOSITION
The judgment is affirmed.
Humes, P.J.
We concur:
Dondero, J.
Banke, J.
People v. Turner A147603
Trial Court:
Superior Court of the County of Contra Costa
Trial Judge:
Hon. Diana Becton
Counsel for Defendant and Appellant:
Jeffrey A. Glick
Curtis Marquis Turner, First District Appellate Project
Counsel for Plaintiff and Respondent:
Xavier Becerra, Attorney General
Gerald A. Engler, Chief Assistant Attorney General
Jeffrey M. Lawrence, Senior Assistant Attorney General
Leif M. Dautch, Deputy Attorney General
Jalem Z. Peguero, Deputy Attorney General