Filed 12/2/14 P. v. Masetti 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



THE PEOPLE,                                                                                  C074201

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM037251)

         v.

CHRISTOPHER MASETTI,

                   Defendant and Appellant.




         Defendant Christopher Masetti appeals following a plea of no contest to
possession of methadone (count 1; Health & Saf. Code, § 11350, subd. (a)),possession of
drug paraphernalia (count 2; Health & Saf. Code, § 11364.1), and a sentence of three
years’ probation. Defendant contends the trial court erroneously denied his motion to
suppress evidence. (Pen. Code, § 1538.51). We shall affirm.




1 Undesignated section references are to the Penal Code in effect at the time of the
charged offenses.

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                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant filed his motion to suppress before the preliminary hearing, alleging
that the search and seizure occurred without a warrant, consent, or “other probable
cause.” He based this allegation on the following paragraph from the police report: “On
9-20-12 at about 2045 hrs[.] [a Butte County Sheriff’s Deputy] observed a suspicious
vehicle parked in the Columbine Rd[.] parking lot of Cedarwood Elementary School in
Magalia. As [the deputy] pulled into the parking lot to investigate, the driver,
[defendant], started the car and began backing out of the parking lot. [The deputy]
activated [his] light bar and initiated a traffic stop.”
       The People opposed the motion, asserting: (1) The traffic stop of defendant’s car
was based on reasonable suspicion because there was no appropriate or lawful reason for
defendant to be parked at an elementary school at 8:45 p.m.; (2) The pills found by the
officer after the traffic stop were in plain view and therefore seizable; and (3) Once the
pills were determined to be a controlled substance, the entire car could be validly
searched.
       Defendant’s motion was heard together with the preliminary hearing. Butte
County Sheriff’s Deputy Matt Rackley, the only witness, testified as follows: On
September 20, 2012, at around 8:45 p.m., Deputy Rackley was on routine patrol on the
Columbine Road side of Cedarwood Elementary School. The road is a dead end. Behind
the school, there is only school parking and a loading/unloading zone for children.
       In the five years Rackley had been assigned to that area, he had been called to the
school more than a dozen times to investigate burglaries, alarm calls, and vandalism, as
well as narcotics use in the parking lots. He could not recall the date of the most recent
prior incident, but it was within the last year. He had investigated narcotics violations in
the parking lots at least six times.




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       It was dark at 8:45 p.m. on the night in question. There appeared to be no school
function or school-related activity going on. There was only one car in sight, parked in
the middle parking lot.
       When Deputy Rackley saw that the car was occupied, he approached it in his
patrol car. The car started and began to back out when Rackley was about 30 yards
away. When the car started to back out, Rackley turned on his overhead lights and
initiated a traffic stop and the vehicle stopped. As Rackley initiated the traffic stop, the
driver of the other car “turned his torso towards the passenger seat and began to lean
over.” Rackley stated, “I saw his hands come off the steering wheel and move towards
the passenger side.” Rackley pulled up to the car’s driver’s side in “a T-bone
configuration,” got out of his patrol car, and contacted the driver (defendant). Rackley
then saw someone in the passenger seat.
       Recognizing the passenger, Jennifer N., from prior contacts, Deputy Rackley ran a
warrant check on her and discovered that she had active misdemeanor warrants. After
asking her to get out of the car, he handcuffed her, leaving the door open, and escorted
her back to his patrol car.
       Jennifer N. asked if Rackley could go back to defendant’s car and get her jacket.
As Deputy Rackley approached the car, he saw a baggie containing 20 white tablets
beside the passenger seat next to the door frame. Jennifer N. said they were methadone,
which Rackley later confirmed by consulting an online data base called “drugs.com.”
Based on his training and experience, Rackley concluded the tablets were a usable
amount of methadone.
       When Deputy Rackley spoke further to Jennifer N. in his patrol car, she told him
that defendant had contacted her earlier in the evening, asking to meet with her. After he
picked her up, they drove to a store to get cigarettes and then went to the parking lot. As
he saw Rackley approaching, defendant placed the baggie containing the methadone on



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the passenger side of the car. He had previously taken four or five pills from the baggie
and put them in his right sock, along with a syringe.
        Deputy Rackley went back to defendant’s car and asked him about the pills in the
car. Defendant said they belonged to Jennifer N. Rackley asked defendant to step out of
the car and asked if he had any narcotics or syringes with him. Defendant said he did not.
Based on the information Jennifer N. had given Rackley, he grabbed defendant’s right
pants leg and pulled it up. A syringe fell out. Rackley asked if defendant had anything
else. Defendant said he had three or four methadone tablets in his sock. Rackley found
four methadone tablets in the sock, a usable amount.
        The parties stipulated that the search and seizure were done without a warrant and
that defendant had a reasonable expectation of privacy in the places searched.
        The prosecutor argued that the case began with “effectively a Terry stop” 2
because the officer had reasonable suspicion of criminal activity afoot when he saw a car
parked in a school parking lot which had been the focus of prior criminality, at a time
when there were no school-related events going on and no valid reason for the car to be
there. Even if there might be an innocent explanation for the car’s presence, the officer
had a right to investigate it. Once the officer saw defendant’s furtive movements as the
traffic stop was underway, then saw the narcotics in the car in plain view, then obtained
information from the passenger, the officer had probable cause to believe narcotics were
on defendant’s person. Alternatively, the officer had probable cause to arrest defendant
for possession of the pills in the car, and the search of defendant’s person was valid as a
search incident to arrest.
        Defense counsel argued that the mere presence of a car in a parking lot, absent any
specific knowledge of how recently crimes had occurred there before, gave rise to




2   Terry v. Ohio (1968) 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 906].

                                             4
nothing more than a “hunch” that something might be wrong, not to reasonable suspicion
justifying a traffic stop. Furthermore, the search of defendant’s pants leg, based only on
the passenger’s allegation, was invalid.
       The magistrate denied the motion to suppress evidence, finding that under all the
circumstances the officer’s knowledge of past crimes at the site gave rise to reasonable
suspicion justifying an investigative detention, and the officer’s further actions “flow[ed]
lawfully” from the detention.
       Defendant renewed the motion after his arraignment at the preliminary hearing.
The only new fact cited in support of the motion was Deputy Rackley’s admission that he
could not state when the most recent prior incident of criminality at the school had taken
place. Defendant asserted that the traffic stop was unlawful because there was no
evidence providing probable cause that a crime was being committed or that defendant
had been involved in prior crimes in the vicinity.
       In response, the People stated that reasonable suspicion, not probable cause, is the
standard for a traffic stop, and that defendant had not offered new evidence to justify
renewing the motion.
       The trial court summarily denied the renewed motion.
       Defendant thereafter entered a plea of no contest to both counts alleged.
                                        DISCUSSION
       Defendant contends the magistrate erred by denying his motion to suppress
evidence because his detention was not based on reasonable suspicion. We disagree.
       In reviewing the magistrate’s ruling on a motion to suppress, we defer to the
magistrate’s factual findings if supported by substantial evidence, but exercise our
independent judgment as to whether the search or seizure was constitutionally reasonable.
(People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
       “ ‘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

                                                5
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.’ [Citation.]” (People v. Hernandez (2008) 45 Cal.4th 295,
299.) Even if the circumstances observed by the officer might have an innocent
explanation, they may still give rise to a reasonable suspicion which entitles the officer to
perform an investigative detention. (People v. Letner and Tobin (2010) 50 Cal.4th 99,
146; Glaser, supra, 11 Cal.4th at p. 373; People v. Souza (1994) 9 Cal.4th 224, 242
(Souza).) However, “mere curiosity, rumor, or hunch is insufficient despite the officer’s
good faith. [Citation.]” (People v. Roth (1990) 219 Cal.App.3d 211, 214 (Roth).)
       Although a person’s presence in a high-crime area is not enough by itself to create
a reasonable suspicion that he is involved in criminal activity, the “setting is a factor that
can lend meaning to the person’s behavior. [Citations.]” (People v. Limon (1993)
17 Cal.App.4th 524, 532.) “The time of night is another pertinent factor in assessing the
validity of a detention.” (Souza, supra, 9 Cal.4th at p. 241.) A suspect’s “evasive
conduct” and “sudden flight” from police also tend to establish the existence of
reasonable suspicion. (Id. at p. 242.)
       Here, defendant’s car was the only one parked at night in a school parking lot
when no school activity was going on. The lot and the school grounds had been a
frequent venue of criminal activity, including narcotics transactions. When defendant
saw Deputy Rackley’s patrol car, he started to back up with the apparent intent of
evading and fleeing from the officer. Under these circumstances, the deputy had ample
grounds to initiate a traffic stop to perform a brief investigative detention. The deputy
initiated the stop by activating his overhead lights. As he initiated the traffic stop, the
deputy observed defendant making a furtive movement consistent with an attempt to
discard or conceal contraband. We see the furtive movement as an extension of
defendant’s evasive maneuver to leave the scene after seeing the deputy’s patrol vehicle.
This circumstance added to the grounds supporting the justification for an investigative
detention.

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       Defendant relies on Roth, supra, 219 Cal.App.3d 211 and People v. Garry (2007)
156 Cal.App.4th 1100 (Garry). His reliance is misplaced.
       In Roth, the defendant was walking through a deserted parking lot in the early
morning when the police detained him, but there was no evidence the lot was a high
crime area and the defendant did not attempt to flee, nor did he act evasively. (Roth,
supra, 219 Cal.App.3d at pp. 213-215.) As we have shown, the present case is materially
different.
       In Garry, the trial court found, and the People argued on appeal, that the encounter
between the defendant and the police was consensual; the People did not argue in the
alternative that the defendant was detained based on reasonable suspicion. Finding the
encounter was not consensual, the appellate court reversed without considering whether
reasonable suspicion to justify a detention existed. (Garry, supra, 156 Cal.App.4th at
pp. 1105, 1107, 1112.) Since consent is not an issue here, Garry is inapposite.
       Defendant has shown no error in the trial court’s ruling denying his motion to
suppress.
                                     DISPOSITION
       The judgment is affirmed.



                                                       MURRAY                , J.



We concur:



      BLEASE                , Acting P. J.



      BUTZ                  , J.

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