People v. Brown CA1/4

Filed 10/28/21 P. v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

A159877

v.

LISA BROWN, (Contra Costa County

Super. Ct. No. 5-190028-1)

Defendant and Appellant.

INTRODUCTION

After a jury convicted defendant Lisa Brown of felony identity theft

(Pen. Code, § 530.5, subd. (a)), misdemeanor practicing as a pharmacist

without a license (Bus. & Prof. Code, § 4051), and two counts of misdemeanor

possession of a controlled substance (Health & Saf. Code, §§ 11350, 11377)

she was placed on a four-year term of formal probation on the condition that

she serve 270 days on electronic home detention. Brown appeals the denial of

her suppression motion and the length of her probation term.

While working as a Rite-Aid pharmacist, Brown was asked by a

corporate investigator for proof of licensure, which she did not provide and

instead left the premises before beginning her shift. Responding to a call from

Rite-Aid, a police officer found Brown and asked her identity. The name and

birthdate she provided did not yield a match in the officer’s computer. In

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response to his further efforts to verify her identity, she requested a lawyer,

and the officer did not inquire further. He placed her in his patrol car,

handcuffed, and requested a fingerprint reader. Moments later she tried to

discard a bag of pills, which are the subject of her suppression motion. Brown

contends that placing her handcuffed in the police car elevated her detention

to a de facto arrest. We disagree and shall affirm. However, pursuant to

Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill No. 1950), we

order that Brown’s probation be reduced to a two-year term.

BACKGROUND

A. The Detention

The responding police officer testified at the suppression hearing that

he received a dispatch call advising that “[a] possible employee . . . had fled

from Rite Aid after being questioned about operating as a pharmacist

illegally.” The dispatch log stated: “Pharmacist under investigation, ran out

once RP [reporting party] . . . started asking her questions, currently sitting

inside the Chase Bank. The responsible is Lisa Brown, white female, blond

hair, white pharmacy coat, black and white shirt.”

At the Chase Bank the officer saw a woman fitting the description,

standing in the lobby, holding a white lab jacket. The woman did not appear

to be doing any business at the bank and seemed to be waiting for a ride. The

officer asked the woman for her name and date of birth. She said her name

was “Lisa Brown.” He asked Brown if she knew why he was speaking with

her. She replied, “No.” The officer’s efforts to verify her identity through

dispatch and on his computer did not yield a match between the name and

birthdate provided, and she did not produce any identification. Upon further

inquiry, she “immediately asked for an attorney.” To avoid the risk that

Brown would flee again, the officer placed her in handcuffs in his patrol car

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and requested a fingerprint reader to confirm her identity. Although Brown

made no furtive motions, the officer believed she was a flight risk: “Based on

the fact that she had already ran out of the Rite Aid and was, in my opinion,

waiting for someone to pick her up from the Chase Bank, I thought maybe

she would flee again.” While the officer was awaiting the fingerprint reader

the car began “shaking side to side.” Upon opening the rear door, he saw a

Ziploc bag in Brown’s left hand. As the officer removed her from the car, she

“threw the bag on the ground, and tried to kick it underneath the patrol car.”

He placed her in another patrol car and recovered “[n]umerous amounts of

pills with various shapes and sizes” in the baggie, in his patrol car, and on

the ground.

B. The Suppression Hearing

The parties disputed whether Brown had standing to challenge the pill

seizure or whether she abandoned the pills and did not have a reasonable

expectation of privacy in the patrol car. Addressing the detention, Brown

argued that placing her cuffed in the patrol car constituted an arrest which

was unsupported by probable cause. The People replied that Brown matched

the dispatch description and was being investigated by Rite Aid when she

fled. The officer located Brown alone in the bank, holding a lab coat, and

unable to provide identification. When running her name and the birthdate

she provided did not produce a hit, “the officer at least had reasonable

suspicion to detain her for giving him false information.” The People argued

that, believing Brown would again flee, the officer acted reasonably in cuffing

her in the patrol car while awaiting the fingerprint reader to determine her

identity.

The trial court focused on the information known to the officer from the

call log: “pharmacy calls the police, Rite Aid pharmacy calls the police, and

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says they’re investigating a pharmacist and that person just ran out, and

here’s the name and description. [¶] . . . [¶] It’s not from an anonymous

source, it’s from a business. It’s from the pharmacy in the business.” On that

record, the court found reasonable suspicion to support the detention. The

court elaborated that Brown was in the bank “not engaging in banking

business . . . . She gives a name, which is a fairly common name, and she has

no ID. And the date of birth, this is what I think is particularly important,

the date of birth that she gives, there’s no match for it.” The court found that

the circumstances justified the detention and her “being handcuffed in the

patrol vehicle, waiting for either the fingerprint reader or something else so

they know who they are dealing with.”

DISCUSSION

I.

The Trial Court Properly Denied the Motion to Suppress

A. Legal Principles

“When a police officer has an objective, reasonable, articulable

suspicion a person has committed a crime or is about to commit a crime, the

officer may briefly detain the person to investigate. The detention must be

temporary, last no longer than necessary for the officer to confirm or dispel

the officer’s suspicion, and be accomplished using the least intrusive means

available under the circumstances. [Citations.] A detention that does not

comply with these requirements is a de facto arrest requiring probable

cause.” (People v. Stier (2008) 168 Cal.App.4th 21, 26–27 (Stier).)

“ ‘[T]here is no hard and fast line to distinguish permissible

investigative detentions from impermissible de facto arrests. Instead, the

issue is decided on the facts of each case, with focus on whether the police

diligently pursued a means of investigation reasonably designed to dispel or

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confirm their suspicions quickly . . . .’ [Citations.] Important to this

assessment . . . are the ‘duration, scope and purpose’ of the stop.” (People v.

Celis (2004) 33 Cal.4th 667, 674–675 (Celis).) “ ‘ “[T]he brevity of the invasion

of the individual’s Fourth Amendment interests is an important factor in

determining whether the seizure is so minimally intrusive as to be justifiable

on reasonable suspicion.” ’ ” (Id. at p. 675.) “Of significance too are the facts

known to the officers in determining whether their actions went beyond those

necessary to effectuate the purpose of the stop, that is, to quickly dispel or

confirm police suspicions of criminal activity.” (Id. at pp. 675–676.) We look at

the totality of the circumstances of the detention to determine whether an

investigatory stop has turned into a de facto arrest. (Gallegos v. City of Los

Angeles (9th Cir. 2002) 308 F.3d 987, 991.)

Handcuffing and placing a suspect in a patrol car do not automatically

elevate a seizure into an arrest requiring probable cause. (See Celis, supra,

33 Cal.4th at p. 675 [“stopping a suspect at gunpoint, handcuffing him, and

making him sit on the ground for a short period of time” did not convert a

detention into an arrest]; see also People v. Natale (1978) 77 Cal.App.3d 568,

572 [suspect’s “mere presence in a patrol car” was not an arrest].) Where an

officer has a reasonable basis for believing a suspect poses a physical threat

or might flee, various methods have been permitted to ensure the safe

completion of an investigation. (See People v. Soun (1995) 34 Cal.App.4th

1499, 1517 [detention when the defendant “was removed from the car at

gunpoint by a large number of police officers, was forced to lie on the ground,

was handcuffed and placed in a patrol car, was transported from the site of

the stop a distance of three blocks to a parking lot,” where he was held for 30

minutes]; In re Carlos M. (1990) 220 Cal.App.3d 372, 384 [detention when the

defendant was handcuffed and transported to hospital for identification by

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rape victim; 30–minute duration]; Haynie v. County of Los Angeles (9th Cir.

2003) 339 F.3d 1071, 1077 [“A brief . . . restriction of liberty, such as

handcuffing, during a Terry stop is not a de facto arrest”]; United States v.

Alvarez (9th Cir.1990) 899 F.2d 833, 838–839 [investigative detention when

the defendant forced at gunpoint to get out of his car]; United States v.

Buffington (9th Cir. 1987) 815 F.2d 1292, 1300 [no arrest when driver was

stopped at gunpoint, ordered out of car and forced to lie on the ground];

United States v. Bautista (9th Cir.1982) 684 F.2d 1286, 1289 [handcuffing did

not convert detention into arrest].)

The prosecution bears the burden of justifying a warrantless search or

seizure. (People v. Williams (1999) 20 Cal.4th 119, 136; People v. Romeo

(2015) 240 Cal.App.4th 931, 939.) The court defers to the trial court’s factual

findings, whether express or implied, if supported by substantial evidence,

but exercises “independent judgment” in determining the legality of a search

or seizure “on the facts so found.” (People v. Glaser (1995) 11 Cal.4th 354,

362.) An appellate court “must accept factual inferences in favor of the trial

court’s ruling. [Citation.] If there is conflicting testimony, [the court] must

accept the trial court’s resolution of disputed facts and inferences, its

evaluations of credibility, and the version of events most favorable to the

People, to the extent the record supports them.” (People v. Zamudio (2008)

43 Cal.4th 327, 342.) The court cannot reverse merely because circumstances

may support a contrary finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.)

B. Analysis

Brown concedes the officer had reasonable suspicion to detain her but

contests his handcuffing her in the back of the patrol car. She argues the

circumstances known to the officer did not support a reasonable belief that

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she posed a safety or flight risk and that his conduct constituted a de facto

arrest unsupported by probable cause.1 We disagree.

The facts are undisputed, and we exercise our “independent judgment”

to determine the legality of the seizure. We conclude that the circumstances

known to the officer justified detaining Brown in handcuffs in the patrol car

while awaiting the fingerprint reader. His conduct was reasonable and did

not transform the encounter into an arrest. The officer understood that when

a Rite Aid investigator questioned Brown “about operating as a pharmacist

illegally” she “fled.” Brown matched the dispatch description (including

holding her white pharmacy coat); was in the Chase Bank, but apparently

not doing bank business; and, he thought, waiting for a ride. In response to

his efforts to identify her, Brown provided a birthdate which did not match

her name and produced no identification. When he tried to investigate,

Brown requested counsel, which hampered his efforts to quickly dispel or

confirm the suspicion of criminal activity. (See, e.g., Celis, supra, 33 Cal.4th

at pp. 675–676.) Initially thwarted, the officer pursued an alternate means to

ascertain her identity and requested a fingerprint reader. Knowing that

Brown fled from the pharmacy under suspicious circumstances, and estopped

in his effort to confirm her identity, it was not unreasonable for the officer to

handcuff and place Brown in his patrol car as he waited for the fingerprint

reader.

Brown argues, and the People do not dispute, that she did not make

any furtive movements while being questioned. She further contends that as

“she was a woman in her 50s on foot . . . any attempt to run away would have

1 The People argue that having voluntarily abandoned the pills, Brown

lacks standing to challenge their admission on evidence.Because we find the

detention supported by reasonable suspicion and the search and seizure

lawful, we do not reach this issue.

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led to an immediate chase by the officer, who had backup just across the

parking lot.” We will not “second-guess on-the-spot decisions of officers in the

field” (People v. Wilson (1997) 59 Cal.App.4th 1053, 1063) in this manner.

Rather, we “consider the facts known to the police officer at the time of the

detention to determine whether the officer’s actions went beyond what was

necessary to confirm or dispel the officer’s suspicion of criminal activity.

[Citation.] The same actions of a police officer might constitute a detention in

one instance and an arrest in another instance.” (Stier, supra,

168 Cal.App.4th at p. 27.)

Responding to Rite Aid’s report that Brown had been “operating as a

pharmacist illegally,” the officer pursued the investigation, attempted

unsuccessfully to verify her identity, and detained her to prevent further

flight while awaiting the fingerprint reader. We find the circumstances

known to the officer justified his actions.

The cases on which Brown relies are easily distinguished, as none

involve the situation where, as here, an officer has a reasonable basis for

believing the suspect might flee. (See, e.g., People v. Espino (2016)

247 Cal.App.4th 746, 758–760 [handcuffing was excessive where the 50-year-

old defendant was peaceful and compliant and, once removed from his car,

presented little threat of escape by foot]; In re Antonio B. (2008)

166 Cal.App.4th 435, 442 [handcuffing was excessive where the defendant

and his friend were suspected of smoking marijuana, they did not attempt to

flee, and the officers outnumbered them]; Stier, supra, 168 Cal.App.4th at

pp. 27–28 [handcuffing was excessive where the officer felt uncomfortable

because the defendant was “four to five inches taller” than he but the

defendant was cooperative throughout the encounter]; People v. Campbell

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(1981) 118 Cal.App.3d 588, 595–596 [handcuffing was excessive where the

defendant was unarmed, cooperative, and noncombative during questioning].)

While other less intrusive means may have been available to effectuate

the purpose of the stop, “[t]he question is not simply whether some other

alternative was available, but whether the police acted unreasonably in

failing to recognize or to pursue it.” (United States v. Sharpe (1985) 470 U.S.

675, 687.) We conclude the totality of the circumstances created a sufficient

concern that Brown was a flight risk to justify handcuffing and placing her in

the patrol car while attempting to determine her identity. The motion to

suppress was properly denied.

II.

Brown’s Period of Probation Must Be Reduced to Two Years

Upon her felony conviction for identity theft, the court sentenced

Brown to four years on formal probation, on the condition that she serve 270

days on electronic home detention. When Brown was placed on probation in

January 2020, Penal Code section 1203.1, subdivision (a), authorized the

court to impose a probation term “for a period of time not exceeding the

maximum possible term of the sentence.” (Former Pen. Code, § 1203.1,

subd. (a).) Assembly Bill No. 1950 modified section 1203.1 to reduce felony

probation terms to two years, with certain exceptions not applicable here.

Effective January 1, 2021, section 1203.1, subdivision (a) provides: “The

court, or judge thereof, in the order granting probation, may suspend the

imposing or the execution of the sentence and may direct that the suspension

may continue for a period of time not exceeding two years, and upon those

terms and conditions as it shall determine.” (Stats. 2020, ch. 328, § 2.)

Recently this court held that Assembly Bill No. 1950 applies

retroactively to all cases where the judgment is not yet final. (People v. Quinn

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(2021) 59 Cal.App.5th 874, 883 (Quinn).) In People v. Sims (2021)

59 Cal.App.5th 943, 960–961, 964, our colleagues in Division One of the

Fourth District Court of Appeal reached the same conclusion.

Despite the contention of both parties that the matter should be

remanded to the trial court for a reduction in the term of probation, remand

would waste judicial resources. Instead, as we did in Quinn, we reduce the

term of Brown’s probation to two years. (See Quinn, supra, 59 Cal.App.5th at

p. 885.)

DISPOSITION

Brown’s probation is reduced to a term of two years. In all other

respects, the judgment is affirmed.

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_________________________

Ross, J.*

WE CONCUR:

_________________________

Pollak, P.J.

_________________________

Streeter, J.

A159877 People v. Brown

* Judge of the Superior Court of California, County of San Francisco,

assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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