Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF117711A, Jerold Turner, Judge.
Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Dawson, J.
After appellant’s motion to suppress evidence was denied, appellant entered a negotiated plea of no contest to one count of possession of a throwing knife (Pen. Code, § 12020, subd. (a)(1)), and admitted as true an allegation of a prior felony conviction (Pen. Code, §§ 667, subds. (c)-(j), & 1170.12, subds. (a)-(e)). He was sentenced to a state prison term of 2 years and 8 months.
APPELLANT’S CONTENTION
Appellant contends that the superior court erred in denying his motion to suppress evidence. Specifically, he contends that evidence of his guilt (statements he made to the police and the discovery of the throwing knife he had in his pocket) was obtained as the product of an illegal detention. As we shall explain, we find his argument to be without merit and will affirm the judgment.
FACTS
At the suppression hearing, Bakersfield Police officers Martin Heredia and Kenneth Grove testified that at approximately 8:58 p.m. on January 20, 2007, the officers were driving a patrol vehicle near Clyde Street in Kern County. Both officers were in uniform. Officer Grove followed a car, which contained five people, for about two blocks. The car then abruptly stopped near the west curb line of Clyde Street. The officers did not pull the car over. Officer Grove parked the patrol vehicle in the middle of the street, about 10 to 20 feet behind the car. The officers directed their spot lights into the interior of the car and activated the emergency rear warning flashers to “warn other vehicles that may approach from the rear that a car was in the roadway.” The front emergency lights were not activated.
The driver, subsequently identified as Richard Rodriguez, and then appellant exited the car. The officers exited their vehicle. They did not draw their guns or order appellant to do anything. Officer Grove contacted Rodriguez. In a normal tone of voice, Officer Heredia greeted appellant, walked toward him, and asked if he was on probation or parole. Appellant stated he was on parole. The officer asked if he had any weapons or anything sharp that might poke the officer. Appellant stated that he had a knife in his right rear pocket and that he would go ahead and retrieve the knife for the officer. The officer said that he would go ahead and take it himself. The officer took a knife, which had about a four-inch blade, from appellant’s right rear pocket. Appellant was arrested.
THE STANDARD OF REVIEW
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.” (People v. Lawler (1973) 9 Cal.3d 156, 160; in accord, see also People v. Leyba (1981) 29 Cal.3d 591, 596-597, People v. Loewen (1983) 35 Cal.3d 117, 123, and People v. Williams (1988) 45 Cal.3d 1268, 1301.)
In 1982 section 28, subdivision (d) was added to article 1 of the California Constitution. This provision (popularly known as “Proposition 8”) states in relevant part: “Except as otherwise provided by statute hereinafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding .…” The effect of article I, section 28, subdivision (d), is that “in the absence of any express authority therefore courts may not exclude evidence seized in violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution.” (In re Lance W. (1985) 37 Cal.3d 873, 888; in accord, see People v. Souza (1994) 9 Cal.4th 224, 232, and People v. Glaser, supra, 11 Cal.4th at p. 363.)
DETENTIONS AND CONSENSUAL ENCOUNTERS
The law pertaining to police contacts with individuals was explained by the California Supreme Court in In re Manuel G (1997) 16 Cal.4th 806:
“Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal.Rptr. 671, 670 P.2d 325]; In re James D. (1987) 43 Cal.3d 903, 911-912 [239 Cal.Rptr. 663, 741 P.2d 161].) Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 433 [111 S.Ct. 2382, 115 L.Ed.2d 389].) Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. (Wilson v. Superior Court, supra, 34 Cal.3d at p. 784.)
“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. (Florida v. Bostick, supra, 501 U.S. at p. 434 [111 S.Ct. at p. 2386].) As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. (Ibid.; Wilson v. Superior Court, supra, 34 Cal.3d at pp. 789-790.) ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ (Florida v. Bostick, supra, 501 U.S. at p. 439 [111 S.Ct. at p. 2389].) This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573 [108 S.Ct. 1975, 1979 100 L.Ed.2d 565].) Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554 [100 S.Ct. 1870, 1877, 64 L.Ed.2d 497] (opn. of Stewart, J.); In re James E., supra, 43 Cal.3d at p. 913, fn. 4.) The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460 [268 Cal.Rptr. 8].)” (In re Manuel G., supra, 16 Cal.4th at p. 821.)
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S
DENIAL OF APPELLANT’S MOTION TO SUPPRESS
Appellant contends that on the evidence presented the superior court was required to conclude that no reasonable person in appellant’s situation would have felt free to disregard the police and go about his or her business. (In re Manuel G., supra, 16 Cal.4th at p. 821; see also Florida v. Bostick, supra, 501 U.S. 429.) We disagree. There is no dispute that when police stop a vehicle, both the driver and any passengers are seized within the meaning of the Fourth Amendment. “When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment.… We hold that a passenger is seized as well ….” (Brendlin v. California (2007) ___ U.S. ___, 127 S.Ct. 2400, 2403.) The evidence here, however, was that the police never stopped the car in which appellant was a passenger. The evidence was that the police car driven by Detective Grove and occupied by Detectives Grove and Heredia followed the car in which appellant was a passenger for about two blocks, and did so with no siren, no flashing lights and no show of authority of any kind. The car the two detectives were following went eastbound on Virginia, then turned right and headed southbound on Clyde. Detective Heredia testified that the car the detectives were following “made like an abrupt movement to where they stopped abruptly near the west curb line on the 300 block of Clyde.” Heredia was asked “Had you and your partner actually pulled their car over?” He answered “No.”
At the suppression hearing appellant argued that even though the officers did not stop the car in which he was a passenger, the officers activated lights on their police car after appellant’s car had stopped, and this was a show of authority indicating that the occupants of appellant’s car had been seized. The evidence, however, was that after appellant’s car pulled over, Detective Grove stopped his police car 10 or 20 feet behind appellant’s car and then “turned on the back flashers” before he opened the driver’s door of the police car. Grove’s testimony made clear that the purpose of turning on the back flashers was “[j]ust to warn other vehicles that may approach from the rear that a car was in the roadway” and that these back flashers were not the lights he would use to pull over a vehicle when making a vehicle stop. He testified:
For ease of reference, we will hereinafter refer to the car in which appellant was a passenger as “appellant’s car.”
“Q. Sir, when you say you turned on your back flashers, what exactly is that? …
“A. They are just warning lights in the back of the patrol vehicle. The particular one I was driving had rear flashing lights. They were strobe lights in the tail lamps as well as an amber strobe up in the back window.
“Q. Now, are those the same lights you use to pull a vehicle over or is that different?
“A. Well, when you pull a vehicle over, those lights automatically – there are three stages to our lighting system. The first one is a warning system to the rear and then there is a stage two and three, which activate lights up to the front to pull cars over.
“This particular activation was to the stage one position, which is just to the rear.
“Q. Okay. So, would anything in front of the car, would that be relevant as to those lights you are mentioning?
“A. None of those were on, no.”
Appellant then argues that he was detained because Detective Heredia told him to “stop right there” after appellant got out of his car on his own accord. This argument ignores the standard of appellate review. Appellant testified that he got out of the passenger side of the car on his own initiative and that Heredia then told him to “stop right there.” Heredia, however, was asked “Did you make any orders of any kind?” He answered “No.” “‘The … voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings – whether express or implied – must be upheld if supported by substantial evidence.”’ [Citations.]” (People v. Monterroso (2004) 34 Cal.4th 743, 758, quoting from People v. James (1977) 19 Cal.3d 99, 107.) We also observe that even appellant himself never testified that he or anyone else attempted to leave the scene. Appellant testified that he got out of the passenger side of the car “and I kind of like was still in a daze, wondering why they are behind us and pulled us over like this and, like, approaching us for no reason ….” Even appellant’s counsel, however, did not accept the premise that appellant’s car was “pulled … over” by the detectives. Rather, he argued that his client was detained later, after appellant’s car stopped on its driver’s own initiative, when the detectives activated the police car’s rear flashers: “I do believe with the flashing lights that – the emergency flashing lights, I do believe he was detained and that the case I cited, the Bailey case [People v. Bailey (1985) 176 Cal.App.3d 402], is actually right on point.”
In the case on which appellant relied, however, “[t]he officer pulled in behind the car and turned on his emergency lights, red and blue in front and amber to the rear.” (People v. Bailey, supra, 176 Cal.App.3d at p. 404.) In Bailey there was no question that the officer was detaining the occupant of the car. That was why the officer in Bailey “pulled in behind the car and turned on his … red and blue in front” lights. (People v. Bailey, supra, 176 Cal.App.3d at p. 402.) Indeed, the officer in Bailey “testified that as he approached the car, the occupant was not free to leave.” (Ibid.) In the case presently before us, however, the officers made no show of authority. They merely approached an already-stopped car and questioned appellant, who had already gotten out of the car on his own initiative. “‘[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ [Citations.]” (Florida v. Bostick, supra, 501 U.S. at p. 434, quoting from Florida v. Royer (1983) 460 U.S. 491, 497; in accord, see also In re Manuel G., supra, 16 Cal.4th at p. 821.) That is what occurred here. Appellant has shown no error.
DISPOSITION
The judgment is affirmed.