Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge, Super. Ct. No. 05WF1987.
Chet L. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
A jury found defendant Debra Lynn Conwell guilty of possession of a controlled substance (Health & Saf. Code, § 11377(a)) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). The sole issue in her appeal is whether statements she made were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. Because defendant was not detained while she made these statements, the court did not err in admitting them.
FACTS
Cypress police officers Ausmus and Csikzsz arrived at an apartment complex in response to a call reporting a disturbance. After obtaining permission from the occupant and announcing his presence, Ausmus entered an apartment. After again announcing his presence, the officer pushed a bedroom door open and found defendant and a man on top of the bed. Next to defendant, he saw a purse.
Ausmus, leaving the purse in the room, asked defendant and her companion to go outside the apartment. They complied and, after a further check of the apartment, Ausmus and other officers met them, together with the man who had initially granted permission for the officer’s entrance into the apartment. When asked for her identification, defendant said that it was in her purse. After defendant granted him permission to do so, the officer retrieved the purse and showed it to defendant, who identified it as hers. He then returned to the apartment and searched the purse for defendant’s identification. Inside the purse, he found a baggy with what proved to be methamphetamine. He also found a glass pipe, with a burnt black, brown, and white substance on the inner wall, which he recognized as being of the type used to smoke methamphetamine.
The officer then returned to where defendant and the others were standing outside the building and asked her when she last used methamphetamine. She responded that it had been three days. She also stated, without further questions being asked and without the officer telling her he had found the contraband, that the methamphetamine in her purse was not hers. The officer then asked her how the methamphetamine got into her purse. Defendant stated it was not hers and, in the words of the officer, “she seemed a little bit like she was scrambling to grab an answer.” He thereupon arrested defendant.
DISCUSSION
Did the trial court err in admitting testimony by Officer Ausmus that, in response to his question about her last use of methamphetamine, defendant stated, ‘“I used three days ago but the meth in my purse is not mine”’? Before we may answer this question in the affirmative, we must conclude that the officer’s question took place while defendant was in custody. The obligation to give a Miranda advisement arises only “when a person is subjected to custodial interrogation. [Citation.]” (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.)
A temporary investigative detention does not trigger the duty to advise defendants of their constitutional rights. (People v. Clair (1992) 2 Cal.4th 629, 675.) Thus, the Miranda rule is not violated where a police officer temporarily detains a person that he or she reasonably suspects of being involved in criminal activity and “‘ask[s] the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.’ [Citation.]” (Ibid.) This was the situation here. Finding the methamphetamine in defendant’s purse undoubtedly aroused Ausmus’s suspicions. But this entitled him to ask a further question, the answer to which might have dispelled his suspicions.
In determining whether there is a custodial interrogation or whether a person was interviewed during a temporary detention, “[t]he totality of the circumstances surrounding an incident must be considered as a whole. [Citations.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) “Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id. at pp. 1403-1404.)
There is nothing in this record that would support the conclusion that the officer’s question of defendant as to her last use of methamphetamine was a custodial interrogation. After the officer discovered the methamphetamine he questioned defendant in a nonaccusatory manner. Nothing indicates that Ausmus’s demeanor was overbearing, and defendant voluntarily answered the questions. Defendant points to no evidence her movement was restricted or that she was not free to walk away from the officer. Under the totality of the circumstances, the trial court properly concluded defendant was not in custody. Therefore, a Miranda warning was not required, as defendant was not subjected to a custodial interrogation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., O’LEARY, J.