Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC801833
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
After her motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant Yolanda Carrillo Espinoza pleaded no contest to buying or receiving stolen property (§ 496, subd. (a)) and bringing a controlled substance into jail (§ 4573). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that she serve 153 days in county jail with 153 days credit for time served.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred in denying her motion to suppress evidence. She argues that she was detained by police for Fourth Amendment purposes, that the detention was without reasonable suspicion, and that the detention was impermissibly prolonged. She acknowledges that the latter argument was not raised in the trial court. For reasons that we will explain, we will affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with the appeal. In the petition, defendant alleges that her trial counsel provided ineffective assistance to the extent that counsel’s failure to raise the argument that the detention was impermissibly prolonged resulted in a forfeiture of the argument on appeal. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
II. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the probation report. On April 6, 2008, defendant was found in possession of a stolen check in the amount of $905. Defendant was arrested and taken to the preprocessing center, where she was told that drugs were not allowed inside the police facility. Although defendant claimed that she did not “ ‘have anything,’ ” marijuana was found inside her bra.
Information
On July 11, 2008, defendant was charged by information with buying or receiving stolen property (§ 496, subd. (a)) and bringing a controlled substance into jail (§ 4573).
Motion to Suppress
After the information was filed, defendant filed a motion to suppress “evidence and observations and fruits thereof, relating to an illegal search and seizure by officers... on or about April 6, 2008 pursuant to Penal Code [section] 1538.5.” In particular, defendant sought to suppress the check and the marijuana. The prosecutor filed opposition to the motion, contending that defendant was detained based on reasonable suspicion, she consented to a search, and her arrest was based upon probable cause.
Hearing on Motion to Suppress
At the suppression hearing on October 10, 2008, defense counsel confirmed that the defense was “only contesting the original stop and detention” of defendant and expressed an intent to file a supplemental brief. The sole witness at the hearing, San Jose Police Officer John Figone, testified as follows.
On April 6, 2008, about 11:33 p.m., Officer Figone received a call regarding a family disturbance at a house in San Jose. After reviewing an “Event Chronology” at the suppression hearing, Officer Figone testified that he arrived at the house less than two minutes after being dispatched.
Dispatch attempts to give officers as much information as possible regarding a call, including the names, physical descriptions, ages, races and ethnicities of the parties involved and whether there are any weapons at the scene. After reviewing the Event Chronology, Officer Figone testified that it “[a]ppears” dispatch told him that he was “going to a family disturbance that involved a mother and a 47-year-old son,” and it “appears” he was “looking for an African-American man.”
The house to which Officer Figone responded was located on a portion of the street that was “rather dark.” Using his “spotlight to look for addresses as well as spotlight people that may be involved with the call,” Officer Figone, who was alone in his vehicle, “spotted the front of the house” and “noticed... three individuals that were coming out.”
On the right side of the house, there was a garage with a driveway and to the left was “some grass that [led] up with a pathway to the front door.” The front door was open. Defendant and another female were “right in front of the door,” and it appeared to Officer Figone that the two females were exiting the house. The two females subsequently walked “down a walkway.” A male stepped out of the house and was “trailing behind” the females, “maybe by six or seven steps.” Officer Figone described the male as a “Black male adult” wearing dark clothing. He described defendant as a “Hispanic female” and the other individual as a “White female.”
Officer Figone exited his vehicle and walked towards the individuals while the spotlight was “behind” him. He had a flashlight in his left hand and his right hand was “[f]ree”; he did not have his weapon drawn. While he was standing on the street, Officer Figone “contacted” defendant and the other female, who were “at the bottom of the driveway of the residence” on or near the sidewalk. The male “stayed at the top of the driveway,” and Officer Figone did not contact him “at that time.” At the suppression hearing, Officer Figone explained that “ ‘contacting’ ” the individuals meant that he asked defendant and the other female, “ ‘[w]hat’s going on here,’ ” or words to that effect, at least twice. He indicated to the individuals that he was there for a family disturbance call and/or to investigate a disturbance. The individuals, including defendant, indicated that they were not involved in it and/or had nothing to do with it.
At the suppression hearing, Officer Figone explained that “[f]amily disturbances are some of the most dangerous calls” and “[s]o checking for weapons is primary and important.” He further stated that “[w]hen we respond to family disturbances of this nature, as well as just officer safety practices, we search people for weapons.” Officer Figone wanted to do a patsearch at this particular time “[d]ue to the fact that it was a family disturbance call, and those can turn out to be pretty violent and people can possess weapons, as well as the fact it was nighttime and it was a very dark part of the street.”
Officer Figone inquired about weapons and told the individuals something along the lines of “ ‘I’m responding to a disturbance. For your safety and mine, I want to make sure there’s no weapons here. Make sure for my safety and yours, if I can search you for weapons....” The individuals said “yes.” Officer Figone confirmed at the suppression hearing that he “ask[ed] for consent to search for weapons” and defendant gave “consent to search for weapons.”
Officer Figone conducted a “pat down search for weapons.” Defendant told Officer Figone that she did not have any weapons. No weapons were found on her, and nothing was seized as a result of this search.
Although it appears from the record that Officer Figone received consent to search and thereafter searched at least one other individual besides defendant, it is not clear from the record which of the other two individuals—the male or the other female outside the residence—consented and was searched, or whether both of those individuals consented and were searched.
By the time that Officer Figone had patsearched defendant, he knew that at least one other officer was present at the scene. After reviewing the Event Chronology, Officer Figone testified that “[i]t appears one [officer] was there with me for sure, and then another one showed up shortly after; and then finally, my sergeant appeared sometime after that.”
Officer Figone testified that “basically in a disturbance call like this, we’ll try to identify everybody involved.” He asked the individuals their names and dates of birth, and all three individuals provided the information. Defendant did not have any identification on her. Officer Figone “called... in” the names.
When Officer Figone was asked at the suppression hearing whether he was “able to verify [defendant’s] identification,” he initially testified that “they got a... match saying that it is who it is.” He later testified that defendant’s name came back as an “[u]nknown” person, which meant “there wasn’t a match” for the name. He subsequently testified that he did “not recall the exact response from dispatch.” He remembered, after reviewing the Event Chronology, that “CJIC, the system [they] use, [was] down,” and “there was an inability to get information.”
After defendant denied having “anything on her person that would verify who she was,” Officer Figone asked her whether he could search her for identification, and she responded in the affirmative. He explained that “in this line of work, you do get lied to a lot” and he wanted to “verify she is who she’s telling [him] she is.” During this second search, Officer Figone did not find any documentation with defendant’s name on it. He did find in her pocket an envelope containing a United States Treasury check for $905. The check was made out to “Maria Carrillo for a Patricio O. Gonzalez” and included an address. Defendant did not know Maria Carrillo. Defendant told Officer Figone that she found the check near Quick-Mart and that she intended to return it. She further stated that she “couldn’t find the house but that she was... going to return it later.” Officer Figone asked another officer to help investigate who Carrillo or Gonzalez was and to contact them if possible.
Thereafter, Officer Figone spoke with other officers at the scene and the mother of the male “who had come out of the residence and who was having the family disturbance.” After speaking with “both parties,” he determined that no crime had been committed.
At the conclusion of Officer Figone’s testimony, and at defense counsel’s request, the Event Chronology and 911 recordings were admitted into evidence.
According to the Event Chronology, on April 6, 2008, at 11:33 p.m., a woman called the police to report a family disturbance involving her son. The woman stated that her son is Black, was 47 years old, was wearing black clothing, and did not have a weapon. During the call, the woman provided her son’s name and her own name (which was different than defendant’s name). Three police officers were dispatched to the woman’s address. Officer Figone arrived at 11:35 p.m., and the other two officers arrived within a few minutes thereafter.
The Event Chronology does not identify the officers by name, but instead refers to numbers and a letter. Officer Figone testified that on the date in question, he was identified as “71C6.”
At 11:39 p.m., Officer Figone provided defendant’s name and a date of birth to the dispatcher and was subsequently informed that “[n]o records [were] found” for her. At 11:41 p.m., Officer Figone provided defendant’s name again, but this time with a different date of birth, and was again informed that no records were found.
At 11:54 p.m., Officer Figone told the dispatcher that the “Situation [was] Under Control.”
On April 7, 2008, at 12:17 a.m., the Event Chronology states that “CJIC IS DOWN & UNABLE TO RUN OUT PFN.”
At 12:28 a.m., one of the officers who was at the scene with Officer Figone departed for the address that was listed on the check found in defendant’s pocket.
At 12:36 a.m., an additional officer arrived at the scene where Officer Figone was located.
At 1:12 a.m., the police determined that the check found in defendant’s pocket was stolen.
After the Event Chronology was admitted into evidence, the trial court continued the suppression hearing to October 24, 2008, for argument from the parties.
Further Briefing
Before the hearing resumed on defendant’s motion to suppress, the prosecutor filed a supplemental memorandum of points and authorities in opposition to defendant’s motion. The prosecutor argued that Officer Figone’s initial encounter with defendant was not a detention, that even if it constituted a detention it was based on reasonable suspicion, that the patsearch was based on reasonable suspicion, and that defendant consented to the search for identification.
Defendant also filed a memorandum of points and authorities prior to the continued hearing on his motion to suppress. Defendant argued that Officer Figone’s initial encounter with defendant was a detention, that the patsearch constituted a detention, that consent was not obtained for the patsearch, that the patsearch and detention were unreasonable, and that defendant would not have consented to the search for identification if the illegal detention and patsearch had not occurred. Defendant asserted that the check must be excluded because it was found as a result of an illegal detention and patsearch, and the marijuana must also be excluded because it was found incident to an unlawful arrest.
Continued Hearing
The continued hearing on defendant’s motion to suppress was held on October 24, 2008. After argument from counsel, the trial court denied the motion. The court found Officer Figone to be credible and determined that “defendant’s rights were not violated.”
Plea and Sentencing
On November 4, 2008, defendant pleaded no contest to buying or receiving stolen property (§ 496, subd. (a)) and bringing a controlled substance into jail (§ 4573). She entered the plea with the understanding that she would receive a jail sentence that was equal to credit for time served as of the day of sentencing.
On November 21, 2008, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that she serve 153 days in county jail with 153 days credit for time served. She was also ordered to pay fines and fees.
Defendant filed a timely notice of appeal on December 4, 2008.
III. DISCUSSION
On appeal, defendant contends that the trial court erred in denying her motion to suppress evidence. She argues that she was detained by police for Fourth Amendment purposes, that the detention was without reasonable suspicion, and that the detention was impermissibly prolonged. With respect to the length of the claimed detention, defendant acknowledges that she did not raise the issue in the trial court. She asserts that the issue may still be considered on appeal because it is “based on undisputed facts” and it “raises an important constitutional” issue. In the alternative, she asserts that trial counsel’s failure to raise the issue regarding the length of the detention constituted ineffective assistance.
Because we find the issue of whether defendant was detained to be dispositive, we address that issue first.
Legal Principles
“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. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.]
“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. [Citation.] 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. [Citations.] ‘[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.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] 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. [Citations.] 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. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
Mere police questioning does not amount to an involuntary detention. (United States v. Drayton (2002) 536 U.S. 194, 200-201 (Drayton).) “Where a consensual encounter has been found, police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.” (People v. Franklin (1987) 192 Cal.App.3d 935, 941 (Franklin).)
Standard of Review
“Whether a seizure occurred within the meaning of the Fourth Amendment is a mixed question of law and fact qualifying for independent review. [Citations.] Accordingly, ‘we review the trial court’s findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently. [Citations.]’ [Citation.] We must accept factual inferences in favor of the trial court’s ruling. [Citation.] If there is conflicting testimony, we 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. [Citations.]” (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
Analysis
In this case, Officer Figone was the first to respond to a family disturbance call and saw three individuals, including defendant, who appeared to be leaving the residence. When he approached the individuals, he was walking and did not have his weapon drawn. During his initial contact, he was standing on the street while defendant and the other female were at the bottom of the driveway on or near the sidewalk. There is nothing in the record to suggest that he obstructed defendant’s path. He generally asked defendant and the other female at least twice, “ ‘[w]hat’s going on here,’ ” or words to that effect, and indicated that he was there for a family disturbance call and/or to investigate a disturbance. A police officer may “approach[] individuals on the street or in other public places and put[] questions to them if they are willing to listen” without violating the Fourth Amendment’s prohibition of unreasonable seizures. (Drayton, supra, 536 U.S. at p. 200.) Nothing in the record suggests that Officer Figone’s tone was accusatory or that any nonverbal conduct on his part had a coercive element. Where cooperation was not induced by coercive means, merely approaching and asking questions of defendant did not amount to an involuntary detention by Officer Figone. (Drayton, supra, 536 U.S. at pp. 200-201; Manuel G., supra, 16 Cal.4th at p. 821.)
After the individuals indicated that they were not involved in the disturbance, Officer Figone asked for and received consent for a weapons search. He subsequently asked for and received the names and dates of birth of all three individuals. He also received defendant’s consent to search her for identification. A consensual encounter does not turn into a detention based on an officer’s mere request to submit to a search, request for identification, inquiry into the contents of pockets, or request to wait for a warrant check. (Drayton, supra, 536 U.S. at p. 201; Franklin, supra, 192 Cal.App.3d at p. 941; People v. Bennett (1998) 68 Cal.App.4th 396, 402 (Bennett).) During this second search, he found the check that ultimately led to one of the charges against her. There is nothing in the record to suggest that Officer Figone’s tone of voice indicated that compliance with his requests for identifying information, or to conduct the searches, might be compelled. There is also no evidence that he touched defendant in any way until after she consented to each search. Neither of the requests to search turned the otherwise consensual encounter into a detention. (Drayton, supra, 536 U.S. at p. 201; Franklin, supra, 192 Cal.App.3d at p. 941.)
Although another officer had arrived by the time defendant was patsearched for weapons and two more eventually arrived on the scene, there is nothing in the record to indicate that these other officers approached or communicated with defendant. We observe that, in addition to defendant, there were two other individuals outside the residence, and the mother who made the original call was also present at the residence. Officer Figone testified that when he was speaking to defendant, other officers assisted him with the investigation of the original call, and he later “spoke with them about what was going on at the house.” Significantly, there is no evidence in the record to suggest that the other officers did anything to intimidate defendant prior to her consent to the second search by Officer Figone. (Drayton, supra, 536 U.S. at p. 205 [presence of an additional officer on driver’s seat and facing rear of bus did “not tip the scale in [the defendants’] favor,” where the officer “did nothing to intimidate passengers, and he said nothing to suggest that people could not exit and indeed he left the aisle clear”].)
Defendant repeatedly refers to the spotlight “shin[ing] on” her during the encounter. The use of a spotlight alone does not constitute a detention. (People v. Perez (1989) 211 Cal.App.3d 1492, 1496 (Perez).) “While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.]” (Ibid.) In considering all the circumstances surrounding the encounter with defendant, we do not believe the effect of the police conduct as a whole, including the use of the spotlight, was coercive. (Manuel G., supra, 16 Cal.4th at p. 821.) “There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command,” and no evidence of “an authoritative tone of voice.” (Drayton, supra, 536 U.S. at p. 204.)
Defendant contends her case is “very similar” to People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) and People v. McKelvy (1972) 23 Cal.App.3d 1027 (McKelvy). These cases are distinguishable.
In Garry, the police officer was in his patrol car in a “high-crime, high-drug area.” (Garry, supra, 156 Cal.App.4th at p. 1103.) For a few seconds, the officer watched the defendant standing next to a parked car. (Id. at pp. 1103-1104.) After illuminating the defendant with the spotlight on the patrol car, the officer exited his vehicle and “ ‘briskly’ walked 35 feet in ‘two and a half, three seconds’ directly to [the defendant] while questioning him” about whether he was on probation or parole, even though the defendant had indicated that he was merely standing outside his home. (Id. at p. 1111.) The Court of Appeal determined that the police officer’s actions “taken as a whole, would be very intimidating to any reasonable person.” (Ibid.) The court believed that a detention had occurred even though the officer did not make any verbal commands. The court explained that “[n]o matter how politely [the officer] may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’ [Citation.] [The officer’s] actions set an unmistakable ‘tone,’ albeit largely through nonverbal means, ‘indicating that compliance with the officer’s request might be compelled.’ [Citation.]” (Id. at p. 1112.)
In contrast to Garry, in which the officer “all but ran directly at” the defendant while questioning him about his legal status (Garry, supra, 156 Cal.App.4th at p. 1112), the record in the present case reflects that Officer Figone simply walked towards defendant and the others after being directed to the residence based on a call concerning a family disturbance. While remaining on the street, he generally asked the individuals “ ‘[w]hat’s going on here,’ ” or words to that effect, and indicated that he was there for a family disturbance call and/or to investigate a disturbance. Considering the entirety of the circumstances, the trial court could find that the tone set by Officer Figone during his encounter with defendant was much different than that set by the “aggressive” and “intimidating actions” of the officer, who was not responding to a request for assistance, as described by the court in Garry. (Ibid.)
In McKelvy, the defendant was seen putting a small, dark object in his pocket while he was spotlighted by police officers in a patrol car. (McKelvy, supra, 23 Cal.App.3d at p. 1032.) Thereafter, one officer, armed with a shotgun, approached the defendant while “three officers, each carrying either a shotgun or carbine, moved ‘into position’ to cover the police unit and each other.” (Ibid.) The officer asked the defendant where he was going and to hand over the object he placed in his pocket. The defendant turned over a bottle, which contained a restricted dangerous drug. (Id. at p. 1031.) The Court of Appeal determined that the defendant did not voluntarily hand over the object. The court explained that in view of the defendant “standing in a police spotlight, surrounded by four officers all armed with shotguns or carbines,” “ no matter how politely the officer may have phrased his request for the object, it is apparent that defendant’s compliance was in fact under compulsion of a direct command by the officer. [Citations.]” (Id. at p. 1034.)
In the present case, the record does not support defendant’s argument that she was detained “by the officers’ show of overwhelming police power and authority.” Defendant and the other two individuals initially encountered only one officer, Officer Figone, who had a flashlight in his hand. To the extent other officers later arrived at the scene, there is no evidence that those officers had any interaction with defendant or otherwise engaged in conduct that might reasonably be viewed as intimidating. Unlike McKelvy, the circumstances in the present case cannot be described as coercive.
We therefore conclude that the trial court could properly find that Officer Figone’s initial encounter with defendant did not constitute a detention and that defendant voluntarily consented to the two searches. (Drayton, supra, 536 U.S. at pp. 200-201, 204, 205; Manuel G., supra, 16 Cal.4th at p. 821; Bennett, supra, 68 Cal.App.4th at p. 402; Perez, supra, 211 Cal.App.3d at p. 1496; Franklin, supra, 192 Cal.App.3d at p. 941.) The second search led to the discovery of the check, which provided reasonable suspicion for detaining defendant, and she was ultimately arrested.
Defendant argues that her detention was without reasonable suspicion and, in new arguments on appeal, that the detention was impermissibly prolonged and that her trial counsel was ineffective. As we have concluded that defendant was not detained prior to the discovery of the check, we need not reach these issues. Accordingly, the court did not err in denying defendant’s motion to suppress.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.