Opinion
G055207
09-06-2018
In re G.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.O., Defendant and Appellant.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DL0547) OPINION Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After the court denied his motion to suppress evidence, minor G.O. admitted he violated Health and Safety Code section 11364, subdivision (a), by possessing a pipe used for smoking a controlled substance. The juvenile court placed him on nonward probation for six months. (Welf. & Inst. Code, § 725, subd. (a).) Minor contends the court erred in denying the motion to suppress because the discovery of the pipe was the result of an unlawful detention. We disagree and affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
FACTS
On appeal, we "'view the evidence in the light most favorable to the judgment below . . . "'and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'"'" (In re Manuel G. (1997) 16 Cal.4th 805, 825 (Manuel G.).)
At the suppression hearing, Police Officer Michael Greene testified that he was patrolling a high crime residential neighborhood just before midnight when he noticed a black Honda parked at the right curb. The Honda's lights and engine were turned off. Four people were inside. Other cars were parked in the area. One car was parked about three feet in front of the Honda.
Initially, Greene drove past the Honda. He decided to take another look and made a lap around an apartment complex. When he came back around, the Honda was still there and four people were still inside.
Greene decided to make contact with the four occupants of the Honda. He pulled up behind the Honda and parked at a slight diagonal, with his right front bumper behind the Honda's driver side rear bumper. There was no testimony about the actual distance between the patrol vehicle and the Honda, although Greene testified that the Honda was still able "to freely drive away." From a review of a police video admitted into evidence as defendant's exhibit A, the court found "there's quite a bit of room . . . for the suspect vehicle to leave if they wanted to . . . ." From a review of the same video, minor's appellate counsel estimates there was "approximately five to six feet behind the Honda's driver side rear bumper." We have also reviewed that video, and conclude minor's counsel's estimate is reasonable.
When Greene pulled up, he illuminated the inside of the Honda with his spotlight. As he did so, he saw minor, who was in the passenger-side back seat, make a movement toward the floorboard and then sit back up.
Greene obtained consent from the driver for permission to search the Honda. All four occupants denied there was anything illegal in the Honda. At Greene's request, the driver "voluntarily exited" the Honda. The passengers were "removed from the vehicle," searched, then directed to sit at the curb. By this time, Police Officer Bak had arrived at the scene and the two officers searched the Honda. Bak found a sunglass case near where minor had been sitting. The sunglass case contained a methamphetamine glass pipe. When Greene asked who it belonged to, minor admitted it was his.
Minor moved to suppress evidence of the pipe. After reviewing the videotape from Bak's body camera, the court ruled that "based on the amount of room I saw in front of the suspect vehicle and behind," no detention had occurred before the occupants of the car were removed from it. Thus, the court found a detention did not occur when Greene parked behind the Honda and the subsequent search was pursuant to a valid consent.
The court denied the motion to suppress without prejudice to minor renewing the motion after obtaining body camera evidence from other officers at the scene, including Greene. Subsequently, it was discovered the video from Greene's body camera was not available because it had been deleted as the result of having been "mistakenly not labeled as an 'arrest'" in the system.
Minor moved for an order dismissing the charge against him for destruction of evidence. Before the hearing date, minor withdrew his motion and entered his admission of guilt, accepting the court's indicated sentence of nonwardship. The court placed minor on six months prewardship supervision under section 725, subdivision (a), stating that if minor successfully completed the conditions, he could return in six months, withdraw his plea, and have the case dismissed.
DISCUSSION
Minor contends the court erred in denying his motion to suppress evidence because the totality of the circumstances shows the discovery of the methamphetamine pipe resulted from an unconstitutional detention before the driver gave his content to search the Honda. "'Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure.'" (In re J.G. (2014) 228 Cal.App.4th 402, 408.) Minor's primary argument focuses on the notion that Greene's patrol car essentially blocked any exit path by which the Honda could have left the scene. Secondarily, minor argues the court failed to weigh all the factors that should have been considered when determining whether a detention had occurred when the patrol vehicle pulled up behind the Honda.
Legal Framework
A juvenile court's denial of a motion to suppress evidence is reviewable on appeal from the final judgment, even if the judgment results from the minor's admission of the allegations of the petition. (§ 800, subd. (a).) "In reviewing a . . . ruling on a motion to suppress, we defer to the . . . court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120; see In re Cody S. (2004) 121 Cal.App.4th 86, 90.)
The Fourth Amendment of the United States Constitution requires courts to exclude evidence obtained from unreasonable government searches and seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) "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." (Manuel G., supra, 16 Cal.4th at p. 821.) Whereas consensual encounters do not trigger Fourth Amendment scrutiny, detentions do. (Ibid.; Florida v. Bostick (1991) 501 U.S. 429, 434.)
No bright-line distinction exists between a consensual encounter and a detention; we look to the totality of the circumstances of a particular encounter to make the determination. (Manuel G., supra, 16 Cal.4th at p. 821; People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place . . . ." (Florida v. Royer (1983) 460 U.S. 491, 497.) "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." 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." (Manuel G., at p. 821; People v. Garry (2007) 156 Cal.App.4th 1100, 1106.) The key question is whether a reasonable person would feel he or she "'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 the conduct in isolation." (Manuel G., at p. 821.)
The Position of the Patrol Vehicle and Use of a Spotlight Did Not Effect a Detention
Much of minor's argument rests on his contention that the position of Greene's patrol vehicle restricted the Honda's freedom of movement by essentially blocking its exit path. He also attaches significance to Greene's use of a spotlight to illuminate the back of the Honda. Minor cites many cases where these two factors were a part of the totality of circumstances leading to a conclusion that a detention had occurred. But these cases are factually distinguishable, and the totality of circumstances here leads to the opposite conclusion. In the cases cited by minor, the officer's vehicle completely blocked any means of exit, a circumstance not present here.
Primary among the cases relied upon by minor is People v. Wilkins (1986) 186 Cal.App.3d 804. In Wilkins, the officers completely blocked the driver's freedom of movement. The officer "stopped his marked patrol vehicle behind the parked station wagon in such a way that the exit of the parked vehicle was prevented." (Id. at p. 809.) In United States v. Kerr (9th Cir. 1987) 817 F.2d 1384, the officer pulled his marked patrol car into the defendant's one-lane driveway as the defendant was backing out, thereby blocking the driveway. (Id. at p. 1387.) And in People v. Jones (1991) 228 Cal.App.3d 519 an officer pulled his patrol car "to the wrong side of the road," parked it "diagonally against the traffic" (id. at p. 522), got out, and told the defendant, who was walking away, to stop (id. at p. 523). Notably, the holding in Jones did not depend solely or even primarily on the positioning of the patrol car but on the conjunction of that circumstance with a police "direct[ive] to stop." (Ibid.)
Here, Greene parked five to six feet behind the Honda, which the trial court found was "quite a bit of room" for it to leave. But minor contends substantial evidence does not support the court's finding there was "quite a bit of room" between the Honda and Greene's patrol car and notes Greene parked his car at a diagonal, "pinning the Honda in." We are not persuaded. Minor does not dispute Greene's testimony that the gap between the Honda and the car in front of it was three feet. And minor's appellate counsel himself estimates Greene had parked his patrol car approximately five to six feet behind the Honda's driver's side rear bumper. In our view, the combined eight to nine feet qualifies as "quite a bit of room" for the Honda to exit.
As minor requested, we have reviewed defense exhibit A, consisting of Bak's body camera video. Contrary to minor's argument, the video does not show Greene's vehicle as "pinning the Honda in." The video shows Greene's patrol car parked at a slight diagonal, with its front right bumper to the inside of the Honda's back left bumper. This is consistent with appellate counsel's estimation "Greene's car was parked with its front [right bumper] approximately five to seven feet from the curb and the rear of the Honda's [left bumper] approximately seven to nine feet from the curb." Although the tail end of the patrol car partially angles out into the street, minor acknowledges it did not block traffic completely. To this end, Bak's body camera video shows traffic traveling in both directions.
Other cases discuss circumstances more akin to those here. In People v. Perez (1989) 211 Cal.App.3d 1492 (Perez), a police officer parked his patrol car in front of the defendant's vehicle, leaving "plenty of room" for the defendant to drive away, and activated both spotlights on the patrol car "to get a better look at the occupants and gauge their reactions." (Id. at p. 1494.) The officer then walked over to the car, tapped on the window, and asked the driver to roll down the window. (Ibid.) The Perez court held no detention had occurred because the officer "left room for defendant's car to leave," "did not activate the vehicle's emergency lights" and "turned on the high beams and spotlights only." (Id. at p. 1496.)
In a case cited by minor, U.S. v. Washington (9th Cir. 2007) 490 F.3d 765 (Washington), the court held that an officer's initial encounter with the defendant did not constitute a seizure, although the encounter later escalated into a seizure during a consensual search. In holding that the initial encounter with Washington was consensual, the court explained that the officer "parked his squad car a full car length behind [the defendant's] car so he did not block it. [The officer] did not activate his sirens or lights. [The officer] approached [the defendant's] car on foot, and did not brandish his flashlight as a weapon, but rather used it to illuminate the interior of [the defendant's] car. Although [the officer] was uniformed, with his baton and firearm visible, [he] did not touch either weapon during his encounter with [the defendant]." (Id. at p. 770.)
Here, Greene did not block the Honda's exit, or activate his siren or emergency lights. Greene approached the Honda on foot. Although he was in uniform, there is no evidence that he drew or displayed his gun, used force, or threatened the use of force. Greene did not suddenly park his car, against traffic, on the wrong side of the road. Nor did he make any verbal commands to minor, or touch him, until after he obtained consent from the driver to search the vehicle. These circumstances evidence a consensual encounter.
Minor also emphasizes that the Honda "was bathed in the bright light from Greene's patrol car's spotlight and headlights." Although the illumination is properly considered as part of the relevant totality of circumstances, his reliance on People v. Roth (1990) 219 Cal.App.3d 211 and People v. Garry, supra, 156 Cal.App.4th 1100 is misplaced. In Roth, the court held that a detention occurred when a sheriff's deputy shined his patrol car's spotlight on the defendant as he was walking, stopped the patrol car, got out of the vehicle along with a second deputy, and stood behind the car door, commanding the defendant to approach so the deputy could speak to him. (Roth, at pp. 214-215.) Similarly, in Garry, the court concluded the actions of an officer constituted a detention where "[the officer] bathed [the] defendant in light [with his spotlight], exited his police vehicle, and, armed and in uniform, 'briskly' walked 35 feet in 'two and a half, three seconds' directly to him while questioning him about his legal status. Furthermore, [the officer] immediately questioned [the] defendant about his probation and parole status, disregarding [the] defendant's indication that he was merely standing outside his home. In other words, rather than engage in a conversation, [the officer] immediately and pointedly inquired about [the] defendant's legal status as he quickly approached." (Garry, at pp. 1111-1112.)
Here, by contrast, Greene did not give any commands until after he obtained the driver's consent to search the Honda. There is no evidence he walked briskly toward the Honda, declined to engage in conversation, or disregarded anything its occupants said. And, unlike Roth and Garry, Greene did not shine his spotlight directly at minor. Instead, he shined it at the back of the Honda. Greene had a legitimate need for more light to see into the darkened car late at night, parked with four people inside, in an area that had generated numerous service calls for gang and drug-related activity. "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." (Perez, supra, 211 Cal.App.3d at p. 1496; see People v. Franklin (1987) 192 Cal.App.3d 935, 940 (Franklin) ["[c]oupling the spotlight with the officer's parking the patrol car [behind an ordinary pedestrian], appellant rightly might feel himself the object of official scrutiny. However, such directed scrutiny does not amount to a detention"].)
For this reason, minor's reliance on Vehicle Code section 2800, subdivision (a), providing that "[i]t is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer," lacks merit. --------
Minor also points out that "when Greene approached the driver's side of the car, he further . . . necessarily restricted the Honda's and its passengers' movement." But this circumstance is inherent in every instance where an officer approaches an individual in a car; the officer's act of standing in the most natural location to communicate with the driver of the car is not a show of authority giving rise to a detention. (Cf. U.S. v. Drayton (2002) 536 U.S. 194, 201-202 [that police questioning bus passengers restricts their movement says nothing about whether police conduct is coercive]; I.N.S. v. Delgado (1984) 466 U.S. 210, 218 [questioning by I.N.S. agents stationed at factory exists does not give rise to a detention]; see Washington, supra, 490 F.3d at pp. 768, 770 [no Fourth Amendment seizure although officer approached driver's side of car].)
Further, whether an officer is in uniform has "little weight in the analysis." (U.S. v. Drayton, supra, 536 U.S. at p. 204.) Unless undercover, officers out on patrol are usually armed and in uniform. (People v. Zamudio (2008) 43 Cal.4th 327, 346; Washington, supra, 490 F.3d at p. 770.) The same is true of the fact Greene was in a marked patrol vehicle. (See Washington, supra, 490 F.3d at p. 770 [no Fourth Amendment seizure where officer parked his squad car a car length behind the defendant's car, and did not activate his sirens or lights].)
Minor's Contention that Court Failed to Consider all the Evidence is Meritless
We reject minor's contention the court did not consider the Honda driver's difficulty in assessing how much room he had to back up given the patrol car's spotlights and headlights shining through the back window. Minor's trial counsel made this argument to the trial court, and in response, the court stated, "All right." Although the court did not expressly mention the issue when denying the motion to suppress, that does not mean it was not considered. We view the record in the light most favorable to the court's ruling, and accept the implied findings of fact that are supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 969.) We therefore infer the court considered and rejected this issue.
Minor also asserts that the "court did not appear to consider the time and place of the encounter as a factor in the analysis of whether a reasonable person in appellant's position would have felt free to leave or terminate the" encounter, and that, as a passenger in the Honda, he had practically no freedom of movement. But the cases minor cites in support of his argument do not support his position. As noted above, in Washington, supra, 490 F.3d 765, the court held that the officer's initial encounter with the defendant did not constitute a seizure. (Id. at p. 770.) The court went on to conclude that "[a]lthough [the defendant] voluntarily consented to the search of his person, . . . the encounter then escalated into an impermissible seizure." (Id. at p. 767.) It was in that context, after the initial encounter, that the court considered the time and place of the encounter. Here, minor contends the occupants of the Honda were detained during the initial encounter with Greene, before the driver gave consent to search the Honda.
Likewise, in People v. Spicer (1984) 157 Cal.App.3d 213, the defendant was a passenger in a vehicle legitimately stopped for a traffic violation. One officer administered a field sobriety test to the driver while another officer walked over to the passenger side of the car and ordered the passenger, peremptorily and without explanation, to produce her driver's license. (Id. at p. 217.) The court held that because the passenger had no realistic choice to ignore the demand, or to leave the scene, the "close encounter" (id. at p. 218) constituted an unlawful detention (id. at p. 220). Thus, as with Washington, supra, 490 F.3d 765, Spicer concerns whether conduct occurring after a lawful contact constitutes a detention whereas minor's contention in this case is that the initial contact by Greene constituted a detention. Here, there is no doubt that a detention occurred when the occupants of the vehicle were removed from the Honda. The driver's consent to the search would only be vitiated if the initial contact constituted a detention.
Accordingly, we conclude no detention occurred when Greene parked his patrol car behind the Honda. Accordingly, the driver's consent to the search was voluntary and the motion to suppress was appropriately denied.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J.