Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2008001880, of Ventura, James P. Cloninger, Judge
Sara Salkin, for Defendant and Appellant.
Edmund G. Brown, Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Curtis Franklin Hall appeals his conviction by plea to transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), entered after the trial court denied his motion to suppress evidence. (Pen. Code, § 1538.5.) Pursuant to a negotiated plea, appellant was granted probation with attendant fines and conditions. We conclude that the trial court correctly denied the suppression motion and affirm the order granting probation.
All statutory references are to the Penal Code unless otherwise stated.
Facts and Procedural History
On January 16, 2008 at 12:30 a.m., Ventura County Sheriff's Department Sergeant Kevin Vaden saw a Toyota truck parked outside an AM/PM market in Piru with its headlights on. The truck was covered with mud, had paper dealer plates and a broken side window. It was angled into the curb, parked away from the pumps and the convenience store.
Sergeant Vaden returned 45 minutes later. The truck was parked in the same spot with its headlights still on. Appellant was asleep, behind the wheel. Sergeant Vaden tapped on the driver's window to check on appellant's welfare. Appellant awoke, looked around as if he was dazed and confused, and slowly rolled down the window. Sergeant Vaden asked if he was "all right." Appellant hesitated and said he was not sure. Sergeant Vaden asked appellant to step out of the truck because appellant had "difficulty knowing where he was, where he was going, and I wanted to try to have a one-on-one conversation with him." Appellant exited the truck and "slowly" recalled that he was driving to Ventura to meet his family for vacation. Appellant was cold and surprised that he did not have his jacket on. He asked for his jacket which was inside the truck. Sergeant Vaden explained that, for officer safety purposes, Deputy Marco Hinahon would have to get the jacket and make certain there were no weapons in it. Appellant consented.
Retrieving the jacket, Deputy Hinahon noticed a large bundle of cash ($1,439) in the pocket. Appellant "suddenly remembered" that his cell phone had the address where he was meeting his family. Appellant asked for his cell phone and agreed that Deputy Hinahon could retrieve it. Deputy Hinahon looked for the cell phone, saw a bundle of cash ($2,570) in the center console and smelled marijuana, and asked if appellant had marijuana in the truck. Appellant said that a jar of marijuana was under the seat. Deputy Hinahon looked behind the passenger seat and saw a jar containing 17.5 grams of marijuana. A strong odor of marijuana emitted from two Rubbermaid containers in the back. Deputy Hinahon lifted the container lids and found 13 pounds of marijuana wrapped in trash bags.
Appellant was arraigned in superior court and brought a motion to suppress evidence. (§ 1538.5.) Following an evidentiary hearing, the trial court denied the motion on the ground that it was a consensual encounter "when Sergeant Vaden approached the defendant to check on his well-being." Based on appellant's demeanor and responses, the court found that Sergeant Vaden had reasonable suspicion to detain appellant "to see whether the defendant was in the course of committing a crime such as driving under the influence or being under the influence or whether he was a person that perhaps had been a crime victim, ... or whether he needed medical aid."
Consensual Encounter
Appellant argues that the detention and search violated his Fourth Amendment rights. On review, we defer to the trial court's express and implied factual findings which are supported by substantial evidence and determine whether, on the facts so found, the detention and search were reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Police contacts 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 of 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.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Substantial evidence supports the finding that the initial contact was a consensual encounter. Appellant parked for 45 minutes with the headlights on, asleep behind the wheel. Concerned about appellant's welfare, Sergeant Vaden tapped on the window and asked if he was all right. "[S]eizure does not occur simply because a police officer approaches an individual and asks a few questions." (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398]; In re Manuel G., supra, 16 Cal.4th at p. 821.)
Unlawful Detention
Appellant argues that he was unlawfully detained when he was ordered to exit the truck. An officer can ask a driver to step out of his or her car without transforming a consensual encounter into a detention. (People v. Harris (1986) 184 Cal.App.3d 1319, 1322.) "The officer [here] was merely performing a function of his duties – ascertaining whether a citizen was able to care for himself." (Ibid.)
Pursuant to the community caretaking exception, an officer may check on the welfare of people who cannot care for themselves or may need emergency services. (People v. Ray (1999) 21 Cal.4th 464, 471-472.) "The policeman, as a jack-of-all emergencies, has 'complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offences'; by default or design, he is also expected to "aid individuals who are in danger of physical harm, ' 'assist those who cannot care for themselves, ' and 'provide other services on an emergency basis.' If a reasonable and good faith search is made of a person for such a purpose, then the better view is that evidence of crime discovered thereby is admissible in court." (3 LaFave, Search and Seizure (4th ed. 2004) § 5.4(c), pp. 201-202, fns. omitted.)
That was the case here. Appellant appeared to be ill or under the influence and was not sure where he had come from. Appellant slowly recalled that he was driving to Ventura and was surprised that he was not wearing his jacket. The trial court found that appellant "was giving these odd sort of semi-crazy answers" and "[t]hat created reasonable suspicion for Vaden to continue to deal with the defendant to find out whether the defendant had committed a crime or needed his help."
Appellant asked for his jacket and cell phone. The trial court found that Deputy Hinahon "went in the car... with the defendant's consent to look for the phone [and ]... smelled marijuana in the car[.] [A]nd at that point there was certainly probable cause to search the car under the law as it then existed, the entire car, not just the interior passenger compartment."
Mixed Motives
Appellant claims that the trial court erred in conflating two exceptions to the Fourth Amendment warrant requirement: the consensual encounter doctrine and the community caretaking exception. The trial court correctly found that Sergeant Vaden had a reasonable suspicion to detain to see whether appellant was driving under the influence or needed medical aid.
Appellant argues that "mixed motives" are inimical to the community caretaking exception which provides that an officer may do no more than is reasonably necessary to ascertain whether someone needs medical assistance. (People v. Ray, supra, 21 Cal.4th at p. 477.) "Any intention of engaging in crime-solving activities will defeat the community caretaking exception even in cases of mixed motives. [Citation.]" (Ibid.)
In People v. Madrid (2008) 168 Cal.App.4th 1050, the Court of Appeal concluded that the community caretaking exception could not be invoked to stop and search a vehicle based on the belief that a passenger was ill. "[T]he stop was based on the officer's observations of the passenger. Clearly the balance would weigh more heavily in favor of the officer's action if the officer believed the driver was in great distress; an extremely ill driver is a danger not only to himself but to other members of the public as well. [Citation.]" (Id., at pp. 1059-1060.)
Unlike Madrid, there was no traffic stop or pretexual search. Sergeant Vaden approached a truck that was parked with its lights on for 45 minutes. The truck was covered with mud and had paper dealer plates and a broken window. Appellant was asleep, behind the wheel. The evidence clearly supports the finding that Sergeant Vaden tapped on the truck window to check on appellant's welfare.
People v. Torres (2010) 188 Cal.App.4th 775 is inapposite. There, the community caretaking exception was used as a ruse to impound a vehicle and conduct an investigatory search. (Id., at p. 780.) A narcotics officer asked the deputy to "'develop some basis for stopping' defendant" and the deputy "decided to impound the truck." (Id., at p. 781.)
Sergeant Vaden stopped and asked if appellant needed assistance. Based on appellant's responses, the condition of the truck and the odd manner in which it was parked, a reasonable officer would have perceived a need to ask appellant to step out of the truck in order to discharge the officer's community caretaking functions. (People v. Ray, supra, 21, Cal.4th at pp. 476-477.)
Motion for Reconsideration
Appellant claims that that the trial court abused its discretion in not granting him leave to file a supplemental brief after the suppression hearing. The trial court sat as the magistrate at the preliminary hearing and noted "this 1538.5 motion sounded like a replay of the preliminary hearing. Both of these witnesses [Sergeant Vaden and Deputy Hinahon] testified at [the] prelim to essentially the same facts." The court stated that it would permit supplemental briefing "[i]f you can point me to something that's material[, ] that's new.... But so far, I haven't heard any."
Defense counsel argued that she "had not moved to suppress [at the] prelim, to get into a lot of details that came out today. So what specific facts today, I think that we've heard for the first time today[, ] the length of this detention. That was not adduced at [the] preliminary hearing. And, also, there was no ability for counsel to inquire as to the reasons as to patting down -- excuse me -- the jacket and to not letting -- to not letting Mr. Hall go back into his vehicle...."
People v. Williams (1999) 20 Cal.4th 119, states that the prosecution has the burden of proving some justification for a warrantless search or seizure, "after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.]" (Id., at p. 136.) Consistent with Williams, appellant was permitted to argue his position at length and failed to identify new facts or issues warranting additional briefing.
On August 31, 2009, two months after the motion to suppress was denied, appellant moved for reconsideration and submitted a brief and transcript of the suppression hearing. Appellant argued that the prosecution opposed the motion to suppress based on a consent theory. "And in the course of the hearing, ... the Court veered off and, I would say for lack of a better term, interpolated a so-called welfare check as the justification."
The trial court did not err in denying the motion to suppress evidence and motion for reconsideration. During the course of a welfare check, Sergeant Vaden had a reasonable suspicion that appellant was engaged in criminal activity or needed medical assistance. The trial court found it "was a consensual encounter at the outset" and that appellant's bizarre behavior "would cause alarm bells to go off in anyone's head...." "When Sergeant Vaden asked if the defendant was all right, the defendant said he wasn't sure. That really creates a positive duty at that point on a sergeant to... make sure that the citizen is not driving under the influence, under the influence or... in need of police assistance...."
Appellant asked for his jacket and cell phone and consented to the officer's entry into the truck, during which time the officer smelled a strong odor of marijuana. We reject the argument that the detention and search were unlawful. A reasonable suspicion of criminal activity will justify a temporary detention even though the circumstances are consistent with lawful activity. (People v. Souza (1994) 9 Cal.4th 224, 233; United States v. Arvizu (2002) 534 U.S. 266, 274-276 [151 L.Ed.2d 740, 750-751].)
The judgment (order denying motion to suppress) is affirmed.
We concur: COFFEE, J., PERREN, J.
"THE COURT: Mr. Hall was not restrained from back in his vehicle on this record. The witnesses, had he asked, would not have prevented him, but I have no evidence that [appellant] asked to do so... [¶]... [¶] If you can point me to something that's material that's new, I would permit that. But so far, I haven't heard any."