Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Superior Court. No. BA357727 William C. Ryan, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Los Angeles Police Officers entered a bar to ensure the establishment had the proper permits to serve alcohol, licensees were up to date, and bartenders were not serving alcohol to people under 21 years of age. When an officer observed appellant place something in her bra, the officer and her partner approached appellant and the officer’s partner asked appellant whether he could “see” the item that was placed in her bra. Appellant agreed to allow the officer to examine the item and removed a coin purse from her bra. The coin purse contained 10 bindles of methamphetamine and 22 bindles of cocaine. Following the denial of appellant’s motion to suppress evidence (Pen. Code, § 1538.5), appellant pled no contest to possession of cocaine for sale (Health & Saf. Code, §§ 11351).
Appellant claims the trial court improperly denied her motion to suppress evidence because the police did not have reasonable suspicion to detain her. We conclude reasonable suspicion was not necessary because appellant was not detained within the meaning of the Fourth Amendment.
II. FACTS
At approximately midnight on June 14, 2009, Los Angeles Police Officer Lazaro Ortega and 12 other uniformed officers entered a bar known as the “Barra Latina.” The officers entered the bar in order to determine whether the bar had a permit to serve alcohol, licenses were up to date, and bar employees were serving alcohol to people under the age of 21. The establishment contained 40 to 60 patrons and was “crowded.” Officer Ortega walked toward the bartender to advise her of the purpose of their presence while the other officers stood at the front of the bar (but not blocking the exit) in order to “maintain control of the crowd” and allow the investigation to be conducted. During the investigation, patrons were free to leave as long as an officer verified that the person was not under 21 years old.
As Officer Ortega walked toward the bartender, he observed a Hispanic male drop a plastic baggie containing a substance resembling cocaine. Almost simultaneously, the officer observed another male patron open his clenched fist and drop a clear plastic baggie containing the same type of substance. Both men were detained by other officers.
After the two males were detained, the patrons of the bar were asked by officers to “clear the floor” and step toward a rear wall so that officers could see whether any additional narcotics had been dropped. As appellant walked to the rear of the establishment, Officer Debra Leabres observed appellant place something in her bra.
Officers Leabres approached appellant with her Spanish-speaking partner, Ciro Ochoa. Officer Leabres asked appellant what she had placed in her bra. Because appellant made a gesture suggesting she was not able to understand English, Officer Ochoa spoke to appellant in Spanish. He asked appellant, in a “regular” and “normal” tone, as opposed to a commanding voice, whether he could “see” the object she had placed in her bra. Appellant responded “it’s okay, ” retrieved a small leather purse from her bra, and handed it to Officer Leabres. The officer opened the purse and found baggies of narcotics. Appellant was arrested.
III. DISCUSSION
The trial court denied appellant’s suppression motion because it concluded appellant was not detained, within the meaning of the Fourth Amendment, when the officers asked her whether they could view what she placed in her bra. In reviewing the denial of a motion to suppress, the appellate court defers to the trial court’s express or implied factual findings when supported by substantial evidence and independently determines whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“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.]... 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.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
“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.]” (In re Manuel G., supra, 16 Cal.4th at p. 821.) “If there is no detention -- no seizure within the meaning of the Fourth Amendment -- then no constitutional rights have been infringed.” (Florida v. Royer (1983) 460 U.S. 491, 498.)
Factors to consider in determining whether the police contact is a consensual encounter or a detention include: the number of officers present; whether the officers displayed a weapon; whether there was physical touching; and whether the officers used “language or... a tone of voice indicating that compliance with the officer's request might be compelled.” (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Although many officers were present in the bar, only two approached appellant. Appellant was not grabbed or ordered to stop by either officer. Rather, appellant, along with the other patrons in the bar, were asked to clear the floor so that a search could be conducted for other narcotics which may have been dropped. Patrons were free to leave the bar as long as they could verify to an officer that they were 21 years of age or older. Appellant, however, moved to a public area toward the back of the bar. She was approached, and asked in a conversational, rather than accusatory voice, for permission to “see” the object she had placed in her bra. There is no suggestion in the record that either officer had a weapon drawn or that appellant was physically touched during the conversation.
Under these circumstances, we conclude the officers’ conduct was not coercive. Therefore, at no point prior to viewing the narcotics in the purse, was appellant detained within the meaning of the Fourth Amendment. The trial court properly denied the motion to suppress evidence.
IV. DISPOSITION
The judgment is affirmed.
We concur TURNER, P. J.KRIEGLER, J.