Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA108234, Kelvin D. Filer, Judge.
Steve Cooley, District Attorney, Roberta Schwartz and Cassandra Hart-Franklin, Deputy District Attorneys, for Plaintiff and Appellant.
Michael P. Judge, Public Defender, Albert J. Menaster, Joseph Burghardt and Albert Camacho, Deputy Public Defenders, for Defendant and Respondent.
MANELLA, J.
The People of the State of California appeal from a dismissal following the trial court’s order granting the motion of defendant and respondent Jose Guadalupe Plasencia to suppress evidence pursuant to Penal Code section 1538.5. Appellant contends that the trial court erred in suppressing methamphetamine, baggies, and money found on respondent, as well as respondent’s statements at the time of his arrest. We conclude that respondent consented to the search and therefore reverse.
BACKGROUND
Respondent was charged by information with one count of possession for sale of methamphetamine. (Health & Saf. Code, § 11378.) Following his not guilty plea, respondent filed a motion to suppress evidence pursuant to Penal Code section 1538.5. At the hearing on the suppression motion, the parties stipulated that there was no arrest warrant or search warrant involved in the case.
Testimony presented at the preliminary hearing and at the hearing on the motion to suppress established as follows. In September 2009, around 5:40 p.m., four Los Angeles police officers were on patrol in uniform and marked patrol cars, working the gang unit together. Four officers worked together in case they encountered large groups of people. Officer Salvador Cervantes and his partner, Officer Muther, were in one patrol car, and Officer Jacinto and Officer Kravetz were in another.
Cervantes saw three men, including respondent, standing on the sidewalk holding open beer bottles. All four officers got out of their cars and went to speak with the men. The officers were armed, but they did not have their guns drawn, and they did not use lights or sirens to stop the men.
Cervantes thought that Officers Jacinto and Kravetz might have spoken briefly with respondent, but Cervantes could not hear what was said. Cervantes then approached respondent and asked if he could pat him down. According to Cervantes, respondent replied, “‘No problem, Sir. Just to let you know, I have a little bit of meth in my pocket.’” Cervantes then handcuffed respondent and searched him, finding a baggie containing methamphetamine, empty baggies, and $201 in his pockets. The entire incident, from the time Cervantes got out of his car to the time he finished searching respondent, lasted about a minute.
The defense called one witness, Daniel Rubio, respondent’s neighbor, to testify at the suppression hearing. Rubio testified that he saw three or four officers pull up and get out of their cars. Rubio was just a few feet away from respondent, and, according to Rubio, respondent was not drinking a beer at the time. Rubio saw empty beer bottles by the driveway, but saw no one drinking beer. Rubio saw the officers search respondent, remove a glass pipe from his pocket and throw it on the ground and step on it. Rubio told respondent’s mother about the incident, but he never told any police officers about it.
Officer Cervantes did not recall finding a pipe in respondent’s pocket. Respondent did not testify.
After ascertaining that the other defense witnesses would reiterate Rubio’s testimony, the court took the matter under submission. In ruling on the motion to suppress, the court initially noted that the officers saw respondent holding a bottle of beer, but not drinking from it. The court then focused on whether respondent’s consent was voluntary or coerced and found that his consent to the patdown was not voluntary because “I can’t imagine anyone not agreeing to the pat down, from those circumstances where the officer comes up and asks him.” The court further reasoned that there was no evidence that Officer Cervantes was worried about his safety or the safety of the other officers when he initiated the search. The court thus granted the motion and suppressed the items recovered from respondent, as well as his statements. The prosecutor indicated that in light of the court’s ruling he was unable to proceed, and the case was dismissed pursuant to Penal Code section 1385. The People timely filed a notice of appeal. (Pen. Code, § 1238 (a)(7).)
DISCUSSION
Appellant argues that the trial court erred in granting respondent’s motion to suppress. First, appellant contends that respondent’s detention was justified by the officers’ reasonable suspicion that respondent was drinking an alcoholic beverage on a public street or sidewalk, a misdemeanor under Compton Municipal Code section 7-8.3. (See .) Second, appellant contends the search was justified by respondent’s voluntary consent. We agree with both contentions.
“The standard to review the denial of a suppression motion is well settled. We must defer to the trial court on all its factual findings if they are supported by substantial evidence. Once the facts are determined, we then decide de novo whether the search or seizure was reasonable under established constitutional principles. [Citation.]” (People v. Logsdon (2008) 164 Cal.App.4th 741, 744.)
There is no question that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Terry v. Ohio (1968) 392 U.S. 1, 22.) “[A] ‘detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ [Citation.]” (People v. Logsdon, supra, 164 Cal.App.4th at p. 744.) Here, appellant relies on the officers’ suspicion that respondent was violating the prohibition against drinking an alcoholic beverage on a public street or sidewalk.
The trial court noted that respondent was holding, but not drinking from, a beer bottle. In making this observation, the court implicitly credited Cervantes’ testimony that respondent was holding an open beer bottle, rather than Rubio’s testimony that none of the individuals was holding a beer bottle. We believe the distinction between holding an open beer bottle and drinking from it is negligible in assessing the reasonableness of the officers’ suspicion that respondent was in violation of Compton Municipal Code section 7-8.3. If respondent was holding a beer bottle, it was reasonable for the officers to suspect he might be drinking from it. No more was required to justify the detention.
We turn next to the question of consent. “It is ‘well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.’ [Citations.]” (People v. Woods (1999) 21 Cal.4th 668, 674.) The voluntariness of the consent is a question of fact to be determined in light of all the circumstances. (People v. James (1977) 19 Cal.3d 99, 106.)
The trial court credited Officer Cervantes’ testimony that respondent verbally consented to the search. Nevertheless, it concluded that the consent was involuntary because the court itself “[could not] imagine anyone not agreeing to the pat down, from those circumstances where the officer comes up and asks him.” In so ruling, the court effectively concluded that any consent given under the circumstances was necessarily coerced. We disagree.
We find instructive guidance from the United States Supreme Court’s decision in United States v. Drayton (2002) 536 U.S. 194 (Drayton). There, three police officers boarded a bus “as part of a routine drug and weapons interdiction effort.” (Id. at p. 197.) One of the officers approached two passengers, showed his badge, and asked to search their bags. The luggage search revealed no drugs, but the officer, noticing that both men wore heavy jackets despite the warm weather, asked for and received consent to search their persons. Drugs were found on both men.
The court rejected the defendants’ contention that the circumstances were necessarily coercive and that their consent was thus involuntary. First, the court rejected the defendants’ argument that the officer’s display of his badge rendered the encounter coercive: “Officers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort. Much the same can be said for wearing sidearms. That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.” (Drayton, supra, 536 U.S. at pp. 204-205.)
Next, the court noted that absent an officer’s command to consent or other indication that the person was not free to refuse, there was no basis for finding the defendants’ consent to search involuntary: “Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.” (Drayton, supra, 536 U.S. at p. 207.)
Here, as in Drayton, Officer Cervantes asked respondent if he could pat him down. Respondent consented and volunteered the information that he had methamphetamine in his pocket. It is true that the officers were armed and in uniform when they approached respondent and his companions. However, the record indicates that they never drew their weapons, raised their voices, or engaged in any other type of intimidating activity. As noted above, the trial court’s stated basis for its ruling was that it “[could not] imagine anyone not agreeing to the pat down, from those circumstances where the officer comes up and asks him.” This amounted to a ruling that, as a matter of law, the consent was involuntary. Such a ruling runs counter to our high court’s decision in Drayton.
People v. Garry (2007) 156 Cal.App.4th 1100, on which respondent relies, is distinguishable. There, an officer encountered a defendant who was alone on the street late at night and shone his patrol car’s spotlight on him. The officer quickly approached the defendant, asked if he was on probation or parole, and then reached out and grabbed him. By contrast, here, respondent was outside with two companions in the early evening, and no officer grabbed or touched respondent prior to questioning him. Rather, Officer Cervantes asked for and received respondent’s permission to conduct a pat down. Respondent cites no factors to suggest the consent given was involuntary, other than that he was approached by four armed officers. As Drayton makes clear, this is insufficient to render his consent necessarily involuntary.
We reject respondent’s suggestion to remand the matter to the trial court to resolve the discrepancy between Officer Cervantes’ version of events and Daniel Rubio’s. Contrary to respondent’s assertion, the trial court’s comments make clear that it credited the testimony of the officer. The court’s statement that “[w]e have four officers [who] see three individuals holding beer bottles” is consistent only with Officer Cervantes’ testimony. Similarly, the court’s observation that the officer “immediately ask[ed] if he could pat him down [and] the defendant apparently said ‘no problem’” is consistent only with Officer Cervantes’ version of events. Thus, resolution of the suppression motion did not hinge on an issue left unresolved by the trial court.
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings consistent with this opinion.
We concur: EPSTEIN, P. J., SUZUKAWA, J.