Opinion
C088329
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SINGLETON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE010798)
Following the denial of his suppression motion (Pen. Code, § 1538.5), defendant Anthony Singleton pleaded no contest to unlawful possession of a firearm (§ 29800, subd. (a)(1)) and admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12). The trial court imposed a stipulated term of four years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the motion to suppress should have been granted. Finding the initial encounter between defendant and law enforcement was consensual, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We take the relevant facts from the suppression hearing.
On June 4, 2018, Sacramento Police Officers David McDonald and Chad Lewis were part of a gang enforcement team patrolling in Del Paso Heights. They drove a black, unmarked utility vehicle. At around 5:32 p.m., they noticed a black sedan behind them abruptly slow down as they turned north onto Norwood Avenue.
The sedan had slowed to about 25 miles per hour while the speed limit was 40 miles per hour. Officer McDonald concluded the sedan was driving at an unsafe speed. He felt the sedan had slowed down to try to avoid contact with them. There were no other vehicles around the sedan and it was not impeding traffic.
Officer McDonald turned right onto Harris Avenue and then made a U-turn to face the intersection. He then drove to Disk Drive and made another U-turn and waited for the sedan to drive by.
The sedan suddenly yielded to the north curb line on Harris Avenue, stopping behind an unidentified vehicle. Officer McDonald drove towards the car and made a U-turn, pulling up behind and slightly offset to the left of it. The officer did not employ either the emergency lights or the sirens, and he did not make any announcement that he was making a vehicle stop.
Officer McDonald got out of his car and walked up to the driver's side of the sedan. He thought there were 5 to 10 yards between his vehicle and the sedan. Officer Lewis approached the passenger-side door and contacted the female passenger. Both officers were wearing black vests marked "Police" in reflective silver, along with their badges. Defendant was in the process of opening the driver's side door but stopped when Officer McDonald approached. Officer McDonald asked defendant for his driver's license; defendant replied that his license was suspended and handed the officer a California identification card.
Officer McDonald noticed defendant was wearing an ankle monitor. When asked why he was wearing it, defendant said the monitor was for drug sales. Defendant said he was picking up a cousin who was applying for welfare. The cousin later showed up at the scene during the encounter.
Officer Lewis spoke with the female passenger named Shawna D. and noticed two open cans of beer in the passenger compartment. She said the beers were just opened. Officer Lewis ran a records check on defendant and determined he was on active parole. He next searched the sedan, which uncovered a handgun inside a purse on the passenger-side floorboard and a digital scale on the driver's side.
The trial court found Officer McDonald's vehicle was parked about five yards behind defendant's sedan. It denied the motion to suppress, finding the encounter was consensual and, if a traffic stop, supported by probable cause that defendant was driving at an unsafe speed.
DISCUSSION
Defendant contends the suppression motion should have been granted as he was subjected to a traffic stop that was unlawful because it was not supported by probable cause or reasonable suspicion.
Not every encounter between the police and a citizen is protected by the Fourth Amendment. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) Police contacts with individuals fall into three broad categories: (1) consensual encounters; (2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
"[C]onsensual encounters present no constitutional concerns and do not require justification. [Citation.] However, 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,' the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution. [Citations.] In situations involving a show of authority, a person is seized 'if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave," ' or ' "otherwise terminate the encounter" ' [citation], and if the person actually submits to the show of authority [citation]." (People v. Brown (2015) 61 Cal.4th 968, 974 (Brown).)
We apply an objective test in determining whether a seizure has occurred. The issue is whether the officer's words and actions conveyed to a reasonable person that he or she was being ordered to restrict his or her movement. (People v. Cells (2004) 33 Cal.4th 667, 673.) "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.)
"Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." (United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509].) "[O]ther relevant factors include the time and place of the encounter, whether the police indicated the defendant was suspected of a crime, whether the police retained the defendant's documents, and whether the police exhibited other threatening behavior." (People v. Linn (2015) 241 Cal.App.4th 46, 58.)
"[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free 'to disregard the police and go about his [or her] business,' [citation], the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature." (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398].) During a consensual encounter, an officer may ask about the contents of a person's pockets, ask for identification, and even ask the person to submit to a search. In determining whether compliance was voluntary, the manner or mode of the request is considered. (People v. Franklin (1987) 192 Cal.App.3d 935, 941.)
Officer McDonald did not employ his emergency lights or siren when he parked behind defendant. We reject defendant's claim that he was surrounded and unable to leave because there was another car parked in front of his and the officers were on the two sides of his car. The officers did not stand directly in front of or behind his car; the five-yard distance between the unmarked utility vehicle and defendant's car gave defendant sufficient room to drive off if he chose to leave. While he was clearly identified as a police officer, there is no evidence that Officer McDonald communicated either directly to defendant that he was not free to leave or restrained him through some other show of authority. While the officer did ask defendant for identification and ran a records check, these actions do not transform a consensual encounter into a stop. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1284-1287.) Defendant's claim that he submitted to Officer McDonald's authority when he remained in the vehicle after the officer approached relies on the faulty presumption that consenting to an encounter transforms the encounter into a stop.
Defendant cites Brown for the proposition that by staying in the car, he submitted to the officer's authority and therefore was detained. The page of the opinion defendant cites to simply states the general rule for determining when an encounter is a seizure, which we previously quote in this opinion. (See Brown, supra, 61 Cal.4th at p. 974.) This citation does not support defendant's contention.
We agree with the trial court that the encounter here was consensual, and the information justifying the subsequent search, that defendant was on parole and open containers were in the car, was not the product of an illegal traffic stop. The court correctly denied the suppression motion.
DISPOSITION
The judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Robie, Acting P.J. /s/_________
Hoch, J.