Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. JJD062293 of Tulare County. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kelley Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J. and Detjen, J.
Following the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1), appellant, A.N., a minor, admitted an allegation that he committed a violation of Penal Code section 12101, subdivision (a)(1) (possession of a firearm by a minor). At the subsequent disposition hearing, the juvenile court re-adjudged appellant a ward of the court, placed him on probation and ordered that he complete the “youth treatment program.”
On appeal, appellant’s sole contention is that the court erred in denying his suppression motion. We will affirm.
FACTS
At approximately 2:45 p.m. on Sunday, April 26, 2009, City of Visalia Police Officer Ken Smythe was on duty when he saw a female and a male (the officer later identified the male as appellant) sitting on a “utility meter” in an alley. The officer turned his patrol car around and drove down the alley.
As Officer Smythe got out of his car, appellant was sitting on a utility meter and the female was sitting in his lap. Appellant “might have asked, ‘Are you here to talk to me, or are you pulling me over?’” Officer Smythe responded, “‘I just want to talk to you. I want to find out what you’re doing here.’” The officer told appellant and the female that they were in an area the officer knew “to be utilized for drug trafficking” and “criminal, gang type activity, ” and “ask[ed] them what the two were doing there.” Appellant responded that he and his companion were discussing her getting a tattoo. At that point, appellant and his companion stood up and “separated themselves slightly, ” and appellant began to walk away, “trying to walk around [the officer] toward [the officer’s] back.” Officer Smythe followed appellant for approximately 15 to 20 feet, staying “within close proximity.” As the two walked, the officer “was talking to [appellant]” asking, “‘Why are you trying to avoid me? What is it you have on you? You have a little bit of weed on you? You have some dope on you?’” Appellant responded that “he had some weed on him.”
At that point, the officer told appellant to “stop and come back.” The officer then “asked” appellant to put his hands on top of his head; “interlocked [appellant’s] fingers”; and “told him I was going to pat him down for his safety as well as my safety.”
At that point in the officer’s testimony, the following exchange took place:
“Q. [by the prosecutor] Did you ask him for permission to do that?
“A. I did.
“Q. What did he say?
“A. He gave me consent to pat him down.”
The officer then “had him place both hands on top of his head” and, with his left hand, “grabbed ahold” of both of appellant’s hands. “Prior to patting him down, ” the officer felt appellant “begin to lean forward as if he wanted to pull away, ” so the officer “handcuffed [appellant] at that point.”
On cross-examination, Officer Smythe testified to a different sequence of events: After appellant stated he had marijuana in his possession, the officer asked if he could check appellant’s pockets, appellant consented; the officer, “instead of checking his pockets, ... put [appellant’s] hands over his head in a firm grasp”; and the officer handcuffed appellant, because the officer “felt [appellant] was going to flee....”
After appellant was handcuffed, Officer Smythe asked him what pocket the marijuana was in. Appellant stated it was in his right front pocket. The officer told appellant he (the officer) was going to remove the marijuana from the pocket, and did so. The officer then “did a search around [appellant’s] waist for any additional contraband or weapons, and at that point... removed the revolver from [appellant’s] front waistband.”
DISCUSSION
As indicated above, appellant contends the court erred in denying his suppression motion. Specifically, he argues as follows: at the point he attempted to walk away from Officer Smythe, the officer detained him; this detention was unlawful; and, therefore, the evidence seized thereafter should have been suppressed as the product of the unlawful detention. The People counter as follows: appellant’s encounter with Officer Smythe was not a seizure within the meaning of the Fourth Amendment at any time prior to appellant’s admission that he had marijuana in his possession, at which point the officer was justified in detaining appellant, and the search of appellant’s person was conducted pursuant to a valid consent. Appellant responds that his consent was not voluntary and that, in any event, the search of his person exceeded the scope of his consent.
Detention or Consensual Encounter
“The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures.” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) The major premise of appellant’s contention that he was unlawfully detained is the claim that Officer Smythe, in fact, detained appellant, i.e., subjected appellant to a seizure within the meaning of the Fourth Amendment, at the point at which appellant tried to walk away from the officer. As we explain below, this premise is false.
There is no dispute that appellant’s admission that he had marijuana in his possession provided, at that point, justification to detain him.
“‘“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive. First, there are... ‘consensual encounters’..., which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever--i.e. no ‘seizure, ’ however minimal--and which may properly be initiated by police officers even if they lack any ‘objective justification.’... Second, there are what are commonly termed ‘detentions, ’ seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’... Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.”’” (People v. Hughes (2002) 27 Cal.4th 287, 327-328.) “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.)
“[T]he police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” (Michigan v. Chesternut (1988) 486 U.S. 567, 573 (Chesternut), quoting United States v. Mendenhall (1980) 446 U.S. 544, 554.) “As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual.... 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.’” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Appellant argues that no reasonable person confronted with Officer Smythe’s conduct--pulling his patrol car into the alley, parking near appellant, following appellant closely for approximately 15 to 20 feet and “demanding to know why he was attempting to walk away”--would have felt free to terminate the encounter with the officer. We disagree.
First, the officer’s conduct in pulling into the alley and parking did not constitute a detention. On this point, we find instructive Chesternut and People v. Franklin (1987) 192 Cal.App.3d 935 (Franklin). In Franklin, the court held no detention occurred where a police officer in his patrol car shone a spotlight on a suspect, and then drove the car directly behind him and stopped with the vehicle’s headlights illuminating the suspect. (Id. at p. 940.) And in Chesternut, the defendant began to run when he observed an approaching patrol car, and the patrol car followed the defendant around a corner “‘to see where he was going, ’” caught up with him, and drove alongside him “for a short distance, ” during which time the defendant discarded a number of packets containing illegal drugs. (Chesternut, supra, 486 U.S. at p. 569) The Supreme Court held the defendant had not been detained: “While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure.” (Id. at p. 575.) Officer Smythe’s conduct in driving a patrol car in the appellant’s direction may have been, like the officer’s conduct in Chesternut, “somewhat intimidating, ” but it was less coercive than the officer’s conduct in Franklin. As in Franklin and Chesternut, the officer’s conduct did not constitute a detention.
Second, the officer’s subsequent conduct in following appellant for 15 to 20 feet did not transform the encounter into a detention. As noted above, the officer in Chesternut followed the suspect for a short distance. And in People v. Capps (1989) 215 Cal.App.3d 1112 the following occurred: A sheriff’s deputy accompanied the defendant as she walked approximately 50 to 75 yards along a city street to a beauty parlor where, the defendant stated, she had left her purse. “As they were walking, defendant objected to [the deputy’s] presence.” (Id. at p. 1117.) The deputy arrested the defendant after the defendant opened her purse revealing the presence of contraband.
The court found there was no detention: “... Deputy Cater’s decision to accompany defendant did not restrict her freedom of movement in any way. Defendant voluntarily went to the beauty parlor to obtain her handbag. Cater did not stop her from doing so, nor did he compel her to do so or even suggest that she do so. In accompanying defendant to the beauty parlor, Cater proceeded on a public thoroughfare to a public location, remaining in places where he had a right to be. The deputy entered the beauty parlor with the consent of the owner. Defendant was not detained and, until Cater later observed the contraband, was free to leave at any time. Only upon being arrested could defendant reasonably believe she was not free to leave.” (Capps, supra, 215 Cal.App.3d at p. 1121.) As the court noted: “[N]o detention occurs where an officer walks alongside a suspect and asks whether she would mind answering some questions (People v. Denman (1980) 112 Cal.App.3d 1003, 1009, disapproved on another ground in People v. Mayberry (1982) 31 Cal.3d 335, 339-340), asks questions as the officer drives alongside a suspect walking on a sidewalk (People v. Juarez (1973) 35 Cal.App.3d 631, 634), or shines a spotlight on a suspect, then drives the patrol car directly behind him, and stops with the vehicle’s headlights illuminating the suspect (People v. Franklin (1987) 192 Cal.App.3d 935, 940).” (Ibid.) Like the officer in Capps, Officer Smythe, while walking in a public place where he had a right to be, did not restrict appellant’s freedom of movement. The officer’s act of closely following appellant for a distance of 15 to 20 feet was no more coercive than the conduct of the officer in Capps, who walked with the defendant for a much greater distance, or the conduct of the officer in Chesternut, who drove alongside of the suspect for a short distance.
Finally, we also reject appellant’s suggestion that the officer’s pointed questioning of appellant, when considered in conjunction with the other factors discussed, would have conveyed to a reasonable person that the person was free to terminate the encounter. “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.” (In re Manuel G., supra, 16 Cal.4th at p. 821.) In People v. Daugherty (1996) 50 Cal.App.4th 275, a police detective approached the defendant, Daugherty, in an airport, identified himself as a “narcotics officer” and “informed Daugherty he and his partner only interviewed people they suspected of transporting narcotics.” (Id. at p. 285.) The detective “did not accuse Daugherty of transporting narcotics until she later refused consent to search the two checked floral bags after allowing the search of her carry-on bag.” (Ibid.) “Thus, there was no direct accusation Daugherty was, in fact, a suspect. Additionally, [the detective] did not retain Daugherty’s airline ticket or her bags. There was no display of a weapon, no physical touching of her person, and no use of language or tone of voice indicating compliance with the officer’s request was required. (See United States v. Mendenhall, supra, 446 U.S. at pp. 554-555.)” (Ibid.) The court held: “Under these circumstances, we conclude a reasonable person would have felt free to leave the officer and walk away. What the investigator did in this situation was identify himself and tell Daugherty the nature of his work. He did not directly accuse Daugherty of transporting narcotics, which may have been sufficient to convert the encounter into a detention. (People v. Lopez (1989) 212 Cal.App.3d 289, 292-293 [no detention even though questions asked by police officer were somewhat accusatory].) Under the Mendenhall standard, [the detective’s] statement would fall short of a detention because there was nothing indicating Daugherty’s compliance was required. [Citation.] The investigator did not accuse her of transporting drugs, did not retain her airline ticket or her bag, and did not change the tone of the conversation.” (People v. Daugherty, supra, 50 Cal.App.4th at p. 285.)
Similarly, in the instant case, there was no direct accusation appellant possessed contraband, there was no display of a weapon, no physical touching, no demand that appellant submit to a search and no indication that Officer Smythe’s tone of voice conveyed such a demand.
Appellant likens the instant case to People v. Jones (1991) 228 Cal.App.3d 519 (Jones) and United States v. Kerr (1987) 817 F.2d 1384 (Kerr). Both cases are readily distinguishable.
In Kerr, a sheriff’s deputy pulled his marked patrol car into the defendant’s one-lane driveway as the defendant was backing out, blocking the driveway. As the court noted in finding that the defendant was detained, “Under the circumstances [the deputy’s] authority and conduct provided [the defendant] with no reasonable alternative except an encounter with the police.” (Kerr, supra, 817 F.2d at p. 1387.) Here, by contrast, Officer Smythe did not block appellant or in any other way prevent him from walking away. Rather, as in Capps and Chesternut, the officer merely moved in the same direction appellant was moving. And as in those two cases, such conduct did not constitute a detention.
In Jones, the defendant “was standing on the sidewalk with two other men when he was suddenly confronted with a marked police car pulling across the street toward him.” (Jones, supra, 228 Cal.App.3d at p. 523.) “The car then parked diagonally against traffic a mere 10 feet away. When respondent began to leave, Officer Burns got out from the car and said something like, ‘“Stop. Would you please stop.”’” (Ibid.) The court held: “We believe the coercive effect of Burns’s conduct was clear. A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic. Clearly, appellant was detained.” (Ibid., italics added.) In the instant case, on the other hand, there is no indication Officer Smythe obstructed traffic with his patrol car. Here, the officer’s conduct in merely driving in appellant’s direction and parking near him, without blocking appellant or traffic in the area was less coercive than the conduct of the officer in Jones.
On this record, when we consider all the circumstances surrounding appellant’s interaction with Officer Smythe, we conclude no detention occurred before appellant admitted possessing marijuana. And as indicated above, appellant does not claim that he was unlawfully detained after that point. We therefore reject appellant’s contention that he was unlawfully detained.
Voluntary Consent
We turn now to the question of whether Officer Smythe conducted his search of appellant pursuant to a valid consent. “A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the ‘specifically established and well-delineated exceptions.’ [Citations.] It is ‘well settled that one of the specifically established exceptions to the [search warrant] requirement... is a search that is conducted pursuant to consent.’ [Citations.]” (People v. Wood (1999)21 Cal.4th 668, 674.) “Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
“The voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’ [Citations.]” (People v. James (1977) 19 Cal.3d 99, 106 (James).) In reviewing a ruling on a motion to suppress evidence: “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The People argue that the search of appellant’s person was permissible because appellant consented to be searched. Appellant counters his consent was not voluntary because prior to giving his consent he had been “followed, questioned, detained and cuffed by the officer.” Under those circumstances, he argues “no one would feel free to deny consent to search.” We disagree with appellant’s contention.
We acknowledge that appellant was detained, i.e., seized within the meaning of the Fourth Amendment, at the point Officer Smythe asked for consent to search. However, the fact that the defendant is in “custody at the time of giving consent to search is a circumstance which is of ‘particular significance’ but is ‘not conclusive’ in the determination of voluntariness.... And the same rule governs when the defendant has been handcuffed: ‘the fact that a defendant is under arrest and in handcuffs at the time of giving consent does not per se make a consent to search involuntary.’” (James, supra, 19 Cal.3d at pp. 109-110.)
The circumstances under which appellant’s consent was obtained are far less coercive than in James or People v. Monterroso (2004) 34 Cal.4th 743 (Monterroso). In James, our Supreme Court found substantial evidence to support the trial court’s implied finding that the defendant, James, voluntarily consented to a search of his house where the following occurred: Four armed officers knocked on James’s door at night. One of the officers asked James to step outside, then handcuffed and placed him under arrest, informed him that they were conducting a robbery investigation, and asked if they could look in the house for items taken in the robbery. James said they could. (James, supra, 19 Cal.3d at pp. 106-107.)
Similarly, in Monterroso, the defendant was already handcuffed and under arrest when a police officer asked for his consent to search his residence. Despite this obvious physical restraint of the defendant, the court found “ample support for the trial court’s finding that defendant’s consent was voluntary” because the officer “made no overt or implied threat of force, his request for permission to search the apartment itself carried the implication that it could be refused, and defendant was hardly a newcomer to the criminal justice system.” (Monterroso, supra, 34 Cal.4th at pp. 758-759.)
Here, substantial evidence supports the following: the officer asked appellant for permission to search; at the point the officer made this request, appellant was not under arrest, like the defendants in James and Monterroso, but merely detained; appellant was not handcuffed until after the officer asked for and obtained consent to search; and the encounter involved only one officer and took place not at night but in the middle of afternoon. Finally, we note that “‘The mere asking of permission to... make a search carries with it the implication that the person can withhold permission for such [a]... search.’” (James, supra, 19 Cal.3d at p. 116.) On this record, we conclude the prosecution met its burden of establishing that the search of appellant’s person was voluntary.
Scope of Consent
Appellant argues: “The only consent provided by [appellant] was to retrieve the marijuana.… Once [Officer] Smythe searched [appellant’s] front pocket, the search should have ended. [The officer] exceeded the scope of the consent provided when he continued to pat-down [appellant] for weapons.” We disagree.
“A consensual search may not legally exceed the scope of the consent supporting it. [Citation.]” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251.) “Generally, the scope of a warrantless search is defined by its expressed object. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s determination.” (Crenshaw, supra, 9 Cal.App.4th at p. 1408.)
As indicated above, the major premise of appellant’s contention that the officer’s search exceeded the scope of appellant’s consent is the claim that appellant consented to a search for marijuana only. This premise is false. The court reasonably could have credited Officer Smythe’s testimony that he asked for permission to “pat [appellant] down for [appellant’s] safety as well as [the officer’s] safety.” (Italics added.) And given the references to safety, a typical, reasonable person would understand the officer’s request as one for permission to search for weapons. Thus, continuing the search after the officer’s removal of the marijuana from appellant’s pocket, to which appellant also consented, did not exceed the scope of appellant’s consent.
DISPOSITION
The judgment is affirmed.