Opinion
H043981
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MOHAMMAD GHASSAN ALEQABI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1370024)
Following the denial of his to Penal Code section 995 motion challenging the magistrate's denial of his motion to suppress and pursuant to a plea agreement, defendant Mohammed Ghassan Aleqabi pleaded no contest to two misdemeanors: (1) a violation of Health & Safety Code section 11357, subdivision (a), (possession of not more than 28.5 grams of cannabis, or not more than four grams of concentrated cannabis) (count 4) and (2) section 25400, subdivision (a)(1), (carrying a concealed firearm in a vehicle) (count 5).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from the grant of probation, defendant challenges the denial of the section 995 motion. (§ 1538.5, subd. (m).) Defendant now argues that his initial detention was not based on reasonable suspicion since urinating in a deserted parking lot at midnight is not criminal, the detention was unduly prolonged, and his consent to search the vehicle was obtained beyond the time reasonably necessary to effectuate the stop. Defendant also argues that the searching officer exceeded the scope of his consent by opening the driver's side, front door of the vehicle since his driver's license was in the back seat. He maintains that the drugs and the firearm found in his vehicle are fruit of the poisonous tree and must be suppressed.
Defendant also has filed a separate petition for a writ of habeas corpus (H044786), which we considered with this appeal. The petition asserts that defense counsel provided ineffective assistance of counsel by failing to challenge the initial detention of defendant on the ground that his act of urinating in public was not criminal. We resolve the petition by separate order.
We find no merit in defendant's contentions and affirm.
I
Procedural History
A felony complaint was filed against defendant in December 2013. It alleged that, on or about December 3, 2013, defendant committed the following offenses: possession for sale of marijuana (Health & Saf. Code, § 11359) (count 1); transportation of a controlled substance, marijuana, (Health & Saf. Code, § 11360, subd. (a)) (count 2); and carrying a concealed firearm in a vehicle, when the firearm was loaded and not registered to him (§ 25400, subd. (a)(1), see subd. (c)(6)) (count 3). As to counts 1 and 2, it was further alleged that defendant was armed with a 9mm Berretta, a firearm, within the meaning of section 12022, subdivision (a)(1).
Following the preliminary hearing, defendant was held to answer on all charges. His motion to suppress was denied.
Defendant was charged by information with committing the same three felonies on or about December 3, 2013. It was likewise alleged as to counts 1 and 2 that defendant was armed with a 9mm Berretta, a firearm, within the meaning of section 12022, subdivision (a)(1).
Defendant brought a renewed motion to suppress and motion to dismiss pursuant to section 995. The motions were denied.
On August 26, 2016, the information was amended to add two misdemeanor charges: a violation of former section 11357, subdivision (a) (possession of any concentrated cannabis) (count 4) and a violation of section 25400, subdivision (a)(1) (carrying a concealed firearm in a vehicle) (count 5). Pursuant to a plea agreement providing for two years' court probation, imposition of a 45-day jail term, and the performance of community service instead of the imposed jail time, defendant pleaded no contest to counts 4 and 5. Counts 1 through 3 were dismissed. The court placed defendant on court probation with certain terms and conditions for two years, imposed a 45-day probationary county jail term with credit for one day served, and ordered him to perform community service instead of the remaining 44-day jail term, which the court converted to 352 hours of service (44 x 8). The court ordered defendant to pay certain fees.
Defendant filed a notice of appeal.
II
Preliminary Hearing Evidence
The evidence at the preliminary hearing showed the following.
On December 3, 2013, Nicholas Epidendio, a Sunnyvale public safety officer, was on patrol, driving a marked vehicle. At approximately 12:01 a.m. on that date, he was turning southbound on Cezanne from El Camino Real. He noticed someone wearing dark clothing standing between a parking lot and the sidewalk near some bushes and a tree and a closed business, a "Pep Boys." He was "standing towards a tree with his back towards El Camino Real," which seemed "odd" to the officer and drew his attention to the man. The man appeared to be urinating.
An open 24-Hour Fitness was located on the opposite side of the parking lot. There had been numerous vehicular burglaries in the parking lot, and there had been burglaries involving persons entering 24-Hour Fitness, breaking into lockers, and stealing property. The officer thought it was "very odd that [defendant] was standing there in this closed business, in very dark light."
Officer Epidendio activated his spotlight to illuminate defendant and turned into the parking lot and momentarily lost sight of defendant. The officer parked approximately 10 to 15 feet from defendant, and defendant was again illuminated. But the officer did not activate his flashing lights. The officer "put out over the radio that [he was] making contact with an individual," and another officer was immediately dispatched.
Officer Epidendio exited his patrol vehicle to investigate. He asked defendant what he was doing. Defendant responded that he was "tinkling." With the aid of his handheld flashlight, the officer observed "wetness on the ground" and saw that defendant's zipper was down. The officer understood urinating in public to be a citation offense. For safety reasons, the officer directed defendant to sit on the curb of the parking lot.
Defendant was wearing a couple of layers of jackets and black socks but no shoes. It was "fairly cold" that night, and at some point it started to rain. The officer again asked defendant was he was doing. He said he was "urinating or tinkling" and that he was sleeping in his vehicle, a blue Lexus, which he pointed out in the parking lot. Defendant's car was the only one parked in that area of the parking lot. It was parked approximately 250 to 300 yards away from 24-Hour Fitness, which was on the opposite side of the same parking lot.
Officer Epidendio asked defendant further questions; the officer was "buying time" until a fill officer arrived. Defendant told the officer that he was from Saint Louis, Missouri, that his house had been foreclosed on, and that he had come to the area for a "consulting job." Defendant gave his name and date of birth as requested. The officer asked dispatch to "run" defendant's name and date of birth. Dispatch informed the officer that there were no warrants for defendant and that defendant had a California driver's license. That new information raised the officer's "level of suspicion" because defendant had just said that he lived in Missouri and had purchased a home there.
Officer Epidendio asked defendant for his identification. Defendant told him it was in a Coach bag in his vehicle's "rear passenger seat." The officer asked him why he had an expensive Coach bag when he was obviously in need of money, and defendant indicated that his "consulting" work "ha[d] to do with perception" so he needed the "nice bag to help with his career."
At the hearing, Officer Epidendio indicated that his concerns went beyond the fact that defendant was urinating in public. The officer was also concerned that defendant was parked at night near a closed business and he was wearing no shoes. At some point, the backup officer arrived, and he came to stand near Officer Epidendio.
Officer Epidendio did not allow defendant to retrieve his identification from the vehicle because of safety concerns. Instead, the officer requested permission from defendant to retrieve his identification out of his car. The officer also asked if there was anything in defendant's car that was going to get him in trouble, such as drugs or weapons. Defendant answered no, he said there was "nothing that would surprise" the officer, and he told the officer, "Go ahead and look." The officer realized that his recording system was not activated. After activating his vehicle's "dashboard cam," he asked, "So you're giving me consent to go inside your car and look?" Defendant said, "Yeah, nothing will surprise you, you can look[,]" and then he said, "for it." By "it," the officer assumed defendant meant his identification.
At the hearing, Officer Epidendio indicated that approximately two minutes into his conversation with defendant, he activated his recording device. The officer estimated that two to five minutes elapsed between contacting defendant and going to defendant's vehicle to obtain his driver's license.
The backup officer that had arrived sat with defendant on the curb while Officer Epidendio walked to the rear of the vehicle. Defendant's vehicle had Missouri license plates and he claimed to be from Missouri, but defendant had a California driver's license. Based on his training and experience, Officer Epidendio knew that oftentimes stolen or fake license plates are put on a vehicle to hide the fact that it is stolen.
From outside the vehicle, Officer Epidendio saw a blanket in the rear seat, which was consistent with defendant's claim that he was staying in his car. Officer Epidendio provided dispatch with the vehicle's Missouri license plate number to verify that the vehicle was not stolen. When he was informed that it was a valid vehicle license, the officer asked for the last four digits of the VIN. He went to the driver's side window to see the VIN and to verify that the VIN matched the front license plate. The officer had not smelled anything at this point.
Since he was near the driver's side, front door, the officer opened it to make sure the vehicle's doors were unlocked; he immediately smelled marijuana. Based on his training and experience, Officer Epidendio recognized a marijuana pipe in the driver's door cubby. It had a "residue of some sort of wax or concentrated cannabis." At that point, he searched the vehicle for the marijuana that he was smelling.
Officer Epidendio located a clear container with a blue lid on the front passenger seat. He opened the container which held brownie-like edibles that smelled like marijuana. The officer then went to the rear passenger side and began to go through defendant's Coach bag to find defendant's identification. He found packaged pills containing liquid that he believed was marijuana or concentrated cannabis based on the marijuana leaf sticker on the packaging and his training and experience.
The other officer was told by defendant that there was a gun in the vehicle and gave that information to Officer Epidendio. The officer looked down on the floor behind the front passenger seat and saw a pair of sandals. He lifted them up and saw a pistol in a holster on the floor. The officer took out the pistol's magazine and saw that it was loaded with ammunition. Officer Epidendio asked dispatch to run the gun's serial number, and he was advised by dispatch that the gun was not stolen and that it was not registered in California.
Officer Epidendio found a digital scale near the location of the firearm. At the hearing, he explained, based on his training and experience, that drug sellers use a scale to weigh drugs and calculate "how much to charge" for a certain amount.
Officer Epidendio continued to search the vehicle. He found another blue container with the same edible marijuana. In the vehicle's trunk, he found a box that contained what looked like olive oil. Based on its labeling, the officer believed that the olive oil contained "some form of concentrated cannabis." He also found lip balm whose label, a picture of a marijuana leaf, led him to believe the balm contained "some sort of marijuana product." In addition, he found packaging and empty pill containers with the marijuana sticker on them.
Officer Epidendio suspected that defendant was selling drugs based on all the products that appeared to contain marijuana, their packaging, the scale, and the firearm, which he knew drug sellers often carried for protection. The amount of drugs found was more than "a person would need just for their own medical marijuana use." He asked defendant whether the items contained concentrated cannabis, and defendant confirmed they did. The officer informed defendant that he was under arrest and placed him in handcuffs.
By the end of the detention, four different officers in four separate patrol vehicles had "stopped by at different points."
Defendant was transported to a booking facility in Sunnyvale, released from handcuffs, and read his Miranda rights. Defendant indicated that he understood the admonishment and signed an admonishment form. Defendant admitted that he was selling the items in his vehicle. He indicated that the liquid in the pills was concentrated cannabis and that it took 20 minutes to feel the high. He admitted that the firearm belonged to him, and he explained that he carried it because he had been "mugged" in St. Louis.
At the hearing, defense counsel indicated that urinating in public was a citation offense and that defendant was detained when he was forced to sit on the curb. He argued that the warrantless detention was unduly prolonged, and therefore defendant's consent to search the vehicle was invalid.
The prosecutor argued that Officer Epidendio could not release defendant with a citation until he had verified defendant's identity. The prosecutor asserted that once the officer opened the car door based on defendant's consent and smelled marijuana, the officer had probable cause to search the entire vehicle.
Defense counsel responded that there was "no real need to verify [defendant's] identity" because dispatch had already run defendant's name and date of birth and there was no indication that defendant was being untruthful.
The matter was submitted. After a brief recess, the magistrate returned and denied defendant's motion to suppress and held defendant to answer for the charges.
As to the denial of the suppression motion, the magistrate found that defendant was detained when the officer asked him to sit on the curb and spoke with him and that the officer could not confirm defendant's identity "unless he saw a photograph of . . . defendant." The magistrate further found that defendant gave his consent to search the car for the limited purpose of finding defendant's identification. The magistrate determined that the detention of two to five minutes before the officer went to the vehicle to retrieve defendant's identification was not unduly prolonged since it was dark and raining, and the circumstances were suspicious. The magistrate found it immaterial that the officer opened a front door rather than a back door because that was done merely for convenience. The magistrate concluded that once the officer opened the car door and smelled marijuana, he had probable cause to search for marijuana in the car.
III
Section 995 Motion
In support of the section 995 motion, defendant again asserted that his consent to search his vehicle was invalid because it was obtained during an unduly prolonged detention. He argued that "Officer Epidendio prolonged the detention beyond the time necessary to issue a citation for urinating in public." Defendant contended that, since he had provided his name and date of birth to the officer, the officer should have released him when dispatch validated his identification and advised that he had no warrants. Defendant maintained that his consent to search was invalid and any observations, statements, or evidence obtained as the result of the unlawful search of his vehicle were "fruits of the illegality" and had to be suppressed.
The prosecution countered that the detention was not unduly prolonged since the circumstances were suspicious, the officer had the right to request identification from defendant, and the officer was waiting for officer backup for safety reasons.
The court concluded that since the area was dark and no one else was around, it was reasonable, based on officer safety concerns, for the detaining officer to wait for "a limited period of time" for a fill officer to arrive before asking for defendant's consent to search the vehicle and retrieving his identification. Detainees sometimes give false information to avoid citation, and consequently it was reasonable under the circumstances to prolong the detention for a relatively short period of time. The renewed suppression motion and the section 995 motion were denied.
IV
Discussion
A. Standard of Review
"[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court . . . sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal . . . , the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. [Citations.]" (People v. Laiwa (1983) 34 Cal.3d 711, 718.)
Although defendant entitled his motion "Renewal of Motion to Suppress Evidence and Motion to Dismiss Pursuant to PC 995," his memorandum of points and authorities did not cite section 1538.5, subdivision (i), and the motion was brought under section 995 predicated solely upon the preliminary hearing transcript. In any case, under the posture of this case, the result of our review would have been the same. Section 1538.5, subdivision (i), now permits a defendant to bring a renewed motion to suppress at a special hearing, but provides in part that "[i]f the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing." On a renewed motion to suppress under that subdivision, the magistrate's findings are "binding on the court as to evidence or property not affected by evidence presented at the special hearing." It is "the ultimate responsibility of the appellate court to measure the facts, as found by the trier [and supported by substantial evidence], against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160.) "Where a motion to suppress is submitted to the superior court on the preliminary hearing transcript, 'the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.' (People v. Thompson (1990) 221 Cal.App.3d 923, 940, abrogated on another ground in People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3.) 'We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]' (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)" (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)
A section 995 motion "preserve[s] the Fourth Amendment issue on an appeal following a guilty plea only when it appears from the transcript of the preliminary hearing that essential evidence was illegally obtained." (People v. Lilienthal (1978) 22 Cal.3d 891, 897.) On appeal, "[w]e must draw all presumptions in favor of the magistrate's factual determinations, and we must uphold the magistrate's express or implied findings if they are supported by substantial evidence. [Citations.]" (People v. McDonald (2006) 137 Cal.App.4th 521, 529 (McDonald).) But we exercise our independent judgment in determining whether, on the facts found that are supported by substantial evidence, a challenged search or seizure was reasonable under the Fourth Amendment. (See People v. Shafrir (2010) 183 Cal.App.4th 1238, 1245.) B. Fourth Amendment
1. Reasonable Suspicion Warranting Detention
In Terry v. Ohio (1968) 392 U.S. 1, 30 (Terry), the United States Supreme Court held that "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." (United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow).) "The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' [Citation.] The Fourth Amendment requires 'some minimal level of objective justification' for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984)." (Ibid.)
A police stop or investigatory detention must be "justified at its inception" and "reasonably related in scope to the circumstances which justified" it. (Terry, supra, 392 U.S. at p. 20.) "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Id. at p. 21.) "[I]n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? [Citation.]" (Id. at pp. 21-22, italics added.) The detaining officer must have "a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Citations.]" (United States v. Cortez (1981) 449 U.S. 411, 417-418.)
Reviewing courts "look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing. [citation.]" (United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu); see Sokolow, supra, 490 U.S. at p. 8.) "A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000), . . . (that flight from police is not necessarily indicative of ongoing criminal activity does not establish Fourth Amendment violation)." (Arvizu, supra, 534 U.S. at p. 277.)
"The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was 'perhaps innocent in itself,' [the Supreme Court] held that, taken together, they 'warranted further investigation.' [Citations.]" (Arvizu, supra, 534 U.S. at pp. 274-275.) "Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. . . . All of th[e] conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity. [Citation.]" (Illinois v. Wardlow, supra, 528 U.S. at p. 125 (Wardlow).)
2. Analysis
Defendant maintains that Officer Epidendio lacked reasonable suspicion to detain him because urinating in a deserted parking lot at midnight is not a criminal act.
In this case, Officer Epidendio observed defendant apparently urinating in public in the dark, late at night, in a retail parking lot near the intersection of El Camino Real and Cezanne. Public urination may constitute a criminal public nuisance, a misdemeanor. (See §§ 370, 372 ; McDonald, supra, 137 Cal.App.4th at pp. 533-539 [urinating in parking lot of a closed restaurant that was empty, aside from the vehicle belonging to the defendant's acquaintance, at 11:23 a.m. near a busy street].)
Section 370 defines "public nuisance": "Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance." Section 372 states: "Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor."
McDonald concluded that "public urination amply satisfies the 'offensive to the senses' criterion of section 370" and that "public urination falls within the type of conduct prohibited by section 370 because it is 'injurious to health, or is indecent, or offensive to the senses.' [Citation.]" (McDonald, supra, 137 Cal.App.4th at p. 536.) "The sight and smell of urine are vile and offensive, and those who use the public streets and sidewalks cannot be freely subjected to such unpleasantness. [Citation.]" (Id. at p. 537.) It determined that "public urination involves an interference with the public's right to a 'decent society' and to the use of the streets." (Id. at p. 538.) McDonald rejected the defendant's "contention that his conduct, which took place in the empty parking lot of a closed restaurant, did not significantly interfere with the public's enjoyment of life . . . ." (Ibid.)
Defendant now asserts that this case may be distinguished from McDonald because "McDonald's act took place on a busy commercial street in a populated area" in the morning (McDonald, supra, 137 Cal.App.4th at pp. 525, 539), whereas in this case "there was no busy commercial street nearby and, at midnight, this was not a populated area." There was no evidence in this case that the street adjacent to the parking lot in which defendant was urinating was not traveled at that time of night. In point of fact, Officer Epidendio saw defendant urinating while driving by in his patrol vehicle.
In McDonald, the appellate court "acknowledge[d] that there might well be circumstances in which a single, discreet act of public urination would not violate sections 370 and 372" and that, "for example, a hiker responding to an irrepressible call of nature in an isolated area in the backwoods cannot reasonably be seen as interfering with any right common to the public. [Citation.]" (McDonald, supra, 137 Cal.App.4th at pp. 538-539.) In this case, however, defendant was not in some isolated, remote backwoods area. He was urinating in a retail parking lot that had an open business and was within sight of a city street. As in McDonald, Officer Epidendio's observations objectively supported a reasonable suspicion that defendant was committing a crime by urinating in public. (See Id. at p. 528.)
Officer Epidendio believed that defendant's act of urination was a violation of section 374.3, the offense of unlawful dumping of waste matter, including upon "upon private property into or upon which the public is admitted by easement or license." (See § 374, subd. (b) [definition of waste matter includes "any nauseous or offensive matter of any kind"].) It is immaterial whether the officer was subjectively relying on the wrong code section so long as his suspicions were objectively reasonable. (See In re Justin K. (2002) 98 Cal.App.4th 695, 700 ["an officer's reliance on the wrong statute does not render his actions unlawful if there is a right statute that applies to the defendant's conduct"]; Whren v. United States (1996) 517 U.S. 806, 813 ["Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."].)
Furthermore, in addition to urinating in public, defendant was standing in the dark at approximately midnight near a closed business in a parking lot. Officer Epidendio also knew that multiple vehicular burglaries had occurred in that parking lot and that burglaries had been perpetrated by persons entering that 24-Hour Fitness location, which was open and in the same parking lot.
"An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U.S. 47 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. . . . [T]he fact that the stop occurred in a 'high crime area' is among the relevant contextual considerations in a Terry analysis. [Citation.]" (Wardlow, supra, 528 U.S. 119, 124; see People v. Souza (1994) 9 Cal.4th 224, 240-241 ["An area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. [Citations.]"].) While "reasonable suspicion cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area[] [citation]" (People v. Casares (2016) 62 Cal.4th 808, 838), the officer's knowledge of those prior burglaries contributed to the totality of circumstances.
"The time of night is another pertinent factor in assessing the validity of a detention." (People v. Souza, supra, 9 Cal.4th at p. 241.) It was close to midnight in this case, and defendant was standing in the dark near a closed business.
The fact that defendant appeared to be urinating at night in a parking lot, which was adjacent to a city street and near El Camino and which contained an open business, was unusual conduct for law-abiding persons (cf. People v. Huggins (2006) 38 Cal.4th 175, 242). That conduct added to the totality of circumstances.
"[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. [Citation.]" (Wardlow, supra, 528 U.S. at p. 125.) The officer's personal observations established reasonable suspicion to believe that defendant had committed a criminal nuisance punishable as a misdemeanor under sections 370 and 372. The totality of facts, objectively viewed, also provided a basis for reasonable suspicion that defendant might have been about to engage in further criminal activity, such as burglary. C. Initial Detention
When an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." (Terry, supra, 392 U.S. at p. 20, fn. 16.) "[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. [Citation.] Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment." (Delgado, supra, 466 U.S. at pp. 216-217.) "[A]n initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, 'if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' [Citations.]" (Id. at p. 215.) Thus, if a person "refuses to answer [police questions during a consensual encounter] and the police take additional steps . . . to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure. [Citations.]" (Id. at pp. 216-217.)
In this case, Officer Epidendio initially illuminated defendant, turned into the parking lot, parked with his spotlight on defendant, exited his patrol vehicle to contact defendant, and asked defendant what he was doing while defendant was still illuminated. The officer then directed defendant to sit on the curb and continued to question him. There is no dispute that defendant was detained no later than when Officer directed him to sit on the curb. (Cf. In re J.G. (2014) 228 Cal.App.4th 402, 413.) D. Duration of Detention
"The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. . . . [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. [Citations.] It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." (Florida v. Royer (1983) 460 U.S. 491, 500 (plur. opn. of White, J.).) "The scope of the detention must be carefully tailored to its underlying justification." (Ibid.) "[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures." (Rodriguez v. United States (2015) ___ U.S. ___, ___ [135 S.Ct. 1609, 1612] (Rodriguez).)
"In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider . . . whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. [Citations.] A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. [Citation.] A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But '[t]he fact that the protection of the public might, in the abstract, have been accomplished by "less intrusive" means does not, itself, render the search unreasonable.' [Citations.] The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." (United States v. Sharpe (1985) 470 U.S. 675, 686-687 (Sharpe).)
Here, the underlying justification was twofold, to investigate defendant's apparent conduct of urinating in public and to investigate his suspicious presence near a closed business at approximately midnight in the unlit area of a parking lot, in which multiple vehicular burglaries had occurred. During the detention, the officer learned from defendant that he was from St. Louis, Missouri, that he had owned a home there, which was lost through foreclosure, that he had come to California for a "consulting job," and that he was sleeping in his car in the parking lot.
When the officer provided defendant's name to dispatch, before his suspicions had been allayed, the officer discovered that defendant had a California driver's license, a fact seemingly inconsistent with defendant's story of coming from and having owned a home in Missouri. When the officer asked defendant about his driver's license, he learned that defendant kept it in a Coach bag, a fact incongruous with defendant's apparent shortage of money based on his lack of shoes and his sleeping in his car. Instead of resolving defendant's suspicious presence in the dark portion of the parking lot, the information aroused further suspicion, which justified further detention and inquiry.
Defendant argues that "it was not reasonably necessary for the officer to seek his hard license because the officer's suspicions [that he was urinating] were immediately confirmed" and his self-identification was confirmed by police dispatch. He asserts that, indeed, it was "objectively unreasonable" to require defendant's driver's license to verify his identity. He contends that, consequently, his detention was unduly prolonged beyond the time necessary to issue a citation for urinating in public.
The officer could reasonably decide to examine defendant's driver's license to confirm that defendant was in fact the person he claimed to be. Based on his training and experience, Officer Epidendio knew that subjects sometimes misidentified themselves because they were on probation or parole, there was an outstanding warrant against them, or they were "hiding something from the police." Although defendant had been cooperative in answering the officer's questions, it was still reasonable for the officer to confirm his identity given all the circumstances. The tasks legitimately tied to the stop had not yet been completed when Officer Epidendio asked for defendant's permission to search for his driver's license in his vehicle. (See Rodriguez, supra, ___ U.S. at p. ___ .)
We are well aware that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures." (Rodriguez, supra, ___ U.S. at p. ___ ; cf. People v. McGaughran (1979) 25 Cal.3d 577, 587 [warrant check exceeded reasonable duration of traffic stop].) But Officer Epidendio was pursuing his investigation in a diligent and reasonable manner. (See Sharpe, supra, 470 U.S. at p. 686.) While an officer may not unduly prolong a detention to ask for a driver's license after the reasonable suspicion for an investigative stop has been resolved or dispelled (cf. United States v. Trestyn (10th Cir. 2011) 646 F.3d 732, 744), that was not the case here. Defendant's consent to search was not the product of an unduly prolonged detention. E. Scope of Consent to Search
"The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and '[v]oluntariness is a question of fact to be determined from all the circumstances' [citation]." (Ohio v. Robinette (1996) 519 U.S. 33, 40.) The Fourth Amendment does not require that "a lawfully seized defendant must be advised that he is 'free to go' before his consent to search will be recognized as voluntary." (Id. at p. 36.) In this case, there is no contention that defendant's consent to search was involuntary. --------
Defendant further claims that Officer Epidendio exceeded the scope of his consent to search for his driver's license, which he had said was in a Coach bag in the vehicle's backseat, by opening the driver's side, front door.
"The touchstone of the Fourth Amendment is reasonableness. Katz v. United States, 389 U.S. 347, 360 (1967). . . . [The United States Supreme Court has] long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). 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, 250-251.) "The scope of a search is generally defined by its expressed object. United States v. Ross, 456 U.S. 798 (1982)." (Id. at p. 251.) "A suspect may of course delimit as he chooses the scope of the search to which he consents." (Id. at p. 252.)
In this case, given the facts known to Officer Epidendio and his training and experience, he acted reasonably in asking dispatch to determine whether the vehicle was stolen and verifying that the vehicle's VIN number matched the Missouri license plates before retrieving defendant's driver's license to rule out the possibility that the car was stolen. The officer acted reasonably and most expeditiously by opening the driver's side, front door, which was closest to where he had been standing immediately beforehand, to ensure that the vehicle's doors were unlocked, instead of walking to and trying a back door first. When he opened the driver's side, front door, Officer Epidendio was acting within the scope of defendant's consent because defendant's consent did not expressly or impliedly limit how the officer accessed the vehicle's interior to search for and retrieve his driver's license from the Coach bag in the backseat. Consequently, the smell of marijuana, the ensuing search of the vehicle, and the incriminating evidence discovered were not the product of an unlawful search exceeding the scope of defendant's consent, and the exclusionary rule did not apply.
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J.
WE CONCUR:
/s/_________
MIHARA, J.
/s/_________
GROVER, J.