Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCD216061 of San Diego County, Roger W. Krauel, Frederick Maguire, Judges.
HALLER, Acting P.J.
Nicholas Attard appeals from his conviction of possession of cocaine base pursuant to a guilty plea. He asserts the trial court erred in denying his motion to suppress the cocaine found by the police in his possession. We reject this contention and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Attard was arrested and charged with possession of cocaine base. He moved to suppress the cocaine seized by the police from his person. At the hearing on the suppression motion, Officer Nicole Campbell described the encounter with Attard that led to the seizure of the cocaine.
Campbell testified that at about 9:50 p.m. on September 11, 2008, she and Officer Anthony Reese were driving in an area of San Diego County known for illegal narcotics activity. They were in uniform and driving a marked patrol car. As they were patrolling the area, they saw Attard walking from an alley in the direction of their vehicle.
The officers stopped their vehicle about 15 feet away from Attard. Officer Campbell rolled down the passenger window and asked Attard his name. Attard gave them his name. The officers asked if he lived in the area, and Attard responded that he did, stating that he lived on the next block in a sober living facility. The officers asked if he was on probation or parole, and Attard responded "No."
The officers then asked Attard "if he minded talking to [them]," and he said he did not mind. After Attard agreed to talk to the officers, he continued walking towards the police vehicle and the officers exited the vehicle. It was dark outside, but streetlights in the alley provided lighting. Also, the police spotlight was shining in the alley in the direction of Attard. When Attard was about five feet from the officers, Campbell noticed that his eyes were red and dilated. Attard stopped walking when he reached the officers.
In response to the officers' questions, Attard provided his name, date of birth and Social Security number. During this interaction, Campbell observed that Attard was "talking to [her] with accelerated speech, and he was fidgeting." Campbell testified that she had training in the use of narcotics and their effects, and she had made about 50 arrests of persons who were confirmed to be under the influence of a controlled substance. Based on her training and experience, Campbell believed Attard was under the influence of a controlled substance.
While Officer Reese went to the patrol car to run a background check, Officer Campbell asked Attard if he would mind if she searched him. Attard responded that she could not search him. After declining to give consent to a search, Attard began "fidgeting a little more and started motioning his mouth, similar to chewing. Like, he was rapidly chewing something and tried to swallow multiple times." Prior to this point Attard had not been making a chewing motion with his mouth. Campbell believed that Attard was "trying to get rid of something in his mouth." Accordingly, she approached him and, using her hand, pushed his head down towards his chin, which is a movement designed to stop the person from swallowing. Campbell explained that narcotics users frequently conceal rock cocaine in their mouth, and they will often swallow it to destroy the evidence and avoid getting caught.
The officers repeatedly told Attard to "spit out the item that was in his mouth." Attard "tried to swallow a few more times" and Campbell "told him to spit it out a few more times." Attard eventually spit out a white crystalline substance that Campbell believed was rock cocaine. The officers then arrested Attard. Testing results revealed that the substance in Attard's mouth was.22 grams of cocaine base.
The prosecutor argued that the search of Attard's mouth was a permissible search incident to an arrest, or was justified by the exigency of preventing him from destroying contraband. To support this, the prosecutor asserted the initial encounter with Attard was consensual. The prosecutor contended that during this consensual encounter the police acquired probable cause to arrest Attard for being under the influence of a controlled substance, based on such factors as his dilated pupils, accelerated speech, fidgeting, mouth motions suggesting an attempt to swallow drugs, and location in an area of high illegal narcotics activity. Additionally, the police had probable cause to believe Attard had a controlled substance in his mouth, and were permitted to search his mouth in response to the perceived exigency that he was trying to swallow the contraband.
To support the suppression motion, defense counsel argued the initial encounter ceased to be consensual and became a detention because the police shined their vehicle spotlight on Attard, rushed out of their vehicle, and started asking interrogation questions. Further, there was no probable cause to arrest because the symptoms displayed by Attard could be explained by such innocent factors as dilated pupils from nighttime, being a normally fast-talker, being cold, and being nervous upon confrontation by the police. Defense counsel noted that the police did not conduct any field sobriety tests to verify that Attard was under the influence. Additionally, there was no probable cause that Attard had contraband in his mouth because chewing was a normal motion and the officers never saw Attard put anything in his mouth, nor did they see anything in Attard's mouth.
The trial court found the initial contact between the officers and Attard was consensual. The court concluded that during the consensual encounter, the police acquired probable cause to arrest based on the observation of physical symptoms of being under the influence (dilated eyes, accelerated speech, and fidgeting behavior), plus the location in a high illegal narcotics area and the time of day. The court ruled that because there was probable cause to arrest at the time of the search, the police engaged in a permissible search incident to an arrest. Accordingly, the court denied the suppression motion.
Attard filed a suppression motion prior to the preliminary hearing, and renewed the motion after he was bound over for trial. His motions were denied in both instances.
Thereafter, Attard pleaded guilty to possession of cocaine base and was granted probation. On appeal, he challenges the denial of his suppression motion.
DISCUSSION
In reviewing a trial court's ruling on a suppression motion, 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." (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Woods (1999) 21 Cal.4th 668, 673-674.)
Attard acknowledges that his encounter with the police was initially consensual, but he asserts that it developed into an unlawful detention requiring exclusion of the cocaine subsequently found by the police. Alternatively, he argues that even if the encounter remained consensual, there was no probable cause to arrest him and no justification for the search of his mouth. For reasons we shall explain, we hold the encounter was consensual, and the search of his mouth was permissible based on probable cause to arrest for being under the influence.
No Detention
The police do not violate the Fourth Amendment by merely approaching an individual on the street and asking questions if the person is willing to listen. (People v. Hughes (2002) 27 Cal.4th 287, 328.) If the encounter with the police remains consensual, there is no reason to subject the police conduct to Fourth Amendment scrutiny. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
However, the person is not required to stay and listen or answer the questions posed by the police, and the police may not detain the person without reasonable, objective grounds for doing so. (People v. Hughes, supra, 27 Cal.4th at p. 328.) A detention, which triggers Fourth Amendment scrutiny, occurs "whenever a police officer 'by means of physical force or show of authority' restrains the liberty of a person to walk away." (People v. Souza (1994) 9 Cal.4th 224, 229; In re Manuel G., supra, 16 Cal.4th at p. 821.) The court evaluates " '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., supra, 16 Cal.4th at p. 821.) "This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (Ibid.) "There is no bright line rule indicating the point at which police conduct becomes a seizure. The degree of intrusion will vary with each set of facts involving police conduct and the actions of the suspect." (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.)
To justify a detention, the police must have a reasonable suspicion, based on particularized objective facts, that the person detained may be involved in criminal activity. (People v. Souza, supra, 9 Cal.4th at pp. 230-231.) If the defendant was unlawfully detained by the police, and absent sufficient attenuating circumstances, the defendant is entitled to suppression of evidence seized by the police as a result of the detention. (People v. Boyer (2006) 38 Cal.4th 412, 448.) On the other hand, if during a consensual encounter the police discover contraband, there is no basis for suppression. (People v. Franklin (1987) 192 Cal.App.3d 935, 941-942.)
The People assert that while the police were questioning Attard, the encounter was consensual, and hence no detention occurred. We agree.
The initial questioning of Attard consisted of three short questions while the officers remained in their vehicle. Officer Campbell then explicitly asked Attard if "he minded" talking to them, and Attard responded that he did not mind. This showed clear consent to engage in the verbal interaction. After giving this consent, Attard walked closer to the police vehicle; the officers exited the police vehicle; and the officers asked Attard more questions, to which he responded. When Campbell asked if she could search Attard, Attard responded that she could not. These circumstances reflect that Attard was willing to come closer to the officers; he was willing to answer their questions; and he felt comfortable enough to decline permission for a search. There are no facts suggesting that the officers were yelling at Attard or otherwise speaking in a tone that would suggest a reasonable person would feel compelled to stay and respond to their questions.
Attard asserts there was a coercive, investigative tone to the encounter because the officers asked him if he was on probation or parole; they exited their cruiser and advanced towards him; they shone their cruiser spotlight on him; and they asked him for his date of birth and Social Security number to run a background check on him. We are not persuaded. The question about probation or parole was made during the initial questioning while the officers were still in their vehicle, and subsequent to this question Attard agreed to speak further with them. They exited the police vehicle only after Attard agreed to continue speaking with them, and while Attard was also walking towards them. The officers' requests for his date of birth and Social Security number did not, standing alone, convey the idea that he could not decline to provide this information and end the verbal interaction.
Nor are we persuaded by Attard's characterization of the police spotlight as a coercive factor. When asked at the suppression hearing if there were streetlights in the alley, Officer Campbell responded that there were and that, additionally, the police "spotlight was shining in the alley." When asked if the spotlight was shining "toward Mr. Attard or away from him," Campbell responded, "Yes, it was." It was the trial court's role to decide what factual inferences to draw from this testimony; i.e., whether the light was shining in an intimidating manner, or merely lighting up the general area including where Attard was standing. (See People v. Woods, supra, 21 Cal.4th at pp. 673-674.) Drawing all factual inferences in favor of the court's ruling (ibid.), the record supports the court's implied finding that the spotlight was not focused on Campbell in an intimidating manner. A reasonable person would not view the use of a police spotlight for general lighting purposes as a display of authority requiring them to comply with the officers' requests.
Read in context, it appears that Campbell's response meant the spotlight was shining towards Attard.
Contrary to Attard's assertion, the circumstances of this case are not comparable to those in People v. Garry (2007) 156 Cal.App.4th 1100. In Garry, the police officer, after noticing the defendant standing next to a parked car in a high-crime, high-drug area, turned the patrol car's spotlight on the defendant, exited the vehicle, and started walking briskly towards the defendant. The defendant looked nervous and started walking backwards, stating that he lived right there. The officer stated he just wanted to confirm this and asked the defendant if he was on probation or parole. (Id. at pp. 1103-1104.) The Garry court concluded that these circumstances "would be very intimidating to any reasonable person," noting that the officer "bathed defendant in light," walked briskly towards him, disregarded his indication that he was merely standing outside his home, and instead questioned him about his legal status. (Id. at pp. 1111-1112.) In contrast here, during the encounter the police asked Attard if they could speak to him, Attard responded affirmatively, and Attard did not try to retreat when the police approached him but instead continued walking towards them. As stated, these circumstances show a consensual encounter.
No Unlawful Search
When the police conduct a search without a warrant, the People have the burden to establish that the search was justified by an exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830.) As an exception to the search warrant requirement, the police may conduct a search incident to a lawful arrest. (People v. Knutson (1976) 60 Cal.App.3d 856, 864.) A warrantless search incident to an arrest must be reasonable in scope, and may include a search for instrumentalities used to commit the crime and contraband. (Ibid.)
To allow a warrantless search incident to a warrantless arrest, the warrantless arrest must also fall within an exception to the warrant requirement. A warrantless arrest in a public place is constitutionally permissible if the officers had probable cause to make the arrest. (People v. Thompson (1996) 38 Cal.4th 811, 817; Cunha v. Superior Court (1970) 2 Cal.3d 352, 356.) Probable cause to arrest exists when the facts known to the arresting officer would lead a person of reasonable caution to believe that an offense has been or is being committed by the person to be arrested. (People v. Souza, supra, 9 Cal.4th at p. 230; People v. Price (1991) 1 Cal.4th 324, 410.) Probable cause turns on an assessment of probabilities in particular factual contexts, and requires a reasonable ground for belief of guilt that is particularized with respect to the person to be seized. (People v. Thompson, supra, 38 Cal.4th at p. 818.) A mere hunch or good faith belief on the part of the officer is not enough; there must be specific and articulable facts that warrant a reasonable belief that the person is guilty. (People v. Martin (1973) 9 Cal.3d 687, 692; People v. Conway (1994) 25 Cal.App.4th 385, 389.) When there is probable cause to arrest, the police may lawfully search the person even if the search is conducted before the arrest. (People v. Simon (1955) 45 Cal.2d 645, 648.)
Here, during the consensual encounter with Attard, Officer Campbell noticed that Attard's eyes were red and dilated, his speech was accelerated, and he was fidgeting. Campbell testified that Attard was in an area known for high illegal narcotics activity, and that based on her training and experience he appeared to be under the influence of a controlled substance. Further, when she requested permission to search him, he started rapidly chewing and trying to swallow something in his mouth. She explained that narcotics users frequently conceal rock cocaine in their mouth and try to swallow it to avoid detection.
Under these circumstances, including Attard's location in an area of high drug activity, his manifestation of physical symptoms consistent with drug usage, and his furtive conduct with his mouth, a person of reasonable caution would believe that Attard was under the influence of drugs and was trying to dispose of drugs by swallowing them. These facts provided probable cause to arrest Attard for being under the influence of a controlled substance, and justified the search of his mouth for contraband.
To support his right to suppression, Attard asserts that his arrest was not lawful because the offense of being under the influence of a controlled substance is a misdemeanor (Health & Saf. Code, § 11550), and pursuant to Penal Code section 836, subdivision (a)(1), the police may not make a warrantless arrest for a misdemeanor unless the misdemeanor was committed in the officer's presence. He posits that the offense of being under the influence was not committed in the officers' presence because they did not see him inject or ingest a controlled substance or commit some other act indicative of drug use. He also suggests that to create probable cause to arrest for being under the influence, there must be evidence showing the actual injection or ingestion of the drugs. All of these contentions are unavailing.
Since the June 1982 passage of Proposition 8 (Cal. Const., art. 1, § 28, subd. (d)), evidence that is seized pursuant to an arrest violative of Penal Code section 836's "in the presence" requirement is not subject to exclusion as long as the arrest passes muster under the federal Constitution. (People v. Donaldson (1995) 36 Cal.App.4th 532, 539; People v. Trapane (1991) 1 Cal.App.4th Supp. 10, 13-14.) Numerous courts have concluded that there is no federal constitutional requirement that a misdemeanor be committed in an officer's presence to justify a warrantless arrest. (People v. Trapane, supra, 1 Cal.App.4th Supp. at p. 13; Woods v. City of Chicago (7th Cir. 2000) 234 F.3d 979, 992-995; State v. Walker (Wash. 2006) 138 P.3d 113, 120-121.) Absent a violation of the federal Constitution, any violation of the state statute does not provide a basis for exclusion.
The United States Supreme Court has not expressly decided whether there is a constitutional "in the presence" requirement for warrantless misdemeanor arrests. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 341, fn. 11.)
In any event, Attard did commit the offense of being under the influence of a controlled substance in the officers' presence because the officers observed current symptoms of his being under the influence. Health and Safety Code section 11550 defines two offenses: use of a controlled substance and being under the influence of a controlled substance. (People v. Gutierrez (1977)72 Cal.App.3d 397, 401.) The offense of being under the influence is committed when a person, following the unlawful use of narcotics, is under the influence in any detectable manner. (People v. Canty (2004) 32 Cal.4th 1266, 1278; Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 187; People v. Gutierrez, supra, 72 Cal.App.3d at p. 402; Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 727.) To commit the offense, there is no need to demonstrate misbehavior or impairment of physical or mental ability. (People v. Canty, supra, 32 Cal.4th at p. 1278.) However, the offense punishes the act of being under the influence, not the condition of addiction (Bosco v. Justice Court, supra, 77 Cal.App.3d at pp. 187-188), and the observation of withdrawal symptoms or scars reflecting past drug usage do not constitute the crime of being under the influence (People v. Gutierrez, supra, 72 Cal.App.3d at pp. 400-402).
Health and Safety Code section 11550 states: "No person shall use, or be under the influence of any controlled substance...."
Here, Officer Campbell observed symptoms reflecting that Attard was actually under the influence at the time the police were questioning him. To commit the offense of being under the influence, there is no requirement that the actual injection or ingestion of the controlled substance be observed or proven by some other overt act. A person is guilty of being under the influence "by being in that state in any detectable manner." (People v. Canty, supra, 32 Cal.4th at p. 1278.) Thus, the offense was committed in the officer's presence, and there was probable cause to arrest for the offense, once the officer observed Attard's physical symptoms and conduct displaying that he was under the influence.
Attard argues there could have been an innocent explanation for his physical symptoms and mouth motions, and because the officers conducted no tests to confirm that he was under the influence, these factors cannot create probable cause to arrest him. Although an arrest based solely on events that are "as consistent with innocent activity as with criminal activity" may be unlawful (Remers v. Superior Court (1970) 2 Cal.3d 659, 664; Cunha v. Superior Court, supra, 2 Cal.3d at p. 358; People v. Martin, supra, 9 Cal.3d at p. 692), the totality of the circumstances here show more than innocent activity. Even if none of Attard's symptoms in isolation would be sufficient to support a belief that he was under the influence, there was a reasonable basis for this conclusion when the symptoms are viewed in the aggregate and in light of the other circumstances.
In contrast to an arrest, a detention based on factors that are also consistent with innocent activity is permissible. (People v. Glaser, supra, 11 Cal.4th at p. 373; People v. Souza, supra, 9 Cal.4th at pp. 233-235; In re Tony C. (1978) 21 Cal.3d 888, 894.)
Attard was exhibiting three physical symptoms consistent with drug usage, and he was also in a location known for high illegal narcotics activity and (when asked if he could be searched) suddenly started rapidly chewing and trying to swallow something. "[S]pecialized knowledge may render suspicious what would appear innocent to a layman" (Cunha v. Superior Court, supra, 2 Cal.3d at p. 358), and the courts "give considerable weight to the officer's particular expertise gained through on-the-job experience" (People v. Stanfill (1985) 170 Cal.App.3d 420, 423). Officer Campbell described her training and experience in the detection of illegal narcotics use, and testified that she knew that narcotics users frequently conceal and try to swallow rock cocaine in their mouths. A reasonable person with Campbell's training and experience-knowing the drug-related characteristics of Attard's location and mouth motions, combined with his physical symptoms of drug usage-would believe he was under the influence. For the same reasons, contrary to Attard's assertion, the probable cause to arrest was not based solely on the defendant's location in a high narcotics area.
Given our conclusion that the search of Attard's mouth was a lawful search incident to an arrest, we need not discuss the parties' dispute over whether the search was also proper based on exigent circumstances arising from a belief that he had contraband in his mouth and was attempting to swallow it.
The trial court properly denied the suppression motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.