Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF0396, Patrick Donahue, Judge.
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
After the court denied his motion to suppress, defendant Frank Baez pleaded guilty to felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)), possession of drug paraphernalia, (Bus. & Prof. Code, § 4140), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). The court sentenced him to four years in state prison.
The appeal is based on the allegation that defendant was detained illegally for an infraction under the Santa Ana Municipal Code for failure to have a license for his dog. We conclude defendant was not detained when the officer discovered the dog was not licensed and therefore affirm the judgment.
Early in the evening, officers John Rodriguez and Eddie Hernandez came upon defendant who was seated in a Santa Ana park with his dog on a leash. Hernandez shone his spotlight on the dog and determined that it did not seem to have a license tag, a violation of Santa Ana Municipal Code section 5-52. Rodriguez approached defendant and, while still five feet away, told him he wanted to ask about the dog license. Almost immediately, Rodriguez noticed that defendant exhibited symptoms of being under the influence of a controlled substance. He talked to Hernandez and the latter also noticed these symptoms. Rodriguez then placed defendant under arrest, searched his person, and found a hypodermic syringe and two rolled up balloons containing a dark brown, tarry substance, which Rodriguez identified as black tar heroin.
Defendant does not question the validity of the arrest itself as it was based on probable cause once the officers determined that he appeared to be under the influence of a controlled substance. But he argues that the officers’ initial approach to inquire about the apparent lack of a dog license constituted a detention without cause. He acknowledges that “[a] detention occurs ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen....’ [Citations.]” (In re Randy G. (2001) 26 Cal.4th 556, 562.) Defendant contends that a detention occurred when Hernandez shone his spotlight on the dog. We disagree; there certainly was no detention until Rodriguez started to talk to defendant, if then. At this time, the officers discovered that defendant appeared to be under the influence and they executed a legal arrest. Even in the absence of an unlicensed dog, there is no prohibition against officers approaching a person to ask some questions.
Defendant argues this case is analogous to People v. Roth (1990) 219 Cal.App.3d 211. It is not. In Roth, the officers not only shone a spotlight on defendant but ordered him to approach. The Roth court noted that “[t]he trial court found: ‘[T]he officer was making some type of a detention. There can be no doubt about that because he issued a command to him.’ We accept the finding there was a command and, exercising our independent judgment, agree with the trial court there was a detention. [Citations.]” (Id. at p. 215, fn. 3.) Here there was no command that defendant do anything.
Defendant also argues that it was incredible that the officers would have been able to determine the absence of a dog tag. But here we are bound by a factual determination made by the trial court. (People v. Zichwic (2001) 94 Cal.App.4th 944, 950-951 [‘“we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence”’].) And, whether they did or not is not truly relevant. Had the officers merely gotten out of their car to wish defendant a good evening, no detention would have occurred until they discovered that defendant appeared to be under the influence of a controlled substance.
As noted by the Attorney General, the United States Supreme Court has recognized the right of police officers to approach a person and ask a few questions. In Florida v. Royer (1983) 460 U.S. 491, [103 S.Ct. 1319, 75 L.Ed.2d 229] the court stated “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.]” (Id. at p. 497.)
‘“Although there is no “bright-line” distinction between a consensual encounter and a detention... “the 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.’’” [Citations.]” “‘“The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.’” [Citation.]” (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) Based on the encounter here, there is no evidence that the encounter between defendant and the officers was anything but consensual.
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.