Opinion
C084695
06-21-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW DEAN BIGLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P16CRF0010)
Defendant Andrew Dean Bigler appeals from a judgment entered after his no contest plea to possession of methamphetamine (Health & Saf. Code, § 11378), forgery (Pen. Code, § 470, subd. (d)), counterfeiting (§ 476), and possession of narcotics paraphernalia, a misdemeanor (Health & Saf. Code, § 11364). Defendant argues the trial court erred in denying his "motion to suppress evidence based on an erroneous finding that the encounter between law enforcement and the [defendant] was consensual." He contends that the placement of a law enforcement officer's body between two parked cars created a blockage that resulted in defendant's detention as a matter of law.
Undesignated statutory references are to the Penal Code.
We affirm.
I. BACKGROUND
We limit our discussion to the matters relevant on appeal. The magistrate heard defendant's motion to suppress evidence pursuant to section 1538.5 concurrent with his preliminary hearing. At that hearing, Deputy Roberts testified to seeing defendant in a parked car with an open driver's side door on the seventh floor of a parking garage at a casino. The deputy waited to see if defendant would leave his car to patronize the casino, and when he did not, Deputy Roberts parked his patrol vehicle 30 to 40 feet away from defendant's car to allow for "free movement of the car." He did not activate the lights or siren.
Deputy Roberts approached the car, ending up in the space between defendant's car and the car parked next to it. He identified himself and greeted defendant, who spontaneously handed Deputy Roberts his California identification card. Defendant looked nervous and was stuttering. Deputy Roberts felt it was unsafe to remain in the space between the cars and asked defendant "if he would talk to [him] outside of the car, at which time [defendant] said something to the effect of yeah, sure, no problem."
The magistrate denied defendant's motion to suppress, stating, "The case you gave me . . . involving blocking a car with a police officer's car, parking the car so the car couldn't back out, you want to convert this to he was blocked by a person. The officer testified he didn't turn on his lights. He parked away so he wouldn't block the car. As soon as he approached in the narrow space defendant immediately handed his I.D. card to him without anything else. The officer asked can you step out, it's kind of cramped, and go to the back, and is there anything in the car. Your defendant said yeah, I have a meth pipe in the car. That's it. [¶] It was consensual. He wasn't blocking him. He had to approach. I don't know how else he could do it. He did everything he could do to prevent it from being a detention. So I agree this is a consensual encounter. When your client said well, there's a meth pipe in the car then he had reason to detain him." The magistrate held defendant to answer on all four counts.
Defendant filed a motion to dismiss pursuant to section 995, reasserting his section 1538.5 argument that the contact was not consensual, which the trial court denied. Defendant thereafter entered into the above-described plea agreement. The trial court sentenced defendant, the specifics of which are not challenged on appeal.
II. DISCUSSION
Defendant argues "the trial court improperly denied [his] motion to suppress evidence based on an erroneous finding that the encounter between law enforcement and [defendant] was consensual." Specifically, he asserts the placement of Deputy Robert's body between the parked cars created a blockage that resulted in defendant's detention as a matter of law. He contends that this detention was unlawful because it was not justified by reasonable articulable suspicion. A. Standard of Review
Defendant's challenge to the magistrate's denial of his motion to suppress evidence (§ 1538.5, subd. (f)), which he preserved through his section 995 motion, is reviewed utilizing the standards associated with appellate review of a section 995 motion. (People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 5; People v. Hawkins (2012) 211 Cal.App.4th 194, 199-200.) Thus, in effect, we directly review the magistrate's determination and will uphold the magistrate's factual findings if supported by substantial evidence (People v. Hawkins, supra, at p. 200), but we exercise our independent judgment on whether the challenged seizure complies with the Fourth Amendment given the facts found by the magistrate. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) B. Consensual Encounter Versus Detention
For Fourth Amendment purposes, "consensual encounters" between the police and individuals are those that "result in no restraint of an individual's personal liberty whatsoever, i.e., no seizure; and which may properly be initiated by police officers even when they lack any objective justification." (People v. Jones (1991) 228 Cal.App.3d 519, 522-523.) "Detentions" are "seizures of an individual which are strictly limited in duration, scope, and purpose and which may be undertaken by police if there is an articulable suspicion that a person has committed or is about to commit a crime." (Id. at p. 523.)
"An officer may approach a person in a public place and ask if the person is willing to answer questions. If the person voluntarily answers, those responses, and the officer's observations, are admissible in a criminal prosecution. [Citations.] Such consensual encounters present no constitutional concerns and do not require justification. [Citation.] However, 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,' the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution. [Citations.] In situations involving a show of authority, a person is seized 'if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," ' or ' "otherwise terminate the encounter" ' [citation], and if the person actually submits to the show of authority [citation]." (People v. Brown (2015) 61 Cal.4th 968, 974 (Brown).)
In determining whether a reasonable person would have felt free to leave, we may consider factors, including " '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 compliance with the officer's request might be compelled. [Citations.]' [In re Manual G. (1997) 16 Cal.4th 805, 821.]" (People v. Parrot (2017) 10 Cal.App.5th 485, 493.) Parking a police car in a manner that prevents a parked car from leaving results in a detention because a reasonable person would not believe he was free to leave under those circumstances. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809.) However, parking a police car behind a rolling vehicle and then asking the occupant of that vehicle if he needed help and to move to the curb to talk is merely a consensual encounter. (People v. Parrot, supra, at pp. 493-494.)
Here, the magistrate found Deputy Roberts parked so as not to block defendant's car and did not turn on the car's overhead lights. He approached defendant's open car door, and defendant spontaneously handed him his identification card. Deputy Roberts asked defendant to move to a more open area, and defendant agreed. The magistrate expressly found Deputy Roberts "did everything he could do to prevent it from being a detention." These findings are supported by the record as described above.
We concur with the magistrate that under the above described circumstances, a reasonable person would have believed he was free to leave. (Brown, supra, 61 Cal.4th at p. 974.) Deputy Roberts was alone, did not display a weapon, and his conduct did not otherwise indicate that compliance with his request to talk would be compelled. (People v. Parrot, supra, 10 Cal.App.5th at p. 493.) Nor did Deputy Roberts act to affirmatively block defendant's car from driving away from his parking spot or use his car's emergency lights. (People v. Wilkins, supra, 186 Cal.App.3d at p. 809 [use of patrol car to block car was seizure]; Brown, supra, at p. 980 [use of emergency lights may result in seizure].) We are unpersuaded that Deputy Roberts' act of briefly standing near an open car door between two parked cars resulted in a blockage of egress sufficient to find that defendant was seized for purposes of the Fourth Amendment.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.