Opinion
A101008. A102056.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL BISHOP, Defendant and Appellant. In re NATHANIEL BISHOP on Habeas Corpus.
After pleading no contest to possession of cocaine, Nathaniel Bishop appeals the denial of his suppression motion. He contends he did not voluntarily consent to the search of his person, and his trial counsel provided ineffective assistance by failing to preserve the issue for appeal. Bishops petition for habeas corpus has been consolidated with the appeal, at his request. We affirm the judgment and deny the petition.
Factual and Procedural Background
At the preliminary hearing on October 3, 2002, Menlo Park Police Officer Dixon testified that he had seen appellant walking in a deserted commercial area near a highway off-ramp at approximately 10:30 p.m. on September 6, 2002. He pulled over, without activating his patrol cars emergency or auxiliary lights, and asked appellant, "Whats going on?" Appellant told him he was on his way home from East Palo Alto. Cover officer Egan arrived and stood on the other side of appellant while Officer Dixon spoke with him. Their conversation was in normal tones, and appellant was not physically restrained. The officers displayed no weapons.
When Officer Dixon asked appellant for identification, appellant said he had none, but told the officer his name. The officer asked if appellant was carrying anything illegal, and appellant said he was not. When the officer asked appellant, "You dont mind if I check?" appellant turned and raised his hands in the air. The officer searched appellant and found a cellophane baggie with four rocks of cocaine in a pocket of his trousers.
Appellant testified he had initially asked Officer Dixon why he was stopped, and the officer responded that appellant had crossed the street on a yellow light. When Officer Dixon asked if he had any weapons, he lifted his jacket and said he did not. When the officer asked if he could search him, appellant testified he "never answered the question. It was then—well, then do you have any—dont have any identification, either go to the station to be identified or here. [¶] And that is when right then I knew it was like[,] okay[,] theyre going to do what they want to do anyway so." Appellant turned around, without being asked, knowing he was going to be searched. The court then asked Officer Dixon whether he or Officer Egan had told appellant he would be searched either at the station or at the scene, since he had no identification. Officer Dixon replied, "Absolutely not."
Appellant was charged with possession of a controlled substance. His motion to suppress evidence was denied at the preliminary hearing. Appellant then pled no contest, with the understanding he would be eligible for a Proposition 36 disposition. He was sentenced to three years of supervised probation and ordered to complete a rehabilitation program. Appellant filed a notice of appeal in propria persona from the denial of his motion to suppress.[] Appellants petition for writ of habeas corpus, claiming ineffective assistance of counsel, was consolidated at his request with the direct appeal.
Counsel was subsequently appointed to represent appellant on appeal.
Discussion
Appellant contends that the search violated his Fourth Amendment rights because he did not freely consent. He also argues that trial counsel was ineffective because he failed to renew the motion to suppress after the information was filed in superior court, and thus failed to preserve the issue for appeal. (People v. Hoffman (2001) 88 Cal.App.4th 1, 3; People v. Hart (1999) 74 Cal.App.4th 479, 485.) Appellant would have this court reach the merits of the search issue in order to determine whether counsel was unconstitutionally ineffective, relying on Hart, supra. He contends there could have been no rational tactical purpose for counsels omission. In connection with his habeas corpus petition, appellant has attached a declaration from trial counsel stating he had forgotten that it was necessary to renew the suppression motion in superior court.
The Attorney General contends appellant waived his Fourth Amendment claim by failing to renew his suppression motion in superior court, and his ineffective assistance claim is not cognizable on either appeal or habeas because he has failed to obtain a certificate of probable cause from the trial court. We need not decide these procedural issues, as we conclude that appellants ineffective assistance argument would fail in any event because his underlying Fourth Amendment claim is without merit. (See People v. Wharton (1991) 53 Cal.3d 522, 576; People v. Hart, supra, 74 Cal.App.4th at p. 493.) The lower court properly rejected appellants argument that his consent was not free and voluntary. Consent may be implied from appellants actions; his explicit verbal agreement was not required. (See People v. Harrington (1970) 2 Cal.3d 991, 995; People v. Martino (1985) 166 Cal.App.3d 777, 791.)
Appellant was not in custody, nor had the officers drawn their guns or told appellant they could obtain a warrant. (See People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558.) Neither officer had activated his patrol cars emergency lights, raised his voice or otherwise behaved in a threatening manner.[] "[T]he courts consistently hold that neither the lack of Miranda warnings nor the failure of police officers to inform appellant of his right to refuse can invalidate an otherwise facially voluntary consent by appellant." (Id. at p. 1559.) Appellant relies heavily on the absence of other passersby to support his argument that he was intimidated into agreeing to the search. That single factor, however, can hardly be considered dispositive, in light of the totality of the circumstances shown here. Nor was the mere presence of two officers at the scene so inherently coercive as to vitiate appellants consent. Substantial evidence supports the trial courts finding that appellant validly consented to the search. (People v. James, supra, 19 Cal.3d at p. 107.)
By denying the motion to suppress, the trial court implicitly found that the officer did not threaten to take appellant to the police station if he did not consent to the search. (See People v. James (1977) 19 Cal.3d 99, 107.)
Disposition
The judgment is affirmed. The habeas corpus petition is denied.
We concur: MCGUINESS, P.J. and PARRILLI, J.