Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. CR127232
STEIN, J.
Defendant Saul Briseno was arrested after police found a baggie of marijuana in his pants and seven additional baggies of marijuana and a digital scale in the trunk of his car. Defendant was charged by information with possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). Defendant moved to suppress the physical evidence of his crimes and statements he made to the police, contending they were the result of an unlawful detention. The court denied the motion, finding the search to have been consensual. The case then was tried to the court, which found defendant guilty of both charges. Ultimately defendant was sentenced on both this, and another, unrelated case. The court suspended imposition of sentence, placing defendant on three years’ probation.
This appeal followed.
Facts
Deputy Sheriff Chet Schneider testified that at approximately 9:30 on the evening of January 11, 2006, he saw defendant’s car parked on the street. Deputy Schneider parked his police vehicle approximately 10 yards behind defendant’s car. He had not put on his lights or siren. Defendant got out of his car as Deputy Schneider approached. The deputy did not display his weapon. He identified himself, using a normal, conversational tone of voice. Defendant asked if he were in trouble. Deputy Schneider replied defendant was parked illegally away from the curb, and then asked whether he could have a moment of defendant’s time. Defendant said he could. Deputy Schneider asked if defendant had any illegal drugs or weapons on him. Defendant did not say anything, but immediately put both hands into the front pockets of his pants. Deputy Schneider testified that out of concern for officer safety, he grabbed defendant’s wrists so he would not be able to pull any weapons out of his pockets. Defendant said, “It’s just a baggie . . . of weed.” The deputy removed defendant’s hands from his pockets, which brought out a baggie of marijuana. Another officer then searched defendant’s car, finding, among other things, seven other baggies of marijuana and a digital scale.
Discussion
I.
Detention
At trial, defendant contended Deputy Schneider had no right to detain him for parking illegally because he was parked on a private street in a private residential area with signage inadequate to inform motorists California’s Vehicle Code would be enforced in that area. The trial court did not reach defendant’s specific argument because it found the contact to have been consensual and therefore not a detention. On appeal, defendant contends the trial court erred because a reasonable person in defendant’s position would not have believed he was free to leave.
The relevant legal principles were summarized by the state’s Supreme Court in In re Manuel G. (1997) 16 Cal.4th 805, 821: “Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. [Citations.] . . . Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.]
“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine 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.’ [Citation.] 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. [Citations.] The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]”
The standard for reviewing the trial court’s ruling on a motion to suppress is equally well-settled. “ ‘ “In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” ’ [Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 279.)
The evidence here is Deputy Schneider approached defendant’s parked car. According to the officer, he did not put on his lights or siren. He did not display a weapon. He did not raise his voice. After telling defendant he had parked illegally, the deputy asked if he could have a moment of defendant’s time. After defendant stated he could, the deputy asked a question that caused defendant to put his hands in his pants pockets. On this evidence, and in light of the law summarized in In re Manuel G., supra, 16 Cal.4th 805, we agree with the trial court that the encounter was consensual and did not amount to a detention.
Defendant cites Wilson v. Superior Court (1983) 34 Cal.3d 777 (Wilson), where the Supreme Court reversed an order denying a motion to suppress. In that case, the arresting officer was working as an undercover narcotics agent at the Los Angeles International Airport. He saw the defendant, who was carrying an attaché case, and a companion. The officer thought the two were somewhat suspicious and followed them down a concourse to the street. The defendant and his companion were aware they were being followed, as they looked back at the officer several times. The officer, similarly, knew defendant knew he was being followed. (Id. at pp. 780-781.) The defendant’s car was parked on the street. After the defendant’s companion left to retrieve luggage, the officer approached the defendant. He displayed his police identification, telling the defendant he was a police officer and asking if he might have a minute of time. When the defendant responded “Sure,” the officer told him “ ‘that I was conducting a narcotics investigation, and that we had received information that he would be arriving today from Florida carrying a lot of drugs.’ ” (Id. at p. 781, italics in original.) The officer then asked if he could search the defendant’s carryon luggage, and according to the officer, the defendant gave him permission to search. The search turned up two small vials of narcotics. (Id. at pp. 781-783.)
The Supreme Court found the officer did not detain the defendant by “merely by approaching him, identifying himself as a police officer, and asking if he might have a minute of his time.” (Wilson, supra, 34 Cal.3d. at p. 790.) However, “[c]ommon sense suggests to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer. Before [the officer] made that statement, [the defendant] might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the time—or, perhaps, the inclination—to answer the officer’s questions or to comply with his requests for permission to search. Once the officer advised [the defendant] that he had information that [the defendant] was carrying a lot of drugs, the entire complexion of the encounter changed and [the defendant] could not help but understand that at that point he was the focus of the officer’s particularized suspicion. Under these circumstances—and particularly in the absence of any clarifying advice from the officer explaining to [the defendant] that he was, in fact, free to drive away if he desired—no reasonable person would have believed that he was free to leave. [Citations.]” (Id. at pp. 790-791.)
Under Wilson, supra, 34 Cal.3d 777, Deputy Schneider’s conduct in approaching defendant and asking if he could have a moment of his time did not make the encounter a detention. Unlike the situation in Wilson, Deputy Schneider’s mention that defendant may have committed an infraction did not transmute the encounter into a detention. There is a vast difference between being informed one is under suspicion for transporting narcotics and being informed one has parked too far from the curb. No reasonable person would expect to be placed under arrest for being parked too far from a curb, and no reasonable person would assume he or she had no choice but to submit to the officer’s questions and/or to a search of body or car after being told he or she was parked too far from a curb, particularly when the officer had only asked if he might have a moment of the driver’s time. We also do not find the deputy’s question whether defendant had any weapons or drugs on him created a particularized suspicion defendant was being investigated for possession of weapons or drugs. To the contrary, under the circumstances, the question reasonably appeared to be a general one, which, if answered in the negative, would have allowed the defendant to go on his way if he chose to discontinue any further conversation with the deputy.
Defendant also cites the recent United States Supreme Court case of Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400], where the court found a traffic stop “seizes” not just the driver, but also the other occupants of the vehicle. (Id. at p. 2403.) The court applied the settled test for seizures stated in United States v. Mendenhall (1980) 446 U.S. 544, 554, holding a seizure occurs when, “ ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” (Brendlin, at p. 2405.) The court reasoned a traffic stop indicates the police believe there is a need to investigate faulty behavior or wrongdoing. If the likely wrongdoing is not driving, a passenger reasonably will feel subject to suspicion, and even when the wrongdoing is bad driving, “the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.” (Id. at p. 2407.) In addition, a passenger reasonably would expect a police officer at the scene would not let people move around in ways that could jeopardize the officer’s safety. (Ibid.) Brendlin is of no help here to defendant as it makes no change in the law, simply applying existing law to a particular situation. As we have discussed, existing law, when applied to defendant’s situation, establishes the police action in this case was not a detention.
II.
Search
Defendant contends that even if his initial contact with Deputy Schneider was consensual, the deputy lacked grounds to put his hands on defendant’s hands in such a way as to pull the baggie of marijuana from defendant’s pocket when defendant’s hands were removed from his pockets. The People respond defendant waived the point by failing to raise it below. We agree.
In People v. Williams (1999) 20 Cal.4th 119, the court explained the burdens on the defendant and the prosecution in connection with a motion to suppress the fruits of a warrantless search. It found that although the prosecution has the burden of proving some justification for a warrantless search or seizure, the defendant has the burden of raising the issue. (Id. at pp. 127-128.) The defendant’s burden requires the defendant both to assert the search or seizure was without a warrant, and to explain why it was unreasonable under the circumstances. (Id. at p. 129.) The defendant, however, need not anticipate or guess what the prosecution will assert as a justification. (Ibid.) “In sum, we conclude that under [Penal Code] section 1538.5, as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure. In the interest of efficiency, however, defendants need not guess what justifications the prosecution will argue. Instead, they can wait for the prosecution to present a justification. Moreover, in specifying the inadequacy of the prosecution’s justifications, defendants do not have to help the prosecution step-by-step to make its case. The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked.” (Id. at pp. 130-131.)
Here, in the trial court, defendant argued Deputy Schneider detained him without legal cause because the deputy was not entitled to cite or arrest him for parking too far away from the curb. The prosecution responded to the point raised by defendant, by arguing the contact between defendant and the deputy was consensual. If defendant wished also to argue the deputy acted unreasonably by grabbing his hands after he put them into his pockets, he was required to raise the issue by complaining that the deputy’s act of grabbing his hands was a warrantless search or seizure. He made no such argument. Finally, although we need not address the point, we can see no basis for finding the deputy’s conduct to have been unreasonable and therefore a violation of the Fourth Amendment of the United States Constitution. Deputy Schneider had just asked if defendant had any drugs or weapons, and defendant had responded by putting his hands in his pockets, suggesting one or the other item might be there. The deputy was not required to refrain from taking action to protect himself on the hope defendant had nothing more dangerous than drugs in his pockets, and grabbing defendant’s hands was the minimum the deputy reasonably might have done.
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.