Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC058429, SC062640
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This is an appeal from a judgment after the denial of a defense motion to suppress evidence and the entry of a no contest plea by appellant Herman Brown, Jr. Appellant contends the judgment must be reversed because the trial court’s denial of the motion to suppress evidence violated state and federal constitutional prohibitions against unreasonable searches and seizures. We disagree, and thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 15, 2006, appellant was charged by information with one count of carrying a concealed weapon, and two counts of possession of controlled substances. In addition, the information alleged that appellant had previously been convicted of felony offenses on April 13, 2005; March 21, 2005; June 5, 1991; and July 6, 1983. On December 19, 2006, an arraignment was held, at which appellant pleaded not guilty to all charges and denied the prior convictions.
The charges stemmed from events occurring the night of November 17, 2006, when several law enforcement officers detained appellant and another person after observing them walking in a roadway with their backs facing oncoming traffic. On February 16, 2007, appellant moved to suppress evidence pursuant to Penal Code section 1538.5. In doing so, appellant claimed the law enforcement officers had unreasonably detained him on the night in question, in violation of his constitutional rights, because no justification existed for his continued detainment once he agreed to move to the side of the roadway.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
A contested hearing on appellant’s motion to suppress evidence was held March 15, 2007. At the hearing, Police Sergeant Joseph Fergosi testified that on November 17, 2006 at about 11:00 p.m., he was driving in an unmarked police car on East Bay Shore Avenue in East Palo Alto with fellow members of the San Mateo County Gang Task Force, Police Detective Jason Pasero, Alcohol Beverage Control Investigator Dave Bailey, and Immigration Customs Enforcement Agent Mike Simpson. The officers observed appellant and a male companion walking northbound about six feet into the roadway, such that the officers’ vehicle would have struck the men from behind had it continued on its path. The officers drove the vehicle to the side of the road, exited, and approached the two men. The night was dark and rainy, and the roadway lighting was poor, so the officers used flashlights as they approached.
Sergeant Fergosi called to the men, requesting to speak to them. The men agreed, and Sergeant Fergosi spoke with appellant while Detective Pasero spoke with appellant’s companion. Neither officer drew a weapon, and Sergeant Fergosi described his conversation with appellant as “casual.” Sergeant Fergosi asked appellant to remove his hands from his pockets, explained to him that walking in the roadway was dangerous, and advised him to move to the gravel and dirt pathway running alongside the roadway. Appellant apologized and agreed to comply with the officer’s instructions.
Agent Simpson and Investigator Bailey remained nearby.
Observing that appellant seemed nervous and was avoiding eye contact, Sergeant Fergosi proceeded to ask him some basic questions, such as his name, address and current destination. Appellant answered these initial questions, at which point – about three to four minutes into the encounter – Sergeant Fergosi asked whether he was carrying a weapon. Appellant responded by putting his right hand into his pocket a second time, at which point Sergeant Fergosi grabbed his wrist and asked what he was reaching for. Appellant replied that he was about to retrieve a knife and hand it to Sergeant Fergosi. Sergeant Fergosi then asked whether he could search for and retrieve the knife, to which appellant agreed. Sergeant Fergosi retrieved a steak knife with a 5.5 inch serrated blade from appellant’s pocket.
Sergeant Fergosi later explained his question about whether appellant was carrying a weapon was prompted by appellant’s nervousness, and by the fact that, in his experience, people in the area often were carrying weapons when he encountered them.
Sergeant Fergosi then asked whether appellant was carrying anything else, to which appellant responded he had valium and methadone beneath his jacket that he had a prescription for but was not carrying in a prescription bottle. Sergeant Fergosi asked for permission to search for and retrieve the pills. Appellant again consented, and Sergeant Fergosi retrieved a bag of pills from his person, along with a white piece of paper with a “brown gummy-type substance” affixed to it, which the officer believed to be tar heroin. Appellant volunteered that he forgot the heroin was on his person, and admitted using both heroin and crack cocaine earlier that day. Thus, about 10 minutes into the encounter, Sergeant Fergosi arrested appellant for weapon and drug possession offenses.
After the contested hearing, the trial court denied appellant’s motion to suppress evidence. On March 19, 2007, appellant was convicted of one count possession of a concealed weapon and one count heroin possession after waiving his right to a jury trial, submitting the matter on the basis of the preliminary hearing transcript, and entering a plea of no contest. In addition, appellant’s prior convictions were found true, and his probation was revoked. Appellant was thus sentenced on June 13, 2007 to state prison for the 16-month low term on count one, a concurrent 16-month low term on count two, and a concurrent 16-month low term on the conviction for which probation was revoked. Sentencing on appellant’s prior convictions was stayed.
This appeal followed.
DISCUSSION
Appellant’s sole contention on appeal is that the trial court erred in denying his motion to suppress evidence obtained pursuant to an unlawful search and seizure. In particular, appellant contends law enforcement officers had no legal justification for continuing to detain him on the night of his arrest, November 17, 2006, once he agreed to abide by their instructions to move out of the roadway to a dirt and gravel pathway running beside it, and to remove his hands from his pockets.
In reviewing the denial of a motion to suppress evidence under section 1538.5, we defer to the trial court’s findings of fact, so long as such findings are supported by substantial evidence, and review independently the court’s legal conclusions. (People v. Britton (2001) 91 Cal.App.4th 1112, 1118; People v. Ayala (2000) 23 Cal.4th 225, 255.) The legality of a search or seizure is measured by “the facts, as found by the trier [of fact], against the constitutional standard of reasonableness. [Citations.] Thus, in determining whether the search or seizure was reasonable on the facts found by the [trier of fact], we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].)” (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
“[S]tate and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. (In re Tyrell J. (1994) 8 Cal.4th 68, 76 [32 Cal.Rptr.2d 33, 876 P.2d 519]; In re Lance W. (1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744].) ‘Our state Constitution [Cal. Const., art. I, § 13] thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution [U.S. Const., 4th Amm.] as interpreted by the United States Supreme Court.’ (In re Tyrell J., supra, at p. 76.)” (People v. Camacho (2000) 23 Cal.4th 824, 830.)
A person is seized within the meaning of the federal Constitution “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, quoting Terry v. Ohio (1968) 393 U.S. 1, 19 & fn. 16 [Terry].) The test is an objective one, asking “not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” (California v. Hodari D. (1991) 499 U.S. 621, 628.) Under this test, a seizure occurs when, for example, an officer engages in conduct that “communicate[s] to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” (Kaupp v. Texas (2003) 538 U.S. 626, 629.) A seizure does not occur, to the contrary, when “a reasonable person would feel free to decline the police officer’s requests or otherwise terminate the encounter.” (Brendlin v. California (2007) __ U.S. __ [127 S.Ct. 2400, 2405-2406]; Florida v. Bostick (1991) 501 U.S. 429, 434.)
Here, the trial court found “the initial contact [between appellant and the law enforcement officers] was a consensual encounter,” and that “reasonable cause for detention” existed at that time based upon appellant’s violations of the Vehicle Code by walking unsafely in the roadway. The trial court further found the officers detained appellant for a reasonable amount of time to “explain[] the dangers of [his] conduct to him,” and then reasonably extended such detention once appellant admitted possessing a weapon and consented to a search for the weapon.
For purposes of this appeal, appellant does not dispute that the law enforcement officers were justified in initially detaining him after observing him walking in the roadway with his back facing oncoming traffic, a citable offense under the Vehicle Code. (Veh. Code, § 21950, subd. (b) [imposing a duty on a pedestrian to use “due care for his or her safety”]; Veh. Code, § 21956, subd. (a) [imposing a duty on a pedestrian to walk “close to his or her left edge of the roadway”]; see also People v. Brown (1998) 62 Cal.App.4th 493, 496-497 [“[a] police officer may legally stop a [person] he suspects of violating the Vehicle Code for the purpose of issuing a citation”]; People v. Gallardo (2005) 130 Cal.App.4th 234, 239, fn. 1 [a police officer’s initial detention of defendant was justified based on his commission of a code violation for driving with a smashed taillight]; Brendlin, supra, 127 S.Ct. at p. 2406 [“in Fourth Amendment terms a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief’ ”].) Appellant contends, however, the officers unreasonably prolonged his detention – and thus unreasonably seized him within the meaning of the Fourth Amendment – once he agreed to comply with their instructions to move out of the roadway and onto the gravel and dirt pathway running alongside it, and to remove his hands from his pockets. In addressing appellant’s contention, we find the following constitutional principles applicable.
Respondent argues as an initial matter that appellant was not seized within the meaning of the Fourth Amendment when initially confronted by the officers for the Vehicle Code violations, but rather later, when Sergeant Fergosi grabbed appellant’s wrist when he reached his hand into his pocket for a second time. Given that appellant does not challenge the trial court’s finding that reasonable cause existed for his initial detention based on the Vehicle Code violations, we need not address respondent’s initial argument.
As our colleagues have explained, under Terry, “the judicial inquiry into the reasonableness of a detention is a dual one – whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (People v. Brown, supra, 62 Cal.App.4th at p. 496.) Further, consistent with this standard, a police officer may legally detain a person suspected of violating the Vehicle Code “for the period of time necessary to discharge the duties related to the [investigatory] stop. [Citation.]” (People v. Brown, supra, 62 Cal.App.4th at p. 497.) Because, however, “the circumstances of each . . . detention are unique[,] . . . the reasonableness of each detention period must be judged on its particular circumstances.” (Id. at pp. 497-498.)
Here, appellant contends that, even if the law enforcement officers were initially justified in detaining him for violating the Vehicle Code, they subsequently violated his Fourth Amendment rights when, rather than issuing him a citation for the violation and releasing him, the officers questioned him about his background and about whether he possessed any weapons, and then requested permission to search him once he acknowledged possessing a knife. We disagree.
Relevant to our inquiry, as was set forth in more detail above, Sergeant Fergosi testified that, because appellant seemed nervous and was avoiding eye contact, he asked appellant some basic questions, such as his name, address and current destination, even after appellant agreed to move out of the roadway. Appellant answered these initial questions, at which point – about three to four minutes into the encounter – Sergeant Fergosi asked whether he was carrying a weapon.
With respect to Sergeant Fergosi’s questioning about appellant’s identity, address and destination, we note that “[d]etention, not questioning, is the evil at which Terry’s second prong is aimed. [Citation.]” (People v. Brown, supra, 62 Cal.App.4th at p. 496.) “ ‘An officer has every right to talk to anyone he encounters while regularly performing his duties . . . .’ (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 [42 Cal.Rptr.2d 18].)” Indeed, “ ‘[a]sking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.’ (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292, 124 S.Ct. 2451] (Hiibel).) . . . [A]sking a person who is lawfully detained for identification does not constitute an independent violation of the Fourth Amendment. ‘Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. [Citations.]’ (Hiibel, supra, 542 U.S. at p. 186 [upholding a state ‘stop and identify’ statute requiring an individual who is detained pursuant to a Terry stop to disclose his or her identity].)” (People v. Vibanco (2007) 151 Cal.App.4th 1, 13.)
Under this authority, we have no trouble concluding Sergeant Fergosi’s initial questioning of appellant, which, the record shows, prolonged his detention less than three or four minutes, does not implicate Fourth Amendment concerns.
With respect to Sergeant Fergosi’s subsequent questioning about whether appellant was carrying a weapon, we note that, under both federal and state constitutional authority, “[q]uestioning [by police] during [a] routine . . . stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. . . . (U.S. v. Shabazz [(5th Cir. 1993)] 993 F.2d [431,] 436; accord, Florida v. Bostick (1991) 501 U.S. 429, 435, 439-440 [111 S.Ct. 2382, 2388-2389, 115 L.Ed.2d 389] [Police may approach a person in a public place and ask potentially incriminating questions and request permission to search without implicating the Fourth Amendment, so long as a reasonable person would understand he or she could refuse to cooperate.].) While the . . . detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. (U.S. v. Shabazz, supra, at p. 437; accord, People v. Bell [(1996)] 43 Cal.App.4th [754,] 768.)” (People v. Brown, supra, 62 Cal.App.4th at pp. 499-500.) Moreover, “ ‘[i]nvestigative activities beyond the original purpose of a [police] stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.]’ [Citation.]” (People v. Gallardo, supra, 130 Cal.App.4th at p. 238.)
“Obviously, th[ese] rule[s] must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. (United States v. Sharpe (1985) 470 U.S. 675, 682 [105 S.Ct. 1568, 1573, 84 L.Ed.2d 605]; People v. McGaughran, supra, 25 Cal.3d at p. 586.)” (People v. Brown, supra, 62 Cal.App.4th at p. 499.)
Here, Sergeant Fergosi asked appellant the potentially incriminating question of whether he had a weapon – a question unrelated to the Vehicle Code violations that triggered his detention – about three to four minutes into the encounter. Sergeant Fergosi decided to ask that question after observing appellant’s nervousness and lack of eye contact, and reflecting on his experience that persons detained in the area frequently carry weapons. Appellant was free to disregard the question. The circumstances surrounding appellant’s detention did not, at least to a reasonable person, indicate otherwise. Neither Sergeant Fergosi nor the other officers drew their weapons during their encounter with appellant. Sergeant Fergosi asked permission to speak to appellant, and at no time ordered appellant to answer his questions, nor did he threaten or otherwise try to intimidate appellant. Indeed, Sergeant Fergosi described his conversation with appellant as “casual.” (United States v. Drayton (2002) 536 U.S. 194, 203-204 [no illegal seizure occurred where the police officer questioned defendant in “a polite, quiet voice” and “did not brandish a weapon or make any intimidating movements”].)
Moreover, Sergeant Fergosi asked for permission to search for and retrieve appellant’s weapon and controlled substances only after appellant acknowledged possessing them. It was then – about 10 minutes into the encounter – that Sergeant Fergosi found the knife and drugs on appellant’s person, and thus made the arrest.
While Sergeant Fergosi did at one point in the encounter grab appellant’s wrist, he did so only after appellant began to put his hand in his pocket a second time after having already been told to remove it. Such action, we conclude, was reasonable. (See In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [an officer may reasonably request that a traffic detainee keep his or her hands in sight, and is justified in conducting a patdown search when the detainee begins to place his or her hand back in the pocket after being told to remove it].)
Considering this evidence as a whole, we conclude the questions regarding whether appellant had a weapon or other contraband, and the requests to search for and retrieve it when appellant answered in the affirmative, did not unreasonably prolong his detention or extend the period justified by the valid stop for his Vehicle Code violations. In addition, there is no contention made, or evidence in the record suggesting, that appellant’s consent to the searches was compelled. As such, since the weapon and drugs were found pursuant to a lawful search and seizure, the trial court properly denied appellant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.