Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Daniel Barett McNerney, Judge, Super. Ct. No. 05WF0427
Christopher J. Hennes for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
James Heath Cartwright appeals from the judgment placing him on probation following a guilty plea to possession of methamphetamine. (See Health & Saf. Code, § 11377, subd. (a).) The change of plea occurred after the trial court denied Cartwright’s motion to suppress the evidence (see § 1538.5), a decision which he argues was in error. We affirm.
Initially, the court “deferred entry of judgment” pursuant to the “diversion” program under Penal Code section 1000. However, Cartwright failed to complete the program, having tested positive on a drug test and having failed to appear for certain mandatory education and consultation programs. After termination, he returned to court for imposition of judgment.
FACTS
At the hearing on the motion to suppress evidence, it was established that in November 2004, a woman called 9-1-1 requesting police assistance in the early evening hours. She stated that she was a victim of a road rage incident involving a young male driver of a maroon pickup truck—with a specific license plate number—that had run her out of her lane and into opposing traffic. She informed the police officer that she did not wish to press charges but desired an officer contact the driver and determine his identity.
The truck was registered to Cartwright, and Huntington Beach Police Officers Brad Smith and Edward Clair proceeded to Cartwright’s address to discuss the matter with him. A truck matching the description given by the woman was parked in the driveway of Cartwright’s residence, and as the officers approached the entry, a voice hailed them from the side of the garage. It was Cartwright, who matched the description given to them by the woman as the driver of the truck. Another person was straddling a bicycle adjacent to Cartwright, but when the officers turned their flashlights in that direction, the person ducked behind the pickup.
Cartwright approached Clair who was standing on the front lawn, and once Clair started talking with him, Smith walked over to the other man. Clair asked Cartwright if he had been involved in a traffic dispute, and Cartwright admitted he had. He described the situation quite differently than had the woman. Cartwright maintained she had cut him off, and he had stopped his truck briefly and yelled at her, but then returned to the truck and drove on. He specifically denied ever touching her. Clair informed him that the woman was not pressing charges; nevertheless, Cartwright appeared very nervous and agitated. He also was wearing a bulky jacket and pants with bulges in the front pockets. When Clair asked him what was in his pockets, he explained that he was asthmatic and needed the inhalers which he was carrying. Clair asked for Cartwright’s consent to “patdown” his clothing, to which Cartwright agreed. Clair then asked if he was carrying any weapons or drugs, and Cartwright responded in the negative. He then specifically gave the officer permission to remove the inhalers from his pants pockets, which were taken out by Clair. But Clair then felt something hard in Cartwright’s rear pocket. Clair asked permission to look inside that rear pocket, and again Cartwright consented. Pulling the pocket open and illuminating it with his flashlight, Clair retrieved several small rocks and then clearly saw a Ziploc baggie containing a crystalline substance. Cartwright denied knowing what it was but gave Clair permission to remove it.
The officers never removed their sidearms from their holsters nor forced Cartwright to answer any questions. Neither did they order him to remain in a particular spot nor yelled at him. Clair kept his voice at a calm and conversational volume and manner throughout the incident.
In the interim, Smith, standing with the other man behind the truck, noticed a small strip of toilet paper a few feet from where the two men had been talking. On it was a glass pipe with burnt residue. It was discolored and of a shape consistent with pipes used to smoke methamphetamine.
DISCUSSION
Denial of the Suppression Motion
Cartwright raised his motion to suppress the evidence seized from his pockets by Clair, but the trial court denied it, stating that “if your client would have just said ‘no,’ that would be the end of the story, but he didn’t. And I don’t see anything – I don’t have anything in front of me to show that consent was eviscerated. [¶] . . . It doesn’t constitute detention. I mean, but there [are] articulable reasons based on what I’ve heard to justify that[, such as] road rage, [and] the defendant coming out of the shadows at night. In fact, another person ducking between the vehicles. The fact that the defendant is nervous and has bulky pockets certainly justified the patdown, in the court’s eyes, and then the fact that your client gave consent to search, [] especially with rocks in his pockets[:] I don’t see anything, I don’t have anything in front of me to suggest otherwise, so your motion is denied.” (Italics added.)
The parties dispute the actual trial court ruling: Cartwright interprets the court’s statements as a rejection of the prosecution’s arguments because the court prefaced its comments with the prosecutor’s name, “Mr. Fallon.” The Attorney General replies that the court obviously misspoke as to the name, but, taken in context, the court was clearly addressing the defense counsel. This point, however, is irrelevant because the court clearly denied the motion, explicitly holding that there was no detention.
Cartwright argues on appeal that the motion should have been granted, alleging he was illegally detained when the officer asked to “pat frisk” him and then to seize the pocket’s contents. Thus, the fruits of those actions should have been suppressed. (Cf. Florida v. Royer (1983) 460 U.S. 491, 507-508 [illegal detention resulting in consent to search taints any seizure].) Moreover, any consent that was given was limited in scope, and the seizure of the items was outside those limits, he argues. Again, the result of this breach should have been suppression.
In reviewing a denial of a suppression motion, the appellate court defers to the trial court’s express or implied factual findings, if such findings are supported by substantial evidence in the record. Any conflicts in the remaining facts must be resolved in favor of the trial court’s ruling. Upon reviewing the facts, the appellate court considers the legality of the search or seizure de novo. (See People v. Woods (1999) 21 Cal.4th 668, 673-674.)
The initial encounter was concededly consensual. {AOB 5} The nature of that situation was not transformed into a detention simply because the officer asked about the bulges in Cartwright’s pockets or requested to pat frisk him. Nothing about Clair’s conduct or questions during this period was “such that ‘a reasonable person in [defendant’s] position would have believed that [he was] not free to leave.’. . .” (People v. Profit (1986) 183 Cal.App.3d 849, 880.) The entire conversation occurred in public but immediately adjacent to Cartwright’s own home; the tone of the discussion was always friendly and conversational, and Clair even informed Cartwright that the complaining party was not pressing charges. Throughout the conversation, Clair was the sole officer in the near vicinity of Cartwright: Smith was completely occupied talking with the bicyclist. Neither officer ever drew a weapon nor ordered either man to answer questions or cooperate. These are the factors which the courts have focused on to determine the true nature of an encounter. (See United States v. Mendenhall (1980) 446 U.S. 544, 554.)
Cartwright’s main point is that an officer cannot ask to patdown a person without turning an encounter into a detention. His point is two-fold: (1) The officer had no reason to believe Cartwright was armed so his request to patdown was unwarranted, turning the encounter into a detention; and (2) that detention was unduly prolonged simply because Clair asked to pat him down, forcing him to remain with the officer, although the discussion regarding the road-rage incident had ended. Finally, he characterizes Clair’s actions—putting Cartwright’s hands together and behind his back while Clair ran his hands up and down the outside of Cartwright’s clothes—as beyond the scope of a simple “patdown” search.
As the trial court noted, there were articulable reasons to conduct the patdown search. Cartwright emerged from the dark and approached Clair, who only had a single flashlight to illuminate the scene. His companion remained in the dark but nearby. Cartwright’s clothing was bulky and could have held any number of weapons or items potentially used as weapons. Lastly, Cartwright appeared nervous and agitated even though he had been informed the alleged victim was not pressing charges. All these factors would have justified an officer to feel concern for his own safety. (See People v. Barnes (1983) 141 Cal.App.3d 854, 856.)
“‘The critical question remains, is this the kind of confrontation in which the officer can reasonably believe in the possibility that a weapon may be used against him?’ [Citation.] As noted, the officer involved in the pat-down search met appellant in the company of two other males in the early morning hours in an area characterized by a high incidence of crime. The response to his request for the production of a driver’s license was [that it was in his sock] . . . and was in our view such as to inspire a reasonable belief resort to the claimed location of the document might well produce instead a weapon. To obviate that possibility, [the deputy] conducted a ‘quick, cursory pat-down’ [citation], a procedure which based on the reasons articulated by him for undertaking it was justified. [Citation.]” (People v. Barnes, supra, 141 Cal.App.3d at 856.)
However, justification for the patdown was not necessary: Only if a person is being detained must justification be provided before a pat down is done. (See People v. Franklin (1987) 192 Cal.App.3d 935, 941.) At no time did Clair detain Cartwright: Their entire conversation was consensual, beginning with Cartwright approaching the officer in his own front lawn, and ending with Clair never having acted in a manner that would intimidate. Cartwright could have ended the conversation and entered his abode at any time, yet did not.
Nor did Clair’s requests to pat frisk and search the pocket unduly prolong any alleged “detention” (cf. People v. Gallardo (2005) 130 Cal.App.4th 234, 239 [“we reject the argument that consent requires reasonable suspicion, if requesting consent does not otherwise unduly prolong the traffic stop. . . .”]), as there was never any detention at all. Contrary to Cartwright’s characterization, he was not the target of a serious criminal investigation. He was actually informed by the officer that the woman refused to press charges as to the road-rage incident. Under these circumstances, a reasonable person in like circumstances would have felt that he could end the conversation and leave at any time. (Cf. Florida v. Bostick (1991) 501 U.S. 429, 434-438 [Fourth Amendment seizure occurs only if an officer physically restrains a suspect or initiates a show of authority to which a reasonable person would have felt compelled to submit and who does submit solely due to that show of authority].)
The officer asked Cartwright for his consent to pat him down and search his pockets, and Cartwright uncontrovertibly gave that consent. A defendant’s consent justifies the search or seizure for which the consent was given. (See People v. Gallardo, supra, 130 Cal.App.4th at p. 239.) Although Cartwright argues the officer acted beyond the scope of his consent, the officer’s requests were quite specific, Cartwright’s responses were not equivocal and the officer only did that to which Cartwright had specifically consented.
“‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]’ [Citation.] Generally, the scope of a warrantless search is defined by its expressed object. [Citation.] . . . Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s determination.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
It was objectively reasonable for the officer to believe Cartwright consented to each of the searches and seizures because each was preceded by an express request for the exact action in which the officer then engaged. The trial court’s ruling was not only proper, but the only reasonable decision under these circumstances.
The motion was properly denied, and the judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., MOORE, J.
All further section references are to the Penal Code unless otherwise stated.