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People v. Danzart

California Court of Appeals, First District, Fifth Division
Apr 21, 2009
No. A119531 (Cal. Ct. App. Apr. 21, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARK ERNEST DANZART, Defendant and Appellant. A119531 California Court of Appeal, First District, Fifth Division April 21, 2009

NOT TO BE PUBLISHED

Sonoma County Super. Ct. Nos. SCR492933, SCR498658, SCR501230, SCR503869, SCR503988 & SCR503675.

STEVENS, J.

Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Mark Ernest Danzart appeals the denial of his motion to suppress certain evidence obtained after sheriffs deputies directed a spotlight at his parked car, approached the driver’s and passenger’s side windows, asked several questions of its occupants, and then noticed what appeared to be a pistol on the floorboard of the car. We conclude no unlawful detention took place and affirm the judgment of the lower court.

Background

Danzart appeals the judgment in six Sonoma County criminal cases, but raises just one issue as to one of the cases, case No. SCR-503869. We review the facts and procedural history of only that case.

In January 2007, Danzart was charged in case No. SCR-503869 by felony complaint with six crimes that allegedly occurred on January 5 and 6, 2007: residential burglary (Pen. Code, § 459; count 1); receipt of stolen property (Pen. Code, § 496, subd. (a); count 2); possession of a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4); count 3); possession of methamphetamines (Health & Saf. Code, § 11377, subd. (a); count 4); misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 5); and misdemeanor possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140). As to the felony counts, it was alleged that Danzart committed the crimes while he was released on bail in four cases (Pen. Code, § 12022.1), and that he had suffered a prior strike conviction within the meaning of Penal Code section 1170.12. On May 18, 2007, the information was amended to charge a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1).

Danzart moved to suppress evidence pursuant to Penal Code section 1538.5 and an evidentiary hearing was held on June 1, 2007. Sonoma County Sheriff’s Deputies Michael Morarity and Brandon Austin were on patrol in a high-crime area of Santa Rosa at 8:00 p.m. on January 6, 2007. The area was dark with some street and residential lighting. As they drove slowly down the street in a southbound direction, the officers noticed a man “wearing a large amount of red” walking northbound in the middle of the street. They were concerned because the neighborhood was dominated by the Sureño gang, which uses the color blue, and the rival Norteño gang uses the color red. As they got closer to the subject, Austin recognized the man as Danzart. He knew Danzart had been in and out of custody for drug violations, was out on bail for burglary, and was “a person of interest in a beating with a pipe.” According to Austin, he was interested in talking to Danzart on a consensual basis to determine why he was in the area.

Danzart walked toward and started to enter a car that appeared to be legally parked on the street facing northbound (hereafter, the Danzart car). At about the same time, Morarity noticed someone crouching down in the front passenger seat of the car. He directed the patrol vehicle’s driver’s side spotlight toward the Danzart car and left the spotlight on throughout the ensuing incident. Morarity decided to approach the vehicle because, “I was suspicious of what was going on in the car in the sense that [the passenger] was moving around and kind of hiding down low; I thought that was very suspicious. Whether they’re involved in criminal activity or not, I didn’t know at the time but I wanted to make a contact to see what was going on.”

Morarity stopped the patrol vehicle next to or offset from the Danzart car and close to the opposite side of the street. He testified that the patrol vehicle and the Danzart car were a car length or two apart. Austin believed the cars were a little more than a vehicle width apart. The patrol vehicle did not block the Danzart car, which could have exited by driving forward or backing up.

As Danzart entered the car and sat in the driver’s seat, the officers exited their patrol vehicle. Morarity and Austin went to the driver’s and passenger’s sides of the Danzart car, respectively, arriving almost simultaneously. It took only a few seconds for Morarity to exit his patrol vehicle, reach the Danzart car, and speak to Danzart. He walked “not in an aggressive fashion” and did not run. Austin testified that he exited the patrol vehicle “rather quickly” and then walked over to the passenger side window. He did not run. The uniformed officers did not have their weapons drawn.

Austin asked the passenger, Heather Slaybaugh, something to the effect of, “What’s going on?” Slaybaugh responded that she was sitting there waiting. Austin then asked Slaybaugh if she was on probation or parole. Seconds later, he noticed what appeared to be a pistol on the floorboard of the car. Austin drew his pistol, pointed it at both car occupants, ordered them to put their hands in the air, and informed Morarity there was a firearm on the floorboard. Later, after both Danzart and the passenger were in handcuffs, Deputy Austin examined the pistol on the floorboard and determined it was an Air Soft replica and not a real handgun.

When Morarity arrived at the driver’s side of the car, he asked Danzart if he had any identification on him. Morarity demonstrated in court how he asked for Danzart’s identification and explained, “I don’t raise my voice unless I have to. I’m a firm believer that you start talking with people as you would just on the street.” Almost immediately after asking for Danzart’s identification, Morarity heard his partner “screaming... get your hands up and then at that point he said there was a gun in the car.”

Morarity stepped back from the car, drew his gun, and pointed it at Danzart. He instructed Danzart to keep his hands up as Danzart was slowly removed from the car. As he did so, Morarity saw another pistol in the small of Danzart’s back. He removed the pistol and discovered it was also an Air Soft replica pistol. Morarity next pat searched Danzart for additional weapons and felt a hard object in his jacket, which turned out to be a shoulder bag full of heavy metal objects. Inside the bag, he retrieved a fixed blade knife with a seven-inch blade, suspected methamphetamine, and other possible contraband. Austin searched the car. Victims of a January 5 or 6, 2007, residential burglary identified items recovered from the car trunk as property taken from their home.

In denying the motion to suppress, the court stated: “[T]he main reason has to do with the overall concept of reasonableness and what we might expect a peace officer in our society and our particular community under the circumstances presented to do on a dark night when they come across something unusual in the nature of the work they’re doing. They have the power to at least make some investigation. And they also have the obligation to conduct themselves in a way that keeps them safe and keeps the individuals that they come across and have consensual encounters with safe. [¶]... [T]he court believes the officers had the power to exercise the level of control that they did exercise. It was minimal, it was momentary, and it was not unreasonable given the entire totality of the circumstances.”

After Danzart pled no contest to the residential burglary charge, guilty to the remaining charges, admitted he was on bail at the time he committed the crimes, and admitted the prior strike and prior prison term allegations, he was sentenced to a total of 28 years four months in prison in the six criminal cases. In case No. SCR-503869, he received a consecutive two-year eight-month term (one-third the middle term) for the residential burglary offense (Pen. Code, § 459), a consecutive one-year four-month term (one-third the middle term) for possessing a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), a concurrent six-year upper term for possession of methamphetamines (Health & Saf. Code, § 11377, subd. (a)), and a stayed prison term for receiving stolen property (Pen. Code, §§ 496, subd. (a), 654).

Discussion

In his appeal, Danzart maintains that the police detained him without reasonable suspicion before they observed the replica pistol on the floorboard of the car and, because the discovery of the pistol led to the search of Danzart and discovery of contraband on his person, the fruits of that search must be suppressed. The People do not contend that Deputies Morarity or Austin had reasonable suspicion to justify a detention of Danzart when they approached the car. Consequently, the only issue before us is whether the officers’ contact with Danzart constituted a consensual encounter, which was lawful without reasonable suspicion of criminal activity, or a detention that was unlawful because it was not supported by reasonable suspicion.

“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial court did not make any express factual findings in support of its ultimate legal conclusion that the officers acted reasonably under the circumstances; however, we construe the evidence in the light most favorable to the court’s ruling. (See People v. Johnson (1980) 26 Cal.3d 557, 576-577.)

“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 [of criminal activity] 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.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

Danzart argues this case is analogous to People v. Garry, in which Division Two of this court concluded that an officer unlawfully detained the defendant when he shined a spotlight on him and rapidly walked toward him while questioning his legal status. (People v. Garry (2007) 156 Cal.App.4th 1100 (Garry).) Garry does not control the result we reach in this case.

In Garry, the officer was patrolling in a high-crime area at night when he noticed the defendant standing next to a parked car on a corner on a street known for drug dealing. (Garry, supra, 156 Cal.App.4th at p. 1103.) The officer turned on the patrol car’s spotlight, which illuminated the defendant, exited his vehicle, noticed that the defendant looked nervous, and started briskly walking the 35-feet distance between the patrol car and the defendant. (Id. at p. 1104.) He reached the defendant about three seconds after leaving his patrol car. (Ibid.) As the officer was approaching, the defendant, “ ‘[w]ith a look of kind of nervousness and shock,’ ” started walking backwards and volunteered that he lived in a house nearby. (Ibid.) The officer continued to walk toward the defendant and said, “ ‘Okay, I just want to confirm that,’ ” and asked the defendant if he was on probation or parole. (Ibid.) He said he was on parole and the officer decided to detain him “to find out why he was there.” (Ibid.) As the officer reached him, the defendant “ ‘kind of paused,’ ” the officer reached out and grabbed him, and the defendant started to pull away “ ‘violently.’ ” The defendant was restrained, searched, and cocaine was discovered in his jacket. (Ibid.)

The appellate court in Garry concluded the officer’s approach to the defendant “constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was ‘ “not free to decline [his] requests or otherwise terminate the encounter.” ’ (In re Manuel G., supra, 16 Cal.4th at p. 821.)” (Garry, supra, 156 Cal.App.4th at p. 1112.) The officer’s approach was described as follows: “after only five to eight seconds of observing defendant from his marked police vehicle, [Officer] Crutcher bathed defendant in light, exited his police vehicle, and, armed and in uniform, ‘briskly’ walked 35 feet in ‘two and a half, three seconds’ directly to him while questioning him about his legal status. Furthermore, Crutcher immediately questioned defendant about his probation and parole status, disregarding defendant’s indication that he was merely standing outside his home. In other words, rather than engage in a conversation, Crutcher immediately and pointedly inquired about defendant’s legal status as he quickly approached.” (Id. at pp. 1111-1112.) “No matter how politely Crutcher may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’ [Citation.]” (Id. at p. 1112.)

Substantial evidence supports a finding that the officers did not “rush[] directly at [Danzart] asking him about his legal status,” as occurred in Garry, supra, 156 Cal.App.4th 1100. Both Morarity and Austin testified that they walked from the patrol vehicle to the Danzart car. And although it only took them a few seconds to cover the distance, the cars were parked only one vehicle width apart, which is a far shorter distance than the 35 feet covered by the officer in Garry. Neither Morarity or Austin voiced any commands as they approached the parked vehicle, and Morarity asked Danzart for his identification in a normal tone of voice, which he demonstrated from the witness stand. A police officer’s request for identification, without more, does not communicate to a reasonable person that he must comply with the request and is not free to go about his business. (INS v. Delgado (1984) 466 U.S. 210, 216.) Morarity did not question Danzart about his legal status, i.e., whether he was on probation or parole. Austin initially engaged in innocuous conversation with Slaybaugh. After he asked about her legal status, Austin almost immediately noticed the pistol on the floorboard of the car, which gave him grounds to detain the occupants and investigate further. His question about Slaybaugh’s legal status did not render the subsequent discoveries the products of an illegal detention.

This case is more analogous to People v. Perez, a case discussed in Garry and cited by the Attorney General in the respondent’s brief. (People v. Perez (1989) 211 Cal.App.3d 1492; Garry, supra, 156 Cal.App.4th at pp. 1108-1009.) In Perez, an officer was on patrol in the early evening when he saw two people in an unlit vehicle in a dark corner of a motel parking lot. (Perez, at p. 1494.) The officer parked his patrol car “head on with defendant’s vehicle, although he left plenty of room for defendant to drive away. The officer activated the high beams as well as the spotlights on both sides of the patrol car in order to get a better look at the occupants and gauge their reactions. He did not, however, turn on the emergency lights.” (Ibid.) The officer exited the patrol car, walked to the driver’s side of the defendant’s vehicle, and asked the defendant to roll down the window. (Ibid.) At that point, the officer smelled marijuana and had reasonable suspicion to at least detain the defendant and investigate further. (Id. at p. 1496.) Regarding the initial approach, the court concluded that no detention had taken place. (Ibid.) The officer did not block in the defendant’s car and did not activate his emergency lights. (Ibid.) “While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention.” (Ibid.)

Here as well, the officers parked their patrol vehicle next to or offset from the Danzart car and did not block its exit. The officers directed a spotlight on the car, but did not activate their emergency lights. They walked to the car rather than rushing it, they did not shout commands as they approached, and they addressed the occupants in a normal tone of voice when they arrived at the car. These circumstances may well have communicated that Danzart and Slaybaugh were the objects of official scrutiny, but they did not transform the encounter into a detention.

Disposition

The judgment is affirmed.

We concur: SIMONS, ACTING P. J., NEEDHAM, J.


Summaries of

People v. Danzart

California Court of Appeals, First District, Fifth Division
Apr 21, 2009
No. A119531 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Danzart

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK ERNEST DANZART, Defendant…

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 21, 2009

Citations

No. A119531 (Cal. Ct. App. Apr. 21, 2009)