Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA057240, Ronald S. Coen, Judge.
Steven C. Flanagan for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Following the denial of a motion to suppress evidence, Juan Manuel Garcia pleaded no contest to one count of possession of a controlled substance for sale in violation of Health and Safety Code section 11351. On appeal Garcia contends cocaine and methamphetamine discovered in small plastic packets inside magnetic hide-a-key boxes in his car, cocaine found in his shirt pocket and baggies containing cocaine and methamphetamine, as well as a digital scale and cash, subsequently seized from his residence all should have been suppressed as the fruit of an illegal detention and search. We affirm.
Garcia was sentenced to three years formal probation on condition he serve 365 days in county jail. Pursuant to the terms of his plea agreement, the court dismissed three additional charges -- sale, transportation or offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)); possession for sale of methamphetamine (Health & Saf. Code, § 11378); and sale or transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)).
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at the suppression hearing established on September 7, 2006 Los Angeles Police Detectives Chris McKinney and Travis Coyle, working undercover, saw Garcia drive a small, yellow primer Daewoo automobile into the parking lot of Payless Foods on Laurel Canyon Boulevard in Pacoima. McKinney and Coyle were monitoring the parking lot from two different locations, communicating with each by police radio.
Garcia parked next to a black BMW in the lot. The male driver of the BMW (the only occupant of the car) immediately got out of his car, entered Garcia’s car and sat in the passenger seat. McKinney saw shoulder movement from the two men, indicating to McKinney that there had been a possible exchange. Less than one minute later, the driver of the BMW left Garcia’s car and walked toward the BMW.
Detective McKinney walked to the driver’s side of the Daewoo, identified himself and asked if Garcia would speak to him. McKinney’s badge was visible; his gun was not drawn. Garcia indicated he would speak to McKinney. McKinney then requested that Garcia step out of the car, and Garcia did so. At this point McKinney asked Garcia for consent to search the car, speaking in both English and Spanish. In English McKinney asked, “Is this your car?” Garcia replied, “Yes.” McKinney then asked, “Can I search it?” According to McKinney, Garcia looked at him “kind of strange” or quizzically. McKinney then asked in Spanish, “May I?” as he pointed to the car. Garcia responded, “Si.”
As McKinney approached the Daewoo and spoke to Garcia, Detective Coyle simultaneously walked over to the BMW driver and learned his surname was Rodriguez. Because Rodriguez kept putting his hands in his pocket, Coyle asked for and received permission to conduct a pat search. Coyle felt a lump in Rodriguez’s coin pocket. Asked what it was, Rodriguez said he was not sure, but he had obtained it from Garcia for $10. McKinney retrieved a small plastic packet containing a white powder that resembled cocaine from Rodriguez’s pocket and placed him under arrest.
After consenting to the search of his car, Garcia was directed by Detective McKinney toward the trunk of the Daewoo, where he was kept under observation by Detective Coyle. According to McKinney, Garcia was not free to go at this point.
As he began his search of the Daewoo, Detective McKinney saw three magnetic key holders in the map pocket of the driver side door. Opening the key holders McKinney discovered each contained individually wrapped small packages (“bindles”) of methamphetamine and powder cocaine. Garcia was arrested, handcuffed and taken to the police station. A subsequent search of Garcia’s residence, conducted pursuant to a signed consent obtained by Los Angeles Police Officer Sandra Sanchez from Garcia following his arrest, yielded additional quantities of methamphetamine and cocaine and a digital scale, as well as $3,430 in cash.
At Garcia’s preliminary hearing Detective Coyle testified that, following his arrest, Garcia had been advised of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), and, after waiving those rights, had admitted he went to the Payless Foods to sell cocaine to Rodriguez.
During the suppression hearing, Detective Coyle explained the Payless Foods parking lot was commonly used for “call and deliver” drug transactions in which a buyer waits for a seller at a predetermined site. Coyle testified he had frequently observed call and deliver sales at the location and had made a number of arrests there. On August 30, 2006 Coyle saw a call and deliver transaction in the parking lot involving a suspected drug dealer in a blue GMC pickup truck. Coyle checked the truck’s license plates through the Department of Motor Vehicles and learned it was registered to Marie Estrada at 11678 Bromont Avenue in Pacoima. The following day, August 31, 2006, Coyle went to that address, where he observed the blue truck parked in front of the residence and a yellow primer Daewoo parked in the driveway, the same vehicle he saw Garcia drive into the Payless Foods parking lot on the night of September 7, 2006.
Detective McKinney testified, before approaching Garcia, Detective Coyle had advised him over the police radio the BMW appeared to be waiting in a location where call and deliver transactions occurred and where Coyle had previously made drug arrests. McKinney also testified he had himself observed call and deliver transactions at that location more than 10 times.
Garcia repeatedly objected to the two detectives’ testimony regarding the common use of the Payless Foods parking lot for call and deliver drug transactions, as well as McKinney’s testimony about previously seeing the yellow primer Daewoo, on the ground the prosecution had failed to provide the defense with information concerning these matters in response to an informal discovery request filed pursuant to Penal Code section 1054.1, subdivision (f). The trial court overruled Garcia’s objections because defense counsel had not made a formal request for discovery under Penal Code section 1054.5, which provides a defendant may seek a court order compelling disclosure of materials and information from the prosecutor and law enforcement agencies if they do not comply with an informal discovery request. (Pen. Code, § 1054.5, subd. (b); see also Pen. Code, § 1054.5, subd. (c) [“[t]he court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted”].)
Garcia did not testify at the suppression hearing, and the defense presented no evidence other than through its cross-examination of Detectives McKinney and Coyle and Officer Sanchez.
At the conclusion of the testimony the People argued, based on Detectives McKinney’s and Coyle’s observations, as well as their knowledge of call and deliver transactions at the Payless Foods parking lot and the sighting of the yellow primer Daewoo on August 31, 2006, there was sufficient cause to search Garcia’s vehicle following the apparent drug transaction with Rodriguez. Defense counsel initially responded by describing himself as “hamstrung” by the People’s failure to respond properly to the informal discovery requests and the court’s rulings that the detectives’ testimony concerning their prior observations and knowledge about the use of the parking lot for drug transactions was nonetheless admissible. The court interrupted to focus defense counsel on the issue it felt was central to the decision: “I’m not concerned with whether there is probable cause to detain or not. I’m concerned with the consensual encounter or not. Surely it has nothing to do with what happened earlier and has nothing to do with the call and deliver. Please address your comments to that. That should not hamstring you.”
Following argument by both counsel on this point, the trial court denied the motion to suppress: “In this case the officer approached the defendant and asked, first of all, permission to speak with the defendant and the defendant did agree. Defendant did exit the vehicle at the officer’s request. When the officer asked for consent to search, and the defendant looked at him, the officer said, ‘May I,’ pointing to the vehicle. That is understood by a reasonable person, and I’m holding under the evidence I have before me, the defendant did give consent to search the vehicle which defendant gave voluntarily and the contraband was found pursuant to a consensual search. [As to the second search, that was also freely and voluntarily made as to search of the residence. The 1538.5 motion is denied.”
CONTENTIONS
Garcia contends his initial encounter with Detective McKinney was an unlawful detention, invalidating any subsequent consent to search; in any event, he did not voluntarily and knowingly consent to the search of his vehicle; and the written consent to search his residence was the fruit of the earlier illegal detention and automobile search. Garcia also contends the trial court erred in denying his motion to exclude the call and deliver testimony.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, at p. 891; People v. Ramos (2004) 34 Cal.4th 494, 505.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
2. Governing Fourth Amendment Principles
a. Consensual encounters and detentions
Police contacts fall 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.” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.);see People v. Hughes (2002) 27 Cal.4th 287, 327-328; People v. Daugherty (1996) 50 Cal.App.4th 275, 282-283.) A consensual encounter between a police officer and an individual does not trigger Fourth Amendment scrutiny and requires no articulable suspicion that the person has committed or is about to commit a crime. (Manuel G., at p. 821; People v. Rivera (2007) 41 Cal.4th 304, 309 [“a consensual encounter between a police officer and an individual does not implicate the Fourth Amendment”].)
A detention does not occur when a police officer merely approaches an individual on the street or in another public place and asks questions. (People v. Rivera, supra, 41 Cal.4th at p. 309; Manuel G., supra, 16 Cal.4th at p. 821.) “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage -- provided they do not induce cooperation by coercive means.” (United States v. Drayton (2002) 536 U.S. 194, 201-202 [122 S.Ct. 2105, 153 L.Ed.2d 242]; Manuel G., at p. 821 [“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.”].)
An individual is detained for Fourth Amendment purposes when the suspect either submits to a show of authority or is physically restrained by a police officer. (Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400, 168 L.Ed.2d 132].) Both the United States and California Supreme Courts have concluded the appropriate test for determining whether a person has been detained under the Fourth Amendment is the standard first articulated by Justice Stewart in his lead opinion in United States v. Mendenhall (1980) 446 U.S. 544, 554 [100 S.Ct. 1870, 64 L.Ed.2d 497]: “‘[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 789; see e.g., California v. Hodari D. (1991) 499 U.S. 621, 628 [111 S.Ct. 1547, 113 L.Ed.2d 690]; Brendlin,at ___ [127 S.Ct. at p. 2406].) The test is an objective one. That is, a person has been “seized” within the meaning of the Fourth Amendment not when he or she perceives his or her movement is restricted by the officer, but when “the officer’s words and actions would have conveyed” that to a reasonable person. (Hodari,at p. 628.) The proper inquiry requires consideration of all the surrounding circumstances. (United States v. Drayton, supra, 536 U.S. at p. 201; accord, People v. Souza (1994) 9 Cal.4th 224, 235.)
b. Voluntary consent to a search
Although the Fourth Amendment prohibition of “unreasonable searches and seizures” generally precludes warrantless searches of an individual and his possessions, including an automobile (see In re Arturo D. (2002) 27 Cal.4th 60, 68), voluntary consent to a search is one of the recognized exceptions to the warrant requirement. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 [110 S.Ct. 2793, 111 L.Ed.2d 148]; People v. Memro (1995) 11 Cal.4th 786, 846-847.) A warrantless search is valid if conducted pursuant to the voluntary consent of a person with common or superior authority over the area to be searched. (People v. Woods (1999) 21 Cal.4th 668, 674, 675.) Searches authorized by consent are limited by the scope of the consent. (See Florida v. Jimeno (1991) 500 U.S. 248, 251 [111 S.Ct. 1801, 114 L.Ed.2d 297] [“[t]he 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 understand by the exchange between the officer and the suspect”].) Whether a consent is voluntary is a factual question to be decided in light of all the circumstances. (People v. Jenkins (2000) 22 Cal.4th 900, 973; People v. Aguilar (1996) 48 Cal.App.4th 632, 639; see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [93 S.Ct. 2041, 36 L.Ed.2d 854].) That most people respond to a police request without being told they are free not to respond, however, does not vitiate the consensual nature of the response. (INS v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758, 80 L.Ed.2d 247].)
However, if a defendant consents to a search while being illegally detained, that is, if there is no reasonable suspicion to support the detention or the detention is unlawfully continued after any lawful and proper purpose has passed, that consent is vitiated by the illegal detention. (See People v. Zamudio (2008) 43 Cal.4th 327, 341 [“[c]onsent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure”]; Florida v. Royer (1983) 460 U.S. 491, 501 [103 S.Ct. 1319, 75 L.Ed.2d 229] (plur. opn.) [“statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will”].)
3. The Trial Court Properly Denied Garcia’s Motion to Suppress
a. Garcia was not detained when he consented to the search of his car
The trial court properly concluded Detective McKinney’s request to search the yellow primer Daewoo occurred during a consensual encounter between McKinney and Garcia and, at least though the point of his consent to the search, Garcia had not been detained within the meaning of the Fourth Amendment. Garcia’s contention he was detained as soon as he complied with McKinney’s request to step out of the car and his related argument the detention was unlawful because there was no objective basis for the detective to entertain a reasonable suspicion of criminal activity at that point, viewed in light of all the circumstances, are unfounded.
Because the critical question is the voluntariness of Garcia’s consent to search his automobile, we need not decide whether Garcia was initially detained when he was handcuffed and arrested following the discovery of illegal drugs in the magnetic key holders or when, after obtaining permission but prior to beginning the search, Detective McKinney directed Garcia toward the back of the Daewoo where he was watched by Detective Coyle.
Garcia’s argument is based on his insistence it is intimidating when two plainclothes police officers approach an individual at night. (Cf. Manuel G., supra, 16 Cal.4th at p. 821 [presence of several officers one factor to consider in assessing the coercive effect of police conduct as a whole].) Although, as a practical matter, Garcia might have justifiably believed he was the focus of official attention when he saw the detectives coming toward him, neither McKinney nor Coyle did anything that involved a show of authority sufficient to constitute a seizure. (See People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [although the officer’s actions “might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention.”].) Significantly, although McKinney and Coyle observed the suspicious activity involving Garcia and Rodriguez while in their unmarked police vehicles, both detectives approached the suspects on foot. There was no effort to block Garcia or the Daewoo he was driving. (Compare Perez,at p. 1496 [no detention when officers parked patrol vehicle in manner that permitted defendant’s car to leave] with People v. Wilkins (1986) 186 Cal.App.3d 804, 808-809 [detention occurred when officer parked marked police car diagonally behind defendant’s vehicle so it could not leave a convenience store parking lot].) Moreover, McKinney’s identification of himself as a police officer after approaching Garcia’s car, particularly since he was not in uniform, is insufficient to convert a consensual encounter into a detention. (See United States v. Mendenhall, supra, 446 U.S. at p. 555 [officer’s identification of himself as a police officer, without more, does not convert a consensual encounter into a seizure requiring some level of objective justification].)
Similarly, Detective McKinney’s request that Garcia step out of the car, apparently asked in a normal tone of voice, did not constitute a detention under the Fourth Amendment. A police officer may approach and question an individual and ask for identification or permission to search on the street or in other public places if the individual reasonably feels free under the circumstances to decline the officer’s requests or otherwise to terminate the contact. (Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cty. (2004) 542 U.S. 177, 185 [124 S.Ct. 2451, 159 L.Ed.2d 292]; see Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389] [“no seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage -- so long as the officers do not convey a message that compliance with their requests is required”]); Wilson v. Superior Court, supra, 34 Cal.3d at p. 789 [no detention if officer approaches individual in public place and “put[s] questions to him if the person is willing to listen”].)
Through this point in their interaction, there was no evidence McKinney threatened or used physical force, displayed a weapon, used abusive language, spoke in commanding tones, made any threatening gestures or touched Garcia. (United States v. Mendenhall, supra, 446 U.S. at pp. 554-555 [“Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.”]; accord, Manuel G., supra, 16 Cal.4th at p. 821.) For his part, Garcia was not obligated to respond to McKinney’s questions or otherwise to cooperate during the contact. (Florida v. Royer, supra, 460 U.S. at p. 498 (plur. opn.) [in a consensual encounter, “[t]he person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.”].)
Finally, Detective McKinney’s request for permission to search the Daewoo did not turn the otherwise consensual encounter into a detention. “Where a consensual encounter has been found, police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.” (People v. Franklin (1987) 192 Cal.App.3d 935, 941; see Florida v. Bostick, supra, 501 U.S. at p. 434-435 [officers may make request to search as long as they do not convey message compliance is required]; People v. Gallardo (2005) 130 Cal.App.4th 234, 238.)
b. Garcia knowingly and voluntarily consented to the search of his car
The trial court found Garcia understood Detective McKinney’s request to search the car, made through a combination of English, Spanish and hand gestures, and voluntarily consented to the search. As discussed, our role in reviewing the trial court’s determination of this issue is limited. The question of voluntariness is determined in the first instance by the trial court; we defer to the trial court’s factual findings, upholding them if they are supported by substantial evidence. (People v. Jenkins, supra, 22 Cal.4th at p. 973 [“[w]e defer to [the trial court’s] implied factual determination, which is supported by substantial evidence”]; see People v. Memro, supra, 11 Cal.4th at p. 846; People v. James, supra, 19 Cal.3d at p. 107 [power to judge credibility, weigh evidence and draw factual inferences is vested in trial court].)
Here, substantial evidence supports the trial court’s determination that McKinney asked to search the entire car, Garcia understood that request and knowingly and voluntarily agreed: “The defendant did give consent to search the vehicle which defendant gave voluntarily.” (See People v. Ramirez (1997) 59 Cal.App.4th 1548, 1559 [“The testimony is undisputed and unequivocal Sergeant Ortega asked appellant for permission to search his vehicle, and appellant answered ‘yes’ in Spanish and handed his car keys over to Sergeant Ortega. We see no other way to interpret appellant’s word and gesture than as an expression of his consent to a search of his vehicle. The trial court apparently also accepted this interpretation and ruled appellant’s consent was voluntary. Since no substantial evidence to the contrary exists, we must accept the trial court’s finding as such, and our powers as a reviewing court end there.”]; People v. Galindo (1991) 229 Cal.App.3d 1529, 1536-1537 [reviewing all the circumstances surrounding defendant’s consent to search, substantial evidence supports magistrate’s finding consent was knowing and voluntary notwithstanding defendant’s testimony he could not speak or understand English and could not read Spanish in the consent form].) Garcia’s challenge to the trial court’s findings and conclusion -- based primarily on his limited ability to speak English and the purported ambiguity of McKinney’s question, “May I?” and sweeping hand gesture -- is, in effect, simply an invitation for us to reweigh the evidence. That, of course, is not the function of an appellate court reviewing the denial of a motion to suppress evidence. (See In re Arturo D., supra, 27 Cal.4th at p. 77; People v. Memro, supra, 11 Cal.4th at p. 846.)
Garcia did not object to the scope of the search in the trial court. Accordingly, even if the trial court’s implied finding Garcia consented to a search of the entire car were not supported by substantial evidence, Garcia has forfeited the issue on appeal. (See People v. Williams (1999) 20 Cal.4th 119, 136 [when defendant moves to suppress evidence pursuant to Pen. Code, § 1538.5, he or she must set forth the factual and legal bases for the motion; defendant who does not give the prosecution sufficient notice of grounds on which search is challenged may not raise issue on appeal].)
c. Any error in permitting the call and deliver evidence was harmless
We need not decide whether the trial court properly overruled Garcia’s objection to McKinney and Coyle’s testimony concerning call and deliver drug transactions in general or their experience with such transactions at the Payless Foods parking lot in particular. Because the trial court properly denied the motion to suppress based on the consensual nature of Detective McKinney’s initial encounter with Garcia and Garcia’s knowing and voluntary consent to the search of his automobile, any error in permitting that testimony, which was relevant only to the question whether there was reasonable suspicion to detain Garcia or probable cause to search the automobile, was necessarily harmless.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.