Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE706110.
Premo, J.
In the court below, defendant Gustavio Villanueva Godinez unsuccessfully moved to suppress evidence. He thereafter pleaded guilty to manufacturing methamphetamine, possession of methamphetamine for sale, possession of a firearm by a felon, possession of ammunition by a prohibited person, and receiving stolen property. On appeal, he contends that the trial court erred by denying his suppression motion. He argues that the evidence implicating him was the product of an unlawful detention or involuntary consent. We disagree and therefore affirm the judgment.
SCOPE OF REVIEW
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citation.] [¶] 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.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
BACKGROUND
Defendant made a de novo motion in the trial court, and the parties developed the historical facts via witnesses and exhibits introduced in evidence. We glean the background from the transcript of the motion hearing.
Sunnyvale Police Officer Chris Fontaine and his partner responded shortly after midnight to a residential area near the intersection of Roosevelt and Columbia to assist another officer with a foot pursuit. They came to 445 Roosevelt, a duplex or triplex apartment on the west side of Roosevelt, and heard a banging sound from their position on the street. Because banging sounds at that hour are unusual and consistent with burglaries, they walked on the driveway and into the carport area. Six-foot fences separated 445 from duplexes on the east side of Morse Avenue and from 439 Roosevelt, a similar duplex or triplex next door to and north of 445. The officers could not see over or through the fences to determine the source of the noise. After five minutes, they left and went to the carport area of 439. From there, they heard the banging sounds coming from the Morse Avenue duplexes. Officer Fontaine looked through gaps and knot holes in the fence that separated 439 from 434-438 Morse Avenue, a duplex in which 434 faces and is entered from Morse Avenue and 438 is accessed from the rear of the building. He saw a woman who was crouching down next to a fireplace wood pile banging and rearranging wood and defendant who was moving around the yard turning a blue flashlight on and off. He saw defendant and another woman go into a shed. Later, he saw defendant walk into the middle of the yard and stand motionless with the flashlight off. After 15 minutes, he and his partner drove around to 434-438 to investigate what the people were doing in the yard. They saw a “for sale” sign on the duplex property (homes for sale are commonly burglarized). They were joined by two other officers. The officers used flashlights and walked on the driveway to a pathway that led to 438, saw a woman lying on a couch in the yard holding a dog, and walked across the grass toward the woman. Officer Fontaine asked the woman whether she lived on the premises. The woman answered negatively. Officer Fontaine asked the woman what she was doing. The woman did not answer. Defendant then exited a nearby shed. Officer Fontaine asked defendant whether he lived on the premises. Defendant answered negatively. Officer Fontaine asked defendant what he was doing there. Defendant did not answer. Officer Fontaine asked defendant whether anyone was in the shed. Defendant answered negatively. Officer Fontaine asked defendant whether he could look in the shed. Defendant answered affirmatively. Officer Fontaine entered the shed and discovered a methamphetamine manufacturing laboratory. He then arrested defendant. Officer Scott Simpson interviewed defendant at the police station and recorded the interview on a DVD. During the interview, defendant gave permission to search 438, signed a consent-to-search form, and offered that he had buried methamphetamine underneath a round paving stone. Officer Simpson telephoned Officer Fontaine and informed him that defendant had consented to a search. Officer Fontaine and other officers then searched and found the buried methamphetamine outside 438 and a gun inside 438.
Defendant’s motion to suppress claimed that the officers’ warrantless entry onto 438 Morse Avenue was unlawful because it was not supported by reasonable suspicion of criminal activity (defendant conceded that he occupied 438 as a tenant). Underlying the claim was the argument that the officers’ warrantless visual observations of 438 Morse Avenue from 439 Roosevelt (through the gaps and knot holds in the fence) were unlawful because they transgressed defendant’s reasonable expectation of privacy. As a secondary claim made orally at the hearing but not in writing, defendant argued that his consent to search was involuntary because he only understands English minimally, Officer Simpson interviewed him in English rather than in Spanish or with a Spanish interpreter, and the consent form was in English rather than Spanish.
The trial court granted defendant’s motion insofar as it concerned the visual observations. But it denied the motion insofar as it concerned the auditory observations. It explained as follows: “These did not necessitate any violation of reasonable expectation of privacy. They were not a product of looking through the peephole from a short distance away. They were auditory impressions which anyone with ears would have made with their eyes shut. He was still in a position where he had a legal right to be, and therefore, the auditory observations, i.e., the addition of stacking wood and other noises he testified to would not be suppressed. [¶] With respect to the entry into the backyard area... the case law supports once the officers had reason--whether it amounted to reasonable suspicion or just curiosity or whatever, to know that there were people in the backyard, something out of the ordinary is happening. [¶] It is perfectly reasonable and no Fourth Amendment violation for them to seek consensual contact with the homeowner for the purpose of so-called knock and talk contact. [¶] And this particular layout of this particular place includes the fact there was no bar to public entry.... In fact, there was a constructed walkway to facilitate public access. [¶]... [¶] The Court notes that it is not finding they have probable cause to enter, but that no probable cause was needed to knock and talk.” It later clarified: “Again, I want to make clear the Court is finding this was not a backyard entered but it was a front yard. It was accessible to the public. It happened to be in the back of the property....”
The trial court also denied defendant’s motion as to the consent issue. It explained: “I don’t see any overbearing contact that vitiates consent with respect to [defendant’s] ability to speak the English language. It is quite clear from all the interaction with the police officer, especially from the DVD of the interview at the police headquarters, that he speaks English very well, although with a heavy accent. He understands and he communicates well.” It added: “[Defendant] had been cooperative, friendly with the police, respectful, and consented previously to the search of the shed. There was no impetus for the police to use any overbearing contact to obtain the consent. It was quite clear from the DVD of the interview that it was a very low-key situation as these things go. [¶]... [¶] The Court finds although there was no warning about the right not to consent, there were also no overbearing conduct at all. The issue of the search warrant was never brought up. It is quite clear he understood his Miranda rights. The Court finds that consent given by [defendant] was validly obtained.”
DISCUSSION
“The Fourth Amendment generally prohibits the warrantless entry of a person’s home, whether to make an arrest or to search for specific objects. [Citations.] The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched [citation], or from a third party who possesses common authority over the premises.” (Illinois v. Rodriguez (1990) 497 U.S. 177, 181.)
Defendant contends that the trial court erred by denying his motion in the sense that the auditory observations alone do not justify the search. He argues the following: “If one removes from the observations all observations but the auditory sensation of wood banging or being stacked on wood, [defendant] urges that there is no longer enough to justify reasonable suspicion for a search.” Defendant’s analysis is erroneous.
“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive. First, there are what Justice White termed ‘consensual encounters’ [citation], which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever--i.e., no ‘seizure,’ however minimal--and which may properly be initiated by police officers even if they lack any ‘objective justification.’ [Citation.] Second, there are what are commonly termed ‘detentions,’ seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’ [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
Thus, not every encounter between a law enforcement officer and a citizen constitutes a detention for Fourth Amendment purposes. “[S]eizure does not occur simply because a police officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991) 501 U.S. 429, 434.) Rather, “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” (United States v. Mendenhall (1980) 446 U.S. 544, 553.) “[T]o 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.” (Florida v. Bostick, supra, at p. 439; accord, People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.)
Here, there is no suggestion in the record that Officer Fontaine coerced defendant to submit to questioning “by means of physical force or a show of authority.” (United States v. Mendenhall, supra,446 U.S. at p. 553.) The officers heard noises coming from 438. They went to 438. They approached 438 on a public walkway. They saw occupants of 438. They asked the occupants questions. The occupants provided answers. This scenario shows a consensual encounter that does not implicate Fourth Amendment principles.
Defendant’s analysis is equally erroneous as to his argument that his consent given at the police station after his arrest was involuntary.
When the People rely on consent as an exception to the warrant requirement, they must establish “that the defendant’s manifestation of consent was the product of his [or her] free will and not a mere submission to an express or implied assertion of authority.” (People v. James (1977) 19 Cal.3d 99, 106.) This question, however, is primarily factual. “The question of the voluntariness of [a consent to search] is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings--whether express or implied--must be upheld if supported by substantial evidence.’ ” (Id. at p. 107.)
Defendant argues that the People failed to meet their burden of proving voluntariness because an extended Spanish-speaking Hispanic family lived at the 434-438 duplex, only one family member spoke fluent English, the police gave Spanish consent-to-search forms to all family members except defendant, Officer Simpson told defendant to sign the form, and defendant required a Spanish interpreter at the court proceedings.
But defendant simply reargues what is not available on appeal. Here, the trial court implicitly rejected the significance of the factors cited by defendant, undoubtedly because it viewed and listened to the DVD recording of Officer Simpson’s interview with defendant. This constitutes substantial evidence in support of the trial court’s finding of voluntary consent, and hence that finding is binding on appeal. (People v. James, supra, 19 Cal.3d at p. 113.) In short, defendant may not rely on inferences from the record favorable to him and overlook inferences from the record supportive of the trial court’s ruling.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.