Opinion
F055041
2-11-2009
THE PEOPLE, Plaintiff and Respondent, v. CHRIS ANDREW GREGG, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
After his motion to suppress was denied, appellant, Chris Andrew Gregg, pled no contest to receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). Gregg then waived a probation report and the court sentenced him to a term of two years eight months, the mitigated term of 16 months doubled to 32 months because of Greggs prior strike conviction.
On appeal, Gregg contends the court erred when it denied his motion to suppress. Gregg also asks this court to review the sealed transcript and records from the hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We affirm.
FACTS
On December 25, 2007, Gregg was arrested after a consent search of his backpack uncovered stolen property and marijuana.
On January 31, 2008, Gregg filed a motion to suppress.
At the hearing on Greggs suppression motion, Bakersfield Police Officer Moises Delfin (Delfin) testified that on the morning of December 25, 2007, at approximately 7:11 a.m., he was in his patrol car at a K-Mart parking lot when he saw Gregg about 20 feet in front of him riding a bicycle traveling north on South Real. Delfin was talking to fellow officer Jeffrey Luff, who was in another patrol car, and told him that he was going to investigate Gregg. Delfin drove past Gregg 200 feet and pulled over 3 feet from the curb. As Delfin got out of his patrol car, he saw in his rear view mirror that Gregg had pulled alongside the curb and stopped about 25 to 30 feet behind Delfins car. Delfin walked casually toward Gregg and asked Gregg if he could speak with him. Gregg replied that he could. Delfin asked Gregg if he was on probation or parole and Gregg replied that he was on probation for first degree burglary with search terms. Delfin asked Gregg if he had any anything on his person that he should not have. Gregg responded, "A little bit of weed." Delfin then asked if he could have permission to search his person and Gregg replied, "yes." Delfin called dispatch and confirmed that Gregg was on probation with search terms.
Delfin parked his car three feet from the curb so Gregg would have a clear path of travel.
Officer Luff arrived on the scene after Gregg consented to being searched and searched Greggs person. Delfin searched Greggs backpack and found a small amount of marijuana and a stolen payroll check.
Gregg testified that on the morning in question, he was riding his bicycle when he saw Officers Delfin and Luff in their patrol cars parked in the K-Mart parking lot. As Gregg passed the lot, one officer "sped past" him and pulled in front of him causing Gregg to stop. 15 seconds later the second patrol car pulled in behind him. According to Gregg, Officer Delfin parked his car right next to the curb. Gregg could not have squeezed between the patrol car and the curb. Delfin asked him if he could "please step off [his] bike and put [his] backpack on the ground." After Gregg placed his backpack on the ground, the second officer approached him from behind.
The court denied the motion at the end of the hearing.
DISCUSSION
Gregg contends that a reasonable person would have felt he was detained by Delfins conduct in passing and parking in front of him when the roadway was deserted and quickly getting out of his car, walking toward him, and asking questions. He further contends that the question about probation status would have dispelled any remaining doubt that the person was detained. Thus, according to Gregg since the prosecutor did not offer a justification for the detention, the court erred when it denied his motion to suppress. We will reject these contentions.
"[O]ur standard of review `is well established. We defer to the trial courts 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, 45 Cal.Rptr.2d 425, 902 P.2d 729.)
"In In re Manuel G. (1997) 16 Cal.4th 805, 66 Cal.Rptr.2d 701, 941 P.2d 880, our Supreme Court discussed the differences between consensual encounters and detentions at some length:
"`Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [¶] 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 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 individuals liberty, does a seizure occur. [Citation.] "[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 officers 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 officers request might be compelled. [Citation.]
"The test for the existence of a show of authority is an objective one, and does not take into account the perceptions of the particular person involved. [Citation.] The test is `not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officers words and actions would have conveyed this to a reasonable person. [Citation.]" (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)
Viewing the evidence in the light most favorable to the judgment, we find that after alighting from his car, Delfin asked Gregg if he could speak to him Further, the evidence was undisputed that as he approached Gregg, Delfin did not have a weapon drawn, he did not have his emergency lights, spotlights or siren on, and he spoke to Gregg in a normal voice. Additionally, the court could reasonably have found from Delfins testimony that he did not block Greggs way because he left room between the curb and his parked patrol car for Greg to pass him. Gregg also could have ridden his bicycle on the street side of the patrol car or on the sidewalk to pass Delfins patrol car. Thus, we conclude that the initial encounter with Gregg was consensual. Further, Delfin was legally justified in searching Gregg based on the permission he received from Gregg to search and Greggs admissions that he was in possession of marijuana and on probation with search terms.
Moreover, Officer Delfin did not convert the encounter into a detention simply by asking whether Gregg was on probation or parole. (Cf. People v. Bennet (1998) 68 Cal.App.4th 396, 399, 402 [Officer did not convert encounter to detention when he asked defendant if he was on parole].)
Gregg misplaces his reliance on People v. Jones (1991) 228 Cal.App.3d 519 (Jones) and Wilson v. Superior Court (1983) 34 Cal.3d 777 (Wilson) to contend that he was detained. In Jones, a police officer saw one of three men in a group appear to hand money to the defendant. The officer then parked his car diagonally against the traffic about 10 feet behind the group. As the officer began getting out of his car, the defendant walked away. The officer then asked, "Stop, would you please stop?" The defendant stopped five feet from the officer and reached into his rear pants pocket. The officer grabbed his hand and saw a plastic bag containing white powder that was tied with a rubber band. The officer arrested the defendant after the defendant stated he believed it contained methamphetamine. (Id. at pp. 521-522.) In upholding the trial courts granting of a suppression motion, the Jones court stated, "A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic. Clearly, appellant was detained." (Id. at p. 523.)
Jones is easily distinguishable because here, Delfin did not park his patrol car against traffic or diagonally at a distance of only 10 feet from Gregg. Further, unlike the officer in Jones, Delfin did not direct Gregg to stop. Instead, he merely asked Gregg if he could speak with him.
In Wilson, defendant Wilson arrived in Los Angeles on a flight from Florida and was approached by an airport police officer who asked if he could speak with him. Wilson agreed and the officer told him that he had received a tip that Wilson would be arriving from Florida carrying narcotics and asked to search his luggage. Wilson consented and a search of his luggage uncovered narcotics. (Wilson v. Superior Court, supra, 34 Cal.3d 781-783.) In finding that the defendant had been detained illegally, the Supreme Court stated,
"[I]t is evident that [the officer] did not detain Wilson, for federal constitutional purposes, merely by approaching him, identifying himself as a police officer, and asking if he might have a minute of his time. At that point, however, the officer did not simply ask Wilson if he would permit a search of his luggage. Instead, he advised Wilson that he was conducting a narcotics investigation and that he `had received information that he [Wilson] would be arriving today from Florida carrying a lot of drugs. (Italics added.)
"Common sense suggests to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer. Before Kaiser made that statement, Wilson might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the time — or, perhaps, the inclination — to answer the officers questions or to comply with his requests for permission to search. Once the officer advised Wilson that he had information that Wilson was carrying a lot of drugs, the entire complexion of the encounter changed and Wilson could not help but understand that at that point he was the focus of the officers particularized suspicion. Under these circumstances — and particularly in the absence of any clarifying advice from the officer explaining to Wilson that he was, in fact, free to drive away if he desired — no reasonable person would have believed that he was free to leave. [Citations.]" (Id. at pp.790-791, fn. omitted, italics added.)
Wilson is also easily distinguishable because there, the officers statements to the defendant clearly conveyed that the defendant was the focus of the officers particularized suspicion. Here, Officer Delfin merely asked Gregg whether he was on probation or parole and, as noted earlier, this was insufficient alone, or with the other circumstances cited by Gregg, to have communicated to him that he was the focus of Officer Delfins particularized suspicion. Thus, we conclude that the court did not err when it denied Greggs motion to suppress.
The Pitchess Motion
On January 31, 2008, Gregg filed a Pitchess motion seeking discovery of complaints and other information relating to complaints against Delfin for a variety of reasons including false arrest and illegal detention.
On March 6, 2008, after the city attorney agreed that a sufficient showing had been made, the trial court held an in camera hearing. At the hearing, the personnel file of Delfin was brought into court. After examining the file, the court found that there was no discoverable material.
For over a quarter of a century "our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendants defense." (People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
Because neither defendant nor respondent has access to the transcript of the in camera hearing or the documents supplied at this hearing, they have requested this court to independently review the records to determine whether the trial court had before it all documents that needed to be reviewed and whether it disclosed all relevant documents.
We have reviewed Delfins entire personnel file and conclude, as the trial court did, that it does not contain any information discoverable under Pitchess.
DISPOSITION
The judgment is affirmed.