Opinion
B328960
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. BEN ACE GUERRERO, Defendant and Appellant.
Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County No. 22F-00304 of San Luis Obispo, Timothy S. Covello, Judge
Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P. J.
Ben Ace Guerrero appeals a judgment following the denial of his motion to suppress evidence. (Pen. Code, § 1538.5.) He pled no contest to possession for sale of a controlled substance (Health &Saf. Code, § 11378) after the denial of his suppression motion. The trial court sentenced him to two years in state prison and ruled the sentence had already been served due to his custody credits. We conclude, among other things, that the court did not err by denying his suppression motion. We affirm.
All statutory references are to the Penal Code unless otherwise indicated.
On September 10, 2021, Police Officer Brandon Earnest responded to a radio call involving an apartment office building. The caller, Mr. Tilks, reported that a window screen was off the building. Earnest determined that the screen had "likely fallen off." Tilts thanked Earnest for coming out.
Earnest then saw Guerrero walk to a vehicle parked on the street. When Guerrero saw Earnest's "patrol unit," he "quickly turned away and walked back towards the apartment complex." Earnest found that suspicious. Tilks told Earnest that he had "never seen [Guerrero] before" and that his appearance at the apartment complex seemed "suspicious."
Earnest then saw Guerrero bent over while entering the door of a vehicle parked in a handicapped parking spot in the parking lot of the apartment complex. The vehicle did not have handicapped placards or a handicapped license plate. Earnest told Guerrero that the vehicle was parked in a handicapped spot. Guerrero said his "father-in-law [was] nearby in a wheelchair" and it was his girlfriend's vehicle. Detective Doherty was also present.
Earnest asked Guerrero "if he had his identification on him." Guerrero said he did, and he provided it to Earnest. Earnest began "to ask dispatch to run a record check on Mr. Guerrero," at "which point" Guerrero told him that "he believes he has a warrant out of Kern County." Guerrero said that "he believed it's for probation." "[I]t was for drug possession." Earnest asked "if [Guerrero] had [search] terms as part of his probation." Earnest testified that "[Guerrero] said he believes he does." Guerrero initially said he did not know what search terms means. Earnest explained, "[S]o, like, if you get stopped by police, are you supposed to be searched for anything?" Guerrero responded, "Me, myself? Yeah." Earnest asked, "Do you agree with that?" Guerrero: "Yes." Earnest: "So you are supposed to be searched?" Guerrero: "I'm pretty sure, yeah." Earnest: "Okay."
Earnest testified that he then "asked Guerrero if [Guerrero] would mind if [he] searched him, to which [Guerrero] complied." After conducting a search of his person, Earnest found Guerrero had a pocketknife and other items.
Because Guerrero said he "had search terms with his probation," Earnest testified that he said, "I would be searching the area of the vehicle that I saw [Guerrero] bend over into." Earnest asked him "if there was anything in the vehicle that [he] needed to know about, to which [Guerrero] advised he had a bag of dope on the passenger's side floorboard."
In a search of the car, police found "crystal methamphetamine on the passenger floorboard." Earnest received a radio response verifying that Guerrero had a "misdemeanor warrant" outside of San Luis Obispo County. The radio response did not indicate whether Guerrero was subject to search terms. Guerrero was arrested.
Guerrero filed a notice of motion and motion to suppress evidence under section 1538.5. He sought exclusion of the narcotics police found in the car and the statements he made to police.
Earnest testified as the only witness. The trial court denied the motion. It found, among other things, that it was reasonable for Earnest to rely on Guerrero's statement that he had search terms. But Earnest only conducted the search after Guerrero was asked if he could search and Guerrero consented.
Earnest had a valid reason to contact Guerrero because Guerrero entered a car that was illegally parked in a handicapped space. There was nothing "unreasonable about the timing of [the search]." "The officer was extraordinarily polite through every aspect of it. There was no force applied. And in the span of a couple of minutes, the officers searched a car to which your client has no expectation of privacy and locates the drugs. Accordingly, I can't find the 4th amendment violation."
DISCUSSION
Denying the Motion to Suppress Evidence
On an appeal from the trial court's denial of a motion to suppress evidence, the trial court's findings on the "historical facts" are reviewed under"' "the deferential substantial-evidence standard." '" (People v. Ayala (2000) 23 Cal.4th 225, 255.) The lower court's rulings on the law and"' "mixed fact-law" '" questions are reviewed on appeal under a"' "standard of independent review." '" (Ibid.) "We apply the Fourth Amendment standard in deciding what remedy may be available following a claim of unlawful search or seizure." (Id. at p. 254.) Constitutional Standards for Police Conduct
"[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." (United States v. Sokolow (1989) 490 U.S. 1, 7.)
"Police contacts with individuals may be placed 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.) "Consensual encounters do not trigger Fourth Amendment scrutiny" and, unlike detentions, "require no articulable suspicion that the person has committed or is about to commit a crime." (Ibid.)
" '[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.'" (In re Manuel G., supra, 16 Cal.4th at p. 821.) "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." (Ibid.) Search as a Result of an Unlawful Detention
Guerrero contends his encounter with police began as a consensual one, but it became a detention when Earnest began asking questions about the car parked in a handicapped space. He claims the officer's "extended, repetitive and skeptical questioning" and asking for identification prevented him from walking away and resulted in his involuntary responses leading to search that was the product of an unlawful detention. We disagree.
Guerrero claims he was intimidated by police conduct. But if he believed the conduct or questioning was intimidating, he could have testified at the suppression hearing to identify that conduct and show why he believed it was intimidating. But he did not testify, and he did not file a declaration with his suppression motion to identify such conduct.
The only witness to testify at the suppression hearing was Officer Earnest. The trial court found he was credible. It found there was no evidence of police conduct that would lead a reasonable suspect to believe that he was compelled to comply with the officer's requests, such as the use of physical force or intimidating language. (In re Manuel G., supra, 16 Cal.4th at p. 821.) The court said, "[T]he officer was extraordinarily polite through every aspect of it. There was no force applied. And in the span of a couple of minutes, the officers searched a car to which [Guerrero] has no expectation of privacy and locates the drugs. Accordingly, I can't find the 4th amendment violation." (Italics added.)
Guerrero has not shown these findings were incorrect. Earnest testified that neither he nor Detective Doherty drew their weapons. He did not use his taser or any items on his "duty belt." Doherty did not use "any menacing tone with Mr. Guerrero." The People note that Guerrero was not handcuffed prior to the discovery of the narcotics. There was no evidence of force being used. Earnest merely asked questions and Guerrero answered them. There was no showing of force or compulsion by the police. His act of asking questions did not constitute issuing commands to a suspect. A police officer's conduct of merely asking questions does not constitute "a seizure." (Florida v. Bostick (1991) 501 U.S. 429, 434.) Such an encounter will not "trigger Fourth Amendment scrutiny unless it loses its consensual nature." (Ibid.)
Here Guerrero volunteered that he had an outstanding warrant issued against him and that he was on probation. He believed he had search terms. He consented to a search of his person and the car. He told Earnest that there was a bag of dope in the car. The Fourth Amendment is not violated when police conduct a search based on "a valid consent." (People v. Bravo (1987) 43 Cal.3d 600, 605.)
The trial court properly rejected Guerrero's claim that this was a fishing expedition. Earnest's questioning was not extensive and it fell within the scope of his lawful authority. During a traffic stop, a police officer may run a warrant check and question "the detainee's probation status and ask permission to search while waiting for the results of the warrant check." (People v. Brown (1998) 62 Cal.App.4th 493, 495.) Questioning" 'on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation.'" (People v. Gallardo (2005) 130 Cal.App.4th 234, 239.) Earnest's questions were prompted by things he saw in plain view - the handicapped parking violation and information Guerrero volunteered. After Guerrero said he was on probation, it was not unreasonable for Earnest to ask whether he had search conditions (In re Jeremy G. (1998) 65 Cal.App.4th 553, 556) and to ask permission to search. (People v. Hill (2004) 118 Cal.App.4th 1344, 1350.)
Unreasonably Delayed Encounter
The encounter was not unreasonably delayed. The trial court found, within "the span of a couple of minutes," the officers searched the car. It said the conversation between Earnest and Guerrero lasted a "minute-and-a-half" to "two minutes." The People note that time elapsed between the initial contact and the search of the vehicle was "just over six minutes." The court said, "I don't think anybody under any circumstances could call what this officer did overreaching in any way."
'' "[T]he brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion." '" (People v. Celis (2004) 33 Cal.4th 667, 675.) But a detention is not "unduly prolonged" where the police have "probable cause to arrest." (People v. Williams (2007) 156 Cal.App.4th 949, 960.) As the People note, here there was probable cause. Guerrero volunteered that he had an outstanding warrant and the police dispatcher later confirmed that, and informed Earnest that Guerrero had a misdemeanor arrest warrant from outside San Luis Obispo County.
Asking Guerrero for Identification
Guerrero claims the officer improperly detained and intimidated him by asking for his identification. But a request for identification is not a seizure or detention where the officer has a valid reason to ask for it. (United States v. Mendenhall (1980) 446 U.S. 544, 556.) The trial court properly ruled that Earnest had a valid reason to question Guerrero and ask for identification. Earnest saw Guerrero enter a vehicle that was illegally parked in a handicap parking zone without a handicap sticker. The officer's conduct was not unreasonable or unusual. As the court noted, the conduct was typical for "a traffic stop or infraction" where police officers typically ask "for your identification and they call that in." (People v. Brown, supra, 62 Cal.App.4th at p. 495.)
Moreover, at the suppression hearing, Guerrero's counsel conceded that the police had reasonable grounds to detain Guerrero regarding an investigation of the vehicle violation. He said, "[T]here is reasonable suspicion at that point to detain him regarding that problem - that vehicle code section for handicap parking." (People v. Brown, supra, 62 Cal.App.4th at pp. 495496.)
Did the Investigation Become Unlawfully Extended?
The original dispatch call involved Tilks's suspicion that somebody tried to unlawfully remove a window screen from the building. Earnest investigated and initially determined the screen came off the window by itself. He closed that investigation. Guerrero's counsel claimed Earnest's continued investigation of Guerrero after that point was unsupported by any reasonable suspicion and amounted to a "fishing expedition."
But Earnest's testimony showed he had grounds to be suspicious of Guerrero and continue the investigation. After Tilks thanked Earnest for coming out, Earnest saw Guerrero walk to a vehicle parked on the street. Guerrero then "quickly turned away and walked back towards the apartment complex" when he saw Earnest's patrol unit. Earnest found that conduct to be suspicious. Then Tilks told Earnest that he had "never seen [Guerrero] before," and his appearance at the apartment complex seemed "suspicious." Earnest saw a stranger at an apartment complex acting suspiciously at the sight of a police patrol unit during a dispatch call investigation. He then saw Guerrero inside a car illegally parked in a disabled parking spot. This gave Earnest reasonable grounds to ask Guerrero questions. (People v. Brown, supra, 62 Cal.App.4th at p. 495; see also Illinois v. Wardlow (2000) 528 U.S. 119, 124 ["unprovoked flight upon noticing the police" is a relevant factor supporting reasonable suspicion]; People v. Flores (2021) 60 Cal.App.5th 978, 990 ["evasive behavior is a pertinent factor in determining whether suspicion is reasonable"].)
Probation Search Without Search Terms
At the suppression hearing, Guerrero's counsel said Guerrero was on probation, but there was no evidence that he had search terms. He claimed the search police conducted of the car on the theory that there were search terms was incorrect and the search was consequently unlawful.
But the absence of evidence of probation search terms does not change the result. A probationer with search terms has" 'no reasonable expectation of traditional Fourth Amendment protection.'" (People v. Bravo, supra, 43 Cal.3d at p. 607.) A police officer may rely on the defendant's claim that he or she is "searchable," even though the defendant is mistaken about whether he actually had search terms. (In re Jeremy G., supra, 65 Cal.App.4th at p. 556.) In Jeremy G., the court held a police officer properly conducted a search based upon the representation of a 16-year-old minor that he was "searchable for weapons" even though there was no such search condition. (Ibid.)
The record shows Guerrero told Earnest that he had search terms. Guerrero contends his words were ambiguous. At the suppression hearing, Guerrero's counsel claimed Earnest should have waited until Earnest could obtain official verification as to whether he had search terms. The prosecutor responded that the claim that the officer acted too quickly contradicted Guerrero's claim that the encounter lasted too long. But, even so, Earnest did not rely solely on Guerrero's statements about a search term. The trial court found, "[E]ven after [Earnest] told [Guerrero] he had search terms, [Earnest] asked for permission .... He didn't just say, all right, you've got search terms, I'm going to search you. He said is it all right if I search you?" (Italics added.) The court reasonably found Guerrero consented to that search. (People v. Bravo, supra, 43 Cal.3d at p. 605.)
We have reviewed Guerrero's remaining contentions and we conclude he has not shown grounds for reversal.
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, J., BALTODANO, J.