Opinion
A149108
11-05-2018
THE PEOPLE, Plaintiff and Respondent, v. EMMA NICOLE GUIDO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051506849)
Following a denial of her motion to suppress evidence, Emma Nicole Guido was convicted by a jury of violating Health and Safety Code section 11378 for possession of methamphetamine with the intent to sell and two additional misdemeanors. On appeal, Guido contends the court erred in denying her motion to suppress evidence she claims was seized following an unlawful detention. We affirm.
BACKGROUND
Guido was charged with one count of possessing heroin for sale in violation of Health & Safety Code section 11352 (count 1); two counts of unlawfully possessing methamphetamine for sale in violation of Health & Safety Code section 11378 (counts 2 and 3); and one count of possessing marijuana for sale in violation of Health & Safety Code section 11359 (count 4).
Pursuant to Penal Code section 1538.5, Guido moved to suppress all evidence related to her detention and seizure, which included suspected narcotics and related paraphernalia. The court denied the motion.
Following an eight-day jury trial, Guido was found not guilty of count 1 but guilty of the lesser included offense of possession of heroin, a misdemeanor; guilty of count 2 for violating Health & Safety Code section 11378 for possession of methamphetamine with the intent to sell; and not guilty of possession of marijuana for sale, but guilty of possession, a misdemeanor or infraction. Count 3 had been dismissed.
The court sentenced Guido to a 16-month suspended sentence and placed her on three-years' probation with the condition she serve one year in county jail. She satisfied the condition with credit for time served. Guido now appeals.
DISCUSSION
The following evidence was adduced at the hearing on Guido's motion to suppress.
On July 8, 2014, in the middle of the night, Walnut Creek Police Officer Brent Akers was on a routine patrol by himself in the parking lot of the 24-hour Walgreens located on North Main Street. Known as a "high drug area," Officer Akers had patrolled the area over a hundred times. He was in a patrol vehicle wearing a standard police uniform.
At 1:55 a.m., Officer Akers observed a four-door sedan, the only car in the parking lot, with two passengers. Guido was in the front passenger seat and her companion, Noah Ferreira, was in the driver's seat.
Officer Akers parked his patrol car approximately 10 feet to the side of the sedan. He approached the car on its passenger side. He was shining his flashlight but had not turned on the patrol car siren or lights. Nor did he have any weapon drawn. As he neared the parked sedan, he saw it was filled with boxes, bags, and containers. He did not see any weapons, nor did he see either passenger reach for anything as he approached.
Officer Akers initiated contact in a conversational tone, and Guido rolled down the passenger side window. Approximately one and a half feet away from the passenger door, Officer Akers stood with his left shoulder closer to the car. He bent slightly so he could see Ferreira in the driver's seat.
Officer Akers asked the two what they were doing in the parking lot. Ferreira responded that he was recently divorced, in the process of moving, and there to purchase an air mattress. The officer then asked for their IDs, which Guido and Ferreira provided. Officer Akers radioed dispatch to check for warrants and discovered none. He then asked if anything illegal was in the car, and they said no. Officer Akers then asked Ferreira if he could search the car, and Ferreira said yes. Upon receiving consent to search, the officer asked Guido and Ferreira to exit the vehicle, and they did. Officer Akers was not able to recall specifically when he returned the IDs to Guido and Ferreira. He believed he handed them back before he asked Ferreira for consent to search the car, explaining that was his common practice. However, he did not remember whether he asked the pair more questions or whether he had requested Ferreira's consent before giving back the IDs.
In the car search, Officer Akers was joined by Officer Eric Young, who had subsequently joined him on the scene. Officer Akers began by searching the black purse from which Guido retrieved her ID. Inside he found multiple zipper storage bags with an "off-white residue inside." He was aware the purse belonged to Guido. He had never asked her for consent to search the purse. Next, Officer Akers searched a "black-and-pink zebra print hard-she[lled] case" in the front floorboard area of the car. In the case, he found multiple baggies of an "off-white crystal-like substance presumed to be methamphetamine" and a "brown[,] tar-like substance . . . presumed to be heroin." Officer Akers also found in the vehicle a "green leafy substance . . . presumed to be marijuana."
Officer Young found a backpack in the driver's side rear passenger seat area. Inside the backpack, he found $199 cash in the front pouch and a cell phone box in the rear compartment. Inside the box were three baggies with what "appeared to be prescription pills and then three more baggies of a green leafy substance . . . [he] believed to be marijuana." He also found a yellow packing envelope with "approximately . . . 50 to 60 green small plastic baggies" and a white padded envelope that contained "two glass bulbous pipes, a glass tube, and a glass orb" with residue inside.
At 2:34 a.m., Guido and Ferreira were arrested. After the arrest, the sedan was towed. Pursuant to department policy, the police performed an inventory search of the car.
Guido did not testify or present any evidence at the suppression hearing.
The trial court denied the motion to suppress.
First, the court ruled that Guido had no standing to challenge the search of the car, only the purse.
Second, it ruled Officer Akers's encounter with Guido and Ferreira was not a detention. In his approach to the sedan, the court found Office Akers "didn't do anything, didn't block the vehicle, didn't make any command, just approached [Guido and Ferreira], started talking to them, and there was nothing that would have elevated this . . . casual encounter [to a detention] based on the officer's contacting the people in the vehicle." The court also ruled the request for identification did not elevate the consensual encounter to a detention. Citing Brown v. Texas (1979) 443 U.S. 47 and United States v. Mendenhall (1980) 446 U.S. 544 (Mendenhall), the court ruled that merely asking for identification or an explanation of presence did not automatically create a detention. Considering all the circumstances surrounding the request for identification, the court found Officer Akers "[was] just talking to the folks" when he asked for their IDs. Further, the encounter was not converted into a detention by the officer's possession of the IDs. Acknowledging the uncertainty of the officer's testimony as to when he returned the IDs, the court noted "there is no contrary evidence than that the officer's best recollection is that he returned the IDs." The court then found even if he had not returned their IDs, under a totality of the circumstances analysis, "there's nothing going on here that is along the lines of those factors that the Court is to weigh in finding that it's a detention. So the Court doesn't find any detention; certainly doesn't find any unlawful detention."
Turning to the purse, the court recognized there was no consent given for its search. However, since the police found contraband during their search of the car, the court concluded: "At that point, [the officer] has an independent probable cause to search the remainder of the interior of the car, on top of which, once he finds the contraband, both defendants are going to be arrested, and there's inevitable discovery, consistent with the search incident to arrest and an inventory search of the car which the officer testified they would do in every case." In the court's view, the inevitable discovery doctrine "[was] absolutely going to result in the purse being searched."
On appeal, Guido contends that the trial court erred when it denied her suppression motion because she was detained without reasonable suspicion or probable cause in violation of the Fourth Amendment. She argues all the fruits of her detention should have been suppressed and her convictions reversed.
Standard of Review
When the denial of a motion to suppress evidence is challenged on appeal, we review the record in the light most favorable to the ruling, uphold the trial court's express and implied factual findings if supported by substantial evidence, and independently apply the appropriate federal constitutional standards to those facts. (People v. Valenzuela (1999) 74 Cal.App.4th 1202, 1206-1207.) The power to judge credibility, weigh evidence, and draw factual inferences is vested in the trial court and all presumptions favor its findings. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) We review the court's legal conclusions de novo and apply our independent judgment to measure the facts determined by the trial court against the constitutional standard of reasonableness. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Detention
We first address whether a detention took place. Guido contends the trial court erred in ruling that Officer Akers's interaction with her was only a "casual encounter" that did not amount to a detention. She says Akers detained her when (1) he obtained and checked their identification and (2) physically blocked her from leaving the car. We disagree.
The initial dispute between the parties concerns Guido's standing to challenge the search of the car. For purposes of our analysis, we assume arguendo that Guido has standing to challenge the vehicle search.
It is true that not all interactions between law enforcement and members of the public rise to the level of seizures implicating the Fourth Amendment. (Mendenhall, supra, 446 U.S. at p. 552; People v. Zamudio (2008) 43 Cal.4th 327, 341 (Zamudio).) "It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so" without having any "articulable suspicion of criminal activity." (People v. Rivera (2007) 41 Cal.4th 304, 309.)
For a seizure to occur, an officer must intentionally restrain an individual's freedom of movement either physically or through a show of authority. (Mendenhall, supra, 446 U.S. at p. 552.) The test for whether a police officer's conduct amounts to a detention is whether the officer's conduct would indicate to a reasonable person that he or she is not free to leave, or otherwise to terminate the encounter. (Mendenhall, supra, 446 U.S. at p. 554; Zamudio, supra, 43 Cal.4th at p. 341.) In determining whether a reasonable person would have believed he or she was free to leave or end the encounter, a court must take into account the totality of the circumstances from the perspective of a reasonable person in the defendant's position. (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.); Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) In doing so, the court "assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation." (Manuel G., supra, 16 Cal.4th at p. 821.)
Identification Check
Guido argues she was detained when Officer Akers obtained and checked her identification because "no reasonable person would feel free to depart while an officer was holding her identification and checking it on the radio." But the parties agree that a request for identification, without more, is not a detention. (See People v. Vibanco (2007) 151 Cal.App.4th 1, 13 [" 'In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.' "].) The issue pressed by Guido is whether Officer Akers elevated the encounter into a detention when he took her identification and ran a warrant search.
In People v. Terrell (1999) 69 Cal.App.4th 1246, the officers observed Terrell on a park bench. (Id. at p. 1251.) After engaging Terrell in a brief conversation, one of the officers asked him for identification. (Ibid.) Terrell provided his ID, and the officer conducted a warrant check. (Ibid.) The court ruled no detention took place, reasoning that under the totality of the circumstances the entire encounter was consensual including Terrell's "spontaneous and voluntary action" in handing over his ID. (Id. at p. 1254.) The court added that the entire encounter lasted about three minutes, and there was no indication from the officers Terrell was not free to leave. (Ibid.) There was no illegal detention, "i.e., the temporary seizure of appellant without a reasonable suspicion that criminal activity was afoot and appellant was involved." (Ibid.)
In People v. Leath (2013) 217 Cal.App.4th 344 (Leath), two police officers investigating a robbery spotted a vehicle near the scene of the crime matching a description of the robbers' vehicle. (Id. at p. 348.) One of the officers asked Leath his name and if he had any identification. (Ibid.) Leath handed officers his ID, and they checked for outstanding warrants. (Ibid.) Adopting the rule that "a voluntary relinquishment of one's identification card does not constitute a seizure as long as the encounter is consensual under the totality of the circumstances," the court concluded there was no detention. (Id. at p. 353.) Leath had voluntarily complied with the officers' request—not demand—for identification. (Ibid.) In addition, the officers never accused Leath of illegal activity when they first addressed him, nor did they ever use or threaten physical force against him. (Id. at p. 353.) There was also no evidence that had defendant asked the officers to return his ID, they would not have complied. (Ibid.)
As in the above cases, the record here supports the court's conclusion that a reasonable person in Guido's situation would have felt free to leave. The trial court found Officer Akers "[was] just talking to the folks" when he asked for their IDs and that "there's nothing going on here that is along the lines of those factors that the Court is to weigh in finding that it's a detention." These findings were supported by substantial evidence. Officer Akers approach the pair by himself, not with other officers, with just a flashlight. He kept the patrol car lights and sirens off and did not display any weapon. He initiated the encounter with a conversational demeanor and asked what they were doing in the parking lot; he did not accuse the two of any illegal activity. He asked for, but did not demand, Ferreira's and Guido's IDs, and they handed them over. There was no evidence that Officer Akers ever used any force with Guido or her companion during the entire encounter. Under the totality of these circumstances, Officer Akers's receipt of Guido's ID did not constitute a seizure.
Guido relies on People v. Castaneda (1995) 35 Cal.App.4th 1222 (Castaneda) to support her argument she was detained when she surrendered her identification. There, a police officer approached Castaneda as he was seated in the passenger seat of an illegally parked car. (Castaneda, supra, 35 Cal.App.4th at p. 1225.) The officer requested identification and asked Castaneda who owned the car. (Id. at pp. 1225-1226.) Castaneda handed the officer his identification card and told him the car was owned by a friend who lived in a nearby apartment. (Id. at p. 1226.) The officer radioed for information on the car's registration and Castaneda's warrant status while another officer filled out a parking citation for the car. (Ibid.) On appeal, Castaneda contended that no justification existed to support his detention. (Ibid.) The court acknowledged that an officer's request for identification was permissible but determined that "once Castaneda complied with [the] request and submitted his identification card to the officers, a reasonable person would not have felt free to leave." (Id. at p. 1227.) Guido argues for the strictest reading of Castaneda. Namely, that "walking away from a police officer who has one's identification in hand and is checking it on a radio . . . is not something a reasonable person would feel free to do and would itself raise suspicions of wrongdoing."
Castenada does not establish a detention took place here. There is no per se rule that a person's voluntary submission of her identification to an officer transforms a consensual encounter into a detention. In fact, Castaneda only instructs us that an officer's retention of a defendant's identification card may be a relevant factor in determining whether an encounter is consensual, but it cannot be the sole, dispositive factor. (See People v. Linn (2015) 241 Cal.App.4th 46, 63 (Linn) ["[A]n officer's taking of a voluntarily offered identification card, while it may be considered as a factor in evaluating whether a detention has occurred pursuant to a review of all the circumstances involved in an encounter, is not alone definitive in resolving that question."]). The fact that one of the officers in Castaneda was actually filling out a parking citation for the defendant's illegally parked car sufficiently distinguishes the circumstances that converted the encounter to a detention. (Castaneda, supra, 35 Cal.App.4th at p. 1226.) That was not the case here.
Moreover, we agree with Leath that a strict reading of Castaneda, like the one Guido advocates here, " 'eviscerate[s] the rule that a law enforcement officer may ask an individual for identification without having any suspicion that he or she has committed a crime, because as soon as the individual complies with the constitutional request, an unconstitutional seizure will have occurred.' " (Leath, supra, 217 Cal.App.4th at p. 353.)
In her reply brief, Guido also notes that the court in Linn, supra, 241 Cal.App.4th 46, went on to hold that "an officer's taking of a person's identification card and retention of it while running a record check or engaging in further questioning weighs in favor of a finding of an unlawful detention" and that, together with other circumstances similar to this case, constituted a detention. There, the police officer observed the passenger in Linn's car flicking cigarette ashes out the window, a Vehicle Code violation. (Id. at p. 51.) The officer stopped his marked police motorcycle next to the car, which had since parked, as Linn and her passenger were getting out of the car. (Ibid.) The officer did not turn on lights or sirens, block Linn's path, or display a weapon. (Ibid.) After the officer asked the passenger about the ashes, he turned his attention to Linn and asked to see her identification. (Ibid.) Linn handed over her license, which the officer took and used to run a warrant search. (Id. at p. 52.) Linn testified that she tried to walk away when she got out of her car but the officer asked her to " 'stand there, stay there.' " (Id. at p. 52.) She further added that the officer asked her to put out the cigarette she was smoking and put down the soda she was drinking. (Ibid.) The trial court found Linn's testimony that she was commanded to put out her cigarette to be credible. (Id. at p. 55.) On appeal, the court concluded that an objectively reasonable person in this situation would not feel free to leave. (Id. at pp. 64-67.) The court agreed that the officer's "overall approach . . . would cause an objectively reasonable person to believe she was under investigation for a possible violation of the traffic laws as the driver of a vehicle in which a passenger flicked ashes out of the vehicle's window." (Id. at p. 66.) The court could not conclude "that an objectively reasonable person in the present circumstances would feel free either to walk away without her driver's license or to interrupt [the officer]'s investigation to ask for her driver's license to be returned so that she could leave." (Id. at p. 67.) The circumstances of Linn are sufficiently different from this case. Here, Officer Akers issued no supplemental commands to Guido or Ferreira that would have suggested they were not fee to leave. Nor did his approach reflect Guido was being investigated for her involvement in any particular criminal activity.
Position Near Passenger Car Door
Guido also contends "[a] detention occurred when [Officer Akers] blocked [her] exit from the car." She contends that by standing so close to the passenger door that she would have hit him with the door had she opened it, Officer Akers "physically blocked [her] only avenue of exiting the car" and "physically detained [her] in the car." Guido calls this "the moment at which her detention surely began." (Boldface omitted.) We disagree.
The trial court found that when Officer Akers approached the car, he "didn't block the vehicle." This finding was supported by substantial evidence. Officer Akers stated he parked his patrol car 10 feet to the side of Ferreira's sedan so as to not block it. When he spoke with Guido and Ferreira, he was not bent over in front of the passenger-side door. Rather, he stood one and a half feet away from the car in "a bladed stance" between the front and rear passenger-side doors. He also testified that he would have moved away had Guido opened the passenger door. Based on the trial court's finding that Officer Akers did not block the vehicle, we cannot conclude a reasonable person under the circumstances would have believed she was not free to leave.
Guido emphasizes Officer Akers's testimony that he would have had to move had Guido opened the door as evidence that he physically blocked her from leaving the car. She adds that no reasonable person in her position would have physically opened a car door into an officer. There is no dispute that Officer Akers testified the car door would have brushed him had Guido opened it and that he would have moved away had that occurred. The trial court judges the credibility of the witnesses, resolves conflicts in testimony, and draws factual inferences; and on appeal, the trial court's finding must be upheld if supported by substantial evidence. (Leyba, supra, 29 Cal.3d 591 at pp. 596-597.) Here, the trial court weighed the evidence and drew factual inferences to find Officer Akers did not block the vehicle. Since this finding was supported by substantial evidence, we must uphold it.
Guido also says it was the People's burden to prove the "warrantless detention and search was lawful," which it improperly attempts to shift by arguing the absence of evidence in the record indicating Officer Akers would not have stepped aside if asked. The objection is overstated. Officer Akers's testimony that he would have moved away from the door had Guido opened it is affirmative evidence that meets the People's burden. Guido presented no contrary evidence.
Guido further notes that "[t]he willingness of courts to permit questioning of a citizen without creating a detention is based on the premise that he has 'an equal right to ignore his interrogator and walk away.' " She argues when the police block the only exit, that right is fictional. Since the trial court found Guido's exit was not blocked by Officer Akers, Guido's criticism is unfounded.
Under the totality of the circumstances, Officer Akers's contact with Guido was consensual in nature and was not a detention for Fourth Amendment purposes. Since the trial court did not err in concluding there was no detention, we need not address Guido's argument that her detention was unreasonable.
Search of Purse
Next, we consider whether the search of Guido's purse violated the Fourth Amendment.
Guido initially contends that Ferreira's consent to the search was invalid because it was the product of an unlawful detention. Since we have concluded that there was no detention, we need not address this argument.
Guido then argues that even if Ferreira's consent to search his car was valid, there was no consent for officers to search her purse. This point was not disputed by the trial court, nor is it disputed by the People. In People v. Baker (2008) 164 Cal.App.4th 1152, the driver's consent to search his car did not extend to the purse belonging to his passenger because there was no indication that the purse or anything in it belonged to the driver or that the driver had any control over the purse. (Id. at pp. 1159-1160.)
The core argument Guido asserts with respect to her purse focuses on the trial court's justification for searching it. She contends the trial court's reliance on the inevitable discovery doctrine to justify searching her purse was wrong. Again, we disagree.
Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine "is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." (Murray v. United States (1988) 487 U.S. 533, 539.) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. (Nix v. Williams (1984) 467 U.S. 431, 443, fn. 4.) The burden of establishing that illegally seized evidence is admissible under the rule rests upon the government. (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 682.) The test is not whether the police would have certainly discovered the tainted evidence, rather, it is only necessary to show a reasonably strong probability that they would have. (Id. at p. 681.)
We can easily conclude that the narcotics paraphernalia in Guido's purse would inevitably have been discovered by the police. With Ferreira's consent to search his car, the police found the "green leafy substance . . . presumed to be marijuana" in the vehicle, as Officer Akers testified he found after searching Guido's purse and the zebra-print case. The discovery of what appeared to be marijuana would have provided probable cause to justify a search of the other containers in the car, including Guido's purse. (See Wyoming v. Houghton (1999) 526 U.S. 295, 301 [" 'If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.' "].)
Because we conclude the evidence in Guido's purse would have been inevitably discovered once the marijuana was apparently discovered elsewhere in the car established probable cause, we need not address the admissibility of the evidence under the inventory search rule.
Guido's claim that the evidence to convict her was the fruit of an illegal detention is without merit, and the court was correct to deny her motion to suppress.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.