Opinion
H036872
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID LOUIE GURICH, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County
Super. Ct. No. C1070400)
After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), defendant David Louie Gurich, Jr., pleaded no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378), being under the influence of methamphetamine (Health & Saf. Code, § 11550, a misdemeanor), falsely identifying himself to a peace officer (§ 148.9, a misdemeanor), and possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b), an infraction). He also admitted having two prior convictions for possession for sale of a controlled substance and two prior convictions for being under the influence of a controlled substance (Health & Saf. Code, § 11370.2, subd. (c)), and having served four prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to prison for three years four months.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the court erred in denying his motion to suppress because the search and seizure was the result of an unlawful detention. As we find that the search and seizure were reasonable under the Fourth Amendment, we will affirm the judgment.
BACKGROUND
Defendant was charged by information with possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1); misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 2); misdemeanor falsely identifying himself to a peace officer (§ 148.9; count 3); and misdemeanor possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b); count 4). The information further alleged that defendant had two prior convictions for violating Health and Safety Code section 11550 and two prior convictions for violating Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (c)), and that he had served four prior prison terms (§ 667.5, subd. (b)).
The Motion to Suppress
Defendant filed a motion to suppress "all tangible and intangible evidence and observations and fruits thereof, relating to an illegal detention, search and seizure by San Jose police officers, on or about February 25, 2010." (§ 1538.5.) Defendant alleged that "the police acted without benefit of a warrant or reasonable suspicion/probable cause when they seized and searched [defendant's] person, the car he was in, and effects, and that certain fruits were unlawfully obtained as a result of this warrantless act." The People filed opposition to defendant's motion contending that "[t]he initial detention was justified by the [V]ehicle [C]ode violation and possession of marijuana in the officer's plain view. The search of the car was justified as a parole search and by probable cause based on two different illegal drugs seen inside the car in plain view. The search of the defendant's person was justified as a parole search and as a search incident to a valid arrest. For these reasons, the defendant's motion to suppress evidence should be denied."
The hearing on defendant's motion began on January 7, 2011. San Jose Police Officer Todd Jennings testified as an expert in the recognition of marijuana and methamphetamine. He testified that around 9:20 a.m. on February 25, 2010, he was driving eastbound on Fairway Glen Lane near Indian Wells Court on routine patrol when he saw an occupied gray Mercedes parked with its engine running and its right rear passenger tire more than 18 inches from the curb on the opposite side of the roadway. He drove past the Mercedes and parked his patrol car about 10 feet behind it, in the middle of the roadway. There were vehicles parked along the curb in front of and in back of the Mercedes, but the Mercedes was not blocked in. The officer believed that Fairway Glen Lane was a public street maintained by the City of San Jose and that the Mercedes was parked in violation of the California Vehicle Code. He intended to cite the driver for illegal parking.
Officer Jennings did not activate his siren or spotlight. He got out of his patrol car, closed the door, and walked up to the rolled-down driver's side window of the Mercedes. He saw that defendant was inside the car with his head down and that defendant appeared to be "manipulating" something in his hands. After a few seconds, defendant looked up at the officer and appeared startled. He "made a quick furtive movement with his right hand towards the right side of his body down to the seat area and tossed an item as if he were trying to conceal something" from the officer. At the same time, the officer noticed a small baggie of marijuana in plain view in the dash area of the Mercedes. Because the officer did not know whether or not defendant was reaching for a weapon, the officer drew his weapon and ordered defendant to place his hands on the steering wheel.
Officer Jennings testified at the preliminary examination that "I don't know if I drew out my gun or not. I don't recall but depends on if he followed my - I told him 'Show me your hands' because I don't want somebody to reach and make movements while I'm not talking to them, and that's when I observed marijuana in the ashtray."
After a few seconds, Officer Jennings asked defendant for his identification. Defendant said that he did not have any identification with him, but he said his name was Marvin Anderson and he gave a date of birth. Dispatch advised the officer that there was no match with that name and date of birth. At some point, Ellen Young approached the Mercedes and stated that defendant needed to take her to the hospital. The officer told her to step away and that he would be with her in a moment. The officer radioed for backup. A minute or two later, after backup arrived, Officer Jennings had defendant exit the Mercedes. At that time, the officer noticed a clear plastic baggie containing a crystalline substance, which the officer believed was a controlled substance, on the seat where defendant had made the furtive movement. The officer then placed defendant under arrest. After defendant was placed in a patrol car, he gave the officer his real name. Dispatch informed the officer that defendant was a parolee-at-large.
Officer Jennings searched the Mercedes and seized the baggie of marijuana and the baggie of the crystalline substance he had previously seen. The officer also seized a baggie of methamphetamine from underneath the driver's seat. From defendant's person the officer seized approximately $389 and a cell phone. On the cell phone were several text messages about narcotics.
Ellen Young testified that defendant drove to her residence on Indian Wells Court on the morning of February 25, 2010, to pick her up and take her to the hospital. When she went outside to meet him, his Mercedes was parked within a foot of the curb on Fairway Glen Lane. Fairway Glen Lane is a private road.
Defendant submitted a 1973 parcel map of the area at issue, defense exhibit B, but the People objected to its admission into evidence. The court continued the hearing to allow the parties time to file supplemental briefing addressing the exhibit and the issues it presented.
The People filed supplemental points and authorities in which they conceded that "Fairway Glen [Lane] is a private road and that, therefore, the defendant was not guilty of violating the parking requirements of Vehicle Code section 22502, subdivision (a)." The People also withdrew the objection to the admission of defense exhibit B into evidence. The People argued, however, that "the People's concession has no bearing on the lawfulness of the detention because the detention was justified by (1) the baggie of marijuana that Officer Jennings saw in plain view near the ashtray at the very instant that the defendant first became aware of Officer Jennings'[s] presence, and (2) the objective facts leading Officer Jennings to reasonably but mistakenly believe that the defendant had committed a violation of Vehicle Code section 22502, subdivision (a)."
On February 25, 2011, Vehicle Code section 22502, subdivision (a) stated in pertinent part: "Except as otherwise provided in this chapter, a vehicle stopped or parked upon a roadway where there are adjacent curbs shall be stopped or parked with the right-hand wheels of the vehicle parallel with and within 18 inches of the right-hand curb . . . ."
Defendant's filed a supplemental brief contending that he had been illegally detained because (1) his Mercedes "was parked and/or stopped within 18 inches of the curb; and (2) even if the Court believes that the vehicle was illegally parked within the meaning of Vehicle Code section 22502(a), Officer Jennings had no reasonable suspicion to detain [him] because [the] vehicle was parked on a private roadway."
At the continued hearing on February 8, 2011, the People argued, "I think what the officer testified to was the first thing that attracted his attention was what he thought was a violation of the California Vehicle Code. [¶] Now, the People's position is that that was a reasonable belief that there was a violation of the California Vehicle Code. It was a mistake of fact, but it was a good faith mistake of fact, and that any evidence seized during that detention is not suppressible because it was a reasonable good faith mistake of fact. . . . . Then when the officer gets out of his car and walks to the vehicle, he testifies that at - all this happened at the same time. He notices the marijuana. The defendant makes a furtive gesture to his right. And the officer says, 'put your hands on the steering wheel' and draws his weapon. So, at that point, any earlier violations of the Vehicle Code were unnecessary to justify the detention, because he had seen the marijuana."
Defendant argued, "I don't believe it is a mistake of fact. I believe it is a mistake of law. And I think the public policy around this is, we expect San Jose police officers to know their beat, to know their city. We expect them to know which areas are in their jurisdiction. That's their job. [¶] And that the same rationale applies to knowing the Vehicle Code and knowing its limitations and knowing what's public and what's private. It's not a mistake of fact. It's actually a legal distinction whether or not a road is private versus public." Defendant further argued that Officer Jennings testified both during the preliminary examination and at the January 7, 2011 hearing that he saw the marijuana after he drew his weapon. The court took the matter under submission.
On February 10, 2011, the court filed an order vacating submission of the matter and requesting that the parties file further briefing. Defendant filed a supplemental brief arguing that, pursuant to Vehicle Code sections 360, 490, and 530, Fairway Glen Lane is a private road on which Vehicle Code section 22502, subdivision (a) does not apply. Defendant further argued that "Officer Jennings'[s] subjective belief as to whether Fairway Glen Lane was a public vers[u]s private road is irrelevant." "[A] reasonable officer would have concluded that Fairway Glen Lane is a privately maintained roadway and therefore he or she would have no jurisdiction to enforce parking laws. Most significant, because [defendant] was not in violation of section 22502(a), Officer Jennings had no justification to detain him."
" 'Highway' is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street." (Veh. Code, § 360.)
" 'Private road or driveway' is a way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other members of the public." (Veh. Code, § 490.)
"A 'roadway' is that portion of a highway improved, designed, or ordinarily used for vehicular travel." (Veh. Code, § 530.)
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The People filed a supplemental memorandum arguing that "resolution of whether Officer Jennings had reasonable suspicion to detain the defendant for the parking offense is not necessary to decide this motion because the uncontroverted evidence is that the defendant did not even perceive the officer's presence, and thus could not have been unreasonably seized under the Fourth Amendment, until the officer was standing at his window. At that point in time, the officer had reasonable cause to detain the defendant because he saw marijuana inside the car in plain view."
On February 28, 2011, the court filed its order denying the motion to suppress. "This Court finds that the prosecution has demonstrated that [O]fficer Jennings had a reasonable suspicion (1) that the car defendant was in was parked more than 18 inches from the curb and (2) that Fairway Glen Lane was a 'roadway' as defined in Vehicle Code sections 22502(a), 360 and 490. [¶] That [Officer Jennings was mistaken in that the lane was not publicly maintained is not a mistake of law but a mistake of fact—a fact that was quite reasonable unless the law requires that all peace officers check with the Planning Department to determine who has the duty to 'maintain' each street in the officer's jurisdiction. So far as this Court can determine such diligence is not a necessary ingredient of 'reasonable cause.' "
Pleas and Sentencing
On March 29, 2011, the court amended the information to charge count 4, possession of 28.5 grams or less of marijuana, as an infraction. Defendant then pleaded no contest to possession for sale of methamphetamine (count 1, Health & Saf. Code, § 11378), being under the influence of methamphetamine (count 2, Health & Safety Code, § 11550, subd. (a)), giving a false name to a peace officer (count 3, § 148.9), and possession of 28.5 grams or less of marijuana (count 4, Health & Saf. Code, § 11357, subd. (b)); admitted having two prior convictions for violating Health & Safety Code section 11550 and two prior convictions for violating Health & Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (c)); and admitted having served four prior prison terms (§ 667.5, subd. (b)), with the understanding that he would be sentenced to prison for three years four months.
On April 21, 2011, the court sentenced defendant to prison for three years four months. The sentence consists of the mitigated term of one year four months on count 1, with two consecutive terms of one year each on two prison prior enhancements. The court struck the additional punishment on all the remaining enhancements. The court ordered concurrent 90-day terms for the misdemeanor counts and gave defendant 90-days credit for time served.
DISCUSSION
The Parties' Contentions
Defendant contends that his motion to suppress should have been granted because there was no reasonable suspicion for Officer Jennings to detain him. "The facts show that this detention occurred when the officer first blocked [defendant's] exit from the car." "The officer asserted that the detention was justified because he stopped the defendant to enforce a violation of section 22502 of the Vehicle Code. However, [defendant] was not subject to section 22502 of the Vehicle [C]ode because that provision only applies to conduct occurring on a 'roadway,' as defined by the Vehicle Code, and the detention here occurred on a private road. Thus, the officer was mistaken in attempting to issue a citation in the first instance. [¶] Moreover, the prosecution failed to present any evidence to show that the officer's mistake was reasonable. The ensuing detention of [defendant] was therefore unconstitutional. [¶] The prosecution's attempt to proffer alternative justifications for the detention fail. There were no additional contemporaneous facts rendering [defendant's] purported 'furtive movement' suspicious. Moreover, there is clear indication on the record that the [S]uperior [C]ourt Judge ruled only on the Vehicle Code justification after a full review of the factual record including all of the officer's conflicting testimony."
The People contend that the court properly denied the motion to suppress as "Officer Jennings's initial contact with [defendant] was not a detention because [defendant] was merely sitting in his parked car when the officer approached." The People contend that defendant was not detained "prior to Officer Jennings['s] simultaneous sighting of the baggie of marijuana in plain view on [defendant's] car dash and [defendant's] furtive hand movement that so alarmed the officer that he briefly drew his weapon and ordered [defendant] to show his hands." "[W]hether Officer Jennings made a mistake of fact—that [defendant's] car was on public land—or a mistake of law—that the Vehicle Code prohibited parking 18 inches from the curb—is not relevant to this case. There was no traffic stop here, and thus no detention necessitating the traffic stop be based on a valid Vehicle Code violation."
Analysis
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 891.) "In reviewing a suppression ruling, 'we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.]' [Citation.]" (People v. Lomax (2010) 49 Cal.4th 530, 563 (Lomax).) "[W]e review challenges to the admissibility of evidence obtained by police searches and seizures under federal constitutional standards. [Citations.]" (People v. Woods (1999) 21 Cal.4th 668, 674; Lomax, supra, at p. 564, fn. 11.)
"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. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) "Unlike a detention, a consensual encounter between a police officer and an individual does not implicate the Fourth Amendment. 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. There is no Fourth Amendment violation as long as circumstances are such that a reasonable person would feel free to leave or end the encounter. [Citations.]" (People v. Rivera (2007) 41 Cal.4th 304, 309 (Rivera); Manuel G., supra, at p. 821.)
Consensual encounters between individuals and police officers need not take place on a public street or property. (See, e.g., Rivera, supra, 41 Cal.4th at p. 309 [at the doorway of a private home]; People v. Jenkins (2004) 119 Cal.App.4th 368, 374 (Jenkins) [at the doorway of a motel room]; Florida v. Bostick (1991) 501 U.S. 429, 437 [on an interstate bus].) "Consensual encounters require no articulable suspicion of criminal activity. [Citations.]" (Rivera, supra, 41 Cal.4th at p. 309; Manuel G., supra, 16 Cal.4th at p. 821.) "The proper inquiry is whether the encounter was consensual under the totality of the circumstances." (Jenkins, supra, 119 Cal.App.4th at p. 374.)
"Whether a seizure has taken place is to be determined by an objective test . . . ." (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).) "[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." (Florida v. Bostick, supra, 501 U.S. at p. 439; Manuel G., supra, at p. 821.) "This 'reasonable person' standard . . . ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached." (Michigan v. Chesternut (1988) 486 U.S. 567, 574; Florida v. Bostick, supra, at p. 438.)
The "totality of the circumstances" 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 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. [Citations.] The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]" (Manuel G., supra, 16 Cal.4th at p. 821.) "The test is 'not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.' [Citation.]" (People v. Garry (2007) 156 Cal.App.4th 1100, 1106 (Garry); Celis, supra, 33 Cal.4th at p. 673.)
In this case, the trial court found only that Officer Jennings had a reasonable suspicion that defendant's vehicle was parked more than 18 inches from the curb on a public roadway. Substantial evidence in the record supports those factual findings. The record further indicates that the officer approached the parked vehicle with the intent to issue defendant a citation for illegal parking. However, the officer's uncommunicated state of mind is irrelevant in assessing whether a seizure triggering the Fourth Amendment has occurred. (Manuel G., supra, 16 Cal.4th at p. 821.)
The record indicates that when Officer Jennings parked his patrol car and approached defendant's parked vehicle, he did not use any show of force or authority. He did not stop or pull over defendant's Mercedes; the vehicle was already parked when the officer drove by it and parked behind and to the left of it. The officer had not turned on his patrol car's spotlight or siren, and he did not park the patrol car in a way that would have impeded defendant's ability to drive away, had defendant chosen to do so. The officer closed his patrol car door, walked up to defendant's rolled-down window, and stood there for a few seconds without saying anything and without displaying a weapon. There is nothing in the record that indicates that the officer acted in such a way that would compel a reasonable person in defendant's position to believe that he could not have rolled up the car window or otherwise end the encounter at that point. (Compare People v. Franklin (1987) 192 Cal.App.3d 935, 940 [parking patrol car without blocking the defendant's way and approaching him without the use of verbal requests or commands did not amount to a detention], with People v. Jones (1991) 228 Cal.App.3d 519, 523 [parking patrol car in such a way as to obstruct traffic and directing the defendant to stop amounted to a detention] and Garry, supra, 156 Cal.App.4th at p. 1107 [officer's use of spotlight and rapid approach while questioning the defendant amounted to a detention].)
While he was silently standing by defendant's vehicle, the officer saw that defendant appeared to be "manipulating" something in his hands. Defendant then looked up and appeared startled. He made a gesture that made the officer believe he was trying to conceal something. At the same time that the officer saw this gesture, he also saw a small baggie of marijuana in the vehicle's dash area. "The officer made his observation of an item in plain view from a position where he had the right to be. Such conduct does not constitute a search" within the meaning of the Fourth Amendment. (Lomax, supra, 49 Cal.4th at p. 564.)
There is no question that defendant was seized when Officer Jennings drew his weapon and ordered defendant to place his hands on the steering wheel. " 'A seizure occurs whenever a police officer "by means of physical force or show of authority" restrains the liberty of a person to walk away. ' " (Celis, supra, 33 Cal.4th at p. 673.) However, until that point in time, the officer's actions would not have conveyed to a reasonable person that his or her liberty was restrained in any way. (Ibid.; Garry, supra, 156 Cal.App.4th at p. 1106.) The officer had not used physical force, a show of authority, or verbal commands that would have indicated that compliance or submission might be compelled. (Manuel G., supra, 16 Cal.4th at p. 821.) Yet, once the officer observed the marijuana in plain view in the vehicle, his seizure of defendant and search of the vehicle was justified. (Lomax, supra, 49 Cal.4th at p. 564.) Accordingly, the trial court did not err in denying defendant's motion to suppress.
DISPOSITION
The judgment is affirmed.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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PREMO, ACTING P.J.
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MIHARA, J.