Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06HF1578, Karen L. Robinson, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Alyson Hemme pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) after the court denied her motion to suppress (Pen. Code, § 1538.5) and was sentenced to three years’ probation. She appeals from denial of the motion, claiming she was improperly detained because police had no objectively reasonable suspicion she was engaged in criminal conduct and the methamphetamine found after police searched her car and wallet was unlawfully obtained because her consent to search was involuntary. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
The only relevant facts are those presented at the hearing on the suppression motion. Officer Shawn Preasmyer testified that at approximately 3:45 one morning he was on his regular patrol in a residential neighborhood of Newport Beach, which was lit by street lights. He saw defendant, who was riding a bicycle, stop near a parked car and get into it from the rear driver’s side door and “rummage[] through” it. Although he did not see her break a window or act as if she was forcing a lock, he believed a burglary was occurring and parked his car about six feet behind the car. Preasmyer could see a purse and suitcase in the back seat and it seemed to him that defendant was changing clothes. When his car pulled up, defendant appeared startled; she got out of her car and stood by the door, making no attempt to leave.
After getting out of his car, he walked around defendant’s car, viewing its contents and condition. He saw no broken windows, exposed wires under the dashboard, or pry marks. Preasmyer asked defendant what she was doing. She said that because she was having roommate problems, she changed her clothes in the car. In response to Preasmyer’s questions defendant, who was being cooperative, supplied her name and date of birth, and said she lived in the area. When he asked if she had ever been arrested she replied that she had recently finished a course for narcotics offenders. Preasmyer ran a check and confirmed the information. Preasmyer described the conversation as “very low key,” explaining he was about four feet from defendant. He said he believed defendant was being truthful although she appeared nervous. Preasmyer had not drawn his weapon or baton. At some point Officer Haas had arrived as back up. He got out of his car and stood about 12 feet behind Preasmyer.
Preasmyer then asked defendant whether she could verify that she owned the car and she said the registration was in the glove compartment. He obtained her permission to let him open the compartment to obtain the document. He testified that because there could be weapons, he would never allow a person to get back into the car. When defendant gave him permission to retrieve the registration, he went in through the front passenger door and opened the glove compartment.
In the front of it he saw a completely open coin purse that held a cylindrical object from which protruded a small ziplock bag. Based on his experience and the knowledge defendant had been in a drug diversion program, Preasmyer believed the bag contained methamphetamine. Without touching the coin purse he got out of the car and asked defendant if there was anything illegal in the car, and she responded “without hesitancy,” “‘no, you can check if you want to.’” Preasmyer still had not drawn his gun or baton and continued to speak in a “real monotone.” Preasmyer pulled the coin purse from the car and opened the cylinder in which he saw “a white crystalline substance”; the field test revealed it was methamphetamine.
When he told defendant what he had found she said it did not belong to her. Preasmyer asked if she had anything illegal in her purse. She said she had one bindle in her wallet and in response to his request, defendant allowed him to retrieve it. At this point defendant was not handcuffed or under arrest, nor had any weapons been brandished.
Defendant gave a generally similar version of the events, although she differed in some respects, including that Preasmyer did not seek permission to get into her car, and that when he entered to retrieve the registration, he came out holding the coin purse. She also denied there was ever a second officer present.
Defendant moved to suppress the narcotics Preasmyer found on the grounds the detention was prolonged and she did not consent to the searches. In denying the motion, the court found Preasmyer had not detained defendant but that it was a “consensual encounter.” Under the totality of circumstances, there was no evidence for defendant to believe she was not free to leave. Preasmyer’s car did not block defendant’s but was about six feet behind it. The lights were not flashing. Preasmyer did not draw his gun or baton or handcuff defendant. The conversation between the two was calm. After seeing defendant ride up to the car at 3:45 a.m. Preasmyer only asked questions as to her identity and activity. The court also found there was no reason for Preasmyer to “make something up about this situation.” By contrast, defendant had reason to “tell the story a bit differently.”
Had there been a detention, the court continued, it was based on a reasonable suspicion defendant was committing “some criminal activity.” At 3:45 in the morning in a residential neighborhood, Preasmyer saw defendant ride up to the car on a bicycle and “rummage through a car, taking clothing out of the car, putting clothes on.”
Finally, the court found the detention was reasonable in scope and duration. Preasmyer was trying to learn whether defendant owned the car and asked permission to go into the glove compartment to retrieve the registration. When he did so he saw the open coin purse. He then asked defendant if there was anything illegal in her car to which she replied no and gave him permission to check. At that point Preasmyer found the drugs, giving him probable cause to continue. He never threatened defendant or drew his gun and the discussion was conversational.
DISCUSSION
1. Introduction
The standard of review for the denial of a motion to suppress is well settled. “We defer to the trial court’s 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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
2. Detention
Defendant contends she was unlawfully detained by police in violation of the Fourth Amendment. A person is seized when an officer, using a show of authority or physical force, intentionally restrains the person’s freedom to move. (Brendlin v. California (2007) 551 U.S. 249 [127 S.Ct. 2400, 2405, 168 L.Ed.2d 132].) The test to determine this is whether, considering all the circumstances, a reasonable would believe she was free to leave. (People v. Zamudio (2008) 43 Cal.4th 327, 341.) “[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 . . . .” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Facts that might show improper detention include “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.]” (Ibid.)
Here the circumstances support the trial court’s finding the encounter was consensual. There was no evidence Preasmyer restrained defendant. He did not touch defendant, draw his gun or baton, or make any threatening gestures. He used a calm voice and was not abusive. His car did not block defendant’s car and he had not turned on his flashing lights. (See People v. Perez (1989) 211 Cal.App.3d 1492, 1496.) Nor did he interfere with defendant’s access to her bicycle.
Defendant claims Preasmyer “made a show of authority.” She points to the facts Preasmyer pulled up in marked police car, parked six feet behind her, got out of the car, and stood within a few feet of her. She also notes he walked all the way around her car, shining his flashlight. These are not sufficient facts to show a detention.
Shining a flashlight into the car is not a detention. (People v. Perez, supra, 211 Cal.App.3d at p. 1496.) Nor does “‘directed scrutiny . . . amount to a detention.’ [Citation.]” (People v. Garry (2007) 156 Cal.App.4th 1100, 1108.) In Garry, an officer in a patrol car observed the defendant standing near a car in a high crime neighborhood. He turned his spotlight on the defendant, got out of his car, and quickly went toward the defendant. The light startled the defendant, who then spontaneously told the officer he lived in a nearby house. The officer told him he wanted to “confirm” his residence and asked if he was on parole or probation, to which the defendant replied he was. The court found the defendant had been detained because any reasonable person “suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status,” would not believe she was free to leave. (Id. at p. 1112.)
But that is not what happened here. Preasmyer did not “rush” at defendant nor did he shine his light on her or immediately ask her legal status. Contrary to Garry, there was no “show of authority so intimidating” as to constitute a detention. (People v. Garry, supra, 156 Cal.App.4th at p. 1112.) Defendant claims Preasmyer told her she could leave only on verification of her car registration and insurance. This is not supported by the evidence, however. Defendant did testify Preasmyer told her, “As long as your registration and insurance come back in your name, we will get you out of here.” But that was not Preasmyer’s testimony and the court specifically found him credible while defendant had reason to “tell the story a bit differently.” (People v. Stansbury (1995) 9 Cal.4th 824, 831 [we accept trial court’s credibility determinations where supported by record].)
Defendant cites In re Tony C. (1978) 21 Cal.3d 888 where the court, finding a detention, stated that “either through fear or respect, many persons who are not in fact under detention nevertheless do not feel free to leave at will when a uniformed police officer indicates a desire to talk with them.” (Id. at p. 895.) But even though “most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond hardly eliminates the consensual nature of the response. [Citation.]” (I.N.S. v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758, 80 L.Ed.2d 247]; see also People v. Lopez (1989) 212 Cal.App.3d 289, 291-292.)
Defendant also relies on the presence of the back-up officer. But this is only one factor to consider and under all the circumstances does not persuade us there was a detention.
Thus, substantial evidence supports the court’s finding there was no detention. “Where a consensual encounter has been found, police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation].” (People v. Franklin (1987) 192 Cal.App.3d 935, 941.) Under the circumstances, Preasmyer’s questions to defendant were appropriate.
Further, where there is no detention and there has been a consent to search, no warrant is required. (People v. Memro (1995) 11 Cal.4th 786, 846-847.) Defendant gave Preasmyer permission to search both the car and her purse. The motion to suppress was properly denied.
3. Reasonable Suspicion of Burglary
Defendant contends that the court erred in finding that even if there was a detention it was proper because based on a reasonable suspicion she had committed a burglary.
“[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C., supra, 21 Cal.3d at p. 893; see also Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320.)
Defendant argues that the only facts known to Preasmyer at the time he detained her were that it was early morning, she rode up to the car, which was parked in a residential neighborhood, on a bicycle and parked behind the car, she got into the car through the driver side back door, and she was “rummaging” through it. These facts, she claims, were not enough to satisfy an objectively reasonable suspicion of criminal activity. The Attorney General relies on these identical facts to assert Preasmyer had an objectively reasonable suspicion of burglary. We agree with the latter argument.
Although, as defendant maintains, cases state that the time of day of a suspect’s activity “has, at most, ‘minimal importance’ in evaluating the propriety of an intrusion” (People v. Bower (1979) 24 Cal.3d 638, 645; accord People v. Medina (2003) 110 Cal.App.4th 171, 177), it is a factor to consider in evaluating the totality of circumstances (People v. Foranyic (1998) 64 Cal.App.4th 186, 189 [detention appropriate where officer saw the defendant with an ax riding a bicycle at 3:00 a.m.). The remaining factors combine to show an objectively reasonable suspicion of a crime. As the Attorney General notes, it was not unreasonable for Preasmyer to believe someone riding up to a car on a bicycle at 3:45 in the morning might not own the car. And a person “rummaging” for clothing, who took clothing out of the car, could be stealing it and using the bike to make a quick get away. Certainly defendant’s conduct was not the norm. As in Foranyic, “the more cogent point is that there is some activity which is so unusual, so far removed from everyday experience that it cries out for investigation. Such activity will justify a detention even when there is no specific crime to which it seems to relate.” (Id. at p. 190.) Although her activity was not as dramatic as the ax carried in Foranyic, it was enough to support a detention.
Defendant points to the following facts to show Preasmyer had no objectively reasonable suspicion a crime was being committed: she did not flee but cooperated with Preasmyer; her car was not parked in a high crime area nor did Preasmyer see broken windows or forced locks; Preasmyer knew parking was tight in the neighborhood and residents had to park some distance from their homes, so riding a bike to the car was not suspicious; and all she did was get into the car and change clothes. But the possibility of innocent activity does not vitiate an officer’s right to detain if there is a reasonable suspicion of illegal conduct. (In re Tony C., supra, 21 Cal.3d at p. 894.)
Attacking from a related angle, defendant maintains that when Preasmyer sought defendant’s permission to enter her car he had no objectively reasonable suspicion she was committing a crime. By then, she asserts, Preasmyer, who believed she was telling the truth, had examined the car and could see there had been no forced entry nor anything to contradict the information she had given him. She had cooperated with him and had not tried to flee. He also had verified her identification. Thus, she argues, the detention should have ceased at that point.
“[A]n investigative detention[, which] allows the police to ascertain whether suspicious conduct is criminal activity, . . . ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 674.) Police must “‘diligently pursue[] a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ [Citations.]” (Id. at pp. 674-675.)
Taking into account all of the factors on which defendant relies, it was reasonable for Preasmyer to verify ownership of the car. He had an objectively reasonable suspicion of burglary and was asking to see the registration to confirm defendant’s statement she owned the car. The contact with defendant was not prolonged; by defendant’s account it was only four to five minutes from the initial questioning. Preasmyer’s investigation was quick and not intrusive and did not last any longer than necessary. Had there been a detention it complied with constitutional requirements.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.