Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR198601
Bruiniers, J.
Richard Huerta (Huerta) pleaded no contest to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was placed on probation. Huerta argues that the methamphetamine, discovered by police on a search of his vehicle, was the product of an unlawful detention in violation of the Fourth Amendment to the United States Constitution. His pre-plea motion to suppress the seized evidence was denied. (Pen. Code, § 1538.5). He appeals from denial of his suppression motion. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are gleaned from the hearing on Huerta’s motion to suppress, which was heard by a magistrate in conjunction with the preliminary hearing. Officer James Rouse of the Benicia Police Department testified that, at about 1:30 a.m. on June 28, 2008, he was on patrol, in full uniform and in a marked patrol car, with his partner (Officer James Laughter) on Lake Herman Road, north of East Second Street, in Benicia. At that time, Rouse saw a black, two-door vehicle parked on the shoulder with its lights off. The vehicle was parked in a rural area, surrounded by fields, with minimal light, about a quarter mile away from a gas station. Rouse testified that he did not know if the vehicle was unoccupied or if there was a stranded motorist, so he made a u-turn, pulled up behind the vehicle, and illuminated it with his spotlight. Rouse also turned on his rear emergency light, “because it was a dark area and it was to avoid being struck from behind.” After directing the spotlight at the driver’s side rearview mirror, Rouse saw one person inside the vehicle.
Rouse radioed dispatch with the car’s location and license plate number, and then both officers exited their vehicle. Rouse approached the driver’s side of the parked car, while Laughter approached the passenger side. Huerta was found sitting in the driver’s seat of the car. Rouse asked Huerta to roll down his window and then asked why he was parked out there. Huerta responded that he had run out of gas. Rouse testified that, as they began to speak, Huerta continuously put his hands in and out of his pockets and appeared to be nervous. Huerta said he was coming from Fairfield and headed towards Concord. Rouse then asked Huerta why he did not stop at one of the two gas stations within a quarter of a mile of where the vehicle was stopped. Huerta said he had stopped to change clothes. Rouse said “I thought that you had ran out of gas.” Huerta responded that he was on his way to pick up his brother.
At that point, Rouse asked for Huerta’s identification because “[b]ased on his behavior, and the several different stories that he was giving me of why he was at this location, I just felt that there was something more to why he was there.” Huerta gave the officer his driver’s license. Immediately after Huerta did so, Rouse asked “do you have any guns, knives, bazookas, or grenades in your vehicle?” Huerta said “no.” While Rouse continued to hold onto Huerta’s license, Rouse responded: “ ‘Do you mind if I check?’ ” Huerta said “no.” Rouse looked at the license to see that it appeared to be valid and looked at the photo to make sure it was the same person. He learned from police dispatch that Huerta was a registered sex offender under section 290.
On cross-examination, Rouse testified that he provided Huerta’s license information to dispatch only after he was placed under arrest. However, the parties later stipulated that the officers called in Huerta’s license information and learned of a section 290 registration requirement before Huerta’s arrest was called in. Although the evidence was not entirely clear, Defendant’s counsel argued at both the original suppression hearing and at the subsequent motion to dismiss that Rouse learned of Huerta’s registration status prior to obtaining consent to the vehicle search.
Rouse then asked Huerta to exit the vehicle and stand with Laughter at the back of the vehicle. Huerta complied. As Huerta was exiting the vehicle, Rouse asked Huerta: “ ‘Do you have any guns, knives, bazookas, or grenades on your person?’ ” Huerta said “no.” Rouse then asked “ ‘[w]ould you mind if my partner checked?’ ” Huerta agreed and Laughter conducted a patdown search. Rouse then searched the vehicle. Rouse started his search of the vehicle with the center console, where he located a pill bottle. Rouse testified: “I could see inside there was a white crystal like substance inside with a straw-what appeared to me to be a straw.” After finding these items, Rouse notified Laughter, who placed Huerta in handcuffs. After Huerta was arrested and received Miranda warnings, he told Rouse that the substance in the medicine bottle was his and identified it as methamphetamine. Huerta also told Rouse that he used the straw to ingest methamphetamine. Rouse testified that approximately six minutes elapsed between the time he first made contact with the vehicle and Huerta’s arrest.
Rouse was familiar with the fact that methamphetamine is commonly ingested by snorting. The parties later stipulated that the white crystal substance was.52 grams of methamphetamine.
Huerta testified that he was outside of his car when he first noticed the presence of the police. Huerta testified that one officer asked him what he was doing. Huerta told him he ran out of gas. The officer asked if Huerta had a gas can. Huerta said “no.” According to Huerta, the officer then asked him if he had identification, so Huerta handed the officer his driver’s license. Next, the officer asked if he could search Huerta’s car. At that time, the officer had not returned Huerta’s license. Huerta testified that, at the time the officer asked to search his car, he did not believe he was free to leave because of the “the way [the officer] was acting.” Specifically, Huerta testified: “[W]hen he asked if I had identification. I gave it to him. He said stand over here beside the back of the car.” Huerta confirmed that it was right after asking for Huerta’s identification that the officer asked to search his car. Huerta also confirmed that he agreed to the search of the vehicle before the officer asked him to step to the rear of the vehicle.
The magistrate denied Huerta’s motion to suppress (§ 1538.5) evidence of the methamphetamine found inside his car. The magistrate stated: “As far as the 1538.5 motion, the Court finds the officer’s behavior is reasonable, asking... the defendant identify himself under these circumstances was reasonable, and the Court finds that the officer immediately asked him for his identification. [¶] Beyond looking at a driver’s license and running it maybe, or giving it back, was because the defendant agreed to consent to allow, first, search of his vehicle and then person.”
The trial court later heard Huerta’s motion to set aside the information (§ 995) on the grounds that the evidence was seized in violation of the Fourth Amendment. Based on its review of the evidence at the preliminary hearing, the trial court denied the section 995 motion, stating: “I think the magistrate’s ruling was supported by substantial evidence. It is not contrary to law and the defendant’s constitutional rights were not violated and the officers acted reasonably.” Thereafter, Huerta entered a plea of no contest to one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and the court dismissed a misdemeanor count alleging unlawful possession of an injection/ingestion device (Health & Saf. Code, § 11364). Imposition of sentence was suspended and Huerta was placed on probation for three years. This appeal followed.
II. DISCUSSION
Huerta argues that his motion to suppress should have been granted because the evidence obtained was the product of an unlawful detention. When the appellant renews his or her suppression arguments in the trial court, which were denied solely on the basis of the evidence presented at the preliminary hearing, we disregard the ruling of the trial court and review the determination of the magistrate. (People v. Laiwa (1983) 34 Cal.3d 711, 718, superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223; People v. Fulkman (1991) 235 Cal.App.3d 555, 560.) We defer to the magistrate’s factual findings, express or implied, when supported by substantial evidence. We then exercise our independent judgment to determine whether, under the facts so found, the search or seizure was reasonable under the Fourth Amendment. (See People v. Weaver (2001) 26 Cal.4th 876, 924.)
The magistrate expressly found that Huerta consented to a search of his car. Substantial evidence supports this finding, and Huerta does not contend otherwise. In fact, Huerta acknowledged that he did so. The question is whether the permission was given during a consensual encounter with police, or whether it instead resulted from the coercive circumstances of a detention.
“The prosecution [bears] the burden of proving some justification for [a] warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.]” (People v. Williams (1999) 20 Cal.4th 119, 136.) Here, the People seek to meet their burden by arguing that Huerta was not detained when he consented to the search of his vehicle. In other words, the People contend that the contact was merely a consensual encounter. Huerta asserts that he was detained by the officers, that there was no reasonable suspicion of any criminal activity to justify the detention, and that his consent to the search of his vehicle was the product of the unlawful detention. Although consent to a search given during a consensual encounter is valid, consent obtained from an illegal detention is usually vitiated. (See, e.g., People v. Valenzuela (1994) 28 Cal.App.4th 817, 833 [“it is axiomatic that a consent to search produced by an illegal arrest or detention is not voluntary”]; People v. Leib (1976) 16 Cal.3d 869, 877.) The threshold issue is then whether Huerta was, or was not, detained and then, if so, whether a detention was justified.
The People do not argue that, if Huerta was in fact detained, Huerta’s consent to search the car was voluntary even if the detention was unlawful. Since they argue that no detention occurred, they do not even attempt to justify the detention. Nevertheless, our inquiry is whether, on the entire record before us, and in the exercise of our independent judgment, the search and seizure was reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Consensual Encounters and Detentions
“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive. First, there are... ‘consensual encounters’ [citation], which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever-i.e., no ‘seizure, ’ however minimal-and which may properly be initiated by police officers even if they lack any ‘objective justification.’ [Citation.] Second, there are what are commonly termed ‘detentions, ’ seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’ [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. [Citation.]” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784; accord, In re Manuel G. (1997) 16 Cal.4th 805, 821.)
“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” (Florida v. Royer (1983) 460 U.S. 491, 497 (Royer); Wilson v. Superior Court, supra, 34 Cal.3d at p. 789.) “[N]o reasonable suspicion is required on the part of the officer” before such contact is initiated. (In re Manuel G., supra, 16 Cal.4th at p. 821.)
An encounter is consensual if, after considering the totality of the circumstances, “a reasonable person would feel free to disregard the police and go about his or her business....” (In re Manuel G., supra, 16 Cal.4th at p. 821; accord, Florida v. Bostick (1991) 501 U.S. 429, 439 [“in 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”]; Michigan v. Chesternut (1988) 486 U.S. 567, 573 [“the police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave’ ”].) “The test’s objective standard-looking to the reasonable man’s interpretation of the conduct in question-allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” (Michigan v. Chesternut, supra, 486 U.S. at p. 574.)
On the other hand, a detention occurs when the police, by physical force or show of authority, have in some way restrained the liberty of a citizen. (Florida v. Bostick, supra, 501 U.S. at p. 434; People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367.) “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.]” (United States v. Mendenhall (1980) 446 U.S. 544, 554 [opn. of Stewart, J. & Rehnquist, J.]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) Other factors include the time and place of the encounter, whether the defendant was informed that he or she was free to leave, whether the police indicated the defendant was suspected of a crime, whether the police retained the defendant’s documents, and whether the police exhibited other threatening behavior. (See, e.g., Wilson v. Superior Court, supra, 34 Cal.3d at p. 790; People v. Garry (2007) 156 Cal.App.4th 1100, 1110–1112; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 (Casteneda); People v. Spicer (1984) 157 Cal.App.3d 213, 218–220.)
1. The Initial Encounter was Consensual
The officers first approached Huerta upon observing his vehicle parked at the side of the road in a rural area late at night. The officers initially did nothing more than investigate to determine if a stranded motorist required assistance, and then inquired why Huerta, the sole occupant of the vehicle, was parked in such an unusual location at that hour. No probable cause or reasonable suspicion was required to initiate this encounter. (Royer, supra, 460 U.S. at p. 497, In re Manuel G., supra, 16 Cal.4th at p. 821.) “An officer has every right to talk to anyone he encounters while regularly performing his duties.” (Castaneda, supra, 35 Cal.App.4th at p. 1227.) A person is not detained simply because an officer approaches him and begins talking to him, and until the officer asserts some restraint on the person’s freedom to move, no detention occurs. (Ibid.) Huerta does not appear to challenge the initial circumstances of this encounter, but argues that a detention occurred “[o]nce the officers’ roadside assistance was no longer needed” and the officers “asked for-and held onto-appellant’s driver’s license.”
2. Was Huerta Detained?
The magistrate did not expressly rule on the issue of whether Huerta was detained. We find this to be a close question, but conclude that, even were we to determine that a detention occurred, the totality of facts would make a detention reasonable.
In determining if a detention occurred, we must decide, based on our independent application of the law to the express and implied findings of fact, whether a reasonable person in Huerta’s position would have felt himself free to leave or otherwise terminate the encounter with the police at the time he did so. (People v. Bailey (1985) 176 Cal.App.3d 402, 406.) The magistrate expressly found Rouse’s testimony to be credible. Accordingly, in making our determination, we accept the People’s evidence and disregard Huerta’s testimony to the extent inconsistent.
Both Huerta and the People focus their arguments on the fact that Rouse retained Huerta’s driver’s license at the time Huerta was asked to consent to the vehicle search. We reject any suggestion that surrender of one’s identification automatically transforms a consensual encounter into a detention. “It is now well established that a mere request for identification does not transmogrify a contact into a Fourth Amendment seizure. [Citation.]” (People v. Cartwright, supra, 72 Cal.App.4th at p. 1370; accord, INS v. Delgado (1984) 466 U.S. 210, 216; People v. Terrell, supra, 69 Cal.App.4th at pp. 1251, 1254; People v. Lopez (1989) 212 Cal.App.3d 289, 290, 292.) However, retention of an identification card by an officer may be a circumstance indicating that “a reasonable person would not have felt free to leave.” (Castaneda, supra, 35 Cal.App.4th at p. 1227.)
In People v. Valenzuela, supra, 28 Cal.App.4th 817, the defendant was detained when an immigration officer, in full uniform, approached the defendant at an agricultural inspection and ordered him to pull his car over to the side of the road for further questioning. (Id. at p. 824.) Because the agent “had no justifiable reason for ordering defendant aside to a secondary inspection area” the court concluded that “[a]ll the evidence seized was obtained as a product of the unlawful detention.” (Id. at p. 830.) The court then went on to consider whether the defendant’s later consent to a search of his vehicle was voluntary. On that point, the court observed: “Here, Agent Hudson, who had identified himself as an immigration officer, ordered defendant to park at the side of the road. Agent Hudson inquired into defendant’s immigration status and, for the purpose of checking that status took away defendant’s green card. The green card appeared to be valid and in order. When it appeared that defendant was in fact legally in the country, then Agent Hudson formed the opinion that defendant’s nervousness must be related to something else, like drug smuggling. Agent Hudson did not return the green card at that point, however; he first obtained defendant’s consent to search the trunk, and to conduct a search by a drug-sniffing dog. Only after Agent Hudson obtained those consents did he return defendant’s green card. [¶] The circumstances were inherently coercive.... Defendant, an alien, could go nowhere while Agent Hudson held his green card. Agent Hudson was withholding the only document that evidenced defendant’s right to be in the United States.” (Id. at p. 832.)
Likewise, in U.S. v. Chavez-Villarreal (5th Cir. 1993) 3 F.3d 124, the Fifth Circuit Court of Appeals did not hold that retention of the defendant’s green card alone caused a consensual encounter to become a detention. (Id. at pp. 126–127.) However, the court considered the agent’s retention of the defendant’s green card as one factor, among others, that indicated that the taint of the illegal detention had not dissipated at the time the agent obtained the defendant’s consent to a vehicle search. (Id. at p. 128.)
These cases make clear that, although an officer’s retention of a defendant’s identification is a factor to be considered in the totality of the circumstances, it is not the sole, dispositive factor.
Huerta also emphasizes that, by the time Rouse asked for Huerta’s consent to search the vehicle, a marked patrol car, with its rear emergency light and a spotlight on, had pulled up behind Huerta’s car, and that two uniformed officers had approached and stood on both sides of Huerta’s car, suggesting that Huerta could not have simply exited the vehicle and walked away. Rouse asked questions that revealed he was suspicious of Huerta, and Rouse had asked for and maintained possession of Huerta’s driver’s license. Huerta was not told that he was free to leave. It is true that neither officer displayed a weapon to Huerta and that Huerta was not handcuffed at the time he consented to the search of his car. The test for whether any particular encounter constitutes a seizure assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation, and considers whether all the surrounding circumstances would have communicated to a reasonable person that the person was not free to terminate the encounter. (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Huerta was asked to exit the vehicle only after he consented to the vehicle search. Thus, the request could not have impacted Huerta’s consent to the vehicle search. (People v. Cartwright, supra, 72 Cal.App.4th at p. 1371.)
Use of a spotlight alone does not necessarily create a detention. (People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [patrol car parked in front of defendant’s car that used high beams and spotlights did not create detention when there was room for defendant’s car to leave]; accord, People v. Franklin (1987) 192 Cal.App.3d 935, 940 [patrol car pulled to the curb behind pedestrian that used spotlight did not create detention].)
There is no evidence that, by pulling in behind Huerta’s vehicle, Rouse made it impossible for Huerta’s car to be driven away. (See People v. Perez, supra, 211 Cal.App.3d at p. 1496 [no detention when police parked in front of a parked car but left room for exit].) However, Huerta informed Rouse that he had run out of gas.
Here, the questions asked by Rouse indicated that, at the very least, he did not believe Huerta’s reasons for being parked along the side of the road, but they did not necessarily indicate that Huerta was suspected of any specific criminal activity. “[Q]uestions of a sufficiently accusatory nature may by themselves be cause to view an encounter as a nonconsensual detention. [Citation.]” (People v. Lopez, supra, 212 Cal.App.3d at p. 292.)
“ ‘While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.’ [Citation.]” (United States v. Drayton (2002) 536 U.S. 194, 206–207.)
As we have previously noted, it is a close question whether, under the totality of the circumstances here, a reasonable person would have believed that he was free to leave. Ultimately, we need not decide whether Huerta was detained at the time that Rouse asked for Huerta’s consent to the vehicle search since we, like the magistrate, conclude that the officer’s conduct was reasonable.
3. Any Detention was Reasonable
Even if we assume Huerta was detained, in considering whether a limited and temporary detention was justified and reasonable, we look to all the circumstances known to Rouse, and “we heed the United States Supreme Court’s admonition that the evidence relied on by police officers to justify the seizure of a person ‘must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’ ” (People v. Souza (1994) 9 Cal.4th 224, 240 (Souza), quoting United States v. Cortez (1981) 449 U.S. 411, 418.) The reasonableness of seizures that are less intrusive than a traditional arrest depends “ ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” (Brown v. Texas (1979) 443 U.S. 47, 50.) It is the reasonableness under all the circumstances of the particular governmental invasion of a citizen’s personal security that is the guiding principle. (Castaneda, supra, 35 Cal.App.4th at p. 1227.) Although the magistrate did not make clear the basis on which it found that Rouse’s actions were reasonable, our responsibility is to independently measure the facts against the constitutional standard of reasonableness. (People v. Daugherty (1996) 50 Cal.App.4th 275, 281 (Daugherty).)
Only about six minutes elapsed between the first consensual contact and Huerta’s arrest.
Rouse found Huerta parked alone in a vehicle in a dark rural area at 1:30 in the morning, and Rouse learned that Huerta was a registered sex offender. The time of night is a pertinent factor in assessing the validity of a detention. (Souza, supra, 9 Cal.4th at p. 241.) Huerta appeared nervous, kept reaching into his pockets, and offered differing explanations for his presence. While he claimed to have run out of gas, he offered no explanation for his failure to have stopped at one of the two gas stations within a quarter of a mile of where his vehicle was found.
Citing U.S. v. Salzano (1998) 158 F.3d 1107, Huerta contends that his nervousness cannot support reasonable suspicion of criminal activity, since nervousness is a common response when confronted by a law enforcement officer. Huerta argues that his various explanations (that he ran out of gas, that he was changing his pants, that he was on his way to see his brother) were not contradictory and provided no basis for suspicion.
Again, however, we look to the totality of the circumstances. Even if there may have been innocent explanations, or if conclusions of innocent activity might be drawn from the facts, a detention is justified if the combination of the circumstances supports a reasonable suspicion of criminal activity. (Daugherty, supra, 50 Cal.App.4th at p. 287.) “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal-to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ ” (In re Tony C. (1978) 21 Cal.3d 888, 894, superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) Here, Rouse could reasonably conclude on the facts before him that Huerta was dissembling about the reason for his presence in that unusual location at that unusual time, and that further investigation into his true purpose was required.
We need only ask “[W]ould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” (Terry v. Ohio (1968) 392 U.S. 1, 21–22.) If the circumstances are consistent with criminal activity, “they permit-even demand-an investigation: the public rightfully expects a police officer to inquire into such circumstances ‘in the proper discharge of the officer’s duties.’ [Citation.]” (In re Tony C., supra, 21 Cal.3d at p. 894.)
Applying the standard test of reasonableness, we conclude the magistrate was correct. Like the magistrate, we find the actions of the police officer to be reasonable under these facts, and we hold that the motion to suppress was properly denied.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, Acting P. J.Needham, J.