Opinion
F061467 Super. Ct. No. F09903358
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. VICKY IBARRA, Defendant and Appellant.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Vicky Ibarra, of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)).
On December 3, 2010, the court placed Ibarra on probation for three years on the condition she serve 180 days local time with all but 45 days suspended.
On appeal, Ibarra contends the court erred when it denied her motion to suppress. Ibarra also asks this court to review the record in connection with her Pitchess motion. We will conduct the requested review and affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2009, Fresno Police arrested Ibarra during a traffic stop after searching a wallet in her purse and finding a baggy containing methamphetamine. During a search of her person incident to the arrest, the officers found a cell phone, a portable digital scale, and a cigarette case containing individual baggies of methamphetamine.
On July 7, 2009, the district attorney filed an information charging Ibarra with possession for sale of methamphetamine (count 1/Health & Saf. Code, § 11378) and transportation of methamphetamine (count 2).
On December 31, 2009, Ibarra filed a Pitchess motion requesting the court to review the personnel records of Fresno Police Officers Kenneth Webb and Jeffrey Logue, the two officers involved in her arrest.
On February 9, 2010, the court granted the motion as to Officer Webb and, after conducting an in camera hearing on the motion, found that there was no discoverable information.
On April 30, 2010, Ibarra filed a motion to suppress.
On May 13, 2010, following an evidentiary hearing, the court denied Ibarra's suppression motion.
On October 25, 2010, the jury returned a guilty verdict on the transportation charge and the court declared a mistrial on the possession for sale charge after the jury deadlocked on the charge. After the court ruled that the transportation was for sales, the district attorney dismissed the possession for sale charge.
THE SUPRESSION HEARING
At the hearing on Ibarra's suppression motion, Officer Webb testified that on June 8, 2009, at approximately 12:13 a.m., he was on patrol with Officer Logue when he saw a Nissan being driven with a headlight out. Officer Webb made a U-turn and initiated a traffic stop. When the Nissan pulled over, Officer Webb contacted Ibarra, the driver, and Officer Logue contacted the passenger, who was on parole. While Officer Webb checked Ibarra's license and vehicle registration, Officer Logue had the passenger exit the car and conducted a parole compliance check. Officer Webb advised Ibarra that they were going to conduct a parole search of her car and asked her to exit it for safety purposes. Ibarra was not free to leave at that time.
After Ibarra exited the car holding her purse, Officer Webb asked her what was in the car. Ibarra responded that she was not in possession of anything illegal. Webb asked to search Ibarra's purse and told her that he was asking to search for weapons or anything illegal. Ibarra replied, "Go ahead, yes." Ibarra asked Webb why he wanted to search her purse and he reiterated that he wanted to search it for weapons and anything illegal. After Ibarra told him she had a knife in her purse, Webb again asked Ibarra if he could search her purse and Ibarra replied, "Okay." Ibarra did not place any limitations on the search and no weapons were drawn when Ibarra consented to it.
Webb searched the purse and found a knife and a large wallet containing a baggie of methamphetamine. Webb then placed Ibarra under arrest. When he searched her incident to the arrest, he found the other items previously noted.
DISCUSSSION
The Suppression Motion
A. Ibarra's Consent to Search was Voluntary
Officer Webb testified that Ibarra consented twice to a search of her purse. Ibarra, however, cites the following circumstances to contend that her consent was not voluntary under a totality of the circumstances: 1) Officer Webb did not indicate by words or conduct that Ibarra could withhold her consent to search; 2) Ibarra consented while detained outside her vehicle after midnight when few people would have been around; 3) when she consented, the officers had already conducted a parole search of her car based on her passenger's parole status; 4) Ibarra was not given any Miranda warning prior to consenting; and 5) she did not have a motive to consent to a search of her purse. Thus, according to Ibarra, the court erred when it denied her motion to suppress. We will find that Ibarra's consent was voluntary.
Miranda v. Arizona (1966) 384 U.S. 436.
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"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. 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." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
"'[T]he question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.' [Citation.] 'The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, "The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings-whether express or implied-must be upheld if supported by substantial evidence." [Citations.]' [Citation.]" (People v. Williams (2007) 156 Cal.App.4th 949, 961.)
Since Ibarra was detained and not in custody when she consented to a search of her purse, Officer Webb was not required to give her any Miranda warnings. In any event, advice as to Miranda rights is not a prerequisite to a voluntary consent to search. (People v. Thomas (1970) 12 Cal.App.3d 1102, 1108-1112.) Further, although Officer Webb exerted authority over Ibarra when he detained Ibarra and informed her that he was going to conduct a parole search of her car, Ibarra was not handcuffed, neither officer had their gun drawn, and only one officer actually approached Ibarra. Additionally, the officer's failure to explicitly tell Ibarra that she could refuse consent was not inherently coercive because '"[t]he mere asking of permission to ... make a search carries with it the implication that the person can withhold permission for such an entry or search. [Citations.]" (People v. James (1977) 19 Cal.3d 99, 116 (James).)And, although the detention occurred at a late hour and the record is silent on how heavy the vehicle and pedestrian traffic were at that time, it is clear that the detention occurred in public view, which minimized the inherent coerciveness of being detained. As noted by the Supreme Court in Berkemer v. McCarty (1984) 468 U.S. 420, "Th[e] exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability." (Id. at pp. 438-439, italics added.)
Moreover, the fact that Ibarra did not have a motive to consent to a search is of little import. "[T]here may be a number of 'rational reasons' for a suspect to consent to a search even though he knows the premises contain evidence that can be used against him: for example, he may wish to appear cooperative in order to throw the police off the scent or at least to lull them into conducting a superficial search; he may believe the evidence is of such a nature or in such a location that it is likely to be overlooked; he may be persuaded that if the evidence is nevertheless discovered he will be successful in explaining its presence or denying any knowledge of it; he may intend to lay the groundwork for ingratiating himself with the prosecuting authorities or the courts; or he may simply be convinced that the game is up and further dissembling is futile. Whether these or any other reasons motivated defendant in the case at bar was at most a matter for the trial court to consider in weighing this factor with all the others bearing on the issue of voluntariness." (James, supra, 19 Cal.3d at p. 114.) Accordingly, we conclude that Ibarra's consent to search her purse was voluntary. (Cf. Id. at pp. 110, 114-115 [defendant's consent to search his house held voluntary even though it was given after four armed police officers appeared at defendant's house at 10:00 p.m. and directed him outside where they arrested and handcuffed him and defendant was not given Miranda warnings or admonished that he could refuse consent].)
B. The Search did not Exceed the Scope of Ibarra's Consent
Alternatively, Ibarra contends that even if her consent was voluntary, the court should have granted her suppression motion because the search of the wallet where the methamphetamine was found exceeded the scope of her consent. We disagree.
In obtaining Ibarra's consent to search her purse, Officer Webb advised her that he intended to search for weapons and anything illegal and Ibarra consented to the search without placing any limitations on it. Once voluntary consent to search the purse without limitation was given by Ibarra, the officers were authorized to search all of the compartments and containers within the purse. (People v. Shandloff (1985) 170 Cal.App.3d 372, 384.) Accordingly, we conclude that the court did not err when it denied Ibarra's motion to suppress.
The Pitchess Review
On appeal, Ibarra asks this court to review the trial court's ruling on her Pitchess motion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228- 1229; Pen. Code, §§ 832.5, 832.7; Evid. Code, §§ 1043, 1045.) Respondent has no opposition to appellant's request.
Having reviewed the reporter's transcript of the in camera proceedings held on February 9, 2010, pertaining to Ibarra's Pitchess motion, we find no abuse of the trial court's discretion. (See People v. Jordan (2003) 108 Cal.App.4th 349, 367-368.)
DISPOSITION
The judgment is affirmed.