Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge., Super. Ct. No. SCS202552.
HUFFMAN, Acting P. J.
Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), Kambiz Izadseta entered a negotiated guilty plea to possessing a controlled substance while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)). The court imposed a stipulated two-year lower term prison sentence. Izadseta appeals the denial of his suppression motion, contending his detention was not justified, vitiating any consent to a search. We affirm.
BACKGROUND
At approximately 7:40 p.m. on May 27, 2006, Chula Vista police officer Christopher Fisher was patrolling a Motel 6 parking lot as part of the Safe Neighborhood project. The purpose of the project was to look for violent offenders, gang members and narcotics users in the area. Fisher had previously found stolen cars in the motel parking lot.
As Fisher drove through the parking lot, he saw a white Nissan Maxima with one door open. The car was parked at an angle, across two parking spaces. To Fisher, this indicated the car had been parked quickly, possibly to avoid police contact or because the car was stolen. A man was in the driver's seat and appeared to be "messing with something" on the Maxima's ceiling. This seemed strange to Fisher, in light of the number of vehicle thefts and burglaries in the area.
Fisher later determined the "something" was the controls for the sunroof.
Fisher drove slowly past the Maxima and stopped his patrol car approximately one and one-half to two parking spaces away. The position of Fisher's patrol car did not prevent the Maxima from being backed out of its space, but due to the narrowness of the lane, it did prevent the Maxima from then proceeding forward.
Fisher turned around in the driver's seat and watched the man in the Maxima for approximately two minutes. The man was still fumbling with something on the Maxima's ceiling. Fisher decided he should contact the man and find out what he was doing.
Fisher approached the Maxima. Izadseta, who had been sitting in the driver's seat, was just getting out of the car. No one else was nearby. Fisher asked Izadseta if the car belonged to him. Izadseta said yes. Fisher asked Izadseta for his identification. Izadseta retrieved a California identification card from the Maxima and handed it to Fisher. Fisher handed the identification card to Agent Brown, who had just arrived, and Brown began a records check. Brown did not pull in behind the Maxima, but stopped his vehicle at an angle to it.
The records check revealed Izadseta was on probation. Fisher asked Izadseta the nature of the underlying offense, and Izadseta said it was possession of methamphetamine.
Because Izadseta had been sitting in the car, Fisher asked if he had a driver's license. Izadseta said he did not have one with him. Fisher asked Izadseta if he were on probation or parole. Izadseta said he had been discharged from probation. Fisher asked Izadseta if he had anything illegal in his possession or in the car. Izadseta said "No."
Izadseta behaved nervously, shifting his feet, avoiding eye contact and looking down when Fisher asked him questions. This made Fisher nervous, as he did not know whether Izadseta had a weapon. It also led Fisher to believe that Izadseta was lying and wanted to run. For his own safety and that of his partner, Fisher believed he needed to conduct a pat down for weapons. Fisher told Izadseta he was going to pat him down.
Fisher started to pat Izadseta down, beginning at the waistline, and twice asked for permission to conduct a search of his person or vehicle. Izadseta did not respond. He eventually consented to a search of the car, but was very hesitant to let Fisher search his person.
While he was feeling Izadseta's waistline, Fisher asked, "Do you have anything illegal in your pockets"? Izadseta said, "No." As Fisher patted down Izadseta's pocket, he felt an object resembling a .35 millimeter film case. Fisher asked, "Can I check"? Izadseta said, "Yes," "I don't care," "Go ahead," or something similar. Fisher reached in the pocket and found a translucent .35 millimeter film case, which he could see contained an off-white crystal-like substance. He handcuffed Izadseta and opened the film case. Based on his training and experience, Fisher recognized the substance in the case as methamphetamine.
Using his flashlight, Fisher looked in the Maxima. He saw three .357 caliber bullets in the front of the car, on the driver's side floorboard. When he reached for the bullets, he saw a cloth bag under the driver's seat. He pulled it out and felt the weight of a gun in the bag. He opened the bag and found more bullets and a loaded .357 revolver that appeared to be operable. The bullets in the bag and in the revolver's chamber were identical to those on the floor.
At the hearing on the suppression motion, Izadseta testified that Fisher's patrol car blocked his car. Fisher stood right by him, and he did not feel free to leave. Fisher did not ask for permission to search his car or his person or pat him down, and Izadseta did not consent.
DISCUSSION
Izadseta contends Fisher lacked specific and articulable reasons to believe he was involved in criminal activity when Fisher saw him closing his car's sunroof; the patdown was unjustified because Fisher lacked any reasonable belief that Izadseta was armed; and the unlawful detention and patdown vitiated the consent to search the pocket.
The appellate court reviewing the denial of a suppression motion must uphold all express and implied factual findings of the trial court if substantial evidence supports them, and independently measure them against the proper constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) Thus, we must view the facts in the light most favorable to respondent. (People v. Berkeley (1978) 88 Cal.App.3d 457, 459, fn. 1.)
An encounter with a police officer becomes a detention when a reasonable person would believe he or she is not free to leave. (U.S. v. Mendenhall (1980) 446 U.S. 544, 554-555.) "[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, [and] by putting questions to him if the person is willing to listen . . . ." (Florida v. Royer (1983) 460 U.S. 491, 497.) Here, the position of Fisher's patrol car did not turn the encounter into a detention. There was no indication Izadseta was making any effort to leave in the Maxima. Indeed, he was getting out of the Maxima as Fisher approached. Thus, at the time Fisher contacted Izadseta and began asking questions, there was no detention.
Even if there was a detention, it was justified in light of the totality of the circumstances: the hour, the area and Izadseta's actions. (Cf. People v. Souza (1994) 9 Cal.4th 224, 240-242.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (Id. at p. 231.) Circumstances that would not seem suspicious to a layperson might seem so to a police officer. (U.S. v. Cortez (1981) 449 U.S. 411, 418.) Fisher observed Izadseta at night, in a high-crime area. Izadseta was in a car parked across two spaces, fumbling with something on the ceiling. He had no driver's license in his possession although he had been sitting in the driver's seat and said the car was his. He exhibited signs of extreme nervousness, and Fisher believed he wanted to run. All of these facts reasonably aroused Fisher's suspicions.
Fisher had been a police officer for more than four years.
The above facts also led Fisher to be justifiably concerned for his own safety and that of his partner, and properly led him to pat Izadseta down for weapons. A patdown is justified when the officer reasonably believes, based on specific inferences in light of his experience, that the detainee is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 27.)
During the patdown, Izadseta voluntarily consented to the search of his pocket. His appellate challenge to the legality of this search is based on his premise that the detention and patdown were illegal. As discussed above, this premise is erroneous. The search of Izadseta's pocket yielded the methamphetamine and justified all of Fisher's ensuing actions.
The trial court disbelieved Izadseta's testimony that he did not consent.
The trial court did not err by denying the suppression motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., AARON, J.