Opinion
C042703.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. LOVIE JAMES, Defendant and Appellant.
Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant Lovie James pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted one prior strike under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to state prison for an aggregate term of four years, eight months.
On appeal, defendant claims the trial court erred by denying his motion to suppress evidence, which he claims was discovered in an unlawful search following an unlawfully prolonged detention. Having concluded that the trial court did not err in denying defendants motion, we shall affirm the judgment.
FACTS
The relevant facts are taken from the hearing on the motion to suppress. Deputy Sheriff Donald Black of the Sacramento County Sheriffs Department was the sole witness for the People. Although defendant and his wife (who was not present during the police encounter) also testified, the trial court credited Blacks testimony. Viewed in the light most favorable to the courts decision (People v. Miranda (1993) 17 Cal.App.4th 917, 922), the record reveals the following facts.
On October 25, 1998, at approximately 1:00 a.m., Deputy Black was on duty as part of a canine detail assigned to assist a team of officers who were conducting surveillance nearby. Black, another officer, and their dog were at an intersection. Officers in the surveillance team were watching a house on a nearby street that was not visible from Blacks location. They suspected the house was being used to sell rock cocaine. Black explained: "[T]his started several weeks before this actual date. A lot of it was based on activity that was observed by them on previous occasions as well as complaints from neighbors in the neighborhood, and once we tried to pretty much focus our efforts on the particular problem this house is where we realized most of the activity was coming from." The area was plagued by drug activity, shootings, and gang activity.
The surveillance team notified Deputy Black by radio that they observed a Black male adult in dark clothing on a mountain bicycle ride into the driveway of the house, disappear from sight, and then ride away. No more than 10 seconds later, Deputy Black saw defendant riding a bicycle. Defendant matched the general description Black had been given by the surveillance team. Defendant was riding without any lights, which is a Vehicle Code violation. (See Veh. Code, § 21201, subds. (d)-(e).) When he stopped in the parking lot of a gas station and convenience store, Black activated the lights of his police vehicle and stopped defendant for the Vehicle Code violation. Black did not draw his gun when he stopped defendant.
Deputy Black did not immediately begin to write a citation, but instead asked a few questions. Black explained that he did not normally write a citation until the contact was completed but that a citation "could be [the] ultimate outcome to the contact." Black asked if defendant had any identification, and defendant said he did not. Black asked if defendant was on probation or parole, and defendant said he was not. Black also asked if defendant had weapons or drugs, and defendant said he did not.
Deputy Black subsequently asked if he could search defendant, and defendant agreed. Approximately one minute had elapsed from the time Black contacted defendant until the search. As a result of the search, Black discovered a small piece of rock cocaine.
Trial Courts Ruling
The trial court found the initial detention was lawful based on the Vehicle Code violation and that the length of the detention was reasonable. The court concluded, "The amount of time that the defendant was detained based on the officers testimony was approximately one minute. . . . That officer did get consent to search his person. This temporary detention did not exceede [sic] the time it would have taken the officer to discharge his duties with respect to the reasons for the traffic stop, that being writing a citation for the traffic stop."
The court also found there was reasonable suspicion that defendant was involved in criminal activity relating to the drug investigation. The court emphasized the totality of the circumstances, including the investigation, the officers observations of the suspect who approached the house, and the fact that it was in an area of heavy drug activity. The court concluded, "[T]he officer therefore had an additional reason to briefly detain the defendant and ask him questions, and again I find that the length of that detention was not unreasonable and based upon the reasons I have set forth and the consent given by the defendant regardless of either of those two justifications for the detention Im going to deny the defendants [sic] motion to suppress . . . ."
DISCUSSION
"Generally, in reviewing a determination on a motion to suppress, we defer to the trial courts factual findings which are supported by substantial evidence and independently determine whether the facts of the challenged search and seizure conform to the constitutional standard of reasonableness." (People v. Downing (1995) 33 Cal.App.4th 1641, 1650.)
As reflected by the issue heading in his brief, defendant focuses his appellate argument on the detention itself, and he claims it was unreasonably prolonged. However, in the body of his argument defendant also suggests that he did not voluntarily consent to a search. Neither of defendants claims is persuasive.
A. Prolonged Detention
Ordinarily, "`an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." (People v. Gorak (1987) 196 Cal.App.3d 1032, 1037; accord, People v. McGaughran (1979) 25 Cal.3d 577, 584 (lead opn. of Mosk, J.); People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Police activities unrelated to the purpose of a detention, such as warrant checks or questioning on unrelated matters, may be conducted provided they do not prolong the detention beyond the time it would otherwise take. (People v. Brown, supra, at p. 498; People v. Bell (1996) 43 Cal.App.4th 754, 767-768.) A detention may be extended beyond the parameters of the initial stop if permissible questioning, or the officers observations, lead to the discovery of other evidence or information. (Cf. People v. Webster (1991) 54 Cal.3d 411, 430-432.) The police must be able to "`graduate their responses to the demands of any particular situation." (United States v. Sharpe (1985) 470 U.S. 675, 686.)
Here, defendant claims the officer improperly questioned him about matters beyond the essential information needed to issue a citation for the Vehicle Code violation. In this respect, defendant disputes the trial courts conclusion that Black could have also detained him based on suspicion of criminal activity involving the narcotics surveillance. Under the circumstances, it is unnecessary to decide whether Deputy Black could have stopped defendant in the absence of the Vehicle Code violation. The violation justified the stop, and the detention was not unreasonably prolonged.
Deputy Black was entitled to ask defendant a few preliminary questions in determining how to proceed. Black initially asked if defendant had identification, which was a predicate to the possible issuance of a citation. (See People v. McKay (2002) 27 Cal.4th 601, 620-621, 625; Veh. Code, § 40302.) "[T]he need to obtain reliable evidence of identification and ensure compliance with a promise to appear is equally great for a bicyclist as for a driver of a motorized vehicle. Although only the latter is obligated to have a license in his or her possession at all times while driving on the road ([Veh. Code,] § 12951, subd. (a)), both are required to produce satisfactory evidence of identity for examination when stopped for a violation of the law." (People v. McKay, supra, at p. 625.)
Deputy Black could have effected a full custodial arrest of defendant for the Vehicle Code violation based on defendants failure to produce identification. (See People v. McKay, supra, 27 Cal.4th 601, 619-620, 625; Veh. Code, § 40302.) And though defendant points out that Black did not do so, the officers discretion to prolong the detention for further investigation was not circumscribed by his authority to arrest. In the similar context of a vehicle stop where the driver does not produce proof of identity, case law recognizes that "the officer may expand the scope of the detention, depending on the circumstances." (People v. Valencia (1993) 20 Cal.App.4th 906, 918; accord, People v. Grant (1990) 217 Cal.App.3d 1451, 1459.) This is consistent with the general principle that police may respond to the demands of the particular situation. (See United States v. Sharpe, supra, 470 U.S. 675, 686.)
In this case, Black asked a couple of additional, reasonable questions before requesting consent to conduct a search, which could have revealed that defendant did in fact have some type of identification. Black sought to ascertain whether defendant was on parole or probation, which might have authorized a search or provided another means of verifying defendants identity. (See generally People v. McKay, supra, 27 Cal.4th 601, 622-625 [police have discretion to consider non-documentary evidence of identity].) It was likewise reasonable to ascertain verbally that defendant did not have weapons or contraband before requesting consent to search, given the attendant circumstances of the police encounter. Moreover, Black did not question defendant at length; consent to search was obtained within one minute of contacting defendant. Under the circumstances, Black acted within the scope of the detention.
In so holding, we reiterate that Black had discretion whether to issue a citation. In determining how best to proceed, he was entitled to take into consideration all of the facts, including the suspicious circumstances under which defendant was observed riding his bicycle at night without lights and purportedly without identification. In short, Blacks actions were "objectively reasonable and justified by the specific facts and circumstances confronting [him]." (People v. Miranda, supra, 17 Cal.App.4th 917, 928.)
B. Consent
Whether consent is voluntary or coerced is a question of fact to be determined from the totality of the circumstances. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) Courts have identified many factors that may be relevant, including: (1) whether the consenting person was in custody and whether Miranda warnings were given; (2) whether the officer or officers have weapons drawn; (3) whether the officer(s) informed the person of the right to refuse consent; (4) whether the person was told a search warrant could be obtained; (5) whether consent was obtained while the person was confronted by many officers; (6) whether the consenting person experienced a significant interruption of his or her liberty; and (7) whether the officer(s) used deceptive practices to obtain consent. (See People v. Ledesma (1987) 43 Cal.3d 171, 233-234); United States v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1112; People v. Avalos (1996) 47 Cal.App.4th 1569, 1578.) But, "no single factor is dispositive of this factually intensive inquiry." (People v. Avalos, supra, 47 Cal.App.4th at p. 1578.)
Here, defendant complains that he was detained and not advised of his right not to consent to the search. He further emphasizes that his own testimony indicates he did not consent even though Black testified he consented. He concludes, "It is inherently incredible, however, that [defendant], knowing that he was in possession of contraband, would have consented to a search of his person."
The attendant circumstances support the trial courts finding that defendant consented. He was detained for a brief time, and it does not appear Deputy Black threatened, deceived, or restrained him to induce him to consent to a search. "[N]either the lack of Miranda warnings nor the failure of police officers to inform [a suspect] of his right to refuse can invalidate an otherwise facially voluntary consent . . . ." (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1559; accord, United States v. Drayton (2002) 536 U.S. 194, 206 ["The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search"].) Moreover, there is nothing inherently implausible or impossible in Blacks testimony that defendant agreed to the search. Defendants suggestion to the contrary is based on speculative inferences the trial court was not required to indulge, given its own observations of the witnesses. Odd as it may seem, defendants who possess contraband frequently consent to searches by police officers.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., and KOLKEY, J. --------------- Notes: Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).