Opinion
F041047.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JEREMY RICHARD JOHNSTON, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
By information, Jeremy Richard Johnston (defendant) was charged with possession for sale of methamphetamine (count 1; Health & Saf. Code, § 11378); being a felon in possession of ammunition (count 2; Pen. Code, § 12316, subd. (b)(1)); possession of marijuana (count 3; Health & Saf. Code, § 11357 , subd. (b)); possession of drug paraphernalia (count 4; Health & Saf. Code, § 11364); and false representation of identity to a peace officer (count 5; § 148.9, subd. (a)). It was further alleged in counts 1 and 2 that defendant had a prior strike conviction pursuant to section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e), and served five prior prison terms within the meaning of section 667.5, subdivision (b). Defendant pled not guilty to all counts and denied the allegations.
After the court denied his motion to suppress evidence, defendant pled no contest to possession of ammunition and admitted one section 667.5, subdivision (b), allegation. The remaining counts were dismissed and the remaining allegations were dismissed or stricken. Defendant was sentenced to three years.
Defendant appeals, contending the trial court erred in denying his motion to suppress evidence. We find no error and affirm the judgment.
FACTUAL HISTORY
Since defendant pled no contest, we briefly summarize the facts as provided in the probation officers report:
"On April 11, 2002, at approximately 4:36 p.m., officers from the California Multi-Jurisdictional Methamphetamine Enforcement Team responded to a residence ... to serve a search warrant. The subject of the residence where the search warrant was to be conducted was seen walking from a neighboring residence. Officers responded to the neighboring residence to investigate.
"Officers contacted ... [defendant] and Angel Anderson and asked them why the neighbor was at his residence. [Defendant] stated his neighbor was inflating a tire on a trailer. The officer asked [defendant] if he had any drugs or weapons on him, he stated he did not, and gave the officer consent to search his person. During the search, officers located, in his pocket, $ 1138.00 in United States currency. During questioning of [defendant], officers discovered he provided inaccurate statements. Officers felt [defendant] provided false information to conceal his identity and placed him under arrest.
"After his arrest, [defendant] informed the officer of his true identity and stated he did not tell the truth because he was on parole and was a parolee at large. The officers asked him if there was any illegal contraband or weapons inside the residence. [Defendant] stated it was not his residence, it belonged to his girlfriend.
"Officers contacted Angel Anderson ... [P] Officers asked Anderson if she would consent for [them] to search the residence, she responded, Id rather you didnt. Officers explained to her, [defendant] was on parole and subject to search and they were going to perform a parole search. During the search of the residence, officers located suspected marijuana, digital scales, a small gram scale, and a locked safe.
"Officers asked [defendant] what was in the safe, he stated, his identification was in the safe. [Defendant] opened the safe for the officers. Inside the safe, officers located [defendants] wallet which contained his identification, items consistent with packaging materials, a box of 50 loaded .22-caliber cartridges, two syringes with needles, and $ 125.00 in United States currency."
DISCUSSION
Defendant argues that his Fourth Amendment rights were violated when he was illegally detained and searched by police, and the court therefore erred in denying his motion to suppress evidence pursuant to section 1538.5. The standard of appellate review for a ruling on a motion to suppress is well established. We defer to the courts factual findings, express or implied, where supported by substantial evidence. We exercise our independent judgment, based on the facts as found, to resolve the question of law of whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362, 902 P.2d 729; People v. Brown (1998) 62 Cal.App.4th 493, 496.) In evaluating the reasonableness of a challenged search, we look to the totality of the circumstances. (People v. Souza (1994) 9 Cal.4th 224, 230-231, 885 P.2d 982.)
I. The suppression hearing
The following facts are taken from the suppression hearing. On April 11, 2002, the California Multi-jurisdictional Methamphetamine Enforcement Team went to execute a search warrant for Kevin Mulikin and his residence at 1305 Monache. The purpose of the warrant was to investigate narcotic sales. Deputy Tim Caughron noticed defendant walking alongside his residence at 1303 Monache. Caughron ordered defendant to move away from 1305 Monache for his own safety.
Officer Jamie Montellano observed Mulikin leaving 1303 Monache and went over to investigate. Believing Mulikin may have left contraband at defendants residence, Montellano spoke to defendant in his front yard. According to Montellano, defendant consented to an unrestricted search of his person. However, defendant testified that Montellano asked permission to search him for weapons only. Caughron searched defendant approximately one minute later. Defendant claimed that Montellano did not ask him whether another officer could search him.
During his search of defendant, Caughron found a large sum of money and a two-way radio. When Caughron asked for defendants name, he stated it was "Jerod Johnson" and volunteered he had been discharged from parole. Defendant further volunteered a date of birth, a Social Security number and a California Department of Corrections (CDC) number. Caughron stepped away from defendant to the far side of the sidewalk and contacted the CDC to confirm the information. Defendant was not restrained in any way. Defendant claimed he felt he could not leave his yard because Caughron had told him to stay there. The CDC advised Caughron that it had no records for the information defendant provided.
Caughron asked defendant about the discrepancy, and defendant responded that Caughron had incorrectly written the information down. Defendant advised Caughron his name was "Jerod Johnston" and supplied a date of birth and the name of his alleged parole officer. Caughron again contacted the CDC, and the CDC advised him that there was a record for the name and date of birth defendant provided, but the parole officer did not match the information defendant provided. Caughron confronted defendant with his belief that he was attempting to conceal his identity.
Caughron arrested defendant, and defendant confessed his true name. Defendant volunteered that he was on parole and was a parolee at large with an outstanding warrant. Based on that information, Caughron searched defendants residence and vehicle.
II. Legality of the detention
Defendant maintains he was detained almost immediately after law enforcement officers made contact with him and that the detention was illegal. The record does not support defendants contention.
In In re Manuel G. (1997) 16 Cal.4th 805, 821, 941 P.2d 880, the California Supreme Court articulated the law pertaining to police contacts with individuals:
"Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.]
"The United States Supreme Court has made it clear that 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 and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. [Citations.] 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. [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officers 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 officers request might be compelled. [Citations.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred."
Here, there was no evidence adduced at the suppression hearing to suggest that defendants initial encounter with law enforcement was anything other than consensual. Montellano spoke with defendant in connection with her investigation of Mulikins activities. Defendant willingly answered Montellanos questions and consented to a search of his person. At no time did he ever withdraw that consent. Defendant also volunteered he had been discharged from parole and provided Caughron with his purported date of birth, Social Security number and CDC number. Neither Montellano nor Caughron, by their words or conduct, exercised any authority over defendant.
Once Caughron searched defendant and defendant gave the officer false information, Caughron had reasonable suspicion to detain defendant based on specific and articulable facts. "The temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on some objective manifestation that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]" (People v. Souza, supra, 9 Cal.4th at p. 230.) Defendant possessed large sums of United States currency and was unable to provide Caughron with an accurate name, date of birth, Social Security number, CDC number or parole officer name. Defendants possession of a large sum of money and attempt to conceal his identity gave Caughron reasonable suspicion that defendant was involved in criminal activity.
In short, we find no Fourth Amendment violation.
DISPOSITION
The judgment is affirmed. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.