Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F01325
ROBIE, J.
Defendant Richard Brian Jones pled no contest to one count of unlawful possession of a controlled substance. The court placed him on probation for three years. On appeal, defendant contends the trial court erred in denying his motion to suppress. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2008, defendant was walking down Fair Oaks Boulevard. Sacramento County Sheriff’s Deputy Taizo Takahashi was patrolling along with Deputy Jose Lemus. The uniformed deputies were in a marked car and carrying firearms. The deputies were in a parking lot along Fair Oaks Boulevard. Deputy Takahashi saw defendant walking and got out of the patrol car to contact him. Takahashi asked defendant if he was on parole or probation, and defendant said he “was not.” Takahashi asked defendant for identification, which defendant produced and gave to Takahashi. Takahashi took the identification and gave it to Deputy Lemus. Lemus ran a records check, which revealed an outstanding warrant. After the outstanding warrant was discovered, defendant was placed in handcuffs and searched. The search revealed a bag containing methamphetamine. During the encounter the deputies did not have the police lights activated on the cruiser.
Defense counsel moved to suppress the methamphetamine, contending it was the result of an illegal search and seizure. The trial court denied the motion, finding that the initial contact with defendant was a consensual encounter and the search was incident to an arrest.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress. Defendant asserts two alternative grounds for the error. First, defendant argues he did not consent to the police encounter, but was submitting to a show of authority. Second, defendant argues that even if he consented to the encounter, he was still unlawfully seized when Deputy Takahashi gave defendant’s identification to Deputy Lemus to run a records check.
I
Legal Standard
“[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” (Terry v. Ohio (1968) 392 U.S. 1, 16 [20 L.Ed.2d 889, 903].) “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [Citation], the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398].) “[M]ere police questioning does not constitute a seizure.” (Ibid.)
“[I]n 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.” (Florida v. Bostick, supra, 501 U.S. at p. 439 [115 L.Ed.2d at pp. 401-402].)
The test of whether a seizure has taken place is “an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” (California v. Hodari D. (1991) 499 U.S. 621, 628 [113 L.Ed.2d 690, 698].) “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.” (United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509].)
II
Defendant Consented To The Police Encounter
Defendant contends he did not consent to the encounter with Deputy Takahashi; therefore, any subsequent search and seizure violated the Fourth Amendment. In his view he was merely submitting to a show of police authority because any refusal to comply would have been a violation of Penal Code section 148, thus creating an atmosphere that vitiated his ability to give consent. Claiming the facts created a “coercive” atmosphere, defendant argues the police were required to inform him that he was free to refuse any police request. We disagree.
All further statutory references are to the Penal Code unless otherwise indicated.
Penal Code section 148 provides as follows: “(a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
The Supreme Court has rejected adopting a per se rule that would require officers to inform a person he or she is free to withhold consent. (Ohio v. Robinette (1996) 519 U.S. 33, 39-40 [136 L.Ed.2d 347, 354-355].) The court has stated that “[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search . . . provided they do not induce cooperation by coercive means.” (United States v. Drayton (2002) 536 U.S. 194, 201 [153 L.Ed.2d 242, 251].) “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” (INS v. Delgado (1984) 466 U.S. 210, 216 [80 L.Ed.2d 247, 255].)
Defendant’s reliance on Brown v. Texas (1979) 443 U.S. 47 [61 L.Ed.2d 357] for the proposition that section 148 takes away his ability to give consent is misplaced. In Brown, El Paso Police Officers detained the defendant and ultimately arrested him pursuant to a Texas statute making it a crime to not identify oneself when requested by law enforcement. (Id. at pp. 48-49 [61 L.Ed.2d at pp. 360-361].) The court stated that police cannot stop and demand identification absent a specific basis for believing the subject is engaged in criminal activity. (Id. at p. 52 [61 L.Ed.2d at pp. 362-363].) The present case is readily distinguishable. Here, Deputy Takahashi did not demand that defendant identify himself or turn over any identification. Deputy Takahashi posed questions to defendant but at no point demanded that he answer them. Defendant answered Takahashi’s questions and turned over his identification of his own volition.
The Penal Code provision at issue here does not require a citizen to answer every question an officer poses. Rather, section 148 punishes a person who “willfully resists, delays, or obstructs” an officer in the discharge of his or her duty. Here, Takahashi approached defendant and posed questions that defendant voluntarily answered. If defendant had refused to answer, there is nothing to suggest he would have been resisting, delaying, or obstructing Takahashi’s discharge of his duty. Rather, defendant would have been exercising his constitutional right to terminate a consensual police encounter. Therefore, section 148 does not require a citizen to answer every question and comply with every request posed by police officers; and, as the People note, a person can pose a question to law enforcement in order to clarify if he or she is required by law to comply with the police officer.
We also disagree with defendant that, irrespective of section 148, he was merely submitting to a show of police authority, because the facts do not support this assertion. The vehicle warning lights were not on, neither officer brandished a firearm, and Deputy Takahashi did not speak to defendant in an authoritative way. This conduct cannot be characterized as a show of authority sufficient to support the conclusion that defendant did not freely consent to the encounter. Rather, a sheriff deputy walked up to defendant and asked him a few questions, which he answered. These facts do not suggest a coercive atmosphere.
Because defendant was not coerced by the deputies to consent and did not give consent due to a show of authority, we reject defendant’s argument that he did not consent to the encounter.
III
Defendant Was Not Seized When The Deputies Took His Identification And Ran A Warrants Check
Defendant argues that he was unlawfully seized when Deputy Takahashi took his identification from him and subsequently gave it to Deputy Lemus to run a warrants check. We disagree.
Defendant correctly notes that a “police officer, like any other citizen may legally approach an individual on the street and, with no probable cause or legal justification whatsoever, ask that person a question or even ask to see that person’s driver’s license.” Defendant contends, however, that once Deputy Takahashi gave the identification to Deputy Lemus, no reasonable person would have felt free to leave and as a result he was unlawfully detained.
Defendant relies heavily on People v. Castaneda (1995) 35 Cal.App.4th 1222 for the proposition that he was unlawfully detained. In Castaneda the defendant was sitting in an illegally parked vehicle when the police approached him and asked for his identification and ran a warrants check while writing a ticket for the illegally parked vehicle. (Id. at pp. 1225-1226.) The court found that “[a]lthough Castaneda was not restrained by the officer asking for identification, once Castaneda complied with his request and submitted his identification card to the officers, a reasonable person would not have felt free to leave. And once the officers began writing the parking ticket, no one would have tried to walk away from them.” (Id. at p. 1227.)
To the extent Castaneda can be read to suggest a person is detained whenever he “submit[s] his identification card to [law enforcement] officers” at their request because “a reasonable person would not [feel] free to leave” in that circumstance, we disagree with that suggestion. It is true “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall, supra, 446 U.S. at p. 554 [64 L.Ed.2d at p. 509].) But the “so-called Mendenhall test” “says that a person has been seized ‘only if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient, condition for seizure . . . .” (California v. Hodari D., supra, 499 U.S. at pp. 627, 628 [113 L.Ed.2d at p. 698].) Under well-established Fourth Amendment case law, “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.” (Mendenhall, at p. 553 [64 L.Ed.2d at p. 509]; see also Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16, [20 L.Ed.2d at p. 905, fn. 16 [“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred”].)
Because the appellate court in Castaneda did not address whether the police used physical force or a show of authority to restrain the defendant’s liberty when they used his identification to run a warrants check while writing a ticket for the illegally parked vehicle in which the defendant was sitting, the court did not fully analyze the question of whether a detention occurred, and thus the court’s decision is of little assistance here. For the same reason, defendant’s argument that he was detained when Deputy Takahashi gave his identification to Deputy Lemus because a reasonable person would not have believed he or she was free to leave under that circumstance is incomplete. To show he was detained, defendant has to show that a reasonable person in his situation would not have felt free to leave because of the use of physical force or a show of authority by Deputies Takahashi and Lemus.
Defendant has not made that showing. Certainly there was no physical force involved in the encounter between defendant and the deputies (at least, not until after they discovered the warrant for his arrest), nor can we conclude that the deputies’ conduct amounted to a show of authority.
After defendant truthfully told Deputy Takahashi that he was not on parole or probation, Deputy Takahashi asked for identification, which defendant voluntarily produced. Deputy Takahashi did not turn on his warning lights, draw his gun, or speak to defendant in an authoritative manner, and he did not unnecessarily prolong the encounter. He merely handed the identification to Deputy Lemus, who was seated in the patrol car where the computer on which the warrants check was to be run was located. There was no evidence suggesting the deputies would not have returned the identification to defendant if he had asked for it or that the brief transfer of the identification from Deputy Takahashi to Deputy Lemus for the purpose of running the warrants check exceeded the scope of the implicit consent defendant gave when he voluntarily handed his identification to Deputy Takahashi in the first place.
If a reasonable person in defendant’s position would not have felt free to leave, that circumstance was not the result of any physical force or show of authority by the deputies; it was the result of defendant’s voluntary consent in handing his identification to the deputies and their brief use of that identification in a manner consistent with his consent. Under these circumstances, defendant was not unlawfully detained, and the trial court correctly denied his motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., DAVIS, J.