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People v. Klinger

California Court of Appeals, Fifth District
Sep 23, 2008
No. F053764 (Cal. Ct. App. Sep. 23, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. STEVEN RAY KLINGER, Defendant and Appellant. F053764 California Court of Appeal, Fifth District September 23, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Kern County. Charles P. McNutt, Judge. Super. Ct. No. BF118507A

James L. Lozenski, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Wiseman, Acting P.J., Levy, J., and Kane, J.

Defendant Steven Ray Klinger pleaded no contest to possession of methamphetamine for sale after the trial court denied his motion to suppress the fruits of a police search, which included methamphetamine found in his pockets. He now argues that the court erred in denying the motion. Because the record of the suppression hearing contains sufficient evidence to support the court’s implied findings that the search took place during a consensual encounter—not a detention—and that Klinger consented to the search, we will affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

The district attorney filed an information charging Klinger with possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378) and simple possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The information charged a codefendant, Tomas Rodolfo Encinas, with the same offenses and with possession of drug paraphernalia (Health & Saf. Code, § 11364).

Encinas filed a motion to suppress evidence pursuant to Penal Code section 1538.5 and Klinger joined in the motion. The court conducted an evidentiary hearing.

Officer Joshua Finney of the Bakersfield Police Department testified for the prosecution. He and five to seven other officers went to an eight-unit apartment building at 12:30 or 1:30 on the morning of March 24, 2007. They had received complaints of a high level of foot traffic at the building and suspected it was drug related. Watching from a distance, they saw 10 or more people walking near the building. They approached on foot and stood near apartment A, questioning people they met standing outside. Finney saw Klinger exit apartment D, holding a box. Klinger walked a few steps toward the officers and then, after appearing to notice them, turned and walked in another direction. Finney went over to him and asked his name and whether he lived in the building. He also asked whether Klinger had any weapons or illegal drugs, which Klinger denied. As Finney and Klinger were talking, a dog emerged from apartment D and approached Klinger. Finney asked Klinger to take the dog back to the apartment so it would not be running loose; he also asked if he could go to the apartment with Klinger and speak to him inside. Klinger said, “‘Sure,’” though he claimed he did not live there. He walked into the apartment and Finney and his partner followed.

Inside, Klinger was “fidgeting with the box” he was holding and “acting nervous.” Finney asked if he could conduct a pat-down search of Klinger; Klinger said, “‘Okay.’” In one of Klinger’s pants pockets, Finney found nine bags containing .75 grams of a substance appearing to be crystal methamphetamine and a 10th bag containing 3.5 grams of the same substance. An electric gram scale was in another of Klinger’s pants pockets. Finney arrested Klinger and read him a Miranda warning. Klinger acknowledged that he understood his rights and agreed to answer Finney’s questions. Finney asked how long Klinger had been selling methamphetamine. Klinger said, “‘For awhile.’”

While Finney and Klinger were talking inside the apartment, codefendant Encinas and a woman named Tasha Alvarez, who said the apartment was hers, entered. Finney asked for and received Alvarez’s permission to search the apartment. He found a small wooden box on the kitchen table, which contained a pipe and another bag of a substance appearing to be methamphetamine. Encinas said the box was his. Finney arrested him.

Klinger’s testimony at the hearing conflicted with Finney’s on the issues of the consensual nature of the encounter and Klinger’s consent to the search. He said Finney directed him to “come here” when he saw him walking away from the officers. After asking if Klinger would take the dog back to the apartment, Finney simply followed Klinger in; he did not ask if he could come in. Likewise, Finney did not ask if he could pat Klinger down; instead, he told Klinger to put his hands on his head and proceeded to search him without his permission.

Alvarez and Encinas testified and confirmed Finney’s statement that Finney asked Alvarez for consent to search the apartment after saying the scope of the search would be limited and he would not empty the drawers or turn over the mattresses. Alvarez believed Finney exceeded the agreed scope when he opened some drawers.

The day after the hearing, the court denied the motion to suppress. The appellate record contains only a minute order setting forth the ruling; there is no statement of the court’s reasons.

On the condition that he serve no more than one year in jail, Klinger pleaded no contest to the charge of possession for sale. The charge of simple possession was dismissed. The court sentenced him to three years’ probation with conditions including one year in jail.

DISCUSSION

Klinger argues that the evidence against him should have been suppressed because it was discovered after he was seized by Finney without reasonable suspicion and searched without his voluntary consent.

A defendant moving to suppress evidence because it was obtained via an unreasonable, warrantless search or seizure has the initial burden of raising a Fourth Amendment issue by showing that the search or seizure was conducted without a warrant and explaining why it was unreasonable. The burden then shifts to the prosecution to prove reasonableness by a preponderance of the evidence. (People v. Williams (1999) 20 Cal.4th 119, 127-129; People v. James (1977) 19 Cal.3d 99, 106.) In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the ruling, and we defer to the court’s factual findings—express or implied—if supported by substantial evidence. All factual conflicts must be resolved in the manner most favorable to the superior court’s ruling. We independently review the determination of whether the search or seizure was reasonable in light of the facts the court found. (People v. Woods (1999) 21 Cal.4th 668, 673-674; People v. Memro (1995) 11 Cal.4th 786, 846.) Substantial evidence means “evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)

Our review of the suppression ruling is based solely on the facts before the court when it ruled, not on any additional evidence developed during the trial. (In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18.) If the record of the hearing supports the ruling on any grounds, however, we must sustain the ruling even if the magistrate did not rely on the proper grounds. (People v. Gurley (1972) 23 Cal.App.3d 536, 539, fn. 1.)

The evidence presented at the suppression hearing was sufficient to support the court’s implied findings that (a) the interaction between Klinger and the officers leading up to Klinger’s arrest was a consensual encounter, not a seizure; and (b) Klinger voluntarily consented to the search of his person. The hearing was a credibility contest between Klinger and Finney. Finney testified that he simply walked up to Klinger and began speaking to him; Klinger answered voluntarily, agreed to let Finney and his partner come to the apartment to continue the conversation, and agreed to let Finney search him. Klinger testified that Finney ordered him to take the dog into the apartment and then followed him in and searched him without asking permission. The court implicitly found Finney credible and Klinger not credible. We are obliged to defer to its finding. “[T]he superior court is vested with the power to judge the credibility of witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.” (People v. Woods, supra, 21 Cal.4th at p. 673.) A search undertaken with the subject’s voluntary consent during a consensual encounter—regardless of the presence or absence of any individualized suspicion—is constitutionally reasonable. (Florida v. Bostick (1991) 501 U.S. 429, 431-432, 434, 439.)

Klinger contends there was no consensual encounter and he was seized without reasonable suspicion at the beginning of his discussion with Finney—thus tainting the subsequent search even if it was by voluntary consent—because there was an intimidating show of police force. He points to several facts: Finney and his partner were armed and in uniform; Finney asked accusatory questions; and Finney asked Klinger to take the dog and go into the apartment. Klinger also could have mentioned that six to eight police officers and about five police cars had converged on the apartment building and the officers were questioning the people they found outside.

These facts did not preclude a finding that the encounter was consensual. The court was required to “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.) Examples of circumstances that might help establish a seizure are “the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or a tone of voice indicating that compliance with the officer’s request might be compelled.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) There is no specific combination of factors, however, that necessarily does or does not amount to a seizure. (See, e.g., Florida v. Bostick, supra, 501 U.S. at pp. 431-432, 439-440 [state court erred in holding that passengers were seized as matter of law when armed officers entered long-distance bus about to leave terminal, stood over seated passengers, questioned them, and sought permission to search them for drugs].) Further, even if the evidence upon which a defendant relies “might support a finding that the encounter was a detention, we must view the evidence in the light most favorable to the judgment below.” (In re Manuel G., supra, 16 Cal.4th at p. 823.) In this case, the court could reasonably find that, in spite of Finney’s requests and questions and the other officers’ presence, Klinger remained free to terminate the encounter by, for instance, declining to answer further questions and going back inside.

Klinger also contends that, even if the encounter were initiated properly, the search to which it led was without a valid consent. He says the show of police force precluded voluntary consent, and his agreement to be searched merely constituted submission to authority. Again, the evidence was sufficient to support the finding that the consent was voluntary. The court could reasonably find that Klinger was free to say no when Finney asked for permission to search him.

In sum, substantial evidence supported the implied findings that Klinger was not seized because he was free to terminate the encounter and that he voluntarily gave his consent to be searched. The court’s decision not to suppress the evidence therefore did not violate the Fourth Amendment. Because of this conclusion, it is unnecessary to address the parties’ dispute over whether, if there was a seizure, reasonable suspicion existed to justify it.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Klinger

California Court of Appeals, Fifth District
Sep 23, 2008
No. F053764 (Cal. Ct. App. Sep. 23, 2008)
Case details for

People v. Klinger

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN RAY KLINGER, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Sep 23, 2008

Citations

No. F053764 (Cal. Ct. App. Sep. 23, 2008)