Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF147487. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
In a second amended information filed on May 14, 2009, defendant Gary Andrea Lacy was charged with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 1), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2), and possession of drug paraphernalia (Health & Saf. Code, § 11364; count 3). The information also alleged that defendant suffered nine prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and four prior strike convictions within the meaning of Penal Code sections 667, subdivisions (c) and (e)(2)(a) and 1170.12, subdivision (c)(2)(A). He moved to suppress the prosecution’s evidence against him pursuant to Penal Code section 1538.5. On December 4, 2009, the trial court denied the motion. Defendant then pled guilty to possession of a controlled substance and possession of drug paraphernalia. He admitted all of his priors, save three prior strike convictions, and the trial court sentenced him to 15 years in state prison.
Following the denial of his motion to suppress, defendant filed a notice of appeal (case No. E049989), which we dismissed on March 10, 2010, as premature because defendant had not yet been sentenced. However, the record on appeal was prepared prior to our dismissal. Following sentencing, defendant filed another notice of appeal (case No. E051098). On July 9, 2010, we directed the superior court clerk to omit from the record in case No. E051098 any documents previously included in the record for case No. E049989. To the extent our review requires the use of the record in case No. E049989, we take judicial notice of our file in that case.
On appeal, defendant challenges the denial of his motion to suppress evidence. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
Defendant moved, under Penal Code section 1538.5, to suppress all tangible and intangible evidence obtained by police officers from their encounter with him on December 8, 2008, on the ground the officers’ warrantless search was unreasonable under the Fourth Amendment, because defendant was unlawfully detained since the officers lacked reasonable suspicion. The prosecution opposed the motion, arguing the initial encounter with defendant was consensual, not a detention. The prosecution further argued that, not only did the officers have probable cause both to arrest and search defendant, but the search was also justified because defendant admitted to being on parole.
The following facts are derived from the transcript of the suppression hearing: On December 8, 2008, at approximately 10:00 a.m., Officers Justin Mann and Ryan McHugh were on duty driving westbound on 11th Street. The officers noticed defendant sitting in his legally parked car on the eastbound side of the street. Officer Mann stopped the patrol car in the westbound lane, with about 15 to 20 feet between his driver’s door and defendant’s car. As Officer Mann approached defendant’s car, he noticed defendant reaching with his hand toward the center console. Concerned for his safety, the officer placed his hand on his gun.
Officer Mann contacted defendant by standing just to the rear of the front door of the driver’s side and asked defendant his name and what he was doing. As they spoke, the officer noticed that defendant closed his eyes several times and his eyelids were fluttering, which the officer recognized as a symptom of being under the influence of a controlled substance. Officer Mann also observed a white substance around defendant’s tongue and mouth. The officer asked defendant when he had last used drugs, and defendant stated he had used cocaine the night before. The officer asked defendant if he had anything on him, and defendant said he had cocaine on him.
While they were speaking, defendant, for the second time, placed his right hand between the console and the passenger seat of his car. Concerned for his safety, Officer Mann instructed defendant to show his hand or remove it from that area. Officer Mann then asked defendant what he placed under the seat, and defendant replied it was a pipe. In response to the officer’s question as to whether defendant had anything on him, defendant admitted he had cocaine either in his pants pocket or in the vehicle.
Officer Mann removed defendant from his vehicle and asked him if he was on probation or parole. Defendant indicated he was on parole. Officer McHugh searched defendant and found a brown piece of paper with a white, rock-like substance, which later tested positive for cocaine. A search of the car produced a “rock pipe” wrapped in brown paper under the passenger seat.
After hearing the evidence presented, the court listened to argument from counsel. Defense counsel argued there was “never any probable cause to stop” defendant’s car. The trial court replied: “Do you need probable cause for a consensual encounter?” Defense counsel responded that this was not a consensual encounter. Rejecting defendant’s argument, the court denied the motion to suppress.
II. DENIAL OF DEFENDANT’S MOTION TO SUPPRESS
Defendant argues the trial court erred in denying his motion to suppress evidence, because the police officers violated his Fourth Amendment right against unreasonable searches and seizures when they approached him and searched his vehicle without probable cause. We conclude that defendant’s motion was properly denied.
A. Standard of Review
The standard an appellate court employs in its review of a denial of a motion to suppress evidence is well settled. In evaluating a challenge to the trial court’s ruling on a motion to suppress evidence, we defer to its factual findings, whether express or implied, if they are supported by substantial evidence. (People v. Sardinas (2009) 170 Cal.App.4th 488, 493.) We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
B. Analysis
Not every encounter between the police and a citizen is protected by the Fourth Amendment. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) Police contacts with individuals fall into three broad categories: (1) consensual encounters; (2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A consensual encounter does not trigger Fourth Amendment scrutiny, but a detention requires an “articulable suspicion that the person has committed or is about to commit a crime.” (Ibid.)
A consensual encounter “‘“may properly be initiated by police officers even if they lack any ‘objective justification.’”’” (People v. Hughes (2002) 27 Cal.4th 287, 327.) Hence, a detention does not occur when a police officer merely approaches a person on the street, or here, in a parked vehicle, and asks a few questions. (Florida v. Bostick (1991) 501 U.S. 429, 434; In re Manuel G., supra, 16 Cal.4th at p. 821.) In determining whether an encounter is consensual, a court considers “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, at p. 439.) We must make a realistic assessment of defendant’s encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287.) “What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs.” (People v. Ross (1990) 217 Cal.App.3d 879, 884.)
Circumstances that might indicate a detention 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 of a tone of voice indicating that compliance with the officer’s request might be compelled.” (In re Manuel G., supra, 16 Cal.4th at p. 821.) However, neither the officer’s uncommunicated state of mind nor the individual’s subjective belief is relevant in determining whether a detention has occurred. (Ibid.)
In this case, we are concerned with the encounter between the police and defendant, who was parked legally on the street, and whether that encounter was consensual. The officers were lawfully performing their patrol duties when Officer Mann observed defendant. They stopped their vehicle and parked across the street, 15 to 20 feet away, and walked toward defendant’s car. Defendant was never physically impeded in his movement by the officers. None of the other actions taken by the officers prior to speaking with defendant were indicative of any restraint on freedom of movement: The lights and siren of the vehicle were not activated; the officers did not stand in front of defendant, draw their weapons, or physically touch or restrain defendant; and no show of authority was made.
The other actions taken by Officer Mann did not render the consensual encounter a detention. Defendant argues that he was detained when Officer Mann approached his parked car without probable cause and with his hand on his weapon. Although Officer Mann testified that, while approaching the parked car he placed his hand on his weapon when he saw defendant place his hand in between the front seats, there was no evidence that defendant saw the officer place his hand on his gun. The mere fact that an officer is armed does not render the encounter a detention. (See U.S. v. Drayton (2002) 536 U.S. 194, 205.) The evidence also shows that Officer Mann did not use a demanding tone or yell at defendant when speaking with him. In addition, an officer may approach an individual and ask for identification. (Id. at p. 201.) Furthermore, the officer testified that he had defendant exit his car only after defendant admitted to possession of cocaine on his person or in the vehicle. The fact that defendant cooperated by exiting the car and admitting his possession did not transform the consensual encounter into a detention.
Upon consideration of the totality of the circumstances presented, we are persuaded that the officers’ inquiry did not escalate the contact from a consensual encounter into a detention. No application of physical force or assertion of authority preceded the questioning, and Officer Mann did not speak to defendant in an angry, demanding or commanding tone. The encounter was brief and not in the least accusatory in nature. (People v. Hughes, supra, 27 Cal.4th at p. 328.)
We find defendant’s reliance on People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 misplaced. Kiefer is a search case wherein our state’s highest court addressed whether “furtive movements” by an occupant of a vehicle might establish probable cause for a contraband search. (Id. at p. 817.) The police officers here engaged in a consensual encounter with defendant.
Assuming, without deciding, that the consensual encounter became a detention prior to the search, we conclude the detention was justified. As the People point out, Officer Mann had articulable facts supporting his belief that defendant was under the influence of a controlled substance and in possession of contraband. As the officer was approaching defendant’s car, defendant moved his hand toward the center console. Defendant exhibited symptoms of being under the influence. There was a white substance over his mouth and tongue. And defendant again placed his hand between the front seats. Based on this evidence, Officer Mann not only had a reasonable suspicion that defendant was under the influence and possibly dangerous, but the officer also had probable cause to justify detaining defendant. Moreover, once defendant acknowledged he was on parole, the search of his person, and any property under his control, was valid under the Fourth Amendment. (Samson v. California (2006) 547 U.S. 843, 846-847, 852 [“Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee”]; People v. Reyes (1998) 19 Cal.4th 743, 746.) Thus, it was lawful for the officers not only to search defendant’s person, but also his car. (Samson v. California, supra, at p. 857; People v. Reyes, supra, at pp. 746, 752-753.)
In sum, we conclude that the encounter between the police and defendant was consensual, that the subsequent detention was supported by articulable suspicion that defendant was committing a crime, and that the warrantless search of defendant and his vehicle was lawful. Accordingly, the motion to suppress evidence was properly denied.
III. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., KING, J.