Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA079730, Wade D. Olson, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Randy Michael Lopez appeals from the judgment entered following the denial of his motion to suppress evidence, his no contest plea to possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)), and his admission that he suffered a prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law. (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i).) He was sentenced to the low term of 16 months, which was doubled to 32 months by reason of his prior strike conviction. He contends his detention began when officers approached him and due to their show of force there was never a consensual encounter. He also contends because the detention began before any questions were asked, the officer violated his Fifth Amendment rights against self-incrimination by asking him whether he possessed anything illegal without first advising him of his Miranda rights. For reasons stated in the opinion, we affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTUAL AND PROCEDURAL SUMMARY
The evidence at the motion to suppress pursuant to Penal Code section 1538.5 established that on July 4, 2007, at approximately 7:45 p.m., Deputy Sheriff Phillip Leyva was on patrol on Valley Boulevard approaching Sunset Avenue in the County of Los Angeles when he saw appellant throw a cigarette on the ground. Deputy Leyva’s partner drove the patrol vehicle towards appellant, and the two deputies exited the car and approached appellant. Deputy Leyva was the first to approach, to warn or cite appellant for littering, and asked him if he had anything illegal on him and also whether he was on parole or probation. Appellant responded that he had a pipe in his pocket and that he was on probation or parole; the deputy could not remember which. Deputy Leyva reached into appellant’s pocket and recovered a glass pipe, commonly used to ingest cocaine, and arrested appellant for possession of drug paraphernalia.
According to the transcript of the preliminary hearing, the deputy then conducted a full search of appellant for weapons or drugs and found two off-white rocks resembling rock cocaine.
On cross-examination, Deputy Leyva testified he did not tell appellant to stop or “come here” and believed appellant saw the deputies approaching. When the deputy asked appellant whether he had anything on him, the deputy did not believe appellant was free to leave. The deputy had not advised appellant of his right against self-incrimination. It was only after appellant responded to the question whether he had anything illegal on him, that the deputy then conducted a search of appellant’s person. Deputy Leyva testified that up until that point, he had no reason to believe that appellant was carrying anything illegal on him. “[I]t was after that that [he] found the pipe . . . . and . . . the white-like substance.”
Deputy Leyva testified the purpose in asking whether a person has anything illegal on his or her person is because the person could be a danger to the deputy or his partner. The person could have “a gun, a knife, a grenade, anything on him.” The deputy asked that question and appellant said he had a pipe. When the deputy approaches someone, even in a consensual encounter, he will ask that question for his own protection and his partner’s safety. It is a commonly asked question. He asked appellant “the parole/probation question” before he reached into appellant’s pocket.
Appellant testified that he was not smoking a cigarette and had not thrown a cigarette to the ground. Deputy Leyva asked him to approach and appellant complied. When the deputy asked him if he was on parole or probation, appellant said he was not. Appellant was not on probation and had been discharged from parole in October 2006. The deputy then asked him if he had anything illegal, and appellant said he had a pipe. After that, the deputy reached into appellant’s pocket.
Based on the evidence presented at the hearing, the court denied the suppression motion. The court found there was clearly a consensual encounter, that the officer walked up to appellant but did not order him to stop. Appellant stood waiting for the deputy and the conversation began with “the officer safety question.” The officer observed appellant throw a cigarette onto the ground, which was a violation of littering laws and supported a temporary detention to warn or cite appellant.
DISCUSSION
“‘An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.” [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.’ [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 182, quoting People v. Williams (1988) 45 Cal.3d 1268, 1301; accord, People v. Ayala (2000) 23 Cal.4th 225, 255.)
Appellant’s claim that his admission that he had a pipe on his person was made in response to an improper question under Miranda is without merit. “‘Miranda requires that a criminal suspect be admonished of specified Fifth Amendment rights. But in order to invoke its protection, a suspect must be subjected to custodial interrogation, i.e., he must be taken into custody or otherwise deprived of his freedom in any significant way. [Citation.] The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ [Citations.]” (People v. Vasquez (1993) 14 Cal.App.4th 1158, 1162.)
“[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 officer’s requests or otherwise terminate the encounter.” (Florida v. Bostick (1991) 501 U.S. 429, 439.)
“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation.] If there is no detention–no seizure within the meaning of the Fourth Amendment–then no constitutional rights have been infringed.” (Florida v. Royer (1983) 460 U.S. 491, 497-498.)
In the present case, contrary to appellant’s claim, there was no force when the two deputies approached appellant on a public street during daylight hours. There was no evidence the officers tried to block appellant’s way, that they displayed weapons, physically touched appellant or used language or verbal tone indicating compliance with the officers’ request was required. Appellant was not asked to stop or approach, not formally arrested and not led to believe the stop would not be brief. (See In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Unlike People v. Garry (2007) 156 Cal.App.4th 1100, cited by appellant, the encounter was during daylight hours and there was no evidence the deputies had suddenly illuminated appellant with a police spotlight or that the deputies had rushed directly at him, setting “an unmistakable ‘tone,’. . . through nonverbal means, ‘indicating that compliance with the officer’s request might be compelled.’ [Citation.]” (Id. at p. 1112.) While Deputy Leyva agreed that at the preliminary hearing he had testified appellant was not free to leave during the brief questioning, “[t]he officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re Manuel G., supra, 16 Cal.4th 805, 821.)
Following appellant’s admission that he had a pipe on his person, the deputy’s retrieval of the pipe was justified based on probable cause to arrest appellant for possession of drug paraphernalia in violation of Health and Safety Code section 11364 and to search appellant further incident to that arrest. (See People v. Avila (1997) 58 Cal.App.4th 1069, 1076-1077.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.