Opinion
A155723
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEX RAYMOND MARQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1702422)
After defendant Alex Raymond Marquez unsuccessfully moved to suppress evidence seized during an early morning encounter with a police officer, he entered a plea of guilty to felony driving under the influence (DUI) within 10 years of three prior DUI convictions (Veh. Code, §§ 23152, subd. (a), 23550) in exchange for formal probation and dismissal of an enhancement and other charges. On appeal, he challenges the denial of his suppression motion and seeks reversal of the judgment and a remand to the trial court to permit him to withdraw his guilty plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Just after 3:30 a.m. on May 22, 2017, Eureka Police Officer Stephen Linfoot observed defendant's vehicle drive into an open field east of the Samoa bridge near the waterfront. Linfoot approached the vehicle in his patrol car with its lights off and stopped within 20 to 30 feet of the vehicle. Linfoot turned his patrol car's spotlight on and directed it at the front of the vehicle, which had just parked. Defendant exited his vehicle and appeared to be talking on a cell phone. Linfoot approached him on foot and asked what he was doing in the area. Linfoot smelled alcohol "within moments" of speaking to defendant and observed that defendant became nervous and evasive in answering questions. A little later in response to Linfoot's inquiry, defendant identified himself as "Joe Marquez." Suspecting a false identification, Linfoot detained defendant in handcuffs. When defendant eventually provided his true name and date of birth, Linfoot ran a records check and learned of defendant's suspended license and probation for DUI offenses. Defendant refused to take a chemical breath test, even though Linfoot advised him that submission to a chemical breath test was a condition of his probation. After defendant refused the test a second time, Linfoot arrested him and took him to a hospital for a blood draw. The draw disclosed that defendant had a blood-alcohol concentration of 0.093 percent plus or minus 0.004 percent weight by volume.
The Humboldt County District Attorney filed a four-count complaint charging defendant with felony DUI within 10 years of three prior DUI convictions (Veh. Code, §§ 23152, subd. (a), 23550; count 1) and felony driving with a blood-alcohol content of 0.08 percent or greater within 10 years of three prior DUI convictions (Veh. Code, §§ 23152, subd. (b), 23550; count 2), together with enhancement allegations in both counts for refusing to submit to a chemical test (Veh. Code, § 23577.) The complaint also charged him with misdemeanor driving on a suspended license within five years of a prior DUI conviction (Veh. Code, § 14601.2, subd. (a), count 3) and misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1), count 4).
All unlabeled statutory references are to the Penal Code.
Defendant moved to suppress all observations and evidence made or seized by Officer Linfoot and the evidence of the blood-alcohol test. (§ 1538.5.) This motion was heard and denied at the preliminary hearing. The District Attorney filed an information charging defendant with the same four counts alleged in the complaint.
After defendant's renewed motion to suppress was heard and denied at a special hearing, he entered into a negotiated disposition whereby he entered a plea of guilty as to count 1 of the information, and the other counts and enhancement allegations were dismissed. The trial court placed defendant on formal supervised probation for a period of five years, subject to various terms and conditions that included 180 days on home detention. The court also imposed various fines and fees.
DISCUSSION
The question here is whether the testimony of Officer Linfoot and the evidence of defendant's blood-alcohol test should have been suppressed. Defendant contends suppression was required because he was unlawfully detained from the moment Linwood turned on his patrol car's spotlight and rapidly approached him. The People disagree, asserting that the incident started as a consensual encounter and that defendant was not detained before reasonable suspicion arose.
The Fourth Amendment of the federal Constitution protects against unreasonable governmental searches and seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) The California Supreme Court has summarized the relevant Fourth Amendment principles as follows. "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 individual's liberty." (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
"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." (Manuel G., supra, 16 Cal.4th at p. 821.) Moreover, "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 individual's liberty, does a seizure occur." (Ibid.)
Whether or not a particular encounter constitutes a detention depends on the totality of the circumstances surrounding the incident. (Manuel G., supra, 16 Cal.4th at p. 821.) The inquiry focuses on " '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.' " (Ibid.) Moreover, the coercive effect of the police conduct is assessed "as a whole, rather than emphasizing particular details of that conduct in isolation." (Ibid.) "Circumstances establishing a seizure might include any of the following: 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. [Citations.]" (Ibid.) Notably, "[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. (Ibid.)
In California, a defendant may move to suppress evidence obtained in an improper seizure pursuant to section 1538.5. When such a motion is heard by a magistrate in conjunction with a preliminary hearing, the magistrate assumes the role of factfinder, "resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences." (People v. Romeo (2015) 240 Cal.App.4th 931, 941.) In a felony case, a defendant whose suppression motion is denied at the preliminary hearing may, if held to answer, renew the motion in a special hearing in superior court. (§ 1538.5, subd. (i); Romeo, at p. 941.) When the parties submit on the preliminary hearing transcript, factual findings of the magistrate that are supported by substantial evidence are binding on both the superior court and the appellate court. (Romeo, at p. 941.) The reviewing court exercises its independent judgment in determining whether, on the facts so found, the challenged seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Defendant acknowledges that Officer Linfoot "had reasonable suspicion to believe that [defendant] may have been engaging, or had engaged, in criminal activity when [he] first began to speak to the officer and Linfoot detected 'the odor of alcohol' on [his] breath." He contends, however, that "the unlawful detention had already occurred before that 'moment' happened." Accordingly, we consider the totality of the pertinent circumstances, as reflected in the preliminary hearing transcript and the magistrate's findings of fact, to determine whether Linfoot had unlawfully detained defendant prior to detecting the alcohol odor.
After hearing Officer Linfoot's testimony, the magistrate made the following factual findings regarding the events leading up to Linfoot's encounter with defendant.
"First the police vehicle—the officer saw the vehicle pull into the lot, saw it come to a stop, the officer stopped his vehicle, turned off his lights, and observed what was occurring. The testimony was that the location where the vehicle was stopped was in a field that had multiple means of ingress and egress, so at least based on the evidence as I understand it, there is not a contention that the officer parked his vehicle in such a way as to block or inhibit the vehicle ultimately determined to be driven by the defendant from leaving the place where it was located. [¶] There is a single officer, there were no other police vehicles, no other emergency vehicles. The officer as he observed what turned out to be [defendant] exit the vehicle on the driver's side, illuminated the vehicle via the spotlight . . . . [¶] . . . [I]t was the middle of the night, in an area not populated by a great deal of people, there is no testimony concerning pedestrian or vehicle travel in the area at that time. It was dark. The officer was moving towards the vehicle in a field. He illuminated the vehicle and approached it. And he approached it apparently in a relatively rapid manner . . . . [¶] As he approached, he did not draw his weapon. He did not have additional emergency lights on his vehicle illuminated. As he was doing this, as the defendant was subject to the officer's vehicle spotlight, and the officer approaching, the defendant continued to the front of the vehicle and apparently was either using or attempting to use a cell phone to make a telephone call . . . . He didn't immediately respond to the officer, withdraw, try to move away. He was apparently using his cell phone in some fashion. The officer didn't, as I understand the testimony, did not direct him to do anything. He didn't tell him he was free to leave; but on the other hand, he didn't make verbal commands that he do anything. . . . [H]e approached the defendant, but he did not order the defendant to come to him. He initially made inquiry as to whether—who he was and why he was there, and as he made that inquiry he smelled the odor of alcohol."
We have reviewed the preliminary hearing transcript and conclude substantial evidence supports the foregoing findings of fact, with one clarification. To the extent the magistrate concluded that Officer Linfoot approached defendant's vehicle "apparently in a relatively rapid manner," we observe Linfoot did not testify regarding his foot speed in getting to the vehicle. Instead, he testified that staying in the patrol car too long would involve "too many hazards," and that he drove a little closer, directed the spotlight at the other vehicle, and got out once he stopped the patrol car—which was all "done rather quickly" and "rather immediate," and that his foot approach occurred immediately after he exited his car. Accordingly, Linfoot's testimony did not establish his foot speed as he approached defendant's car. We next assess whether the totality of the facts so found demonstrates a seizure within the meaning of the Fourth Amendment. As indicated, a seizure occurs only when an officer in some manner restrains an individual's liberty, whether by means of physical force or a show of authority. (Manuel G., supra, 16 Cal.4th at p. 821.)
Based on the above facts and the reasonable inferences they support, we cannot conclude that Officer Linfoot used physical force or a show of authority to restrain defendant's liberty. As indicated, defendant had stopped his vehicle before Linfoot activated the patrol car's spotlight, and he exited his vehicle on his own volition. Linfoot parked his patrol car in a way that did not block or inhibit defendant's vehicle. Linfoot was by himself, did not activate his car's emergency lights, did not draw a weapon, and did not touch defendant. He did not verbally command or direct defendant to do anything. He did not accuse defendant of anything or tell him he was not free to leave. Linfoot merely asked defendant why he was in the field, and at that point he smelled alcohol on defendant's breath. On this record, there was no detention. (See Manuel G., supra, 16 Cal.4th at p. 822 [consensual encounter found where officer approached defendant in a public place and asked him questions]; People v. Chamagua (2019) 33 Cal.App.5th 925, 927, 929 [encounter found consensual where two deputies pulled their patrol car alongside defendant at night, then exited their car and asked incriminating questions of defendant but did not use or threaten physical force and did not command defendant to do anything]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1251, 1254 [consensual encounter found where two officers approached defendant and engaged in brief conversation].)
Defendant maintains a detention occurred due to the circumstances that Officer Linfoot shined his patrol car's spotlight on defendant, and that Linfoot, while armed and wearing a police uniform, immediately exited his car and rapidly walked 20 or 30 feet across the field toward defendant. In making this argument, defendant contends the facts in this case are virtually identical to those in People v. Garry (2007) 156 Cal.App.4th 1100 (Garry), in which a detention was found. We are not persuaded.
Garry held that a detention occurred when a police officer patrolling a high-crime, high-drug area late at night used his patrol car's spotlight to "bathe[] defendant in light" and "all but ran directly" at the defendant while asking him whether he was on probation or parole. (156 Cal.App.4th at pp. 1111-1112.) Similar to the circumstances here, the officer in Garry "had no other officers with him, did not use emergency lights, did not draw a weapon, made no verbal commands, went to defendant rather than asking defendant to come to him, did nothing to prevent defendant from leaving, and did not touch defendant prior to learning that he was on parole." (Id. at p. 1111, fn. omitted.) Critically, however, the officer in Garry "immediately questioned defendant about his probation and parole status, disregarding defendant's indication that he was merely standing outside his home." (Ibid.) While acknowledging case law holding the use of a spotlight alone does not constitute a detention (ibid.), Garry considered all the circumstances of the encounter and concluded, "any reasonable person who found himself in defendant's circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be 'under compulsion of a direct command by the officer' " (id. at p. 1112).
In contrast to the situation in Garry, supra, 156 Cal.App.4th 1100, the magistrate did not find, and the testimony did not establish, that Officer Linfoot put the spotlight on defendant or "bathed defendant in light" (id. at p. 1111); rather, Linfoot illuminated defendant's vehicle. And even assuming Linfoot may have approached defendant "in a relatively rapid manner," there is no indication of his foot speed in the record, and we cannot say this equated to the circumstance in Garry that the officer there "all but ran directly at [defendant], covering 35 feet in just two and one-half to three seconds." (Id. at p. 1112.) Finally, there is no dispute that Linfoot engaged defendant by asking him what he was doing in the field, and there is no claim that he posed the question in an intimidating voice or even that he interrupted defendant, who appeared to be using his cell phone. (See fn. 2, ante.) This stands in stark contrast to what happened in Garry, where the court itself emphasized, "rather than engage in a conversation, [the officer] immediately and pointedly inquired about defendant's legal status as he quickly approached." (Garry, at pp. 1111-1112, fn. omitted; see also id. at p. 1111 [officer disregarded defendant's indication that he was merely standing in front of his home].) Thus, while the manner and mode of the officer's conduct in Garry were "very intimidating to any reasonable person" (id. at p. 1111), the circumstances here indicate the tone of the initial encounter between Linfoot and defendant was neither intimidating nor likely to lead a reasonable person to conclude that he or she was not free to terminate the encounter. (Manuel G., supra, 16 Cal.4th at p. 821.)
In this regard, "[w]e must accept factual inferences in favor of the trial court's ruling" and "the version of the events most favorable to the People, to the extent the record supports them." (People v. Zamudio (2008) 43 Cal.4th 327, 342.) --------
Defendant's other authorities do not assist his position, as their facts are less analogous than those in Garry. (E.g., People v. Roth (1990) 219 Cal.App.3d 211, 215 [two deputies shined spotlight on defendant, exited car, and commanded defendant to approach them]; People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034 [defendant spotlighted and surrounded by four officers armed with shotguns or carbines].)
In sum, we conclude the initial encounter between Officer Linfoot and defendant—i.e., up to the moment when Linwood detected alcohol on defendant's breath—did not amount to a detention. That being the case, no reasonable suspicion was required on Linfoot's part at that juncture, and the suppression motion was properly denied.
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.