Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Ct. No. 1214916 Timothy W. Salter, Judge.
Richard Jay Moller, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Cornell, J., and Dawson, J.
OPINION
A jury convicted appellant, Lee Elton May, of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). In a separate proceeding, the jury found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and allegations that May had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On appeal, May contends the court abused its discretion when it denied his motion to suppress. We will affirm.
FACTS
On September 6, 2006, Modesto Police Officer Brendan Gillespie arrested May after a search of May’s person uncovered a glass pipe and approximately 2.69 grams of cocaine base. May made several post-arrest statements indicating he possessed the cocaine base for sale.
On February 13, 2007, the defense filed a motion to suppress.
On February 21, 2007, at a hearing on this motion, Officer Gillespie testified that at approximately 12:30 a.m. on September 6, 2006, he was on patrol when he saw three people by some businesses that were closed. A man he identified as May began walking away from the others. Gillespie decided to contact May, who continued to look back at Gillespie as he walked away. Gillespie parked his car, got out and asked May if he “could talk to him for a minute.” May replied, “Sure,” and walked back to Gillespie. Gillespie asked him what he was doing and May replied that he was talking with some friends.
Gillespie asked May if he had any weapons or anything illegal on him and May replied he did not. Gillespie asked if he could check him and May replied that he could. Gillespie searched May, found a glass pipe, and arrested him. Gillespie continued searching May and found a cigarette box containing a baggie with several rocks which he suspected were cocaine base. Gillespie did not have his spotlight or emergency lights on or have a weapon drawn while he contacted May.
May testified he was standing with two friends when one of them stated the police were in the area. May began walking away from the group because his wife was going to pick him up at another location. He walked approximately 50 yards when Officer Gillespie drove up behind him, said, “Hey,” and asked if he could talk with May. May responded, “Yeah” and walked back toward Gillespie. Gillespie asked May what he was doing. May replied he was talking to some friends. Gillespie stated the reason he “stopped” May was because he walked away from the group. Gillespie asked if May was on parole or probation. May said he was not. Gillespie asked May for his identification and birth date and asked if he had any weapons. May told him he did not. According to May, Gillespie asked him three times if he could check him for weapons. May told Gillespie he could see through May’s clothes that he did not have any weapons but nevertheless agreed to let Gillespie search him. May did not feel he was free to leave.
During closing arguments, defense counsel argued the detention was unlawful because it resulted from racial profiling as evidenced by the fact that May was the only Black person in the group and the only one stopped. Alternatively, he argued that although the encounter was originally consensual, it quickly escalated into an unlawful detention. The court denied the motion explicitly finding that the initial encounter was consensual and impliedly finding that May’s consent to search was voluntary.
DISCUSSION
May contends his consent to a search of his person was vitiated because it was the product of an illegal detention. According to May, although the initial encounter was consensual it turned into an illegal detention when Officer Gillespie asserted control over the situation by asking him to submit to a search. Alternatively, he contends that his consent was vitiated because it was the result of an unlawfully prolonged detention. We will reject these contentions.
“The Fourth Amendment of the federal Constitution requires state and federal courts to exclude evidence obtained from unreasonable government searches and seizures. [Citation.] Penal Code section 1538.5 allows a defendant to move to suppress evidence obtained in an improper seizure. [Citation.] Our standard of review ‘is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment’ [Citation.]
“In In re Manuel G. (1997) 16 Cal.4th 805, our Supreme Court discussed the differences between consensual encounters and detentions at some length:
“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. [Citation.] [¶] The United States Supreme Court has made it clear that 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. [Citation.] ‘[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.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] 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.’ [Citation.]
“The test for the existence of a show of authority is an objective one, and does not take into account the perceptions of the particular person involved. [Citation.] The test is ‘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 this to a reasonable person.’ [Citation.]” (People v. Garry (2007) 156 Cal.App.4th 1100, 1105-1106, italics added.)
Here, the court found the initial encounter with May was consensual. The court’s conclusion is supported by the testimony of Officer Gillespie and May, who both agreed that Gillespie asked if he could talk to May and May agreed. Thus, we conclude the initial contact between Gillespie and May was a consensual encounter that did not require any objective justification. In view of this, we further conclude that the record supports the court’s implicit conclusion that May’s consent to search was voluntary.
Gillespie testified on direct examination that he asked May if he could check him for weapons. On cross examination he testified that he recalled asking him only once. The court could reasonably conclude from Gillespie’s entire testimony that he asked only once to search May. Further, although May testified that Gillespie asked to search him three times, on appeal any conflicts in the evidence are resolved in favor of the trial court’s ruling. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1224.) Accordingly, in reaching this conclusion we presume the trial court found Gillespie asked May only once for permission to search him.
May appears to contend that although the initial encounter was consensual, it became an unlawful detention when Officer Gillespie asked if he could search him for weapons because Gillespie never told him he was free to leave and never gave him any option but to submit to his request. We disagree.
Although the giving of warnings weigh heavily in finding voluntariness and consent (People v. Daugherty (1996) 50 Cal.App.4th 275, 283), “[n]o binding authority has established a rule requiring an explicit warning for a consensual detention to occur [citation].” (People v. Profit (1986) 183 Cal.App.3d 849, 877.) Further, during his encounter with May Officer Gillespie did not activate his spotlight or emergency lights, display a weapon, physically touch May to elicit permission to search him, or use language or a tone of voice indicating compliance with his request to search was mandatory. (U.S. v. Mendenhall (1980) 446 U.S. 544, 554.) “In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (Id. at p. 555.) Nor did the mere request to search him for weapons suffice to convert the encounter to a detention. (People v. Coulombe (2000) 86 Cal.App.4th 52, 57, fn. 3 [“Approaching a person, requesting to speak with him, asking for permission to search him, or ... asking if he has a gun, do not transform an otherwise consensual encounter into a detention”].)
May also cites several cases that hold that an officer may not unduly prolong a lawful detention by asking the detainee for consent to search. (See, e.g., People v. McGaughran (1979) 25 Cal.3d 577, 586, People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, 5, and People v. Grace (1973) 32 Cal.App.3d 447, 452-453.) Here, the initial encounter between May and Gillespie was consensual and was never converted to a detention. And, in any event, the trial court impliedly found there was no undue prolongation of the encounter. As we have explained ante, the trial court’s findings, supported by substantial evidence, are entitled to our deference.
Thus, we conclude that the court did not abuse its discretion when it denied May’s motion to suppress.
DISPOSITION
The judgment is affirmed.