Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF0469, Gregg L. Prickett and Richard W. Stanford, Jr., Judges.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Tamara Louise Mitchell-Sayko was convicted of one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and sentenced to three years’ probation. On appeal she contends: 1) the court erroneously denied her Penal Code section 1538.5 motion because she did not consent to a search of her car; 2) statements she made to officers should have been suppressed because she was not given her warning under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda); and 3) one condition of her probation must be stricken because it was never orally pronounced. We agree with the third argument and order that probation condition be stricken. We otherwise affirm.
FACTS
As officer Anthony Diaz was patrolling one night he saw a car with expired registration tags make a wide turn at an intersection and pull into a drive-through McDonald’s. He then made a traffic stop. Defendant was driving and there was a male passenger. Once Diaz looked at defendant’s identification and mentioned the wide turn, he directed her to park the car and for her and the passenger to get out. At some point officer Jim Bolden arrived and stood near the car.
At Diaz’s request defendant agreed he could search the car; he did so, assisted by Bolden. On the passenger seat Bolden found a woman’s purse with a coin purse inside. Upon opening the coin purse he saw a plastic bindle containing a crystalline substance he believed was methamphetamine. In response to Bolden’s question, defendant admitted the purse was hers. He then inquired about the last time she had used drugs, to which she responded, “Two days ago.” He asked how she ingested them and she told him she used methamphetamine, usually snorting it. She said she had started using drugs at age 19 beginning with cocaine. Bolden then arrested her.
Additional facts are set out in the discussion.
DISCUSSION
1. Search of Car
a. Background
Defendant argues the search of the car was invalid because she did not voluntarily consent to it. Prior to trial she moved, pursuant to Penal Code section 1538.5, to suppress the evidence seized in that search.
During the suppression hearing Diaz testified about the expired registration tags, defendant’s wide turn, and her subsequent turn into McDonald’s. He also testified he made a traffic stop and asked for defendant’s driver’s license, which she gave to him. Diaz then commented on her wide turn and she explained she was trying to avoid a flooded part of the street. Diaz at some point had her park her car and she and the passenger get out.
When Diaz asked defendant if she was on probation, she replied that she was not but that she was trying to get into a drug diversion program under Penal Code section 1000 following her arrest for possession of narcotics. Diaz then questioned, “I’m assuming that you are on search and seizure, right?” to which defendant responded, “What does that mean?” He replied something such as, “you have to do a P. C. 1000 class, right?” “So as far as your plea agreement and your conditions, to what, this particular class, there is [sic] some things that you have to do, ” including “submit yourself to search and seizure.” In then explaining the meaning of probation, Diaz said, “You know, the judge... says blah, blah, blah, blah, blah, and then you say, yes I understand, ” to which defendant responded, “Oh.” Diaz asked, “You don’t know?” Defendant said she did not. Diaz again said, “You don’t know, ” and defendant replied, “Okay. Whatever you say.”
Diaz inquired as to whether defendant had narcotics in the car and she said she did not. He then asked, “Can I check it out?” and defendant responded, “Go ahead.” He patted her down to check for weapons and then he and Bolden searched the car while a third officer, who had arrived, stood with defendant and her passenger. Bolden found a purse containing the coin purse in which was the crystalline substance. Up to this point Diaz had not checked to see if defendant had registration documents for the car.
After hearing the testimony and listening to the audiotape of the encounter the court denied the motion. In analyzing Diaz’s statement about defendant’s entering into a drug diversion program, the court noted that he never “said ‘search and seizure means you have to submit to search and seizure’ or you have to... agree to a consent search or anything like that.” Although the judge was “troubled by the officer’s mistake” that defendant was required to submit to a search if she was in a drug program, he did not agree that Diaz’s statement as to what the judge would have told her about being on probation, as if to say she should know she was subject to search and seizure, “tainted [defendant’s] later consent to search.” He “f[ound] nothing” to show defendant’s consent was involuntary. The court also noted the encounter between the officers and defendant “was probably one of the most pleasant” he had ever heard.
b. Consensual Search
In reviewing denial of a motion to suppress, “[w]e 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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) Consent to a search is an exception to the constitutional requirement of a warrant. (People v. Woods (1999) 21 Cal.4th 668, 674.) “Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
Defendant claims her consent to the search was not consensual but was instead elicited by Diaz’s statements that, based on defendant’s application for a drug diversion plan, “there’s certain things that you have to do... [¶]... and submit yourself to.” This caused her to believe she had to allow him to search the car, as evidenced by her reply, “OK. Whatever you say.”
Defendant’s reliance on People v. Baker (1986) 187 Cal.App.3d 562 in support of her argument is misplaced. There police told the defendant a search warrant was on the way and when they asked to search his residence, the defendant agreed. In denying the defendant’s motion to suppress the court ruled defendant had voluntarily consented to the search but did not determine the validity of the search warrant. The court did state that if the search warrant was invalid defendant’s consent was involuntary because coerced, i.e., merely “‘acquiescence to a claim of lawful authority.’ [Citation.]” (Id. at p. 570.) It remanded the case for the court to determine the propriety of the warrant. (Id. at p. 571.)
Defendant contends Diaz’s statement that there were certain things defendant had to submit to is the same as telling a defendant a warrant is forthcoming. But, as the trial court found, and as substantiated in the transcript of the discussion between Diaz and defendant, Diaz never told defendant she had to allow a search. He merely told her there were certain things she had to submit to. We must defer to the trial court’s factual finding on this issue. (People v. Glaser, supra, 11 Cal.4th at p. 362.)
In addition, Diaz then asked defendant if he could “check it out.” He did not demand that she allow him to search based on the presumed condition of her drug diversion program or on any other basis. This supports the court’s factual finding there was no coerced consent.
Likewise Crofoot v. Superior Court (1981) 121 Cal.App.3d 717 is inapt. When the defendant asked the officer why he wanted to search the defendant’s backpack, the officer inquired why the defendant objected, telling him he should not refuse if he had nothing to hide. The court there, too, found defendant’s consent was “‘no more than acquiescence to a claim of lawful authority.’” (Id. at p. 725.) As in Baker, the evidence here is distinguishable.
Defendant also relies on other facts, claiming the totality of the circumstances show her consent was involuntary. She was detained after being stopped for traffic violations. But Diaz soon abandoned that line of inquiry, failing to follow up on questions regarding registration of the vehicle. He turned, instead, to questioning her about prior arrests and probation and erroneously believing defendant was subject to search and seizure, told her the same. Moreover, Diaz had her driver’s license and there were three officers at the scene. (People v. Aguilar (1996) 48 Cal.App.4th 632, 639 [all circumstances considered in determining whether consent voluntary].) But, as discussed above, Diaz did not tell defendant she had to submit to the search. The other facts do not show coercion.
2. Miranda Claim
a. Background
Defendant also contends the court erred in denying her motion to exclude the statements she made to Bolden once he found the purse containing the methamphetamine because he questioned her without first giving her a Miranda warning. When Bolden found the purse containing the drugs he put the bindle in an envelope and into his pocket; he left the purse in the car. He then walked over to where defendant was standing about 20 feet away and asked whether the purse was hers, which she admitted. He inquired as to the last time she had used drugs and how she used them. Defendant said she had used drugs two days before, and that she snorted it. She also said she had begun using drugs at age 19; she had started with cocaine and currently used methamphetamine. Bolden arrested her at that point.
The court denied the motion on the ground defendant was not in custody but was merely temporarily detained “for the purposes of finding out if either [defendant or her passenger] are legal possessors of the drugs so that a formal arrest could be made.” It also said there was “no indicia... of a formal arrest” or “prolonged or coercive questioning.”
b. Interrogation
“Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’”’ [Citation.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) On appeal we use “‘a deferential substantial evidence standard’ [citation]” in reviewing the trial court’s factual determinations and a de novo standard to “decide, whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [citation].” (Ibid.) The totality of the circumstances should be considered. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) These include whether the defendant has been arrested, or if not, how long she has been detained, where she has been detained, the number of officers present, and the officer’s attitude. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Usually “a temporary detention for investigation” or a traffic stop is not considered custody for purposes of Miranda. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1165.)
Defendant concedes that normally traffic stops are considered non-custodial but distinguishes hers. She first highlights her belief she had to submit to the search of her car, but we have already rejected that claim. She next argues that because Bolden had just found the methamphetamine in her purse, “formal arrest was imminent” and she in fact was arrested right after Bolden finished his questions. Finally, she asserts that, as the trial court found, at the time Bolden questioned her, he already had probable cause to arrest her. (In re Victor B. (1994) 24 Cal.App.4th 521, 524-525 [no Miranda warning required during temporary detention “‘“until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive”’”].)
The facts in this case present a close question of whether defendant was detained. But even assuming it was error to admit the evidence, the error was harmless beyond a reasonable doubt. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1403 [admission of evidence in violation of Miranda evaluated using harmless beyond reasonable doubt standard].) Defendant argues this evidence defeated her only defense, that she did not know the methamphetamine was in her purse and it could have belonged to her passenger. But she did not testify or put on any evidence to support this claim.
Moreover, even without the answers to the challenged questions, the prosecution had sufficient evidence to convict defendant. The police found a woman’s purse in the front seat of defendant’s car. In the purse they found the illegal substance. Defendant was the only female in the car and Bolden testified the male passenger was in the back seat. The only logical inference is that the purse and its contents belonged to defendant. (See People v. Baker (2008) 164 Cal.App.4th 1152, 1160 [“a purse is not generally an object for which two or more persons share common use or authority”].) The fact the prosecution argued the evidence it obtained from the questions is not dispositive. It did not need to make such an argument to convict.
3. Probation Condition
The minute order setting out the terms and conditions of probation prohibits defendant from “associat[ing] with anyone disapproved of by your [p]robation [o]fficer.” In announcing the probation terms, the court never imposed this one. On that basis, defendant claims the condition must be stricken. We agree.
“Although probation officers may be given ‘wide discretion to enforce court-ordered conditions’ [citation], they may not create conditions not expressly authorized by the court [citation].... [¶]... [¶] There are many understandable considerations of efficiency and practicality that make it reasonable to leave to the probation department the amplification and refinement of a stay-away order. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359.) As defendant aptly observes, this prohibition applies to court clerks as well.
The Attorney General, acknowledging the condition is overbroad and in need of restricting, nevertheless argues as amended it is proper, gainsaying that a probation term must be orally pronounced. He asserts that so long as defendant knew the condition, the probation officer could explain the details. But defendant did not know the condition because it was not imposed.
The Attorney General direct us to language in People v. Thrash (1978) 80 Cal.App.3d 898, which states: “The fact a person is granted probation, rather than a pardon, gives rise to the implication there are conditions. These conditions need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order.” (Id. at pp. 90-902.)
But in Thrash, in granting probation the court specifically incorporated terms contained in the probation report. When it later added additional terms by amending probation, it issued a written order and sent it to the defendant. That is not the case here. And a similar argument made by the Attorney General in another case was rejected, when the court stated that “Thrash merely holds the court need not orally pronounce probation conditions as long as the defendant knows what is required. [Citation.] We do not disagree; in fact, we made this very point in In re Frankie J. [(1988)] 198 Cal.App.3d [1149, ] 1155.... But neither decision suggests a probation officer may unilaterally impose a condition.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) The condition must be stricken from the terms of defendant’s probation.
DISPOSITION
The matter is remanded to the trial court to strike the probation condition prohibiting defendant from “associat[ing] with anyone disapproved of by your [p]robation [o]fficer.” In all other respects the judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.