Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC894287.
Mihara, J.
Defendant Raymond Greg Molina challenges the denial of his suppression motion. After his suppression motion was denied, he pleaded guilty to possession for sale of a controlled substance (Health & Saf. Code, § 11378) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and admitted that he had suffered a prior possession for sale of a controlled substance conviction (Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, § 1203.07, subd. (a)(11)). Molina was sentenced to an agreed term of 16 months in state prison. Molina claims that the police officer’s observations of him that led to his detention for being under the influence arose from a detention rather than a consensual encounter. We conclude otherwise and affirm the judgment.
I. Factual Background
On January 31, 2008, at 1:48 a.m., San Jose Police Officer Matthew Williams was on routine patrol in uniform in a marked patrol car. As Williams was driving through the Motel 6 parking lot, he saw defendant sitting in a car that was backed into a parking space. Defendant was talking on a cell phone. Williams stopped his patrol car next to defendant’s car and walked up to the driver’s side door of defendant’s car. Williams did not block defendant’s car from leaving, and he did not shine a spotlight on defendant. Defendant’s driver’s side window was rolled halfway down.
Williams illuminated defendant with his flashlight. Williams immediately noticed that defendant’s pupils were dilated and his eyelids were fluttering. Williams said to defendant, in a “normal conversational tone”: “How you doing? Are you staying here tonight?” Defendant “said his cousin was getting a room.” Williams then asked defendant if he was on probation or parole. Williams also asked defendant for his name and asked for identification.
Defendant cites to Williams’s testimony at the preliminary examination, but that testimony was not introduced at the suppression hearing and therefore could not have served as a basis for granting defendant’s suppression motion.
Defendant “became very argumentative with me about why I was stopping him, why I’m talking to him.” Williams “explained to him the reason why, what was going on.” Defendant told Williams that he was “waiting for his cousin.” A car drove by, and defendant pointed to the car and said “That’s my cousin.” As Williams was talking to defendant, Williams continued to observe that defendant had “fluttering eyelids and dilated pupils.” These observations indicated to Williams “a possibility of [defendant] being under the influence of a stimulant.”
The record does not reflect the substance of this explanation.
Williams asked defendant to step out of the vehicle. Defendant did so, and Williams walked defendant over to Williams’s car. Williams again observed defendant’s dilated pupils and fluttering eyelids. Williams took defendant’s pulse and found it to be elevated at 108 beats per minute. Although it was cold outside, defendant was warm to the touch and “a little sweaty.”
At that point, Williams placed defendant under arrest, handcuffed him, and searched his person. In defendant’s front pocket, Williams found a small baggie containing methamphetamine. He discovered a larger baggie containing six individually wrapped packages of methamphetamine in defendant’s inside jacket pocket. Williams also found money and a cell phone on defendant’s person. A text on the cell phone read: “Can I get a 20?” Defendant was advised of his rights, and he said he was willing to talk. He told Williams that he had been selling methamphetamine.
II. Procedural Background
Defendant was charged by information with possession for sale of a controlled substance (Health & Saf. Code, § 11378) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). It was also alleged that he had suffered a prior possession for sale of a controlled substance conviction (Health & Saf. Code, § 11370.2, subd. (c) [enhancement]; Pen. Code, § 1203.07, subd. (a)(11) [probation ineligibility]).
At the hearing on defendant’s motion, Williams testified for the prosecution. Defendant’s cousin and the cousin’s girlfriend testified for the defense that they had seen Williams park his patrol car in front of defendant’s car, blocking defendant’s car from leaving, and put his spotlight on defendant. The court explicitly found Williams’s testimony to be credible and denied the motion.
Defendant pleaded guilty to both counts and admitted the special allegations in exchange for an agreed term of 16 months in state prison. The court imposed the agreed term, and defendant filed a timely notice of appeal.
III. Analysis
“The standard of appellate review of a trial court’s ruling on a motion to suppress 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.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“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 [or in a public place] 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. [Citations.] ‘[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. [Citations.] The 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.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Defendant relies heavily on People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) to support his contention that he was detained by Williams prior to Williams’s observation that defendant was under the influence of a controlled substance.
In Garry, a uniformed police officer in a marked patrol car saw Garry standing next a parked car at a street corner for a few seconds late at night. The officer put his patrol car’s spotlight on Garry, immediately got out of his patrol car, and “all but ran directly at” Garry. (Garry, supra, 156 Cal.App.4th at pp. 1103-1104, 1112.) Garry looked nervous, started walking backwards, said “ ‘ “I live right there,” ’ ” and pointed at a nearby house. (Garry, at p. 1104.) The officer continued to approach Garry, said “ ‘Okay, I just want to confirm that,’ ” and asked Garry if he was on probation or parole. Garry then disclosed that he was on parole, which led to a detention that resulted in the discovery of narcotics on Garry’s person. (Garry, at pp. 1104, 1112.) The trial court denied Garry’s suppression motion because it found that no detention had occurred prior to Garry’s disclosure that he was on parole. (Garry, at p. 1105.)
On appeal, Garry contended that the spotlighting and rapid approach of the officer were so intimidating that a reasonable person would not have believed that he was free to leave. (Garry, supra, 156 Cal.App.4th at pp. 1106-1107.) The Court of Appeal emphasized that, in evaluating whether a reasonable person would feel free to leave, it was important to consider the officer’s “words and verbal tones,” how the officer had “physically approach[ed]” the person, and whether the officer’s use of a spotlight had constituted a “show of authority.” (Garry, at pp. 1110-1111.) The court concluded that the officer’s spotlighting of Garry, rapid approach on foot, and immediate questioning about Garry’s legal status were so intimidating that a reasonable person would not have felt free to leave. (Garry, at pp. 1111-1112.) “No matter how politely [the officer] may have stated his probation/parole question, 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.’ [Citation.] [The officer’s] actions set an unmistakable ‘tone,’ albeit largely through non-verbal means, ‘indicating that compliance with the officer’s request might be compelled.’ ” (Garry, at p. 1112.)
Garry is factually distinguishable from the case before us. Williams did not spotlight defendant or his car, although he did use a flashlight to illuminate defendant. Williams did not rush directly at defendant, but merely parked his patrol car and walked over to defendant’s window. Williams did not begin by inquiring about defendant’s legal status. Instead, Williams began with a casual greeting in a conversational tone followed by an inquiry about whether defendant was staying at the motel where his car was parked. Unlike the facts in Garry, there was nothing particularly intimidating about Williams’s method of approaching defendant or the nature of his initial inquiry. While a flashlight could be used in an intimidating fashion, such as by shining it directly in a person’s eyes, there was no evidence that Williams used his flashlight in such a fashion rather than simply using it to allow him to see the person with whom he was conversing. Thus, the nature of Williams’s encounter with defendant up to the point at which Williams asked defendant if he was on probation or parole involved no intimidation of the type that the Court of Appeal identified in Garry.
Williams’s subsequent inquiries also were not intimidating. Although, as in Garry, Williams asked defendant if he was on probation or parole, the fact that this question was not Williams’s first inquiry reduced its impact. Williams’s request for identification also bore no insignia of intimidation. Williams’s casual approach and his consistent use of a conversational tone would have led a reasonable person to conclude that he was free to terminate the encounter. No intimidation occurred up to this point in the encounter, and, at this point, Williams had already observed signs that defendant was under the influence.
Defendant seems to suggest that any inquiries by a police officer that are “related to law-enforcement purposes” are necessarily intimidating. However, we are aware of no authority for the proposition that a police officer’s conversation during a consensual encounter may not be related to law enforcement. Indeed, that would be illogical. Citizens reasonably expect a police officer to direct his or her attention primarily to law enforcement while he or she is on duty. A reasonable person would not be intimidated by the simple fact that a police officer’s inquiries during a consensual encounter were related to law enforcement. The key element is whether the officer’s inquiries or other conduct are sufficiently intimidating or amount to such a show of authority that a reasonable person would feel powerless to terminate the encounter. Here, Williams’s conduct and inquiries were not intimidating and did not amount to a show of authority that would have produced such an effect in a reasonable person.
It follows that Williams’s observations were not the product of a detention and could properly serve as the basis for the subsequent detention that led to the discovery of the evidence against defendant. The trial court did not err in denying the suppression motion.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.