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People v. Moloney

Court of Appeal of California
Sep 19, 2008
F053677 (Cal. Ct. App. Sep. 19, 2008)

Opinion

F053677

9-19-2008

THE PEOPLE, Plaintiff and Respondent, v. TERENCE ROBERT MOLONEY, Defendant and Appellant.

Elisa A. Brandes, 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, Carlos A. Martinez and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


OPINION

THE COURT

The Tuolumne County District Attorney charged appellant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of a smoking device (Health & Saf. Code, § 11364). It was also alleged that appellant had suffered three prior prison terms (Pen. Code, § 667.5 subd. (b)).

Appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. The court denied the motion. Pursuant to a negotiated plea bargain, appellant pled guilty to possession of methamphetamine, and the remaining count and prison term allegations were dismissed. The court sentenced appellant to the mid-term of two years in state prison.

On appeal, appellant contends the court should have granted the motion to suppress evidence pursuant to Penal Code section 1538.5. We disagree, and will affirm the judgment.

FACTS

On February 6, 2007, at 10:55 p.m., Officer Wertz was on patrol in a residential neighborhood where there had been several car burglaries. Wertz saw appellant walking on the sidewalk, and decided to ask him if he knew anything about the burglaries. Wertz pulled his car behind appellant and shined his spotlight on him. Appellant kept walking. Wertz got out of his car and from about 15 to 20 feet away stated, "Sir, can I talk to you for a second?" Appellant turned around and walked back toward Wertz. Wertz asked appellant if he could search him, and appellant turned and put his arms out to the sides in a "cross fashion." During the search Wertz found a glass pipe in appellants sock.

DISCUSSION

In reviewing appellants claim, "`[w]e defer to the trial courts 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. Garry (2007) 156 Cal.App.4th 1100, 1106.)

The main issue appellant raises is whether a reasonable person, in light of Wertzs conduct, would believe he was free to decline his request to stop. Appellant argues that Wertzs show of police authority constituted a detention because a reasonable person would not have felt free to leave. Appellant further argues that because Wertz had no articulable justification for detaining him, the evidence produced by the search was inadmissible.

"`Consensual encounters ... require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [¶]... [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 individuals 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 officers 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 officers request might be compelled." (People v. Garry, supra, 156 Cal.App.4th at p. 1106.)

Under the totality of the circumstances, we conclude no detention occurred because a reasonable person would have felt free to leave. Wertz did not detain appellant by using his spotlight on him or asking to talk to him. (People v. Perez (1989) 211 Cal.App.3d 1492, 1496; People v. Rico (1979) 97 Cal.App.3d 124, 130.) Wertz took no additional actions that would give rise to a detention, such as giving appellant orders, blocking appellants path, displaying a weapon, or touching appellant without his permission.

Appellant argues that Wertz detained him because Wertz acknowledged that it did not appear appellant wanted to talk to him. While Wertz may have believed appellant did not want to talk, appellants behavior did not objectively manifest a refusal. In fact, when Wertz asked appellant if he could talk to him, appellant turned around and walked back toward him.

Appellant argues his case is analogous to People v. Garry, supra, 156 Cal.App.4th 1100. We disagree. This case is distinguishable in how the officer approached appellant. In Garry, the officer exited his car and walked briskly toward appellant and asked him if he was on probation or parole. (People v. Garry, supra, 156 Cal.App.4th at pp. 1111-1112.) The court concluded the officers actions constituted a detention, based on the manner and speed of his approach and the questions he asked about appellants legal status. (Id. at p. 1112.) Conversely, here Wertz exited his car and asked to speak with appellant without approaching him. Therefore, the instant case is distinguishable from Garry, because the manner in which Wertz contacted appellant would not lead a reasonable person to believe he was not free to leave. Appellant also attempts to distinguish his case from People v. Franklin (1987) 192 Cal.App.3d 935, where the court held that the defendants encounter with a police officer was consensual. However, while the cases differ slightly in that Franklin approached the officer without the officer asking him to do so (id. at p. 938), it does not change the pivotal fact that in both cases the defendants approached the officers without the officers ordering the defendants to do so.

DISPOSITION

The judgment is affirmed.

GOMES, J., Dissenting.

Respectfully, I dissent. Under the totality of the circumstances, objectively, a reasonable person would not have felt free to leave. By walking away, appellant made it clear he did not want any contact with the officer, and Officer Wertz testified that it was apparent appellant wanted no contact with him. The American media has made widely known the brutal consequences of "resisting." Appellant knew the drill; he was going to be searched, he was going to be arrested. He turned around and put up his hands. --------------- Notes: Before Levy, Acting P.J., Gomes, J. and Dawson, J.


Summaries of

People v. Moloney

Court of Appeal of California
Sep 19, 2008
F053677 (Cal. Ct. App. Sep. 19, 2008)
Case details for

People v. Moloney

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TERENCE ROBERT MOLONEY, Defendant…

Court:Court of Appeal of California

Date published: Sep 19, 2008

Citations

F053677 (Cal. Ct. App. Sep. 19, 2008)