Opinion
F040933.
7-9-2003
THE PEOPLE, Plaintiff and Respondent v. WILLIAM JOSEPH MURRAY, Defendant and Appellant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
A patdown search of appellant, William Joseph Murray, yielded a cigarette package containing .79 grams of methamphetamine. Appellant was charged with one count of possessing methamphetamine for sale (Health & Saf. Code, § 11377, subd. (a)). After unsuccessfully moving to suppress the narcotics, appellant pled guilty. He was sentenced to three years imprisonment, suspended, and three years formal probation.
Appellant contends the search resulted from an illegal detention and therefore the trial court erred in denial of his motion to suppress. He further claims that he never consented to the search of the cigarette pack. We affirm.
FACTS
On May 2, 2002, while on patrol in a marked unit, Bakersfield Police Officer Scott Drewry and Reserve Officer Duncan pulled alongside appellant who was riding his bicycle on South Owens Street. At the time, the officers had no reason to suspect that appellant might be engaged in any criminal activity. The officers car was three to four feet from appellant when Officer Duncan greeted appellant with "How are you doing" or "Whats up?" Appellant immediately stopped his bicycle and responded. Officer Drewry asked appellant if they could talk to him. Appellant agreed and the officers exited their car.
After appellant admitted that he had no identification, Officer Drewry inquired if appellant had any weapons or narcotics on his person. Appellant claimed he did not. Drewry then asked "Do you mind if I take a look?" Appellant said he didnt mind. Drewry directed appellant to turn around and place his hands on his head. Appellant complied. A Marlboro cigarette pack tucked in appellants waistband held a knotted clear plastic baggie containing methamphetamine.
At the hearing on the motion to exclude evidence, appellant asserted that he stopped because he heard a short blast from the cars siren and thought he was being pulled over. He got off his bike on his own initiative when the officers got out of their car. When he informed the officers that he had no identification he was told to stand by the curb with his hands on his head, whereupon he was searched. He was not asked for permission, he did not consent to the search, nor was he ever told he had a right not to consent to the search. One officer was in front and one slightly to his side, but also in front.
On rebuttal, Drewry testified the siren was never turned on.
APPELLANTS FOURTH AMENDMENT RIGHTS HAVE NOT BEEN VIOLATED
The Stop
In reviewing the denial of a suppression motion pursuant to Penal Code section 1538.5, we evaluate the trial courts express or implied factual findings to determine whether they are supported by substantial evidence. We then exercise our independent judgment to determine whether, on the facts found, the seizure of appellant was unreasonable within the meaning of the Constitution. (People v. Glaser (1995) 11 Cal.4th 354, 362, 902 P.2d 729; People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal. Rptr. 834, 756 P.2d 221; People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal. Rptr. 867, 629 P.2d 961.)
There are essentially three categories or levels of police "contacts" or "interactions" for purposes of Fourth Amendment analysis: consensual encounters, detentions and seizures, which include formal arrests and restraints on an individuals liberty, comparable to an arrest. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, 195 Cal. Rptr. 671, 670 P.2d 325.)
Appellant claims he was unlawfully detained. Respondent argues he participated only in a consensual encounter. Consensual encounters result in no restraint of an individuals liberty whatsoever and may properly be initiated by a police officer even if they lack any "objective justification." (Wilson v. Superior Court, supra, 34 Cal.3d at p. 784.) Detentions are seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police "if there is an articulable suspicion that a person has committed or is about to commit a crime." (Ibid .)
Here, a detention would be per se unreasonable: the police admitted they had no reason to believe appellant was involved in any criminal activity. In determining whether a particular contact constitutes a detention or seizure, a court considers all the circumstances surrounding the encounter to ascertain whether the police conduct would have caused a reasonable person to believe that he was not free to decline the officers requests or otherwise terminate the encounter. (Florida v. Bostick (1991) 501 U.S. 429, 439, 115 L. Ed. 2d 389, 111 S. Ct. 2382.) Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a detention or seizure occur. (Wilson v. Superior Court, supra, 34 Cal.3d at pp. 789-790.) Circumstances establishing a seizure include the presence of several 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 is compelled. (In re Manuel G . (1997) 16 Cal.4th 805, 821, 941 P.2d 880, citing United States v. Mendenhall (1980) 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870.)
Appellant claims he was detained because "officers here impeded [his] movement by driving up one and a half to three feet alongside [his] moving bicycle and talking to him so as to cause [him] to stop his bicycle." Appellants movement was not impeded. Appellant admitted the officers never blocked his path, they pulled alongside him, not in front of him. According to Officer Drewrys testimony, the patrol vehicle was three to four feet away from appellant. Approaching and calling out a greeting to a passing citizen is not a show of authority and does not constitute a detention.
"Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." (Florida v. Royer (1983) 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319.)
For example, in People v. Franklin (1987) 192 Cal. App. 3d 935, 237 Cal. Rptr. 840, we found that an officers spotlighting a pedestrian and pulling his patrol car to the curb behind the pedestrian was a consensual encounter. While the combination of the spotlight with the officers parking the patrol car, the pedestrian might rightly "feel himself the object of official scrutiny," we concluded that such directed scrutiny does not amount to a detention.
Substantial evidence supports the trial courts finding that appellants encounter with Officers Drewry and Duncan was consensual. Officer Drewry testified unequivocally that the patrol cars siren was never sounded. Appellant acknowledged he voluntarily stopped on being greeted by the police. He was neither asked nor told to stop. He likewise dismounted his bicycle on his own initiative as the officers exited their vehicle. Appellants subjective belief he was "being pulled over" is irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Appellant argues that two large armed officers "boxing him in" against the squad car constituted a detention even if the stop did not. We disagree. Appellant agreed to speak with the police before they exited their vehicle. Appellant was not surrounded. He testified one officer stood in front of him, the other was also in front of him, but slightly to one side. Drewry confirmed appellant was not standing between the two officers. While Duncan indicated the men stood in a different configuration, the testimony of a single witness is substantial evidence to support the trial courts conclusion. (People v. Cudjo (1993) 6 Cal.4th 585, 608, 863 P.2d 635.)
The Search
Appellant contends that his alleged consent to search was the product of an illegal detention and coercion, and thus invalid. As explained above, appellant was not illegally detained. Nor was he coerced. In every case, the voluntariness of a consent is a factual question to be decided "in the light of all the circumstances." (People v. James (1977) 19 Cal.3d 99, 106, 137 Cal. Rptr. 447, 561 P.2d 1135.) The trial courts findings on the issue of consent, whether express or implied, will be upheld on appeal if supported by substantial evidence. (Id. at p. 107.) Trial courts may accept an officers testimony that defendant freely consented to the search even in the face of conflicting testimony from defense witnesses. (People v. Ratliff (1986) 41 Cal.3d 675, 687, 224 Cal. Rptr. 705, 715 P.2d 665.)
Appellant was not restrained, nor surrounded by the officers. The officers guns were never drawn. The stature and size of the officers is irrelevant given the absence of evidence as to appellants own relative dimensions and any suggestion that appellant was menaced. In People v. Ratliff, supra, 41 Cal.3d 675, the California Supreme Court upheld a finding of consent even though the evidence revealed that several officers entered the suspects home at 6:00 a.m., awakened him with drawn guns, placed him in handcuffs, and told him that a warrant would be sought if he refused to consent to the search. (Id. at pp. 678-679.) In light of this precedent, substantial evidence supports the trial courts finding that appellant voluntarily consented to the search of his person.
Finally, appellant asserts that the search of the Marlboro pack exceeded the scope of his consent to a weapons search. Although Officer Duncan only recalled Drewry asking appellant if he could search for weapons, Drewry himself testified that he asked appellant if he had any weapons or narcotics on his person and that appellant consented to Drewry "taking a look" to confirm same. A general consent to search includes consent to pursue the stated object of the search by opening closed containers. (People v. Jenkins (2000) 22 Cal.4th 900, 975-976, 997 P.2d 1044.) We do not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts; these are functions reserved to the trier of fact. (People v. Culver (1973) 10 Cal.3d 542, 548, 111 Cal. Rptr. 183, 516 P.2d 887; In re Frederick G. (1979) 96 Cal. App. 3d 353, 367, 157 Cal. Rptr. 769.) Substantial evidence supports the trial courts finding that the search of the container was within the scope of the consent.
DISPOSITION
The judgment is affirmed.