Opinion
H036211
01-13-2012
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL PACHECO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS101635)
Defendant Juan Manuel Pacheco pleaded no contest to carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), possession of methamphetamine (Health and Saf. Code, § 11377, subd. (a)), and giving false information to a peace officer (Pen. Code, § 148.9, subd. (a)). The trial court placed defendant on probation for three years. On appeal, defendant contends that the trial court erred by denying his motion to suppress evidence and that one of his probation conditions is unconstitutionally vague. We conclude that defendant's consent to search his person was not the product of an illegal detention and that one of his probation conditions must be modified. As modified, the order is affirmed.
I. Statement of Facts
At about 1:30 p.m. on June 30, 2010, Officer Valentin Paredez, who was armed and in uniform, received a dispatch that there were three males writing on a handball court in the park behind La Paz Middle School. He arrived at the park within "a few minutes," and parked his vehicle legally on the street. He had not activated the siren on his patrol car. From his patrol car, he saw three men, including defendant, about 50 feet away. They were eating ice cream at the handball court. The officer walked toward them "normally," and "got pretty close to them" before he spoke to them. Officer Paredez told them that he had received a call that someone was vandalizing the handball court and asked them what they were doing. They replied that they were eating ice cream. He saw no signs of vandalism on the handball court near where the men were standing.
Officer Paredez "asked [the men] if they could sit down." He did not "order them to sit down anywhere" or tell them that "they needed to be there." After the men sat down on a picnic bench about 15 feet away, the officer asked them for their names and birthdates, and began record checks and filling out field identification cards with this information. Before receiving a response on the record checks, he "asked if they had anything illegal on them." When the first man said that he did not have anything illegal on him, the officer asked if he could search him. The first man gave his consent. After a search that took "just a few seconds," Officer Paredez found nothing on him. The officer next asked the second man "the same thing." The second man also gave his consent to a search, and the officer found nothing on him. This search took "no more than a minute." When Officer Paredez asked defendant, he replied that he did. He also asked defendant if he could search him, and defendant gave his consent. As the officer was searching defendant, defendant stated that he had a shank. Officer Paredez then located a dirk or dagger, which was between 10 and 12 inches long, on defendant's person. After continuing the search, the officer found a baggy containing a white-crystalline substance and a second knife. The search of defendant took a few seconds, no longer than a minute.
Another officer had arrived at the scene before Officer Paredez began searching the men. By the time that he searched defendant, a third officer had arrived. Neither officer participated in the search.
During the search of defendant, Officer Paredez learned by radio that there was no record for the name and birthdate provided by defendant. A "few minutes" after the search was completed, the officer determined defendant's identity based on his tattoos, and learned that he was on probation and had two outstanding arrest warrants.
The trial court denied the motion to suppress evidence, finding that there was a consensual encounter between the officer and defendant and that defendant had consented to the search.
II. Discussion
A. Motion to Suppress Evidence
Defendant contends that the trial court erred in denying his motion to suppress evidence. He argues that his prolonged detention violated the Fourth Amendment.
"Whether a seizure occurred within the meaning of the Fourth Amendment is a mixed question of law and fact qualifying for independent review. [Citations.] Accordingly, 'we review the trial court's findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently. [Citations.]' [Citation.] We must accept factual inferences in favor of the trial court's ruling. [Citation.] If there is conflicting testimony, we must accept the trial court's resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them. [Citations.]" (People v. Zamudio (2008) 43 Cal.4th 327, 342 (Zamudio).)
"For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police 'contacts' or 'interactions' with individuals, ranging from the least to the most intrusive. First, there are what Justice White termed 'consensual encounters' [citation], which are those police-individual interactions which result in no restraint of an individual's liberty whatsoever—i.e., no 'seizure,' however minimal—and which may properly be initiated by police officers even if they lack any 'objective justification.' [Citation.] Second, there are what are commonly termed 'detentions,' 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.' [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual's liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime." (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
In determining whether an encounter between a police officer and an individual constitutes a detention, we note that a "seizure does not occur simply because a police officer approaches an individual and asks a few questions." (Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick).) For Fourth Amendment purposes, "a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." (United States .v Mendenhall (1980) 446 U.S. 544, 553 (Mendenhall).) "[T]o 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." (Bostick, at p. 439.) "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." (In re Manuel G. (1997) 16 Cal.4th 805, 821.) "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." (Ibid.)
Here, Officer Paredez did not coerce defendant to submit to questioning or to give his consent to a search "by means of physical force or a show of authority." (Mendenhall, supra, 446 U.S. at p. 553.) The officer approached defendant while he and two other men were eating ice cream in a park on a summer afternoon. His patrol car was visible, but he had not activated the vehicle's emergency equipment, and the vehicle was not blocking or impeding defendant's movement. (See People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [police officer did not detain defendant when he parked his patrol car in front of defendant's vehicle, and left room for defendant to leave].) That the officer was armed and in uniform are factors that " 'have little weight in the analysis' for determining whether a seizure occurred." (Zamudio, supra, 43 Cal.4th at p. 346, quoting United States v. Drayton (2002) 536 U.S. 194, 204.) The officer walked toward the men "normally," and told them that he had received a call that someone was vandalizing the handball court. There is no evidence that he told them that he thought that they were involved in any criminal conduct. He then "asked if they could sit down," and he did not tell them that "they needed to be there" or that "they needed to sit down." While they were seated, he asked them for their names and birthdates. He did not tell them that they were required to wait while he conducted a records check. He then asked "if they had anything illegal on them," and if he could search them. At no time did he tell them that they were required to answer his questions or consent to a search. Though two other officers had arrived before defendant gave his consent to a search, these officers were not involved in the search. Under these circumstances, a reasonable person would have believed that he was free to leave or deny any of the officer's requests. Thus, Officer Paredez's encounter with defendant was consensual, and defendant's consent to the search of his person was not the product of an illegal detention. Accordingly, the trial court properly denied defendant's motion to suppress evidence.
Defendant argues, however, that Wilson, supra, 34 Cal.3d 777 compels suppression of the contraband in the present case. In Wilson, the officer approached the defendant, displayed his police identification, asked if he " 'might have a minute of his time,' and told him that he " 'was conducting a narcotics investigation, and that [he] had received information that he would be arriving today from Florida carrying a lot of drugs.'" (Id. at p. 781, italics in original.) The defendant then consented to a search of his luggage. (Id. at p. 782.) Wilson held that the defendant had been detained, and thus the Fourth Amendment protections applied. Wilson reasoned: "Common sense suggests to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer. Before Kaiser made that statement, Wilson might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the time—or, perhaps, the inclination—to answer the officer's questions or to comply with his requests for permission to search. Once the officer advised Wilson that he had information that Wilson was carrying a lot of drugs, the entire complexion of the encounter changed and Wilson could not help but understand that at that point he was the focus of the officer's particularized suspicion." (Id. at pp. 790-791.) In contrast to Wilson, here, though Officer Paredez told defendant and his companions that he had received a call of "somebody vandalizing the handball court," he did not tell them that he suspected them of criminal conduct.
Defendant's reliance on People v Garry (2007) 156 Cal.App.4th 1100 (Garry) is also misplaced. In Garry, a uniformed police officer in a marked patrol car saw the defendant standing next to a parked car at a street corner for a few seconds late at night. The officer then put his patrol car's spotlight on the defendant, immediately got out of his patrol car, and "all but ran directly at him, covering 35 feet in just two and one-half to three seconds." (Id. at pp. 1103-1104, 1112.) After the defendant indicated that he lived nearby, the officer stated that he wanted " 'to confirm that,' " and asked the defendant if he was on probation or parole. (Id. at p. 1104.) The defendant then disclosed that he was on parole, which led to a detention that resulted in the discovery of narcotics on his person. (Id. at pp. 1104, 1112.) Garry concluded that the officer's spotlighting of the defendant, rapid approach on foot, and immediate questioning about his legal status were so intimidating that a reasonable person would not have felt free to leave. (Id. at pp. 1111-1112.) Garry is factually distinguishable from the present case. Unlike the facts in Garry, there was nothing particularly intimidating about the officer's method of approaching defendant and his companions or the nature of his questions.
B. Probation Condition No. 16
Probation condition No. 16 provides in relevant part that defendant "[n]ot associate with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision. . . ." Defendant contends, and the Attorney General concedes, that the words "or suspect" are unconstitutionally vague. We agree.
As this court explained in People v. Gabriel (2010) 189 Cal.App.4th 1070 (Gabriel), "[t]o 'suspect' is 'to imagine (one) to be guilty or culpable on slight evidence or without proof or 'to imagine to exist or be true, likely, or probable.' (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 1187 (Webster's).) To 'imagine' is 'to form a notion of without sufficient basis.' (Webster's, at p. 578.) Given this lack of specificity, the word 'suspect' fails to provide defendant with adequate notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole. Moreover, inclusion of this word renders the condition insufficiently precise for a court to determine whether a violation has occurred." (Gabriel, at p. 1073.) Thus, the first sentence of probation condition No. 16 should be modified to delete the words "or suspect."
III. Disposition
The first sentence of probation condition No. 16 is modified to read: "Not associate with any individuals you know to be gang members, drug users, or on any form of probation or parole supervision." As modified, the order is affirmed.
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Mihara, Acting P. J.
WE CONCUR:
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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