Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pena, Judge, Super. Ct. No. F06908741
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Before Harris, Acting P.J., Levy, J., Cornell, J.
OPINION
INTRODUCTION
Appellant, Kevin Eugene Price, pled no contest to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), after the trial court denied his suppression motion. Appellant admitted two prior prison term enhancements and three prior serious felony allegations within the meaning of the three strikes law. In exchange for appellant’s plea, the court granted the prosecutor’s motion to dismiss two prior prison term enhancements and there was an agreement the court would strike two of the three prior serious felony allegations.
At the sentencing hearing on March 5, 2007, the court struck two of the three prior serious felony allegations. The court sentenced appellant to the mitigated term of 16 months which it doubled pursuant to the three strikes law. The court imposed a restitution fine and granted applicable custody credits. Appellant contends the trial court erred in denying his suppression motion.
FACTS
On November 12, 2006, police officers Phebus and Bishop were on patrol. At about 6:54 p.m., Phebus saw four people, including appellant, standing on a street corner. Appellant and two others started to walk away when they saw the patrol car. The officers pulled the car around, stopped, and approached appellant and his companions. Phebus asked to talk to the group. Bishop remained in the car. All three stopped walking. No one responded to the question.
Phebus asked if anyone lived nearby. Appellant said he lived outside the area. Phebus asked if anyone was on probation or parole. Two people, including appellant, said they were not. Appellant gave his name as Daryl Miller and said he had no identification. Phebus testified that appellant was free at that time to excuse himself and walk away. A woman companion, who was unsure of her probation or parole status, was asked to remain. She was told to sit on the curb.
The others, including appellant, remained. Phebus asked appellant if Bishop could search him and if he was carrying anything illegal. Phebus testified that appellant consented to the search. Appellant then spread his feet and arms out.
Appellant testified that he first noticed the patrol car as he was crossing the street. When the officer asked to speak to the group, appellant was with two other people who stopped. Appellant kept walking. The officer who had been driving exited the car, circled around, and stood in front of appellant so he could not proceed. When asked if he was on probation or parole, appellant replied “No.”
One of the officers told appellant he was going to be searched for safety. Appellant was told to spread his legs and place his hands on his head. No one asked appellant if they could search him. Appellant denied stopping on his own volition or agreeing to have anyone search him. Had the officer not stopped in front of him, appellant would have continued walking.
The trial court found a disparity between Phebus’s and appellant’s version of events. The court noted that if it believed appellant’s testimony, the search would be nonconsensual. The court found Phebus’s testimony to be more credible. The court found the search was consensual and denied the suppression motion.
DISCUSSION
The prosecution bears the burden of showing a consent to search is voluntary and unaffected by duress or coercion. The voluntariness of a consent is a factual question to be decided in light of all the circumstances. The trial court’s findings, whether express or implied, are upheld on appeal if supported by substantial evidence. (People v. Aguilar (1996) 48 Cal.App.4th 632, 639; also see People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410; People v. Gallant (1990) 225 Cal.App.3d 200, 206.) The trial court is vested with the authority during a suppression hearing to weigh the evidence and to draw factual inferences. It is the responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness. (People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Dominguez (1988) 201 Cal.App.3d 345, 353.) We defer to the factual findings of the trial court whether they are expressed or implied. (Ibid.)
The California Supreme Court, in the case of In re Manuel G. (1997) 16 Cal.4th 805, 821, found that consensual encounters do not trigger Fourth Amendment scrutiny. Unlike detentions, they do not require articulable suspicion that the suspect has or is about to commit a crime. An officer may approach anyone on the street and ask a few questions as long as a reasonable person would feel free to leave. A seizure occurs only when the officer, by means of physical force or show of authority, in some manner restrains an individual’s liberty. A court must consider all of the circumstances surrounding the encounter to determine if the police conduct would have communicated to a reasonable person that the person was not free to terminate the encounter. Circumstances establishing a seizure could include the presence of several officers, the display of the officer’s weapon, physical touching of the suspect, or the use of language or a tone of voice indicating compliance with the officer was necessary. (Ibid.)
In People v. Galindo (1991) 229 Cal.App.3d 1529 (Galindo), the defendant was stopped for a traffic infraction that did not involve suspicion of intoxication. The investigating officer asked the defendant if he had guns or drugs in the car. The defendant replied that he did not have these items. (Id. at pp. 1534-1535.) The officer asked for consent to search the automobile and it was given orally and in writing by the defendant through the execution of a consent form. (Id. at p. 1535.)
Following Terry v. Ohio (1968) 392 U.S. 1, 34, the Galindo court noted there is nothing in the Constitution to prevent a police officer from addressing questions to anyone on the streets. (People v. Galindo, supra, 229 Cal.App.3d 1529, 1535.) Relying on United States v. Mendenhall (1980) 446 U.S. 544, 553-554, the Galindo court found that a person is seized only when, by means of physical force or show of authority, his or her freedom of movement is restrained.
The Galindo court held that there was no seizure of the defendant there because the events took place in public, there was no display of a weapon, and there was no use of language or tone of voice indicating that compliance was compelled. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. As long as the person to whom questions are put remains free to disregard the questions and walk away, there is no intrusion upon that person’s liberty or privacy as would require a particularized and objective justification under the Constitution. (People v. Galindo, supra, 229 Cal.App.3d 1529, 1535.)
In the instant action, Officer Phebus testified that appellant was not stopped or detained. Phebus only asked if appellant and his companions were on probation or parole, their names, and if they lived nearby. A companion was briefly detained because she could not remember her probation or parole status. According to Phebus, appellant was free at that time to walk away. Instead, appellant chose to remain at the scene of his companion’s detention. Phebus was accompanied by only one other officer and did not display a gun. Phebus did not physically touch appellant or order him to do anything. According to Phebus’s testimony, appellant consented to a search of his person.
Questions directed to one concerning where he or she has been and where he or she is going are considered no more than conventional pleasantries, or small talk, and are not unconstitutional. (People v. Bell (1996) 43 Cal.App.4th 754, 768.) There is no fixed time span that automatically invalidates a search. (Id. at p. 767.) The fact, for instance, that there were two officers present, without more, is insufficient to invalidate a finding of consent. (See People v. James (1977) 19 Cal.3d 99, 110.) One under arrest and wearing handcuffs can still give valid consent to search. (Ibid.)
We agree with respondent that Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400, 2407-2410 (Brendlin), is distinguishable from this case. The Supreme Court rejected the argument that the seizure of a passenger did not begin until there was a formal arrest. Brendlin held that a passenger was seized after the driver of a vehicle was stopped by an officer. Here, unlike the passenger in Brendlin, appellant was not traveling in a vehicle driven by another person. Appellant was on foot, free to continue on his way.
The fact that Phebus asked appellant if he had anything illegal on him did not, by itself, vitiate appellant’s consent to be searched. This was simply one final, short question the officer could ask. Doing so did not create a detention of the appellant. Although appellant’s version of events differed from Phebus’s testimony, the trial court was entitled to weigh the credibility of each witness. We must defer to the trial court’s judgment concerning the credibility of witnesses and the weight to accord each piece of evidence.
DISPOSITION
The judgment is affirmed.