Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA361468, Clifford Klein, Judge.
G. Martin Velez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Vincent Tyrone Rucker appeals from the judgment entered following a jury trial in which he was convicted of possession of cocaine base for sale and possession of cocaine, concentrated cannabis, and methamphetamine. Defendant contends the trial court erred by denying his motion to exclude statements elicited from him in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda). We affirm.
BACKGROUND
About 4:45 p.m. on August 30, 2009, Los Angeles Police Department Officers Adolfo Vasquez and Olga Hernandez responded to a police broadcast regarding a man and a woman engaging in lewd acts in a black car at Cherrywood Avenue and Rodeo Road in Los Angeles. The officers found a man and a woman in a black car that was parked more than 18 inches from the curb, but did not see any lewd conduct. Vasquez approached the passenger in the black car, while Hernandez approached defendant, who was in the driver’s seat. The officers completed field interview cards for the driver and the passenger, then Hernandez “ran” defendant’s driver’s license and found that it was suspended. The officers arrested the passenger, who had an outstanding warrant, and put her in their patrol car. Vasquez then walked back to the black car and asked defendant if he was aware that his license was suspended. Defendant replied that he had already taken care of that. Vasquez returned to the patrol car, checked the status of defendant’s license, and confirmed that it remained suspended.
As Vasquez walked back toward defendant’s car, he noticed a clear plastic bag on the ground 10 to 12 inches from the driver’s door of defendant’s car. The bag had not been there when Vasquez approached the car to ask about the suspended license. Vasquez could see two smaller baggies containing a green leafy substance resembling marijuana inside the larger bag. He picked up the bag and asked defendant what it was. Defendant replied, “‘I am sorry. I didn’t want you to see this. This is why I threw it out.’” The bag contained 15 small bags that appeared to contain marijuana, four small bags that appeared to contain heroin, 15 foil-wrapped rocks that appeared to be rock cocaine, three paper bindles of what appeared to be powdered cocaine, and five small bags that appeared to contain methamphetamine. Testing confirmed that the foil wrapped rocks contained cocaine base, the paper bindles contained cocaine powder, the five small bags that appeared to contain methamphetamine actually contained methamphetamine, and the four small bags that appeared to contain heroin actually contained concentrated marijuana. (The record does not indicate the results of testing on the bags that appeared to contain marijuana.) A narcotics officer testifying as an expert witness opined that defendant possessed the contraband for the purpose of sale.
Defendant’s mother testified that on August 30, 2009, she went to Cherrywood Avenue and Rodeo Road to retrieve the black car defendant had been driving before he was arrested. She found defendant’s driver’s license and proof of insurance under the windshield wiper.
The jury convicted defendant of possession of cocaine base for sale and possession of cocaine, concentrated cannabis, and methamphetamine. The court found that defendant had a prior conviction for possession of a controlled substance for sale and had served a prior prison sentence within the scope of Penal Code section 667.5, subdivision (b). The court sentenced defendant to seven years in prison.
DISCUSSION
Before interrogating a person in custody, the police must warn the person that he or she has a right to remain silent, that any statement the person makes may be used as evidence, and that the person has a right to the presence of retained or appointed counsel. (Miranda, supra, 384 U.S. at p. 444.)
Miranda advisements are required only when a person is subjected to “custodial interrogation.” (Miranda, supra, 384 U.S. at p. 444.) “Custody” in the Miranda context includes both actual custody and any situation in which a person’s “freedom of action is curtailed to a ‘degree associated with formal arrest.’ [Citation.]” (Berkemer v. McCarty (1984) 468 U.S. 420, 440 [104 S.Ct. 3138] (Berkemer).) In making this determination, a court must examine the totality of circumstances-excluding from consideration the officers’ subjective views, beliefs, or knowledge, unless communicated to the suspect-to determine whether a reasonable person in the defendant’s position would have experienced a restraint on freedom of movement tantamount to a formal arrest. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) No single factor is dispositive, but the following factors are relevant: the purpose, place, and length of the questioning; the ratio of officers to suspects; the officer’s demeanor; restrictions upon the defendant’s freedom of movement; the nature of questioning; the defendant’s agreement to be interviewed; advisement that the defendant could terminate the questioning; police domination and control of the questioning; whether police informed the defendant he or she was considered a witness or suspect; and whether the defendant was arrested at the end of the interview. (Id. at pp. 1403–1404.)
Generally, an ordinary traffic stop does not create custody for purposes of Miranda, even though the stop temporarily curtails the freedom of action of the driver and any passengers. (Berkemer, supra, 468 U.S. at pp. 437–439.) But “[i]f a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.” (Berkemer, at p. 440.)
Defendant asked the trial court to exclude the statement he made to Vasquez about throwing the bag of drugs out of the car on the ground that the statement was the product of custodial interrogation without the benefit of Miranda warnings. Before ruling upon defendant’s motion, the trial court read Vasquez’s preliminary hearing testimony and heard additional testimony by Vasquez.
Vasquez testified that when he and his partner conducted the “traffic stop” at Cherrywood and Rodeo, the red and blue lights on their patrol car were illuminated. Vasquez approached the passenger, and Vasquez’s partner approached the driver (defendant). Vasquez’s partner filled out a field interview card for defendant and Vasquez filled out a card for the passenger. Vasquez’s partner then ran a “want and warrant” check on both defendant and the passenger. The passenger had an outstanding warrant, so the officers arrested her. The check indicated that defendant had a suspended driver’s license, so Vasquez approached defendant and “asked him if he was aware that he was in possession of a suspended license.” Defendant said, “‘That should have already been taken care of.’” As Vasquez’s partner remained at the patrol car with the arrested passenger, Vasquez returned to the patrol car and checked again to verify that defendant’s license was suspended. As Vasquez returned to the driver’s side of defendant’s car, he saw a large plastic bag on the ground just outside the driver’s side car door. The bag had not been there the first time Vasquez approached. Vasquez could see that it contained “at least a couple clear ziploc baggies, each containing a green leafy substance resembling marijuana.” Vasquez asked defendant, “‘What is this?’” Defendant said, “‘I’m sorry. This is my bag. I didn’t want you to catch me with it.’” Defendant was still sitting in the car and was not handcuffed when Vasquez asked him about the bag.
The trial court denied defendant’s motion after concluding that Miranda was inapplicable because defendant was not in custody when he responded to Vasquez’s question about the bag. Defendant contends the trial court erred. He argues that by completing field identification cards and asking defendant about his suspended driver’s license and the plastic bag, the police implicitly communicated to him that he was the focus of a criminal investigation, thus triggering the requirement of Miranda warnings.
The determination of whether defendant was in custody is a mixed question of law and fact. (People v. Ochoa (1998) 19 Cal.4th 353, 401–402.) We accept the trial court’s resolution of disputed facts and inferences, and evaluations of credibility, if they are supported by substantial evidence. But we independently determine from the undisputed facts, and those properly found by the trial court, whether the defendant was in custody. (People v. Bradford (1997) 14 Cal.4th 1005, 1032–1033 .)
We conclude that the trial court did not err. The initial interaction between the police and defendant was an ordinary traffic stop, which does not, in and of itself, create a custodial situation. (Berkemer, supra, 468 U.S. at pp. 437–439.) After the initial stop, and prior to defendant’s admission, the police did nothing to curtail defendant’s freedom of action to the degree associated with a formal arrest. Defendant was not removed from his car, handcuffed, or searched. He remained seated in his car, which was parked on a public street, in view of passing motorists, pedestrians, and other observers. (Berkemer, supra, 468 U.S. at p. 438.) As far as the record reveals, the officers did not draw their guns or threaten defendant in any way. Only one officer spoke to defendant at a time, and they neither subjected him to prolonged or accusatory questioning nor pressured him for information. Instead, after obtaining defendant’s driver’s license and some additional, unspecified information for the field interview card, Vasquez asked defendant only two questions during the entire traffic stop. Vasquez first asked if defendant knew his license was suspended. This question was not such as to lead a reasonable person in defendant’s position to believe that he was under arrest or about to be arrested, or that interrogation would continue until he provided the answers the officer sought. (Berkemer, supra, 468 U.S. at p. 438.) Indeed, after defendant claimed he had taken care of the suspended license, Vasquez returned to the patrol car to check again on the status of defendant’s license. Nor was Vasquez’s second question-about the plastic bag that had suddenly appeared on the ground near defendant-accusatory. Although Vasquez believed that the bag on the ground contained marijuana, he did not communicate his suspicions or an intent to arrest defendant. Vasquez’s undisclosed beliefs and intent cannot be considered in determining whether defendant was in custody. (Stansbury v. California (1994) 511 U.S. 318, 324 [114 S.Ct. 1526].) Considering the apparent brevity of the traffic stop, the absence of any coercive conduct by the officers, and the brief, non-accusatory questioning, we conclude that a reasonable person in defendant’s position would not have experienced a restraint on his freedom of movement that was tantamount to a formal arrest.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.