Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR022839. John W. DeGroot, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT*
A jury convicted appellant Anthony Slama of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a felony, and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), a misdemeanor. In a separate proceeding, appellant admitted allegations that he had suffered a “strike” and that he had served three separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). The court imposed a prison term of nine years, consisting of the three-year upper term on count 1, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and one year on each of the three prior prison term enhancements. On count 2, the court imposed a sentence of 43 days in county jail and awarded appellant credit for time served.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Prior to trial, at an Evidence Code section 402 (section 402) hearing, the court ruled that evidence of certain statements made by appellant to police officers was admissible at trial. On appeal, appellant contends he made those statements during a custodial interrogation not preceded by the admonitions required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and therefore their admission violated his rights under Miranda. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
City of Madera Police Officer Juan Villegas testified that on Sept 28, 2005, while investigating a report of “[a] subject... probably looking over fences,” he encountered appellant in an alley. The officer made contact with appellant and, as the officer “patted [appellant] down for weapons,” the officer “asked [appellant] at the same time if he had any weapons or drugs or if he used any....” Appellant responded that he did not have any drugs in his possession but that “he does use drugs”; he “used two days ago” and “he only has a pipe in his pocket....” As he admitted having the pipe, appellant “immediately pulled it out....”
Except as otherwise indicated, our factual statement is taken from Officer Villegas’s testimony at the section 402 hearing.
The officer “felt something, felt like a pipe” as he was patting appellant down. The officer felt the pipe at “pretty much … the same time” appellant stated he had the pipe. The officer did not remember if, when he felt the object, he asked appellant what it was. The questioning described by the officer and the pat search took “a couple of seconds.”
Officer Jason Gutknecht arrived on the scene as appellant was conducting the pat search. The pipe was handed over to him.
At no time did Officer Villegas place appellant under arrest or advise him of his rights under Miranda.
Officer Gutknecht testified that as he arrived on the scene, Officer Villegas was “speaking with [appellant].” Officer Villegas had “detained” appellant but had not arrested him. Officer Villegas “told [appellant] that he believed he had a glass pipe in his pocket and at that time [appellant] reached in his pocket and pulled it out.” Appellant handed the pipe Officer Gutknecht.
Except as otherwise indicated, the remainder of our factual statement is taken from Officer Gutknecht’s testimony at the section 402 hearing.
“Officer Villegas searched the immediate area and [Officer Gutknecht] continued to speak with [appellant]. Just, I guess, small talk, why we were there....” Approximately “[a] minute or two after” appellant produced the pipe, he stated he had smoked methamphetamine approximately 30 minutes prior to Officer Gutknecht’s arrival.
Asked if he “ask[ed] [appellant] any questions to elicit that statement,” Officer Gutknecht responded, “No, not really. It was just small talk. I didn’t ask him any specific questions, when did he smoke it last or anything like that, no.” The officer was “just basically talking to [appellant], telling him why [the officer was] there.” He did ask appellant “why he would be there at that time, stuff like that.”
At some point after appellant stated he had smoked methamphetamine 30 minutes previously, Officer Gutknecht, who placed a call to police dispatch by means of the police radio attached to his uniform to determine if appellant was on parole, learned that appellant was subject to a parole hold. A “split second” later, Officer Villegas found a quantity of methamphetamine. At that point, after Officer Villegas found the methamphetamine and approximately two to three minutes after first making contact with appellant, Officer Gutknecht handcuffed appellant and placed him under arrest.
At trial, the People introduced evidence that after Officer Gutknecht arrived on the scene, Officer Villegas searched the “immediate area” and found a Tupperware container, inside of which was a substance that was later tested and determined to contain methamphetamine.
DISCUSSION
As indicated above, appellant argues the court erred in failing to exclude incriminating statements he made to police because, he contends, he made those statements during a “custodial interrogation” that was not preceded by Miranda warnings. The People do not dispute that appellant was interrogated by police. Rather, the People argue that appellant was not subject to a custodial interrogation, and that therefore Miranda admonitions were not required.
In Miranda, the United States Supreme Court “determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.” (Edwardsv.Arizona (1981) 451 U.S. 477, 481-482.) Statements obtained in violation of Miranda are not admissible to prove the accused’s guilt in a criminal prosecution. (Miranda, supra, 384 U.S. at pp. 444-445.)
“But in order to invoke [the] protections [of Miranda], a suspect must be subjected to custodial interrogation, i.e., he must be taken into custody or otherwise deprived of his freedom in any significant way. [Citation.] [T]he ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (People v. Morris (1991) 53 Cal.3d 152, 197, citing California v. Beheler (1983) 463 U.S. 1121, quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495, internal quotation marks omitted.) The determinative question is “whether a reasonable person in the defendant’s position would have felt he or she was in custody.” (People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury II).) Thus, “Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest?” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)
In making this determination, “‘the totality of the circumstances is relevant, and no one factor is dispositive. [Citation.] However, the most important considerations include (1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.’” (People v. Stansbury (1993) 4 Cal.4th 1017, 1050 (Stansbury I).) The United States Supreme Court has recognized that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” (Oregon v. Mathiason, supra, 429 U.S. at p. 495.)
“The trial court’s resolution of factual disputes is to be affirmed if it is based on substantial evidence. [Citations.] ‘We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.’” (Stansbury I, supra, 4 Cal.4th at p. 1050.)
Here, the trial court reasonably could have found, based on the undisputed evidence adduced at the section 402 hearing, as follows: at the time appellant made his incriminating statements he had not been placed under arrest nor was there any evidence of indicia of formal arrest, such as handcuffing; he was in a public place--an alley--which, although presumably not a particularly well-traveled public thoroughfare, was not like the police-dominated setting of a police station (cf. People v. Morris, supra, 53 Cal.3d at p. 198 [interrogation held noncustodial based in part on the fact that “[t]he inquiry did not take place in jail or on police premises, but in defendant’s own motel room....”]); there is no indication the officers displayed their weapons or made any threats; and the interrogation during which appellant made the incriminating statements was brief, spanning approximately two to three minutes from the time of Officer Villegas’s contact with appellant to that point at which Officer Gutknecht handcuffed appellant and placed him under arrest. On this record, we conclude that under the totality of the circumstances, at the time appellant made his incriminating statements, a reasonable person in appellant’s position would not have concluded that the restraints placed on him by Officers Villegas and Gutknecht were tantamount to formal arrest.
The instant case is similar to People v. Manis (1969) 268 Cal.App.2d 653 (Manis). In that case, police were patrolling an area in which typewriters had been stolen. The officers observed Manis carrying a new portable typewriter case and heading for the pawnshop area. Manis’s conduct, after discovering the officers’ observation, was evasive. Accordingly, the officers stopped Manis and asked where he was going and what was in the case. Manis answered that they were radios. The officers asked whether Manis had a receipt, and he replied, “‘No,’... ‘I stole them.’” The officers then arrested Manis and gave Miranda warnings. (Id. at pp. 657-658.)
The court noted that temporary detentions encompass a limited restriction of the personal mobility of a suspect, for a brief period of time, usually in a public place, normally without transfer to another location. The limited restriction may be accompanied by brief questioning on matters that have aroused the suspicion. (People v. Manis, supra, 268 Cal.App.2d at p. 663.) Thus, “persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive.” (Id. at p. 669.)
Here, as in Manis, although appellant was subjected to pointed questioning by police, that questioning was brief and never became sustained or coercive. The nature of the questioning is a factor we consider, but as in Manis, that questioning did not turn the encounter into a custodial interrogation. As our Supreme Court stated in People v. Farnam (2002) 28 Cal.4th 107, 180, “the term ‘custody’ [for Miranda purposes] generally does not include ‘a temporary detention for investigation’ where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. [Citation.]”
Appellant argues as follows: police officers asked him “potentially incriminating questions” and made a “show of force, with two officers present,” while conducting “an ongoing criminal investigation”; under these circumstances, a reasonable person would not have felt “free to leave or terminate the encounter”; and therefore Officers Villegas and Gutknecht, in questioning appellant, conducted a custodial interrogation. There is no merit to this contention. As we explain below, the free-to-leave-or-terminate-the-encounter standard is not applicable here.
That standard is applicable in the Fourth Amendment context: “A seizure within the meaning of the Fourth Amendment occurs whenever an individual’s liberty is restrained by the police, either by physical force or an assertion of authority, to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave.” (People v. Hester (2004) 119 Cal.App.4th 376, 385 italics added.) And there is no dispute appellant was subject to this kind of seizure, commonly referred to as a detention. (See Florida v. Bostick (1991) 501 U.S. 429, 439 (Bostick).) However, “[w]hether an individual has been... seized for Fourth Amendment purposes and whether that individual is in custody for Miranda purposes are two different issues.” (People v. Pilster, supra, 138 Cal.App.4th at p. 1405; accord U.S. v. Kim (9th Cir. 2002) 292 F.3d 969, 976.) In determining whether an individual is in custody for purposes of Miranda, the issue “‘is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest.’” (People v. Pilster, supra, 138 Cal.App.4th at p. 1403, fn. 1; accord, Doe v. Bagan (10th Cir. 1994) 41 F.3d 571, 575, fn. 3 [nine-year-old interrogated in principal’s office not in custody for Miranda purposes despite belief that he was not free to leave]; U.S. v. Pelayo-Ruelas (8th Cir. 2003) 345 F.3d 589, 592 [court “reject[ed] [defendant’s] broad contention that a person is in custody for Miranda purposes whenever a reasonable person would not feel free to leave,” noting that although “[o]ne is not free to leave a Terry stop until the completion of a reasonably brief investigation, which may include limited questioning,” “most Terry stops do not trigger the detainee’s Miranda rights”]; U.S. v. Swanson (6th Cir. 2003) 341 F.3d 524, 529 [defendant “not subject to custodial interrogation” where, “[a]lthough [he] was not free to leave during the questioning, the restraint exercised never reached the level associated with “‘formal arrest or a coercive context tantamount to custody’”].)
See Terry v. Ohio (1968) 392 U.S. 1.
Appellant argues that People v. Manis, supra, 268 Cal.App.2d 653, discussed above, is not good authority on the question of what constitutes custodial interrogation because it has been “effectively super[s]eded” by Bostick, supra, 501 U.S. 429 and Florida v. Royer (1983) 460 U.S. 491 (Royer). (Emphasis omitted.) This is incorrect. As our Supreme Court has stated, each of these cases indicate that “[i]t is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so. There is no Fourth Amendment violation as long as circumstances are such that a reasonable person would feel free to leave or end the encounter.” (People v. Rivera (2007) 41 Cal.4th 304, 309, citing Bostick, Royer and Manuel G., italics added.) Because Bostick and Royer are Fourth Amendment cases, neither has any bearing on the question of whether a police encounter qualifies as a custodial interrogation for Miranda purposes.
Here, as demonstrated above, appellant was not subject to police “restraints... tantamount to formal arrest.” (People v. Pilster, supra, 138 Cal.App.4th at p. 1403.) The fact that a reasonable person in his position would not have felt free to leave or terminate the encounter, and that therefore appellant was seized within the meaning of the Fourth Amendment, does not establish otherwise.
DISPOSITION
The judgment is affirmed.