Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD196090, Kerry Wells, Judge.
HUFFMAN, J.
After the trial court denied a motion to suppress evidence (Pen. Code, § 1538.5), Ronald Stacy entered a guilty plea to possessing methamphetamine for sale (Health & Saf. Code, § 11378) and admitted one of the prior prison term allegations (Pen. Code, § 667.5, subd. (b)). The court sentenced Stacy to prison for three years, with execution of sentence suspended until the outcome of this appeal.
Stacy appeals, contending the court erred by denying his motion to suppress evidence. He contends his consent to the search of his home was the result of police coercion and therefore the search was a violation of his rights under the Fourth Amendment. We affirm the judgment.
Because a trial was not held, the statement of facts is taken from the hearing for the motion to suppress evidence and from the probation report.
On January 6, 2006, San Diego City Police Officer Carlos Navarro and his partner, Officer Edward Zwibel, arrived at Stacy's residence to conduct a "knock and talk" follow-up to their investigation of a narcotics complaint. The house had an attached carport with a surveillance camera set up directly over the carport entrance, facing the adjacent alley. As the officers approached, they saw Stacy's wife, Angela Stacy (Angela), leaving the front door of the house. Three men, including Stacy, were working on a parked car in the alley. Officer Zwibel informed the three men that it was illegal to work on the car in a city alleyway and asked for their identification. Zwibel had the men sit on the curb while he ran a records check. Meanwhile, Officer Navarro approached Angela and directed her over to the curb as well.
Before Zwibel finished running the records check, he saw Theresa Amarias opening the carport gate and carrying two bags - one brown and one black - under her left arm. When Zwibel called to Amarias, she stopped, turned around and walked back through the gate. Zwibel heard a loud metallic crash, causing him to believe Amarias was getting rid of narcotics or weapons. Amarias re-emerged from the carport without the black bag. She was cooperative and informed the officer that she was on probation with a search waiver.
At this point, Zwibel pulled Stacy aside and informed him that he believed Amarias had either dumped narcotics or a weapon in his carport. Zwibel asked Stacy for his consent to accompany him to the carport in order to verify what did and did not belong to Stacy. Stacy agreed to accompany Zwibel to search for the items. While Zwibel and Stacy went into the carport, Navarro watched the other four people at the curb. Once inside the carport, Zwibel saw the discarded black bag, with a set of keys attached, sitting on top of a truck toolbox. Stacy told Zwibel that the bag and the keys did not belong to him. Inside the bag, the Zwibel found methamphetamine in plastic baggies, a digital scale and a methamphetamine pipe.
Zwibel went back outside with Stacy and arrested Amarias. While Zwibel placed Amarias under arrest, Navarro informed Stacy that Zwibel found narcotics in the black bag and that they would need to search the residence. Zwibel joined the conversation and explained to Stacy that there was a narcotics complaint alleging that Stacy may be selling narcotics, the house appeared to be modified so as to be conducive to selling narcotics, people with narcotics histories were present at the house, and a probationer left behind a sellable amount of narcotics in Stacy's carport. The situation indicated the complaint was valid and in order to proceed with the investigation, Zwibel would need to obtain a telephonic search warrant.
Zwibel told Stacy that obtaining the search warrant could take up to two hours and offered an alternative option. Stacy could sign a consent-to-search form which would permit an immediate search. Zwibel retrieved the consent-to-search form from his patrol car and asked Stacy to read it. Stacy turned to his wife for guidance and she raised the issue of having to pick up their child from school. Zwibel told Angela that people would not be allowed to come and go before officers secured the house due to officer safety concerns. He offered to send a uniformed officer to pick up her child but Angela did not want the attention it would bring to her family. Angela also refused Zwibel's offer to send a plainclothes officer.
When Angela asked to call Stacy's mother to arrange for her to pick up the child, Zwibel made it clear that he could not have calls made to unknown people unless the consent-to-search form was signed or a search warrant was executed. He had concerns that evidence and safety issues would arise from such outside communication. Zwibel instead offered to call Stacy's mother himself and arrange to have the child picked up but Angela again refused, insisting that she make the call.
After this discussion, Stacy signed the consent form. Other members of Zwibel's team that had since arrived went into the house and secured the residence. As a result of the search, officers found narcotics, another methamphetamine pipe, and a smoke grenade.
On January 25, 2006, the San Diego District Attorney filed an information charging Stacy with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and with possession of narcotics paraphernalia (Health & Saf. Code, § 11364). The information also alleged Stacy suffered three prior prison terms within the meaning of Penal Code sections 667.5, subdivision (b) and 668.
Stacy moved to suppress evidence gathered or observed by the San Diego Police Department officers while conducting the search of his home. Stacy asserted he was detained without probable cause, or if cause existed, the detention was unduly prolonged. He further argued the officers coerced him into giving consent to the search of his home. The court denied the motion to suppress evidence.
DISCUSSION
Stacy contends the court erred by denying his motion to suppress evidence because he did not voluntarily consent to the search of his home. He asserts his detention and the officer's refusal to allow him or his wife to pick up their child from school until he consented to the search or the officers secured a search warrant was coercive.
I
MOTION TO SUPPRESS EVIDENCE
When we review a trial court's ruling on a suppression motion, we defer to the court's factual findings, express or implied, where supported by substantial evidence. In determining whether a search or seizure is reasonable under the Fourth Amendment, we exercise independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A search conducted without a warrant is presumed unreasonable unless it falls within an exception to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357.) One such exception is the consent to search. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) The prosecution bears the burden of showing that consent to a search is voluntary and unaffected by duress or coercion. (People v. Boyer (2006) 38 Cal.4th 412, 445-446.) The voluntariness of the challenged consent is a question of fact to be determined in light of the totality of circumstances and no single factor is determinative. (Schneckloth, supra, 412 U.S. at p. 227.) " 'The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.' " (People v. Monterroso (2004) 34 Cal.4th 743, 758.) On appeal, all presumptions favor proper exercise of that power and the trial court's findings, whether express or implied, must be upheld if supported by substantial evidence. (Ibid.)
Stacy argues the police coerced him to consent to the search because he and his wife were detained and were not allowed to pick up their daughter from school. However, police may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion that criminal activity may be taking place. (U.S. v. Sokolow (1989) 490 U.S. 1, 7.) Such detentions are permitted because they are limited intrusions that are "justified by special law enforcement interests." (Michigan v. Summers (1981) 452 U.S. 692, 700.) An officer's reasonable suspicion is measured by the objective standard as to whether other officers in the same situation would have suspected the person of criminal activity at the time of the detention. (In re James D. (1987) 43 Cal.3d 903, 914.) We apply the totality of circumstance test to see if the facts, taken together, amount to reasonable suspicion in order to determine the validity of the detention. (Sokolow, supra, 490 U.S. at p. 8.)
Here, the facts amounted to a reasonable suspicion that supported Zwibel's detention of Stacy outside his home. There was reasonable cause to detain Stacy for working on a car illegally parked in the alleyway. On that ground, the officers had a legal right to detain Stacy to investigate the Municipal Code violation. Then, before Zwibel could finish running names and address the Municipal Code violation, Amarias came through the gate, exhibiting suspicious behavior. Zwibel testified that everything happened very quickly. Zwibel had to address the safety and evidence issue that resulted from Amarias's actions before he was able to finish his initial contact with Stacy.
In response to Amarias's actions, Zwibel asked Stacy to accompany him into the carport in order to retrieve the items discarded by Amarias. Stacy consented to accompany Zwibel in the search of the carport. With the discovery of narcotics in the black bag left behind in the carport, it was reasonable that Zwibel believed Stacy was involved in the sale of narcotics. The focus of the investigation switched to the narcotics complaint. The officers had enough facts - the narcotics complaint, suspicious behavior by someone stepping out of Stacy's carport, the security camera and narcotics found in the carport - to continue to detain Stacy as well as the other people on the premises. The record supports the court's finding the continued detention was warranted given the events that developed during the investigation.
On the issue of whether Angela's detention coerced Stacy's consent, the court found it was a "red herring because . . . there was no evidence at all that whether she was illegally detained or being held by the officer in any way influenced Mr. Stacy's decision to sign the consent form. . . ." The only direct evidence provided by the officers' and Angela's testimonies regarded concern about the daughter. There was no direct evidence from Stacy as to why he signed the consent form or what influenced him. Therefore, the consent to search given by Stacy was not tainted by unlawful detention.
Stacy further argues his consent to search was based on coercion because the officers denied his and his wife's request to pick up their child until he signed the consent form or the officers obtained a search warrant. The court believed Angela's concerns for her child. Angela became increasingly agitated as she repeatedly asked permission to pick up her daughter from school. The court understood Angela could feel that having a uniformed officer pick up her child was not a reasonable option. However, Zwibel offered alternatives including having a plainclothes officer get Angela's child or calling Stacy's mother on Angela's behalf in order to arrange a pick up. But Angela refused the alternative options. Based on his experience, Zwibel knew that once contraband was found there was a likelihood that more evidence would be found. There was a possibility that Angela had controlled substances in her possession. If the officers allowed her to leave, there was the chance that evidence could be destroyed. Zwibel had valid safety concerns about people leaving the premises and Angela making calls to unknown people, possibly tipping them off about the officers' presence.
Stacy points out that the officers could have conducted a protective sweep of the house and then allowed Angela to leave. Officers may conduct a protective sweep while awaiting the issuance of a search warrant under exigent circumstances. (People v. Bennett (1998) 17 Cal.4th 373, 384.) However, it is reasonable to believe that the officers' safety concerns in a situation where there were only two officers monitoring five other people would prevent them from conducting a protective sweep.
The court noted there was conflict in testimony regarding Zwibel's offer to make the call to Stacy's mother and Angela's refusal. The court made a credibility decision and found Zwibel truthful in his testimony and agreed the officers had valid safety concerns about allowing calls to unknown persons before securing the house. The record supports the court's finding that Zwibel tried to work with Stacy and his wife by offering various ways they could take care of their child. The court stated, "I think [the officers] gave as many options as they could give. The fact that the defendant was faced with some options and faced with making some choices [does not] ipso facto mean the choice he made was involuntary." In light of the officers' testimonies and the totality of circumstances, the record shows Stacy made a voluntary and knowing consent to the search. Thus, Stacy's signature on the consent-to-search form was legally obtained and the court properly denied the motion to suppress evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.