Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Super. Ct. No. BF120628A
Katherine Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Hill, J. and Kane, J.
INTRODUCTION
Appellant Tanisha Lajoy Starks pleaded no contest to possession of cocaine after the trial court denied her motion to suppress the evidence, and she was sentenced to the midterm of two years. On appeal, she contends that she was illegally detained and the items found during the subsequent search should be suppressed. We will affirm.
FACTS
At 8:00 a.m. on September 13, 2007, Officer Alexander Paiz was driving a marked patrol car in the 400 block of V Street in Bakersfield. He was familiar with the area and previously participated in making arrests there for drug possession and prostitution charges. He was traveling southbound and saw appellant sitting on the east curb, which was on his left side. He activated the flashing amber emergency lights on his patrol car and pulled across the street against traffic. He stopped his patrol car next to where appellant was sitting on the east curb.
Officer Paiz testified that as he was in the process of parking his car on the east curb, appellant was in the process of getting up and walking north, with her back to Paiz. Paiz left the patrol car running and got out of the vehicle. Appellant was about 10 feet away from him. Paiz asked, “Where are you going?” Appellant stopped, turned around, faced Paiz, and replied, “‘I’m just hanging out.’” Paiz asked if she was on probation or parole. Appellant replied, “‘No, but I may have a warrant.’”
Officer Paiz asked appellant if she had any weapons or contraband in her purse. Officer Paiz walked toward appellant, who opened her purse, produced a green and white box of cigarettes, and said, “‘I do have a pipe.’” She opened the box and handed it to Paiz. Appellant said the box contained her pipe, and Paiz could see the pipe in the box without opening it further. Officer Paiz also found 0.13 grams of cocaine base in the cigarette box.
Officer Paiz asked appellant for her identification, conducted a records check, and determined she had an outstanding misdemeanor warrant. Paiz testified the entire encounter lasted three to five minutes.
Appellant was charged with count I, possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and count II, misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364). As to count I, it was alleged that appellant had two prior strike convictions (Pen. Code, § 667, subds. (b)-(i)), and served a prior prison term (Pen. Code, § 667.5, subd. (b)).
Appellant filed a motion to suppress and argued she was illegally detained without reasonable suspicion and the items found during the subsequent search should be suppressed. The court conducted an evidentiary hearing in which Officer Paiz testified as set forth ante. At the hearing, appellant argued Officer Paiz conducted an illegal detention because he activated the flashing amber emergency lights on his patrol car, pulled against traffic to the opposite side of the street, appellant started to walk away, and he called out and asked where she was going. Appellant argued a reasonable person would not have felt free to leave under those circumstances. The prosecutor replied the manner in which Paiz drove to the other side of the street did not prevent appellant from getting up from the curb and walking away, appellant’s own actions indicated that she believed she was free to leave, and the entire encounter was consensual. The court denied appellant’s suppression motion without comment.
Thereafter, appellant pleaded no contest to count I, possession of cocaine, and admitted one prior strike conviction. The court granted the prosecution’s motion to dismiss the remaining charge and special allegations. At the sentencing hearing, the court granted appellant’s motion to dismiss the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and imposed the midterm of two years in prison. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends she was illegally detained when Officer Paiz pulled up to the curb and asked where she was going, and that the trial court should have granted her motion to suppress the cocaine base and pipe recovered from the box of cigarettes. “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) The instant case does not involve any factual disputes and we are thus presented with a question of law as to whether a detention occurred prior to the point that appellant advised Officer Paiz that she might have an outstanding warrant.
“Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. [Citations.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) A person has been detained when, in the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall).) “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. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.)
“Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.) An officer does not need to have a reasonable suspicion in order to ask questions or request identification. (I.N.S. v. Delgado (1984) 466 U.S. 210, 216; People v. Lopez (1989) 212 Cal.App.3d 289, 291.)
“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to 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.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation]” (Manuel G., supra, 16 Cal.4th at p. 821, italics added.)
As explained in Florida v. Royer (1983) 460 U.S. 491:
“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citation.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation.] If there is no detention--no seizure within the meaning of the Fourth Amendment--then no constitutional rights have been infringed.” (Florida v. Royer, supra, 460 U.S. at pp. 497-498; see also People v. Hughes (2002) 27 Cal.4th 287, 328.)
“[A] Fourth Amendment seizure occurs only when an officer intentionally applies hands-on, physical restraint to a suspect [citations] or initiates a show of authority to which a reasonable innocent person would feel compelled to submit [citation], and to which the suspect actually does submit [citation] for reasons that are solely related to the official show of authority. [Citations.]” (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367.) “The test is at what point in the conversation would ‘a reasonable person [no longer] feel free to leave. . . .’ [Citation.] This is an objective test, and ‘[n]either the officer’s uncommunicated state of mind nor the subjective belief of the individual citizen is relevant . . . .’ [Citation.]” (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.)
The applicable reasonable person test is objective and presupposes an innocent person. (People v. Colt (2004) 118 Cal.App.4th 1404, 1411.) “In determining whether it was a consensual encounter, we are ‘not called upon to evaluate the [d]efendant’s common sense.’ [Citation.]” (Id. at p. 1412.) “The test for the existence of a show of authority is an objective one, and does not take into account the perceptions of the particular person involved. [Citation.] The test is ‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed this to a reasonable person.’ [Citation.]” (People v. Garry (2007) 156 Cal.App.4th 1100, 1106 (Garry).)
Examples of circumstances that might indicate a detention include: (1) the threatening presence of several police officers, (2) an officer’s display of a weapon, (3) some physical touching of the person, or (4) the officer’s use of language or a tone of voice indicating that compliance with the officer’s request might be compelled. (Mendenhall, supra, 446 U.S. at p. 554; Manuel G., supra, 16 Cal.4th at p. 821.) “In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (Mendenhall, supra, 446 U.S. at p. 555.)
Appellant contends that she was detained based upon the manner in which Officer Paiz activated the flashing amber emergency lights on his patrol car, crossed traffic, and pulled up to the location where she was sitting on the curb. Appellant argues such conduct was consistent with a detention because a reasonable person would not have felt free to leave or disregard Paiz’s question. Appellant further asserts: “If ever there is a signal that someone is not free to leave, it is the flashing signal of law enforcement patrol car lights together with a vocal command from law enforcement.”
There are several cases which address situations where an officer arrives in a patrol car and uses flashing lights and/or spotlights to approach the defendant. In People v. Bailey (1985) 176 Cal.App.3d 402, the court held that a detention occurred where an officer in an unmarked police car pulled behind a vehicle in a parking lot and turned on the emergency lights. “A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he drove off, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual. The trial court so held. This court also comes to the same conclusion, exercising its independent judgment in doing so. [Citation.] [¶] The circumstances thus show an exercise of official authority such that respondent, under the standard of a reasonable person, would have believed he was not free to leave. He was seized, under the detention category of contact, without the necessary basis therefor, and his consent was therefore involuntary. The evidence produced from the consent was therefore properly suppressed.” (Id. at pp. 405-406.)
In People v. Wilkins (1986) 186 Cal.App.3d 804, the court similarly found a detention occurred where an officer parked his marked patrol car diagonally behind the defendant’s vehicle so that it could not exit a parking lot. “Here, the occupants of the station wagon were ‘seized’ when [the officer] stopped his marked patrol vehicle behind the parked station wagon in such a way that the exit of the parked vehicle was prevented. Under these circumstances, a reasonable person would have believed that he was not free to leave. [Citation.]” (Id. at p. 809.)
In People v. Franklin (1987) 192 Cal.App.3d 935, a police officer saw the defendant walking down the street at midnight wearing a coat that seemed too warm for the weather conditions. When the officer aimed the patrol car’s spotlight at the defendant, he tried to hide a white bundle he was carrying. The officer stopped his car directly behind the defendant and began to use his radio. The defendant approached the patrol car, and the officer got out and met him in the area of the headlights. (Id. at p. 938.) The officer did not initiate any conversation but the defendant repeatedly asked, “‘What’s going on?’” (Ibid.) Franklin held the defendant was not detained by the officer because “the officer did not block [the defendant’s] way; he directed no verbal requests or commands to [the defendant]. Further, the officer did not alight immediately from his car and pursue [the defendant]. Coupling the spotlight with the officer’s parking the patrol car, [the defendant] rightly might feel himself the object of official scrutiny. However, such directed scrutiny does not amount to a detention. [Citation.] Thus, [the defendant’s] approach toward the patrol car appears as a voluntary act and not a submission to a show of authority.” (Id. at p. 940.)
In People v. Perez (1989) 211 Cal.App.3d 1492, the court held a detention did not occur when an officer parked his patrol car in front of the defendant’s vehicle, turned on the patrol car’s high beams and spotlights, did not activate the emergency lights, and left room for the defendant’s car to leave. (Id. at pp. 1494-1495, 1496.) Perez found the officer’s conduct “did not manifest police authority to the degree leading a reasonable person to conclude he was not free to leave. While the use of high beam and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.]” (Id. at p. 1496.)
In People v. Bennett (1998) 68 Cal.App.4th 396, an officer was participating in a prostitution sweep when he saw the defendant talking to a prostitute who had just offered sex for money to an undercover officer The officer approached the defendant, asked to talk to him, and the defendant said yes. The officer asked the defendant if he was on parole, and the defendant said yes. The officer asked if he would wait in the back of the police car while he ran his name for warrants, and the defendant again agreed. (Id. at p. 399.) The court held the officer’s initial contact with the defendant was a “classic consensual encounter” because “nothing was done to restrain [the defendant’s] liberty in any way.” (Id. at p. 402.) The officer “spoke in a polite, conversational tone and applied no physical or verbal force that might have caused a reasonable person to feel compelled to respond. From all appearances, [the defendant’s] responses were all voluntarily given, and nothing was done by [the officer] to transmogrify the consensual tone of the conversation or stop [the defendant] from simply walking away.” (Ibid.) The court held the officer was “free to approach [the defendant] and to pose each of the questions he asked. [The defendant] answered. If his decision to cooperate was a mistake, it was not one for which the rest of us should be penalized.” (Id. at p. 403, fns. omitted.)
In People v. Terrell (1999) 69 Cal.App.4th 1246, an officer and his partner observed the defendant sitting on a park bench with two men, one of whom appeared under the influence of narcotics. The officer briefly spoke to the defendant and then asked for his identification. The defendant handed over his driver’s license, and the officer learned he had an outstanding warrant, which led to the defendant’s arrest and the discovery of narcotics. (Id. at p. 1251.) Terrell held the defendant’s initial encounter with the police was consensual, including his voluntary and spontaneous action in handing over his driver’s license. Terrell further noted that neither officer indicated by words or conduct that the defendant was not free to leave, and “[n]o reasonable inference therefore could be drawn that the encounter was a detention rather than a consensual encounter.” (Id. at p. 1254.)
In People v. Jones (1991) 228 Cal.App.3d 519 (Jones), a police officer was in a marked patrol car in the evening and saw three men standing in a group near a street corner. When the officer was about 30 feet from the men, one of them handed the defendant what appeared to be money. The officer knew the area was one of very high narcotics activity, and pulled his patrol car to the wrong side of the road and parked diagonally against the traffic about 10 feet from the group. (Id. at pp. 551-522.) As he stepped out of his car, the defendant began to walk away. The officer was about five feet away from the defendant, and asked him to stop. The defendant stopped and reached into a pocket. The officer feared the defendant was reaching for a weapon and grabbed him, which led to the discovery of suspected narcotics. (Id. at p. 522.) Jones held the defendant was illegally detained. (Id. at pp. 522-524.) The court noted that the officer parked the police car diagonally against traffic, “a mere 10 feet away” and, when the defendant started to walk away, said, “‘“Stop. Would you please stop.”’” (Id. at p. 523.) “We believe the coercive effect of [the officer’s] conduct was clear. A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic. Clearly, [the defendant] was detained.” (Ibid.)
In Garry, supra, 156 Cal.App.4th 1100, an officer briefly observed the defendant from his marked police vehicle late at night, and then “bathed” the defendant in light with his patrol car’s spotlight, exited the vehicle about 35 feet from the defendant, armed and in uniform, and “briskly” walked directly to the defendant while questioning him about his probation and parole status. (Id. at p. 1104.) Garry held the defendant was illegally detained based on the manner in which the officer approached him:
“[The officer’s] testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person. [The officer] testified that after only five to eight seconds of observing defendant from his marked police vehicle, [the officer] bathed defendant in light, exited his police vehicle, and, armed and in uniform, “‘briskly’” walked 35 feet in ‘two and a half, three seconds’ directly to him while questioning him about his legal status. Furthermore, [the officer] immediately questioned defendant about his probation and parole status, disregarding defendant’s indication that he was merely standing outside his home. In other words, rather than engage in a conversation, [the officer] immediately and pointedly inquired about defendant’s legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that [the officer’s] actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was ‘“not free to decline [his] requests or otherwise terminate the encounter.”’ [Citation.]
“We find a detention occurred despite the fact that [the officer] did not make any verbal commands. ‘It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.’ [Citation.] No matter how politely [the officer] may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’ [Citation.] [The officer’s] actions set an unmistakable ‘tone,’ albeit largely through nonverbal means, ‘indicating that compliance with the officer’s request might be compelled.’ [Citation.]” (Garry, supra, 156 Cal.App.4th at pp. 1111-1112, fn. omitted.)
In the instant case, Officer Paiz activated his flashing lights, pulled his patrol car across the street, and stopped at the curb where appellant was sitting. Appellant immediately stood up and walked away. While Paiz was in uniform and driving a patrol car, he was by himself and did not approach appellant at gunpoint. He did not block her path with his patrol car or by his own physical presence, he did not run up to confront her, and he did not touch her. He did not order her to stop, turn around, answer questions, or do anything. Instead, he simply called out, “Where are you going?” There is no evidence that Paiz used commanding language or a threatening tone of voice that would indicate compliance with his question might be compelled. (See Mendenhall, supra, 446 U.S. at pp. 554-555.) The encounter took place in the daytime and in a public area. Appellant was walking away from Paiz, her back was to him, and she was about 10 feet away. It is undisputed that appellant stopped, turned around, faced Paiz, said she was just hanging around, and answered his question about being on probation or parole by voluntarily disclosing that she thought she had a warrant. There was no physical restraint or show of force, and a reasonable person in appellant’s position would have felt free to continue walking away.
In contrast to Jones and Garry, Officer Paiz did not use a spotlight on appellant in the middle of the night, he did not block appellant’s path with his patrol car, he did not walk briskly toward appellant or pursue her in a threatening manner, and appellant did not submit to his authority as a result of Paiz’s action of parking his patrol car at the curb. Instead, she walked away and paid no attention to him. Paiz did not demand that she stop, but instead simply asked where she was going. Appellant voluntarily turned around, answered his questions, indicated she might have an outstanding warrant, and showed him the contents of the cigarette box.
Under the totality of the circumstances, a reasonable person in appellant’s position would have believed that she was free to walk away when Officer Paiz stopped his patrol car and asked where she was going. “With the benefit of hindsight and from appellant’s perspective, [s]he made a foolish but voluntary decision” (People v. Colt, supra, 118 Cal.App.4th at p. 1412) to turn around, talk to Officer Paiz, volunteer that she might have an outstanding warrant, and open the cigarette box, and “[i]n this situation, appellant is not permitted ‘… to defeat [her] prosecution by voluntarily revealing ... evidence against [her] and then contending that [s]he acted only in response to an implied assertion of unlawful authority.’ [Citation.]” (Ibid.)
DISPOSITION
The judgment is affirmed.