Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC813646
ELIA, J.After his Penal Code section 1538.5 motion to suppress evidence was denied, on March 3, 2009, appellant Erik Arthur entered no contest pleas to one count of transportation of a controlled substance (cocaine) in violation of Health and Safety Code section 11352, subdivision (a) (count one) and one count of possession for sale of a controlled substance (cocaine) in violation of Health and Safety Code section 11351 (count two). Appellant admitted that he possessed for sale 57 grams or more of a substance containing cocaine within the meaning of Penal Code section 1202.073, subdivision (b)(1).
The plea was the result of a court offer of a sentence of three years in state prison (top/bottom).
On September 10, 2009, the court sentenced appellant to the lower term of three years on count one and imposed, but stayed pursuant to Penal Code section 654, a one third the midterm sentence or two years on count two. However, imposition of sentence was stayed pending disposition of this appeal. Appellant filed a timely notice of appeal the same day as he was sentenced based on the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. We affirm.
Procedural History
On August 1, 2008, the Santa Clara County District Attorney filed a felony complaint in which it was alleged that on July 30, 2008, appellant violated Health and Safety Code section 11352, subdivision (a) by transporting cocaine and Health and Safety Code section 11351 by possessing cocaine for purposes of sale. The complaint contained the allegation that the quantity of cocaine involved in the charged offenses exceeded one kilogram by weight.
After a preliminary examination that included a motion to suppress evidence, the Santa Clara County District Attorney filed an information on December 24, 2008, which contained the same allegations of transportation and possession for sale, but alleged that appellant possessed for sale 57 grams or more of a substance containing cocaine within the meaning of Penal Code section 1203.073, subdivision (b)(1).
We detail the preliminary hearing/suppression motion post. Suffice it to say here that the motion to suppress was denied by the court.
Appellant was arraigned on the information on December 29, 2008 and the case was set for trial to begin on February 17, 2009. On January 22, 2009, appellant renewed his motion to suppress evidence pursuant to Penal Code section 1538.5, on the ground that his "arrest, search and seizure without a warrant were unreasonable in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I § 13 of the California Constitution."
After reviewing the preliminary hearing transcript and listening to the argument of counsel, the court denied the motion to suppress finding that the "magistrate made the proper ruling in denying the motion."
Where, as here, a suppression motion is raised before a magistrate judge in conjunction with a preliminary hearing, the magistrate acts as the trier of fact. (People v. Laiwa (1983) 34 Cal.3d 711, 718 (Laiwa), superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) When the matter is raised a second time in the superior court on the basis of the preliminary hearing transcript, as happened here, the superior court is bound by the magistrate's factual findings and must accept them so long as they are supported by substantial evidence. (People v. v. Ramsey (1988) 203 Cal.App.3d 671, 679.) On appeal, this court disregards the ruling of the superior court and directly reviews the decision of the magistrate. Thus, we review the magistrate's factual findings to determine whether they are supported by substantial evidence, but independently review the magistrate's determination that the search did not violate the Fourth Amendment. (Laiwa, supra, 34 Cal.3d at p. 718 .)
This means that we must measure the facts, as found by the lower court, against the constitutional standard of reasonableness for the search and/or seizure. (People v. Trujillo, supra, 217 Cal.App.3d at pp. 1223-1224.) "We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) We will affirm the lower court's ruling if correct on any theory of applicable law. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Further, we examine the legal issues surrounding the potential suppression of evidence derived from a police search and seizure by applying federal constitutional standards. (People v. Robles (2000) 23 Cal.4th 789, 794.)
Accordingly, we set forth in detail the facts adduced at the preliminary hearing.
On July 30, 2008, Deputy Singleton of the Santa Clara County Sheriff's Department received information from an "untested confidential informant" that after 9:00 p.m., appellant would be involved in a drug deal in the parking lot of a Walgreens located in a shopping mall at 2680 Union Avenue in San Jose. In addition, the informant told Deputy Singleton that appellant would be driving one of two vehicles- a Range Rover or a Honda Accord.
Appellant argues that there is no basis to believe the informant described the cars appellant usually drives. We disagree. A fair reading of the record leads us to conclude that the information about the cars came from the informant and then Deputy Singleton confirmed through DMV records that appellant owned a green Range Rover and a red Honda Accord.
Deputy Singleton received information that appellant's physical description was a white male, about five feet six inches tall and medium build. Deputy Singleton received a DMV photograph of appellant from a computer database; he showed the photograph to the confidential informant to confirm appellant's identity. Deputy Singleton had the DMV photograph with him when he went to the shopping mall. Deputy Singleton knew from DMV records that appellant owned a red Honda Accord.
Based on this information, officers from the United States Drug Enforcement Administration (DEA), San Jose Police Department and the Santa Clara County Sheriff's Department placed the parking lot of the Walgreens under surveillance beginning at around 9:00 p.m. At around 9:45 p.m. a red Honda drove into the parking lot. A check of the registration confirmed that it was the Honda registered to appellant. The driver of the Honda met the description provided by the informant. Deputy Singleton told other officers to approach and detain appellant so they could continue the investigation.
Agent Lawrence Khansmith, a 12 year veteran of the DEA was parked in a stall in the shopping mall parking lot when the red Honda entered the lot. He saw appellant, the only occupant of the vehicle, step from the vehicle, look around, and then walk toward the store. Appellant was talking on a cell phone at this time. As appellant returned to his car without entering the store, and was in the process of getting back into the car, Agent Khansmith drove his unmarked car over and parked about two feet behind appellant's car in order to prevent appellant from leaving. Other unmarked law enforcement vehicles approached.
As Agent Khansmith parked his car behind appellant's car, appellant got out of his vehicle with a surprised look on his face. Agent Khansmith stepped from his vehicle with gun in hand and yelled "Police. Let me see your hands." Agent Khansmith was dressed in his black police vest, which had the word "POLICE" on it in bold yellow letters as well as his badge insignia. In response to Agent Khansmith's orders appellant started to sprint from his car in the direction of Kragen Auto, which was next to the Walgreens. At this time the Kragen Auto store was closed, but the Walgreens was open. Appellant ran about 20 to 25 feet before voluntarily falling prone on the ground. Four officers, including Agent Khansmith approached appellant; thereafter, appellant was handcuffed. Two of the officers had guns drawn. Appellant asked why he was being arrested.
While appellant was handcuffed and seated on the curb of the sidewalk, San Jose Police Officer Paul Fontaine approached appellant. Officer Fontaine was providing scene security. Officer Fontaine told appellant that he was not sure "exactly what was going to happen." At some point Officer Fontaine asked appellant "is there a problem with the officer searching the car?" Appellant responded, "go ahead, you're going to anyway." At this time, appellant had been sitting with his hands cuffed for no more than a minute or two.
Officer Fontaine informed Deputy Singleton that appellant had consented to the search of his car. Deputy Singleton introduced himself to appellant and asked permission to search his car for "illegal items." Appellant said, "go ahead." A search of appellant's car revealed a kilogram of cocaine inside a box in the trunk of the car, a check book bearing appellant's name, and a court document.
During the suppression hearing, appellant's counsel contended that the information the police had, which led to the contact with appellant, was not sufficient for the police to justify even an investigatory detention. Counsel argued, based on Florida v. J.L. (2000) 529 U.S. 266, that officers need "reasonable suspicion based on [the] activity of the target, not on the information that they have from what we call an anonymous informer." Counsel asserted that what happened to his client was a "take-down arrest" for which the officers need probable cause; something, which he argued was not present in this case. Accordingly, counsel argued that the discovery of the cocaine was the fruit of an illegal arrest.
The magistrate denied the suppression motion relying on Alabama v. White (1990) 496 U.S. 325. The magistrate found that the tip in this case was comparable to the information with which officers were provided in Alabama v. White-"that [is] a specific person would be driving a particular vehicle at a particular location and given time, and that the person there was going to be conducting a drug transaction." The magistrate found that the information was reliable "because of the fact that the vehicle and the person [were] in fact there as was predicted by the informant." Accordingly, the magistrate concluded there was a lawful detention.
Discussion
Initially, appellant asserts that he was illegally arrested at the time of the initial contact with the police because the officers did not have probable cause to arrest him.
As the California Supreme Court has explained, "[t]he federal Constitution's Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. (Cal. Const., art. I, § 13.) 'A seizure occurs whenever a police officer "by means of physical force or show of authority" restrains the liberty of a person to walk away.' [Citations.] Whether a seizure has taken place is to be determined by an objective test, which asks '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 that to a reasonable person.' [Citation.] Thus, when police engage in conduct that would 'communicate[ ] to a reasonable person that he was not at liberty to ignore the police presence and go about his business, ' there has been a seizure. [Citations.]" (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).)
Certainly, appellant was seized within the meaning of the Fourth Amendment when Agent Khansmith blocked in appellant's car and told him at gunpoint to show his hands. However, " 'not all seizures of the person must be justified by probable cause to arrest for a crime.' [Citation.]" (Celis, supra, 33 Cal.4th at p. 674.) As the Celis court pointed out, in Terry v. Ohio (1968) 392 U.S. 1, "the United States Supreme Court created a limited exception that allows police officers to 'stop and... frisk for weapons' when they have an 'articulable suspicion [the] person has committed or is about to commit a crime.' [Citation.] Thus, an officer who lacks probable cause to arrest can conduct a brief investigative detention when there is ' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.' [Citations.] Because an investigative detention allows the police to ascertain whether suspicious conduct is criminal activity, such a detention 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' [Citations.]" (Celis, supra, at p. 674.)
On the other hand, "[w]hen the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.] Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime. [Citation.] '[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts.' [Citation.] It is incapable of precise definition. [Citation.] ' "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt, " ' and that belief must be 'particularized with respect to the person to be... seized.' [Citation.]" (Celis, supra, 33 Cal.4th at p. 673.)
"The distinction between a detention and an arrest 'may in some instances create difficult line-drawing problems.' (United States v. Sharpe (1985) 470 U.S. 675, 685..., see also United States v. Torres-Sanchez (9th Cir.1996) 83 F.3d 1123, 1127 [there is no ' "bright-line for determining when an investigatory stop crosses the line and becomes an arrest" '].)" (Celis, supra, 33 Cal.4th at p. 674.)
" '[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' [Citations.] Important to this assessment, however, are the 'duration, scope and purpose' of the stop. [Citation.]" (Celis, supra, 33 Cal.4th at pp. 674-675.)
Respondent argues, relying on Celis, supra, 33 Cal.4th 675, that stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period of time does not convert a detention into an arrest. We note that it does not necessarily convert a detention into an arrest, but it may do so depending on the circumstances. Accordingly, in this situation we must consider each of the actions taken by the officers toward appellant: Agent Khansmith's armed approach, then the handcuffing, and the duration of the stop to determine if the stop was in fact a de facto arrest.
Detention at gunpoint will not turn an investigatory stop into an arrest if the information known to the police officers justified drawing their weapons. (People v. Glaser (1995) 11 Cal.4th 354, 366.) Police officers making a reasonable investigatory stop are entitled to employ reasonable methods to protect themselves and others in potentially dangerous situations. (Allen v. City of Los Angeles (9th Cir. 1995) 66 F.3d1052, 1056-1057; United States v. Taylor (9th Cir. 1983) 716 F.2d 701, 708.) "[T]he use of force in making a stop will not convert the stop into an arrest 'if it occurs under circumstances justifying fears for personal safety.' [Citation.]" (United States v. Jacobs (9th Cir. 1983) 715 F.2d 1343, 1345-1346.) We examine the totality of the circumstances to determine whether the police officers used reasonable means to protect themselves. (People v. Glaser, supra, 11 Cal.4th at p. 366.)
Agent Khansmith was an experienced DEA agent having worked in investigating narcotics crimes for 12 years. Courts have taken judicial notice that "to substantial dealers in narcotics, firearms are as much tools of the trade as are the commonly recognized articles of narcotics paraphernalia." (United States v. Crespo (2d Cir. 1987) 834 F.2d 267, 271, cert. den. (1988) 485 U.S. 1007; see also United States v. Gilliard (1st Cir. 1988) 847 F.2d 21, 25; United States v. Trullo (1st Cir. 1987) 809 F.2d 108, 113-114, cert. den. (1987) 482 U.S. 916 [common knowledge that drug traffickers often carry deadly weapons].) Under the totality of the circumstances, Agent Khansmith acted reasonably and properly in drawing his gun at the initial encounter with appellant, a suspected drug dealer. " 'Although approaching a suspect with drawn weapons are extraordinary measures, such police procedures [are] justified... as a reasonable means of neutralizing danger to police and innocent bystanders.' [Citations.]" (United States v. Alvarez (9th Cir. 1990) 899 F.2d 833, 838.)
An investigative detention can be converted into a de facto arrest which must be supported by probable cause if police conduct exceeds what is " 'reasonably necessary' " and becomes " 'overly intrusive.' " (In re Antonio B. (2008) 166 Cal.App.4th 435, 440.)
While "the use of handcuffs in the course of an investigatory stop does not automatically convert the encounter into a de facto arrest, " nevertheless, the use of handcuffs is "one of the most recognizable indicia of a traditional arrest." (United States v. Acosta-Colon (1st Cir.1998) 157 F.3d 9, 18.) Even though "police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary, " courts have recognized that "handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry [ v. Ohio, supra, 392 U.S. 1] stop." (United States v. Bautista (9th Cir.1982) 684 F.2d 1286, 1289.) Thus, handcuffing a detainee "has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee." (People v. Stier (2008) 168 Cal.App.4th 21, 27 (Stier).)
Generally, a reasonable basis is present "when (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect's description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers." (Stier, supra, 168 Cal.App.4th at pp. 27-28.)
Here, a reasonable basis for the officers' belief that appellant might flee was present. Appellant ran away when confronted by Agent Khansmith who was easily identifiable as a police officer. Thus, once appellant attempted to flee, the officers were justified in handcuffing appellant in order to prevent him from so doing again.
Appellant's assertion that it was reasonable for him to run because he thought he was fleeing a robbery rather than an arrest or detention is rejected. Appellant ran toward a closed and darkened store rather than into an open and lighted store where he could have been safe from anyone trying to rob him.
As to the length of the detention, appellant was sitting on the curb of the pavement for no more than one or two minutes before he gave Officer Fontaine permission to search his car.
Having determined that appellant was not subject to a de facto arrest for which the officers needed probable cause, we turn to the issue of whether his Fourth Amendment rights were violated when he was detained. That is, we must determine whether the officers had a reasonable suspicion that appellant had committed or was about to commit a crime.
In Alabama v. White, supra, 496 U.S. 325 (White), an anonymous tip to police described a woman carrying cocaine in an attaché case at a certain time and place. The police acted on the tip and followed the woman as she drove to the location described by the anonymous informant. The police conducted a traffic stop and detained the woman, she consented to a search of her car, and drugs were found inside the vehicle. (Id. at p. 327.) White held the Terry stop and detention were not illegal because the anonymous informant's tip, corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion the woman was engaged in criminal activity. (White, supra, at pp. 330-332.)
Appellant argues that in White, supra, 496 U.S. 325, the case "contained a greater specificity of facts, and more corroboration of those facts, than [does his] case." Appellant goes on to argue that even assuming the contact could be construed as a detention, "White is factually distinct in significant ways, and is therefore not instructive here." Respectfully, we disagree.
The circumstances present in this case provide as firm a basis for reasonable suspicion as those found to be sufficient by the United States Supreme Court in White, supra, 496 U.S. 325. In White the court applied the "totality of circumstances" standard articulated in Illinois v. Gates (1983) 462 U.S. 213, to determine that there was objectively reasonable suspicion for a stop based on an anonymous tip. (White, at p. 328.) As noted, in White, a police officer received a telephone call from an anonymous person, who stated that White would be leaving a specific apartment building at a particular time in a particular vehicle to go to a motel in possession of an ounce of cocaine in a brown attaché case. (Id. at p. 326.) The officer and a partner went to the apartment building, and observed White leave the building with nothing in her hands and enter the car, which was in the building parking lot. (Ibid.) They followed the vehicle as it took the most direct route towards the motel, and ordered a stop of the vehicle just short of that motel. (Ibid.)
Based on these facts, the Supreme Court concluded that, while "not every detail mentioned by the tipster was verified" (White, supra, 496 U.S. at p. 331) and the case was "close" (id. at p. 332), "when the officers stopped [White], the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that [White] was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment." (Id. at p. 331.) The White court noted that the court in Illinois v. Gates, supra, 462 U.S. 213, "gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. [Citation.] Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller." (Id. at pp. 331-332.) The court thought it particularly important that the caller had predicted White's future behavior, since this showed "a special familiarity with [White's] affairs." (Id. at p. 332.) "Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. [Citation.] When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." (Ibid.)
Thus, reasonable suspicion can be based on an "unverified tip" where "the information carrie[s] sufficient 'indicia of reliability' to justify a forcible stop." (White, supra, 496 U.S. at p. 328.) Among the relevant factors are the "informant's 'veracity, ' 'reliability, ' and 'basis of knowledge'...." (Ibid.) " 'In the case of confidential citizen informers, the mere fact that they make their identity known to the police is, itself, some indication of their honesty.' " (People v. Lombera (1989) 210 Cal.App.3d 29, 32.) Plainly, here, Deputy Singleton had face to face contact with his informant as he showed the informant appellant's photograph in order to confirm appellant's identity. However, in the case of police informants, there is a distinction between paid informants who have provided reliable information in the past, and informants who are untested or who are under arrest themselves when they make statements incriminating other persons. Since Deputy Singleton claimed the privilege for confidential information pursuant to Evidence Code sections 1040-1042, we do not know into which category Deputy Singleton's informant would fit. In U.S. v. Elmore (2nd Cir.2007) 482 F.3d 172, the court recognized that informant classification is not a black and white issue. "[I]nformants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale. Where the informant is known from past practice to be reliable, as in [Adams v. Williams (1972) 407 U.S. 143, 146-147], no corroboration will be required to support reasonable suspicion.... However, when the informant is only partially known (i.e., her identity and reliability are not verified, but neither is she completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion." (Id. at p. 181.)
Appellant argues that where, as here, the police witnesses were cross-examined about facts relating to the reliability of the informant and the scope and nature of the police contact with him or her and the prosecutor refused to request an in camera hearing to support the officer's reliance on his confidential tip as justification for his seizure, it would be "inappropriate" to imbue the informant's tip with a level of reliability on appeal that was not supported by argument or evidence below.
We tend to agree and so, similar to the trial court, we will assume for the sake of argument that the tipster in this case was an untested anonymous informant.
That being said, Deputy Singleton knew from DMV records at the time he saw the red Honda arrive in the parking lot that it was appellant's car. He visually confirmed appellant's identity from the DMV photograph. Appellant arrived at the time and place and in one of the two cars provided by the informant, thus corroborating the predictive behavior supplied by the informant. Where, as here, significant aspects of the informant's predictions were verified (the time and place at which appellant would arrive and the car in which he would arrive), there was reason to believe not only that the informant was honest, but also that he or she was well informed, at least well enough to justify the stop. To put it another way, it was enough that Deputy Singleton had detailed information from the informant of where appellant would arrive, how he would arrive-in one of two cars, and at what time, and his observations at the scene matched those details. His reliance on the information was warranted, justifying the detention to investigate the situation. (See People v. Lissauer (1985) 169 Cal.App.3d 413, 420 [tip from untested informant, whose motivation to inform was unknown, insufficient to establish probable cause for search but sufficient to detain and investigate the situation]; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881-882 [informant's tip sufficient to justify detention to investigate reported crime].)
Appellant, while discussing White, supra, 496 U.S. 325, fails to explain why its reasoning does not apply here other than to contend that there was more information or facts in that case that the police corroborated by observation. As respondent points out, appellant is employing the "dubious logic" that an opinion upholding the constitutionality of a particular seizure implicitly holds unconstitutional any seizure that is not exactly the same. (United States v. Knights (2001) 534 U.S. 112, 117.)
Appellant asserts that the "tip in White specifically described an event of transportation for sale: besides describing the specific container in which the drugs would be stored, the informant stated the specific time the drugs would be delivered, the apartment building and the number from which the drug dealer was leaving, the specific car used by the drug dealer including its state of disrepair, as well as the destination point."
Given the totality of the circumstances in this case, we conclude that Deputy Singleton had reasonable suspicion sufficient to detain appellant for further investigation.
Finally, appellant contends that under the totality of the circumstances his consent to search his car was not voluntarily given; he argues it was "no more than an assent to the assertion of authority and thus was not voluntarily given as a matter of law." Respondent claims that this issue is not properly before this court because in the trial court appellant contended only that his consent was the product of an unlawful detention, but he did not argue that his consent was involuntary, a discrete issue. Accordingly, respondent asserts that appellant has forfeited this issue on appeal.
Appellant counters that the issue was raised in his moving papers. We do not find the issue to have been preserved for review. In his moving papers appellant argued that his consent was involuntarily obtained as a result of an unlawful detention. At the beginning of the preliminary examination/suppression hearing appellant's counsel told the court that there were going to be "a couple of issues now. The... initial issue would be whether there was any reasonable suspicion that is recognized in the law in support of the detention that I assume counsel will ultimately concede. [¶] As it relates to the consent issue, the argument in the motion... was that any consent that was given would have been a fruit of the unlawful detention. The People's response was focused or dealt primarily with a voluntariness argument, not necessarily whether it was an unlawful fruit. [¶] But I think I'll be arguing consistent with the argument in the motion."
In his moving papers appellant argued "[c]onsent given during an unlawful detention and/or illegal arrest is invalid, and/or in response to any other illegal assertion of authority and evidence obtained must be suppressed." Further, he contended that his "alleged consent to search his car was involuntarily obtained as a result of the officers' illegal detention." In essence, therefore, appellant was arguing fruit of the poisonous tree. (Wong Sun v. United States (1963) 371 U.S. 471, 484-487.)
Thus, the prosecution's focus was on bringing forth evidence to show that this was not an unlawful detention.
Consistent with his representation to the court, with respect to the consent issue, appellant's counsel argued "[w]ith regard to whatever happened after the detention, it's all a fruit of that detention. And, you know, again, my argument now is not only was it a detention but it was also an arrest, notwithstanding that I haven't provided points and authorities, because I didn't know what the evidence was ultimately going to be. [¶] The contact that was had with [appellant] thereafter is all a fruit of that initial detention/arrest that I'm arguing is illegal. Therefore, any consent that may have been provided, as [appellant] sat there on the curb or in front of the Kragen's there, would have been a fruit of that detention/arrest." Accordingly, below, appellant did not argue that his consent was involuntary because he was assenting to an assertion of authority.
When the validity of consent is challenged, the prosecution must prove it was freely and voluntarily given--i.e., "that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) Since appellant did not argue at the suppression hearing that his consent was the result of submission to lawful authority, the prosecution was not required to bring forth evidence to show that appellant's consent was freely and voluntarily given. Accordingly, we cannot address this issue on appeal. " '[T]he scope of issues upon review must be limited to those raised during argument.... This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions.' [Citation.]" (People v. Williams (1999) 20 Cal.4th 119, 136.)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.