Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct. No. FSB700825. Bryan Foster, Judge. Affirmed as modified.
Kazoua V. Cha, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant pled nolo contendere to possession for sale of a controlled substance in violation of Health and Safety Code section 11351. In return, defendant was sentenced to a total term of two years in state prison with credit of 367 days for time served. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) he is entitled to one more day of presentence custody credit. We agree with the parties that defendant is entitled to one more day of custody credit but reject his remaining contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
About 6:00 p.m. on March 16, 2007, Officers Chris Gray and Adam Affrunti were patrolling in their marked police car on a street that dead ends into a cul-de-sac and is known to be a high narcotics area when they noticed two cars (a dark vehicle and a small red vehicle) stopped in the middle of the street. The red vehicle was stopped behind the dark vehicle. The officers then saw defendant walk up to the dark car and lean into the open driver’s side window of the car so that his head and hands were inside.
Officers Gray and Affrunti drove up and parked in front of the stopped dark vehicle to make contact with defendant and the subjects in that car. The officers exited their patrol vehicle; while Officer Affrunti approached the subjects in the vehicle, Officer Gray approached defendant in a relaxed manner and asked defendant in a conversational tone if he would come over. Defendant complied. Officer Gray asked defendant his name, if he lived in the area, and what his business was as he was stopped in the middle of the roadway. Officer Gray also asked defendant if he had any weapons on him. Defendant replied that he had a knife, so Officer Gray performed a patdown search and located defendant’s knife.
As Officer Gray was conducting the patdown search, he asked defendant if he was currently on probation or parole. After defendant replied that he was on parole and provided Officer Gray with the name of his parole agent, Officer Gray conducted a more thorough search of defendant. Officer Gray found a large wad of money in denominations consistent with narcotics sales in defendant’s right lower pant pocket. During the over-the-clothing search, Officer Gray located a hard, ball-type object lodged between defendant’s buttocks. Officer Gray asked defendant what the object was, and defendant indicated that it was nothing. Based on the totality of circumstances and past experience, Officer Gray opined defendant was engaged in narcotics sales; he handcuffed defendant and placed him in the back seat of the marked patrol car.
Shortly after placing defendant in the backseat of the police vehicle, Officers Gray and Affrunti noticed defendant squirming around. Officer Gray suspected that defendant was trying to retrieve whatever he had lodged in his buttocks and asked defendant to step out of the car. When defendant stepped outside, he had an object in his hand that he was trying to crumble up. Officer Gray took the object from defendant’s fingers. The object was a black plastic baggie containing clear plastic baggies. Inside the clear baggies were two pieces of suspected rock cocaine. On the seat where defendant had been sitting, Officer Affrunti noticed another small piece of suspected rock cocaine wrapped in plastic. The three suspected pieces of rock cocaine were about the size of half a golf ball.
Defendant conceded that he obeyed and answered Officer Gray’s questions regarding whether he was armed and whether he was on parole. He stated that Officer Gray then searched him and inquired about something he felt in defendant’s buttocks and then placed him in the patrol car. A short time later, Officer Gray came back to the patrol car, pulled defendant out of the car, and asked him what he had in his hand. Defendant claimed he was not holding anything in his hands but a piece of paper. Officer Gray then pulled down defendant’s pants and underwear and searched his buttocks. When Officer Gray could not locate any suspected narcotics, he pulled defendant’s pants and underwear back up and pushed him back into the patrol car.
II
DISCUSSION
A. Denial of Suppression Motion
Following the evidentiary hearing, the trial court found the initial contact consensual in nature. The court also stated, “Even if it was not consensual in nature, given the nature, the facts that were articulated by the People do, in fact, indicate a sufficient cause to detain someone to investigate further in a high crime area of someone doing activities that would be consistent with some type of drug trafficking.” The court further found that, after admitting to being on parole, the continuing search was an appropriate parole search.
Defendant contends the trial court erred in denying his suppression motion because the initial contact was an unlawful detention, and he was detained without sufficient cause. He further claims that his parolee status did not justify the detention and search because his parole status was not known to the officers at the time of the unlawful detention.
In reviewing the denial of a suppression motion pursuant to section 1538.5, we evaluate the trial court’s express or implied factual findings to determine whether they are supported by substantial evidence, but we exercise our independent judgment to determine whether, on the facts found, defendant’s Fourth Amendment rights have been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.)
There are essentially three categories or levels of police “contacts” or “interactions” for purposes of Fourth Amendment analysis: consensual encounters, detentions, and seizures, which include formal arrests and restraints on an individual’s liberty, comparable to an arrest. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
Our present inquiry concerns the distinction between consensual encounters and detentions. Not every encounter an individual has with law enforcement triggers Fourth Amendment scrutiny. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) Consensual encounters do not trigger Fourth Amendment scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick).) Unlike detentions, consensual encounters require no articulable suspicion that the person has committed or is about to commit a crime. (Wilson, supra, 34 Cal.3d at p. 784.) The United States Supreme Court has made it clear that a detention does not occur simply because a police officer asks an individual a few questions. (Bostick, at p. 434.) 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. (California v. Hodari D. (1991) 499 U.S. 621, 628.) 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. (Bostick, at p. 434.) Thus, Fourth Amendment scrutiny will not be triggered unless the encounter loses its consensual nature. (Bostick, at p. 434.)
There is no bright-line rule to determine if an encounter is consensual. (Ohio v. Robinette (1996) 519 U.S. 33, 39.) “[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.” (Bostick, supra, 501 U.S. at p. 439.) Whether or not a person would have believed that he or she was free to leave is to be evaluated in light of the totality of the circumstances, rather than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Factors that might indicate an unlawful detention has taken place include (1) the presence of several police officers; (2) an officer’s display of a weapon; (3) some physical touching of the person; or (4) the use of language or a tone of voice indicating that compliance with the officer’s request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall); In re Manuel G. (1997) 16 Cal.4th 805, 821.) “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.]” (In re Manuel G., at p. 821; see also Mendenhall, at p. 554.)
In Mendenhall, two Drug Enforcement Administration (DEA) agents were stationed at the Detroit Metropolitan Airport for the purpose of detecting narcotics smuggling. The agents observed the defendant walking through the airport and concluded that her conduct was consistent with that of persons who unlawfully smuggle narcotics. The agents approached the defendant and asked to see her driver’s license and airline ticket. After discovering that the ticket and driver’s license contained two entirely different names, the agents asked further questions and identified themselves as DEA agents. (Mendenhall, supra, 446 U.S. at pp. 547-548.)
The United States Supreme Court found that no seizure of the defendant occurred. “The events took place in the public concourse. The agents . . . requested, but did not demand to see the respondent’s identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. . . . In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way . . . .” (Mendenhall, supra, 446 U.S. at p. 555.)
Applying the foregoing principles, we conclude the trial court properly denied defendant’s suppression motion because the contact between Officer Gray and defendant was a consensual encounter. Here, Officer Gray and his partner were on patrol in a marked unit in an area known for high narcotics activity when they saw two vehicles stopped in the middle of the street and saw defendant walk up to the stopped dark car that was in front. The officers saw defendant lean into the open driver’s side window of the dark car so that his head and hands were inside. The officers therefore drove up and parked in front of the stopped dark car to make contact with defendant and the subjects in the car. While Officer Affrunti approached the subjects in the stopped vehicle, Officer Gray, in a relaxed manner, approached defendant and asked defendant in a conversational tone if he would come over. Defendant complied, and the officer asked defendant his name, if he lived in the area, and what his business was as he was stopped in the middle of the roadway. Defendant was cooperative and voluntarily responded to the officer’s questions. Because the area was a high crime area and the officer had previously arrested narcotics traffickers with knives or guns, Officer Gray asked defendant if he had any weapons on his person. Defendant voluntarily informed the officer that he had a knife in his possession. While the officer was conducting a patdown search of defendant, Officer Gray asked defendant about his current probation or parole status. Defendant willingly told the officer that he was on parole. Neither Officer Gray nor Officer Affrunti drew his gun or used force or threats. Defendant was not directed to a different location and the encounter took place in a public setting with others around. The tone of the encounter was conversational, not accusatory. Officer Gray did not exhibit any physical or verbal force, which would cause a reasonable person to feel that he or she was not free to leave. The encounter was not converted into a detention requiring Fourth Amendment scrutiny merely because Officer Gray asked defendant a few questions. (See Bostick, supra, 501 U.S. at p. 434; Florida v. Royer (1983) 460 U.S. 491, 497-498; People v. Hughes (2002) 27 Cal.4th 287, 328.)
People v. Lopez (1989) 212 Cal.App.3d 289 is illustrative. In Lopez, the court found no detention when officers, who were concededly on the prowl for narcotics dealers, recognized the defendant from a previous encounter. The officers “stood on either side of him and launched into a short, albeit somewhat accusatory, interrogation.” (Id. at p. 293.) The officers asked the defendant whether the car he was sitting on belonged to him. (Id. at p. 291.) When he said no, the officers asked why he was sitting on that car. The defendant responded that he was waiting for his friends to play pool. When the officers asked where his pool stick was, the defendant did not reply. The officers asked whether he had identification, and the defendant reached into his pocket. The defendant handed the officer the wallet and when it was opened, a bindle of cocaine “‘pop[ped] up.’” (Ibid.) Finding the questions were “brief, flip, and, most importantly, did not concern criminal activity,” the reviewing court concluded the questions were not so accusatory as to demonstrate that a reasonable person would believe he was not free to leave. (Id. at p. 293.)
Similarly, in this case, defendant voluntarily responded to Officer Gray when he answered questions. Defendant could have simply walked away from the officer. In addition, while Officer Affrunti was present at the scene, only Officer Gray approached and spoke with defendant. The presence of the other officer was not so intrusive that defendant could reasonably believe that he was not free to leave. None of the officers had their weapons drawn, nor did any officer touch defendant before the pat search. “This [did] not constitute a show of force, but instead indicate[d] a reasonable exercise of precaution for the officers’ own safety.” (People v. Profit (1986) 183 Cal.App.3d 849, 877.) Therefore, the nature of the contact between defendant and Officer Gray was consensual and did not constitute a detention requiring reasonable suspicion.
Relying on People v. Jones (1991) 228 Cal.App.3d 519, People v. Wilkins (1986) 186 Cal.App.3d 804, and People v. Garry (2007) 156 Cal.App.4th 1100, defendant however argues that the initial contact between defendant and the officers was a detention and not a consensual encounter based on the actions of the police.
In Jones, an officer in a patrol car saw a small group of men standing on a street corner. He noticed one man hand some money to the defendant. Deciding he would investigate, he turned his patrol car across the opposing lane of traffic, stopping it at a diagonal to the corner about 10 feet from the men. He then got out of the car, but the defendant started to walk away. The officer told the defendant to stop. (People v. Jones, supra, 228 Cal.App.3d at pp. 521-522.) Not having any information “causing [the officer] to suspect that (1) some activity relating to a crime has taken place, is occurring, or is about to occur; and (2) the person he intends to stop or detain is involved in that activity[,]” the appellate court found the conduct of the officer was unjustified. No reasonable person in that situation would have felt he or she had the ability to merely walk away. (Id. at pp. 523-524.)
Here, the officers did not command or confront defendant; rather, Officer Gray simply approached defendant and asked to speak to him. In addition, Officers Gray and Affrunti did not park their patrol vehicle diagonally blocking traffic. Defendant did not walk away as the officers approached, and Officer Gray did not physically restrain defendant when asking him questions.
In Wilkins, an officer pulled up behind the lone parked car in a closed store’s parking lot and “parked diagonally behind the station wagon [containing the defendant] so that he was ‘. . . essentially blocking that exit of the station wagon.’” (People v. Wilkins, supra, 186 Cal.App.3d at p. 807.) As a result, the court held, “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.” (Id. at p. 809.) Again, the circumstances in this case are distinguishable. Wilkins involved a clear show of authority, unlike here. There was no evidence here that the officer’s action in parking the patrol vehicle in front of the stopped car into which defendant was leaning prevented defendant from leaving or walking away from the officers.
Lastly, defendant’s reliance on People v. Garry, supra, 156 Cal.App.4th 1100 is misplaced. In that case, after briefly observing the defendant from his marked police vehicle, the officer “bathed” the defendant in light with his patrol car’s spotlight; exited the vehicle; and, armed and in uniform, “briskly” walked 35 feet directly to the defendant while questioning him about his probation and parole status. (Id. at pp. 1104, 1111.) The officer disregarded the defendant’s indication that he was merely standing outside his home, and the defendant’s ready responses to the officer’s questions demonstrated that he had submitted to the officer’s show of authority. (Id. at pp. 1111-1112 & fn. 7.)
Here, by contrast, Officer Gray did not employ a spotlight, did not walk briskly directly toward defendant, and did not question him while advancing in his direction. Instead, Officer Gray casually approached defendant and engaged defendant in conversation. Nor, tellingly, did defendant answer the officer’s questions in submission to his authority. He answered them conversationally and willingly. Only after defendant revealed that he was armed with a knife did the officer conduct a consented patdown search and ask defendant about his probation and parole status. Neither the same factors nor any equivalent combination of circumstances are present in this case.
Under the totality of the circumstances, a reasonable person in defendant’s position would have believed that he was free to walk away when Officer Gray approached defendant and indicated his desire to speak with him. There was no detention under the Fourth Amendment at that point, and the record discloses no detention until Officer Gray conducted a more thorough search of defendant.
Based on our independent review of the circumstances as a whole, we conclude that defendant’s initial encounter with Officer Gray was consensual. The trial court properly denied defendant’s motion to suppress the physical evidence obtained as a result of this encounter.
Assuming arguendo that the encounter between defendant and Officer Gray amounted to a detention, the detention was reasonable.
For this analysis, we must first determine whether the officers had a reasonable suspicion that defendant was involved in criminal activity, sufficient to support the detention. (See People v. Harris (1975) 15 Cal.3d 384; People v. Gatch (1976) 56 Cal.App .3d 505, 508-509.) A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233 (Souza); In re Tony C. (1978) 21 Cal.3d 888, 893-894 (Tony C.), superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733; United States v. Arvizu (2002) 534 U.S. 266, 274-276 (Arvizu); United States v. Sokolow (1989) 490 U.S. 1, 7-8.) Even if individual factors are susceptible to innocent explanation, and some factors are more probative than others, taken together, they may suffice to form a particularized and objective basis for an investigatory stop. (Souza, at p. 233; Arvizu, at p. 277.)
“It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (Tony C., supra, 21 Cal.3d at p. 892, citing Terry v. Ohio, supra, 392 U.S. at p. 22.) However, the police are not free to detain citizens at will. “In order to justify an investigative stop or detention, ‘the circumstances known or apparent to the officer must include specific or articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience . . . to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch, is unlawful, even though the officer may be acting in complete good faith.’ [Citation.]” (In re James D. (1987) 43 Cal.3d 903, 919-920, quoting In re Tony C., at p. 893; see also People v. Renteria (1992) 2 Cal.App.4th 440, 443; Souza, supra, 9 Cal.4th at p. 231 [“detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity”].)
The reputation of an area for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. (Illinois v. Wardlaw (2000) 528 U.S. 119, 124; Souza, supra, 9 Cal.4th at pp. 240-241; People v. Nonnette (1990) 221 Cal.App.3d 659, 668.) Presence in a high crime area combined with unprovoked flight or “nervous, evasive behavior,” may support a reasonable suspicion of criminal activity. (Wardlaw, at p. 124.)
Here, Officer Gray’s actions were reasonable and the totality of the circumstances warranted the officer’s detention of defendant. Defendant was found in a high crime area known for drug trafficking in the middle of the road with his head and hands leaning inside a stopped vehicle. Though the officers did not see actual hand-to-hand exchanges, Officer Gray, in his past experience and expertise could reasonably conclude defendant was engaged in a narcotics transaction. Furthermore, after defendant voluntarily agreed to speak with Officer Gray and cooperatively answered the officer’s questions, defendant stated that he was armed with a weapon. The officer then conducted a patdown search of defendant and retrieved a knife. During the patdown search, the officer inquired about defendant’s probation or parole status. Defendant indicated that he was on parole and gave the officer the name of his parole agent. The officer thereafter conducted a more thorough search of defendant over his clothing as a parole search and found a large wadded-up amount of money in defendant’s pant pocket and a hard, ball-type item near defendant’s buttocks. Based on the large amount of money found on defendant and the location of the hard, ball-type item (as people often conceal narcotics in their buttocks region), this caused the officer to be suspicious that the item was possibly narcotics. Hence, all of the observations, when considered together, provided reasonable suspicion for the officers to believe that some criminal activity was about to occur or had already occurred. Therefore, the facts in this case support the trial court’s finding that the officers had “reasonable grounds” for the detention.
Moreover, the United States Supreme Court has concluded that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” (Samson v. California (2006) 547 U.S. 843, 857 (Samson).) “Where the search is for a proper purpose, . . . even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy ‘society is “prepared to recognize as legitimate.”’ [Citations.]” (People v. Reyes (1998) 19 Cal.4th 743, 754 (Reyes).) However, this “does not mean parolees have no protection.” (Id. at p. 753.) Instead, “‘a parole search could become constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.’ [Citations.]” (Id. at pp. 753-754.) “Where the motivation is unrelated to rehabilitative and reformative purposes or legitimate law enforcement purposes, the search is ‘arbitrary.’ For example, had the officer been motivated by personal animosity toward [defendant] or his family, execution of the ‘consent search term’ would be ‘arbitrary.’” (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.)
Samson and Reyes squarely held that a parole search may be legitimate even in the absence of particularized suspicion. (Samson, supra, 547 U.S. at p. 857; Reyes, supra, 19 Cal.4th at p. 754.) The purpose of a parole search is to deter crime and protect the public, “and the effectiveness of the deterrent is enhanced by the potential for random searches.” (Reyes, at p. 753.) In re Anthony S., cited favorably by Reyes, held that a suspicionless probation search of several gang members was conducted for legitimate law enforcement purposes. (In re Anthony S., supra, 4 Cal.App.4th at p. 1004.) The trial court found the search impermissibly arbitrary, noting that the search was “‘random’” and conducted only because, in the trial court’s words, “‘this would be a convenient day to search gang members.’” (Id. at p. 1003.) The Court of Appeal reversed, concluding that the officers were “motivated by a law enforcement purpose, i.e., to look for stolen property, alcohol, weapons, and gang paraphernalia at the homes of ‘Ventura Avenue Gangsters’ members.” (Id. at p. 1004.) Thus, the simple objective of determining whether a parolee is complying with the law and parole conditions is a legitimate law enforcement purpose under Reyes.
Samson is instructive. Samson was on state parole in California, when he was observed by an officer walking down a street with a woman and a child. Based on a prior contact with Samson, the officer was aware that Samson was on parole and believed that he was facing an at large warrant. Accordingly, the officer detained him and asked whether he had an outstanding parole warrant. Samson responded that there was no outstanding warrant and that he “‘was in good standing with his parole agent.’” (Samson, supra, 547 U.S. at p. 846.) The officer confirmed Samson was on parole and did not have an outstanding warrant. Nevertheless, based solely on Samson’s status as a parolee, the officer searched him, finding a plastic baggie containing methamphetamine. (Id. at pp. 846-847.) The court upheld the search, though the officer lacked any reasonable suspicion of criminal involvement, concluding a condition of parole release can so diminish a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer does not offend the Fourth Amendment. (Samson, at p. 847; see In re Jamie P. (2006) 40 Cal.4th 128, 133-134.)
Here, once Officer Gray discovered defendant was on parole (see People v. Sanders (2003) 31 Cal.4th 318 (Sanders), the prosecution demonstrated that the parole search was reasonable. At the time of the more thorough search of defendant, defendant had indicated that he had a weapon in his possession and that he was on parole and gave the officer the name of his parole agent. Under these circumstances, Officer Gray had a legitimate law enforcement purpose in determining whether defendant was complying with the law and the terms of his parole. There is nothing in the record to suggest that the search was motivated by personal animosity, an intent to harass, or any other improper purpose. There is likewise no evidence in the record that the search was performed at an unreasonable hour, was unreasonably prolonged, or was otherwise arbitrary or oppressive.
In Sanders, the officers conducted a search under the guise of a “‘protective sweep’” of the residence of a parolee and the parolee’s cohabitant. (Sanders, supra, 31 Cal.4th at pp. 322-323.) The search of the parolee’s residence could not be justified post hoc as a parole search because the officers did not know or have “reason to believe” that the resident was on parole at the time of the search. (Id. at p. 335.)
The Sanders rule does not preclude a finding that a brief detention of a parolee in a public place is justified where the officer had reason to believe that the person he detained was on parole. In reaching our conclusion that the detention was reasonably justified, we distinguish this case from Sanders based on its facts. Here, the officer reasonably inferred that defendant was on parole after the initial consensual encounter with defendant based on defendant’s statement that he was on parole. The Sanders rule does not compel the conclusion that the detention was unjustified when it was based on the officer’s reasonable belief that he was detaining a parolee.
The present case poses further disparate circumstances from those in Sanders. At the crux of the court’s analysis in Sanders were the facts that this was a search of a private residence and that the cohabitant was not subject to a search condition. (Sanders, supra, 31 Cal.4th at p. 330.) In formulating its holding, the court emphasized that any “assurance that evidence discovered during such an arbitrary search could not be used against the ‘law-abiding citizen’ would provide little solace if the police still were encouraged to conduct such unlawful searches by permitting them to use any evidence discovered against the probationer or parolee.” (Id. at p. 335.)
The policy-based goal of the court in Sanders was to prevent police from searching the homes of law-abiding cohabitants without warrants or reasonable suspicion. (Sanders, supra, 31 Cal.4th at p. 336.) Here, the officer did not detain or search defendant in a residence, but in a public place. The officer did not detain or search any law-abiding citizens or co-passengers. The primary circumstances that the court weighed in Sanders are wholly missing from this case.
Based on the above, we find that the trial court properly denied defendant’s motion to suppress.
B. Presentence Custody Credit
Defendant next contends, and the People correctly concede, that he is entitled to one more day of presentence custody credit. We also agree.
A review of the record shows that defendant was arrested on March 16, 2007, and remained incarcerated until his sentencing on November 16, 2007. As defendant points out, credit should be given for the day of his arrest, the day of sentencing, and all days in between. Accordingly, a calculation of these days establishes that defendant is entitled to 246 days of actual custody rather than 245 days of actual custody credited awarded by the court.
III
DISPOSITION
The judgment is modified to provide that defendant is entitled to 246 days of actual custody credit plus 122 days of conduct credit for a total of 368 days of presentence custody credit. The court shall prepare a new abstract of judgment to reflect the modification and provide a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.