Opinion
E064420
04-21-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUADALUPE GUTIERREZ, Defendant and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1411162) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
In an information filed December 17, 2014, defendant and appellant Jose Guadalupe Gutierrez was charged with one count of possession of methamphetamine for sale under Health and Safety Code section 11378. A jury acquitted defendant of the charged offense and found him guilty of the lesser included offense of simple possession under Health and Safety Code section 11377, subdivision (a). The trial court placed defendant on three years of summary probation. Defendant filed a timely amended notice of appeal.
B. FACTUAL HISTORY
Around 7:00 p.m. on August 15, 2014, defendant was sitting in the driver's seat of his car in an empty shopping center parking lot. Defendant was contacted by Riverside County Sheriff's Deputy Matthew Schmidt, who was patrolling that area. During a conversation between defendant and Deputy Schmidt, defendant exhibited suspicious and nervous behavior. When Deputy Schmidt noticed a large knife in the center console cup holder, he asked defendant to get out of the car; defendant complied. Deputy Schmidt asked whether defendant had anything illegal on him. Defendant replied that he did not. Defendant then consented to a search of his person. Deputy Schmidt discovered a small bindle of crushed methamphetamine in defendant's front pocket.
Thereafter, Deputy Schmidt handcuffed defendant and placed him under arrest. He asked if defendant had anything illegal inside his vehicle. Defendant replied that he did not, and consented to a search of the vehicle. When Deputy Schmidt searched the trunk, he saw a towel shoved into the interior space behind one of the taillights. Inside the towel was a clear plastic bag containing approximately 28 grams of methamphetamine crystals.
DISCUSSION
Defendant argues the trial court erred in denying his motion to suppress evidence because the deputy violated defendant's Fourth Amendment right against unreasonable searches and seizures when the deputy approached defendant and searched his person and vehicle without probable cause. We conclude that defendant's motion was properly denied.
A. ADDITIONAL HISTORY
Prior to trial, defendant filed a motion under Penal Code section 1538.5, to suppress the evidence obtained during the searches on the date of his arrest. The People filed an opposition. At the hearing on the motion, Deputy Schmidt testified for the People, and defendant's wife testified for the defense.
All further statutory references are to the Penal Code unless otherwise indicated. --------
Deputy Schmidt was a K-9 handler assigned to the Special Enforcement Narcotics Team. On the date of the offense, August 15, 2014, Deputy Schmidt and his K-9 partner were patrolling a shopping center parking lot, which was known to "have a lot of problems" with gangs and narcotics. Since it was around 7:00 p.m., the businesses had closed and the parking lot was empty. Deputy Schmidt noticed a car parked by itself a good distance away from any particular business. He drove towards the car and noticed defendant sitting in the driver's seat with the window rolled down. Deputy Schmidt used his patrol unit's white spotlight to see if there was anyone else inside the car. The deputy could not remember whether he parked first and then activated the spotlight, or whether he drove towards defendant's car with the spotlight already on. The deputy pulled up behind defendant's car but did not block it in.
Deputy Schmidt left his K-9 partner in the patrol unit and approached defendant alone. He asked defendant if he could speak to him; defendant responded yes. Deputy Schmidt then asked why defendant was in the parking lot. Defendant stated that he was waiting on his wife for gas. The deputy observed that defendant was parked a good distance away from the nearby gas station, there were no females in the vicinity, and defendant's fuel gauge indicated that he had at least half a tank of gas in the car. When asked for his driver's license, defendant stated that he did not have one. Because defendant was sweating and laughing nervously, Deputy Schmidt believed that defendant may have been under the influence. At this point in the encounter, Deputy Schmidt noticed a large kitchen knife in the center console cup holder, which was readily accessible to defendant. Therefore, as a safety precaution, the deputy asked defendant to get out of the car. Defendant complied.
Deputy Schmidt asked defendant if he had any other weapons on him. Defendant replied no. Defendant then consented to a search of his person. During the search, the deputy found a small bindle of crushed methamphetamine in defendant's front pocket. Defendant was arrested and placed in the patrol unit of another officer who had just arrived on the scene. Deputy Schmidt asked defendant if he had anything illegal in his car. Defendant replied no and consented to a search of his vehicle. Inside defendant's trunk, the deputy found a clear plastic bag containing a large amount of methamphetamine.
Defendant's wife testified that on the date of the offense, she loaned her car to defendant with less than a quarter tank of gas. The next day, when she picked up the car from the parking lot where defendant was arrested, the car only had an eighth of a tank of gas.
After hearing testimony, the trial court heard arguments from both sides. Defense counsel argued that (1) defendant was detained from the moment when Deputy Schmidt pulled up, spotlighted him, and began asking questions; (2) the deputy lacked reasonable suspicion to detain defendant; (3) the detention was illegally prolonged; and (4) the searches of defendant's person and vehicle were unlawful because defendant's consent was involuntary. The prosecution argued that the encounter was consensual, and defendant was not detained until he was handcuffed and arrested for having methamphetamine on his person. The court denied defendant's motion to suppress and stated that (1) the initial contact between Deputy Schmidt and defendant was a consensual encounter; (2) the encounter was transformed into a detention when the deputy ordered defendant to get out of the car; (3) the detention was supported by reasonable suspicion of criminal activity; and (4) the subsequent searches of defendant's person and vehicle were lawful because defendant voluntarily consented.
A. STANDARD OF REVIEW
The standard an appellate court employs in its review of a denial of a motion to suppress evidence is well settled. In evaluating a challenge to the trial court's ruling on a motion to suppress evidence, we defer to its factual findings, whether express or implied, if they are supported by substantial evidence. (People v. Sardinas (2009) 170 Cal.App.4th 488, 493.) We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
B. ANALYSIS
Not every encounter between the police and a citizen is protected by the Fourth Amendment. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) Police contacts with individuals fall into three broad categories: (1) consensual encounters; (2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) A consensual encounter does not trigger Fourth Amendment scrutiny, but a detention requires an "articulable suspicion that the person has committed or is about to commit a crime." (Ibid.)
A consensual encounter "'"may properly be initiated by police officers even if they lack any 'objective justification.'"'" (People v. Hughes (2002) 27 Cal.4th 287, 327.) Hence, a detention does not occur when a police officer merely approaches a person on the street, or as here, in a parked vehicle, and asks a few questions. (Florida v. Bostick (1991) 501 U.S. 429, 434; Manuel G., supra, 16 Cal.4th at p. 821.) In determining whether an encounter is consensual, a court considers "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, at p. 439.) We must make a realistic assessment of defendant's encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287.) "What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs." (People v. Ross (1990) 217 Cal.App.3d 879, 884.)
Circumstances that might indicate a detention are "the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (Manuel G., supra, 16 Cal.4th at p. 821.) However, neither the officer's uncommunicated state of mind nor the individual's subjective belief is relevant in determining whether a detention has occurred. (Ibid.)
1. CONSENSUAL ENCOUNTER
In this case, we are concerned with the encounter between Deputy Schmidt and defendant, who was parked in a parking lot, and whether that encounter was consensual. Deputy Schmidt was free to approach defendant in a public place and ask if defendant was willing to talk to him. The deputy spoke in a conversational tone and applied no physical or verbal force that might have caused a reasonable person to feel compelled to respond. (Florida v. Bostick, supra, 501 U.S. at p. 434 ("a seizure does not occur simply because a police officer approaches an individual and asks a few questions"]; People v. Bennett (1998) 68 Cal.App.4th 396, 402-403.) Here, Deputy Schmidt parked his patrol unit without blocking defendant's car, was alone, did not use any emergency lights, did not draw a weapon, made no verbal commands such as asking defendant to roll down his window, went to defendant rather than asking defendant to come to the deputy, did nothing to prevent defendant from leaving, and did not touch defendant prior to receiving defendant's consent for a pat-down search. These actions during the initial encounter with defendant cannot reasonably be construed as a show of authority sufficient to constitute a detention. At the hearing on defendant's motion, the trial court noted, "[a]pproaching and asking questions, and as what the officer did, and that in and of itself is not—it is a factor but it's not a factor pointing to a detention at that point."
Upon consideration of the totality of the circumstances presented, we are persuaded that Deputy Schmidt's initial inquiry did not escalate the contact from a consensual encounter into a detention. No application of physical force or assertion of authority preceded the questioning, and the deputy did not speak to defendant in an angry, demanding or commanding tone. The encounter was brief and not in the least accusatory in nature. (People v. Hughes, supra, 27 Cal.4th at p. 328.)
Defendant's reliance on People v. Brown (2015) 61 Cal.4th 968 (Brown) and People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) is misplaced. In Brown, at about 10:37 p.m., police received a call about a fight in progress. (Brown, at p. 972.) An officer responded to the scene with his emergency lights and sirens activated. (Id. at pp. 973, 978.) When the officer saw the defendant drive by, the officer yelled, "'Hey. Did you see a fight?'" (Id. at p. 973.) The defendant did not respond and kept driving. After the officer checked the scene and found no suspects, the officer drove after the defendant and found him parked in a neighborhood nearby. (Ibid.) The officer pulled up behind the defendant's car and activated his overhead emergency red and blue lights. According to the officer, his actions were consistent with making a traffic stop. (Id. at pp. 973, 978.) The court noted that the highest court "has long recognized that activating sirens or flashing lights can amount to a show of authority." (Ibid.) The court found that a detention had occurred because under the circumstances, a reasonable person in the defendant's position would have perceived the officer's actions as a show of authority, directed at him and requiring that he submit by remaining where he was. (Id. at pp. 978, 980.)
The facts in this case are distinguishable from the facts in Brown. Here, although Deputy Schmidt did shine his spotlight on defendant's car to determine whether anyone was in the car, he did not activate his emergency lights or siren. In Brown, the officer admitted that he activated his lights in a manner consistent with having made a traffic stop. (Brown, supra, 61 Cal.4th at p. 978.) Moreover, in Brown, the officer was investigating a fight in progress. After speaking to the defendant once, the officer decided to follow up with the defendant and actively sought him out. In this case, the deputy was simply patrolling a shopping center when he saw defendant's car parked after business hours. Brown is not applicable.
Defendant's reliance on Garry, supra, 156 Cal.App.4th 1100, is also misplaced. In Garry, the officer observed the defendant standing in a high-crime area late at night. The officer spotlighted the defendant, rushed towards him, and immediately asked whether he was on probation or parole. (Id. at pp. 1103-1104.) The court found that the officer's actions, taken as a whole, constituted a detention:
"[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 [the] defendant from his marked police vehicle, [the officer] bathed [the] defendant in light, exited his police vehicle, and, armed and in uniform, 'briskly' walked 35 feet in 'two and one-half to three seconds' directly to him while questioning him about his legal status. Furthermore, [the officer] immediately questioned [the] defendant about his probation and parole status, disregarding [the] 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 [the] defendant's legal status as he quickly approached. [Fn. omitted.] 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."'
"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 [the] 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 non-verbal means, 'indicating that compliance with the officer's request might be compelled.'" (Garry, supra, 156 Cal.App.4th at pp. 1111-1112, italics added.)
Defendant likens his case to Garry, supra, 156 Cal.App.4th 1100, because of the use of the spotlight in his case and in Garry. However, the use of a spotlight in Garry was just one of the factors considered by the court. As summarized ante, the officer in Garry walked briskly toward the defendant while questioning the defendant about his legal status. Then, the officer immediately questioned the defendant about his probation and parole status. The court emphasized that the officer never engaged in conversation with the defendant, the officer only asked questions. In this case, Deputy Schmidt "walked up" to defendant's window, which was already rolled down and "simply asked" to speak with him. The deputy then engaged in conversation with defendant and merely asked why defendant was in the parking lot. In fact, the deputy did not even ask for defendant's identification until he began to exhibit nervous and suspicious behavior. The trial court noted, "I heard no evidence of hand gestures, signaling for the defendant to do any particular action, like stop his vehicle, start his vehicle. Open the window. Close a window. The officer did not testify that he had any kind of urgent interest, for example, yelling, yelling or raising his voice, issuing loud verbal commands, there were not red lights displayed by the vehicle. There was no amber lights displayed on the vehicle. There was certainly a spotlight, but that white light, spotlight [at] 7:00 p.m. is not in my—the Court's mind significant circumstances. In fact, case law indicates that it was not usually a significant circumstance. The officer did not block the suspect in any physical way. He did stop his vehicle behind and to the side of the suspect vehicle. And there was no incidental physical contact at the point of the initial contact with the defendant." Therefore, Deputy Schmidt's use of a spotlight, absent the other factors in Garry, is insufficient to constitute a detention. Garry in inapplicable.
In sum, none of the circumstances establishing a detention were present in this case—i.e., the presence of multiple officers, the display of a weapon, physical touching of defendant, or the use or language or verbal tones that would lead a reasonable person to believe he or she was under direct compulsion of a direct command by an officer. (Manuel G., supra, 16 Cal.4th at p. 821.) Because this was a consensual encounter, no reasonable suspicion was required on the part of Deputy Schmidt. (Brown, supra, 61 Cal.4th at p. 974; Garry, supra, 156 Cal.App.4th at p. 1105.)
2. DETENTION
Assuming, without deciding, that the consensual encounter became a detention when Deputy Schmidt asked defendant to get out of the car, the detention was supported by a reasonable suspicion of criminal activity. "'A 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.'" (People v. Casares (2016) 62 Cal.4th 808, 837-838 (Casares).) In fact, "where a reasonable suspicion of criminal activity exists, 'the public rightfully expects a police officer to inquire into such circumstances "in the proper exercise of the officer's duties."'" (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
When Deputy Schmidt asked defendant to exit his vehicle, there existed "specific articulable facts that, considered in light of the totality of the circumstances," support a reasonable suspicion of criminal activity. (Casares, supra, 62 Cal.4th at pp. 837-838.) Defendant was sitting in his car in an empty shopping center parking lot after business hours. The deputy, who had extensive training and experience with narcotics investigations, had personally made five or six drug-related arrests in that very parking lot. Defendant's explanation of why he was in the parking lot—i.e., that he was waiting for his wife to get gas—was suspicious in light of the fact that he was parked a good distance away from the nearby gas station, there were no females in the vicinity, and the car's fuel gauge indicated that defendant had gas. Defendant was also sweating and "nervously laughing." As the trial court found, the foregoing "would lead a reasonable officer to believe that the person with whom [the deputy] was speaking was not being entirely accurate or truthful." After Deputy Schmidt saw a large kitchen knife in the center console cup holder, he asked defendant to exit the vehicle. Thus, at the time the deputy ordered defendant out of the car, the deputy had sufficient factual basis to support a reasonable suspicion of criminal activity.
Notwithstanding, defendant argues that his detention unreasonable. In support of his argument, defendant's relies on Casares, supra, 62 Cal.4th 808. In Casares, an officer saw a van parked on the north side of a convenience store in a poorly lit area lacking demarcated parking spots. (Id. at p. 837.) The officer was aware of prior robberies where suspects would exit the store on the north side. Believing that a robbery may be in progress, the officer pulled in behind the van and approached the defendant, who was seated in the driver's seat. The defendant explained that he did not have identification and that the van belonged to a friend. The officer then conducted a search of the defendant and the van. (Ibid.) The Supreme Court found that the defendant's "mere presence in a car legally parked on the less illuminated north side of the convenience store, in an area without demarcated parking spaces at a time when other parking spaces were available, did not justify his detention." (Id. at p. 838.) The court further noted that the officer's knowledge of prior robberies at the store, without more, was insufficient to raise a reasonable suspicion that the defendant was engaged in criminal activity. (Ibid.)
This case is distinguishable from Casares. Here, defendant was not detained when Deputy Schmidt approached him and asked if he was willing to talk. As described in detail ante, the initial contact was a consensual encounter. The encounter turned into a detention when Deputy Schmidt asked defendant to exit his vehicle—after the deputy observed defendant sweating and laughing nervously, defendant's explanation for being in the parking lot lacked credibility, and the deputy saw a knife in the center console of the car. Based on this evidence, Deputy Schmidt not only had a reasonable suspicion that defendant was under the influence, but the deputy also had probable cause to justify detaining defendant.
Defendant, however, argues that "[t]he proper application of Casares, however, is to analyze what happened prior to Deputy Schmidt's interaction with [defendant]: did Deputy Schmidt have a factual basis to detain [defendant] based on [defendant] sitting in his parked car, in a parking lot?" We have already addressed this issue ante, and concluded that the initial interaction between the deputy and defendant was consensual, and was not a detention. It was only after the deputy asked defendant to exit the vehicle did the consensual interaction turn into a detention.
3. CONSENT TO SEARCH
Lastly, defendant argues that "because Deputy Schmidt's [sic] detained [defendant] in violation of the Fourth Amendment, any consent given by [defendant] was ineffective to authorize the search unless an independent event occurred to attenuate the taint of the Constitutional violation." The People argue defendant forfeited appellate review of the attenuation issues. We need not address the People's forfeiture issues; defendant's attenuation argument fails because, as provided in detail ante, the detention of defendant was valid.
In sum, we conclude that the initial encounter between the deputy and defendant was consensual; that the subsequent detention was supported by articulable suspicion that defendant was committing a crime; and that the warrantless search of defendant and his vehicle was lawful. Accordingly, the motion to suppress evidence was properly denied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.