Opinion
D073066
10-11-2018
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER WASHINGTON, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF33601) APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr. and Christopher J. Plourd, Judges. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Following the denial of her motion to suppress (Pen. Code, § 1538.5), Jennifer Washington pled no contest to one count of bringing contraband into a prison (§ 4573, subd (a)). Pursuant to a plea agreement, the trial court suspended imposition of sentence and placed Washington on three years formal probation, subject to various conditions. One such condition was that she serve 180 days, either in jail, or in a home detention monitoring program.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The court noted that Washington had begun the home monitoring program the previous day.
On appeal, Washington contends that the trial court erred in denying her motion to suppress. Specifically, she argues that her initial detention by a correctional officer while she was visiting a prison was unlawful, and that her subsequent admission to the officer that she possessed contraband was involuntary. In addition, Washington maintains that the prosecution failed to prove that she consented to a search pursuant to which a correctional officer obtained contraband from her person. We affirm the judgment.
II.
PROCEDURAL BACKGROUND
In August 2014, a grand jury returned an indictment against Washington and codefendant Benjamin Jones. The indictment charged Washington with bringing contraband into a prison (§ 4573, subd. (a)) (count 1) and possessing an illegal substance in a prison facility (§ 4573.6) (count 2).
Jones is not a party to this appeal.
Washington filed a motion to suppress evidence (§ 1538.5), together with a supporting memorandum. The People filed an opposition to the motion.
As discussed in detail in part III.B, post, after holding an evidentiary hearing over several days, and receiving supplemental briefing from the parties, the trial court denied the motion to suppress.
After the trial court's denial of her motion to suppress, Washington entered into a plea agreement pursuant to which she agreed to plead no contest to count 1, bringing contraband into a prison. The prosecution agreed to recommend that the court place Washington on three years of formal probation subject to various terms and conditions, including that Washington be placed on 180 days of home detention and monitoring or, alternatively, that she serve 180 days in jail.
In October 2017, the court suspended imposition of sentence and placed Washington on formal probation for three years in accordance with the agreement.
Washington filed a timely notice of appeal, challenging the denial of her motion to suppress.
III.
DISCUSSION
The trial court properly denied Washington's motion to suppress
Washington contends that the trial court erred in denying her motion to suppress. After discussing the general principles of law governing a motion to suppress and the applicable standard of review, we will outline the evidence presented at the hearing on the motion to suppress and the trial court's ruling on the motion. We will then consider the three arguments that Washington advances in support of her claim that the trial court erred in denying her motion to suppress. A. General principles of law governing a motion to suppress and the applicable standard of review
1. The Fourth Amendment and the exclusionary rule
"The Fourth Amendment guarantees individuals the 'right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .' (U.S. Const., 4th Amend.) Under the Fourth Amendment, a warrantless search is unreasonable per se unless it falls within one of the 'specifically established and well-delineated exceptions.' " (People v. Baker (2008) 164 Cal.App.4th 1152, 1156-1157.) "[While] [t]he Fourth Amendment ' "contains no provision expressly precluding the use of evidence obtained in violation of its commands" ' [citation], . . . the United States Supreme Court 'establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.' " (People v. Golden (2017) 19 Cal.App.5th 905, 911.)
2. A motion to suppress under California law
Section 1538.5 provides in relevant part:
"(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on . . . the following ground[ ]:
"(A) The search or seizure without a warrant was unreasonable."
" '[A] court may exclude . . . evidence [pursuant to section 1538.5] only if exclusion is . . . mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.' " (People v. Vannesse (2018) 23 Cal.App.5th 440, 445, review granted Aug. 29, 2018, S249428.) "When a defendant moves to suppress evidence pursuant to Penal Code section 1538.5, the People have 'the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.]' " (Id. at pp. 444-445.)
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Ramos (2004) 34 Cal.4th 494, 505.) B. Factual and procedural background
1. Evidence presented at the hearing on the motion to suppress
Sergeant Evaristo Duarte testified that he had been employed by the Department of Corrections and Rehabilitations (the Department) for 17 years, that he had observed many thousands of prison visitors during this time, and that he had received training in understanding body language.
On the day of the incident leading to the charged offense, Sergeant Duarte was working as the "visiting sergeant" at Calipatria State Prison. Duarte explained that prospective visitors to the prison receive a brochure outlining the rules and regulations governing their visit. Duarte also stated that there is a "big sign," posted at the sole entry to the prison's grounds that informs visitors that it is a crime to bring drugs onto the prison's grounds. The sign also informs visitors that, by entering the prison's grounds, they consent to a search of their person, property, or vehicle.
Sergeant Duarte stated that on the day in question, he entered a visiting room at the prison and began to walk around the room as part of his job duties. Washington was seated at a table with an inmate. Sergeant Duarte's attention was drawn to Washington because she appeared to be nervous. In explaining Washington's apparent "nervousness," Sergeant Duarte stated, "Once I entered the room[,] [Washington] quickly turned around and would not . . . make eye contact with me." Duarte remained in the visiting room for approximately five minutes, before going to a nearby "investigation office."
The investigation office contained eight video monitors that displayed video feeds from six video cameras filming the visiting room. Once inside the investigation office, Sergeant Duarte informed another correctional officer, Officer Edward Garcia, of his "observation of Ms. Washington." Duarte instructed Officer Garcia to "maintain visual" on Washington.
Sergeant Duarte also continued to monitor Washington on the video monitors. According to Duarte, Washington was "continuously looking around." In addition, on several occasions, Washington looked toward the "officer's podium" in the visiting room, where a single correctional officer was stationed. Duarte explained that Washington displayed "very constant movement," which Duarte stated was not typical of a visitor.
When asked to describe what types of body language he had been trained to look for, Sergeant Duarte explained:
"We look at the body language, the eagerness to movement, [sic] if they're crossing their legs, constantly moving their hands, looking around, making eye contact with -- who -- who are they making eye contact with, are they standing up, sitting back down."
Duarte typically saw this kind of body language displayed by visitors whom he had arrested while working at the prison. According to Duarte, such body language was "[p]retty consistent with what Ms. Washington was doing."
After observing Washington on the video monitors for approximately 30 minutes, Sergeant Duarte saw Washington stand up and walk toward a foyer connected to the visiting room, where a restroom was located. Sergeant Duarte telephoned the correctional officer stationed in the foyer. According to Duarte, "I instructed him to -- to -- once Ms. Washington came out of the restroom . . . for him to hold her there at the foyer until my arrival."
Sergeant Duarte also stated that he instructed the officer to "[d]etain [Washington] in the foyer until [Sergeant Duarte's] arrival."
Sergeant Duarte asked Officer Steven Velazco to accompany him to the visiting room. Sergeant Duarte walked to the visiting room, which took approximately 30 seconds. When Sergeant Duarte and Officer Velazco arrived at the visiting room, Washington, who appeared to have already gone to the restroom, was standing in the foyer of the visiting room by the officer's podium. Sergeant Duarte approached Washington and identified himself. Washington did not make eye contact with Duarte while he attempted to converse with her. Sergeant Duarte found this failure to make eye contact to be unusual. It appeared to Duarte that Washington was nervous.
It is unclear from the record where Officer Velazco was located prior to being summoned by Sergeant Duarte.
Sergeant Duarte asked Washington to step outside of the foyer, onto a patio. Washington complied. Officer Velazco accompanied Washington and Sergeant Duarte outside to the patio. Sergeant Duarte then asked Washington whether she had "any contraband on her -- on her person." According to Duarte, Washington hesitated briefly and then stated, "Yes." Washington told Sergeant Duarte that the contraband was in her vaginal area.
Sergeant Duarte contacted the visiting processing center and requested that a female officer come to the scene. Duarte then asked Washington whether she would consent to an unclothed body search. Washington responded, "Yes." Sergeant Duarte also stated that Washington signed a "C.D.C.R. 888 form," manifesting her consent to the search.
The People did not introduce the form in evidence. In discussing the form during the hearing, defense counsel stated, "Apparently, it was lost."
Officer Estella Velasco arrived on the scene and escorted Washington to a restroom. Once at the restroom, Officer Velasco asked Washington whether there was anything that she wanted to relinquish to Velasco. Washington removed a bindle from her vaginal area and gave it to the officer. The bindle contained a usable quantity of heroin.
After the search, Sergeant Duarte advised Washington of her rights under Miranda, and she agreed to be interviewed. During the interview, Washington told Duarte that she rode to the prison as a passenger with Jones. Jones gave her narcotics to smuggle into the prison.
Miranda v. Arizona (1966) 384 U.S. 436.
2. The trial court's ruling
After hearing the evidence, and considering the parties' briefing, the trial court denied Washington's motion to suppress. With respect to the initial detention, the court stated that Sergeant Duarte, who is an "experienced officer," had his attention drawn to Washington. According to the court, "[Washington] stuck out in his mind."
The court acknowledged that individuals visiting a prison "do get nervous." However, after noting that Sergeant Duarte saw "Ms. Washington making some gesture that might suggest she's unusually nervous," the court remarked:
"And that's the purpose of officers at that point making observations of the visits. So he [Sergeant Duarte] approached her. And the question . . . that he asked was whether or not she had contraband, and she indicated that she did."
The court also discussed Officer Velasco's involvement in the case:
"She escorts Ms. Washington. And there's a subsequent contact between Ms. Velasco and Ms. Washington that eventually yields to . . . Washington[ ] simply acquiesce[ing] and [telling] the officer[,] 'I have the contraband. I have a bindle in one of my cavities,' which the defendant herself apparently took it out. It wasn't done by the officer.
"Maybe that point is a minor point. But still, it goes to the idea of: How intrusive is this search, how intrusive is the detention? And Ms. Washington then pulls out contraband. And then there's a subsequent interview, where she is Mirandized." (Italics added.)
The court also discussed Washington's signing of a written consent form authorizing the search. The court's comments are ambiguous as to whether the court found that Washington signed the consent form prior to the interview (and therefore, potentially before the search) or after being Mirandized and formally interviewed (and therefore, after the search):
"The Miranda question is done. Ms. Washington then signs, I believe at that point, the 888 form. And this is a form that was lost; correct?
"You never submitted that in there.
"And . . . I don't think defense counsel is arguing that somehow that form was lost intentionally. It appears that it was lost inadvertently. We don't know.
"But on that point, the prosecution can be given the benefit of the doubt that it was lost. It wasn't lost intentionally or destroyed or hidden.
"But then she is interviewed, and in that admission, she arguably implicates Mr. Jones." (Italics added.)
The trial court also made several references to the fact that the incident took place in a correctional facility. For example, the court noted that visitors receive notice before visiting the facility that they "are subject to search," and observed that visitors to a prison "give up a portion of the[ir] Fourth Amendment rights," as they enter the institution. The court also stated that it was aware that contraband may be "exchanged . . . when visitors make contact [with inmates] at a table."
The court summarized its ruling by stating:
"The officers conducted themselves in a way where they acted reasonably. The officer -- once their attention was drawn, the officer, Duarte, did not intrude on Ms. Washington's rights. He sent her to a female officer to conduct a subsequent search, which they did."C. The trial court did not err in determining that Washington's initial detention was proper
Washington claims that this court should conclude that she "was unreasonably subjected to an indefinite detention inside the vising foyer of the prison because the prosecution did not present evidence of sufficiently articulable facts in justification of Sergeant Duarte's speculative inferences about her motives when he ordered her detained . . . ."
1. Governing law
a. Investigatory detentions and reasonable suspicion
"A detention occurs when [an] officer, by means of force or show of authority, has restrained a person's liberty. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [(Terry)].) Unlike a consensual encounter, a detention must be supported by reasonable suspicion the person is involved in criminal activity." (People v. Zaragoza (2016) 1 Cal.5th 21, 56 (Zaragoza).)
In determining whether reasonable suspicion exists, we "must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' " (U.S. v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).) "Although an officer's reliance on a mere ' "hunch" ' is insufficient to justify a stop, [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." (Id. at p. 274.) In addition, "[t]he detention must be temporary, last no longer than necessary for the officer to confirm or dispel the officer's suspicion, and be accomplished using the least intrusive means available under the circumstances. [Citations.]" (People v. Stier (2008) 168 Cal.App.4th 21, 26-27 (Stier).)
b. Factors relevant in determining reasonable suspicion that are applicable to this case
"[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) Further, the fact that a detention "occurred in a 'high crime area' [is] among the relevant contextual considerations in a Terry analysis." (Ibid.) Correctional facilities may reasonably be regarded as high crime areas in this context. (See Spear v. Sowders (6th Cir. 1995) 71 F.3d 626, 630 (Spears) [discussing whether prison officials had reasonable suspicion to search a prison visitor and stating "[e]ven the most secure prisons are dangerous places for inmates, employees, and visitors"].)
In addition, given the reduced privacy interests in this context, "prison authorities have much greater leeway in conducting searches of visitors," than do ordinary law enforcers patrolling public streets. (Spears, supra, 71 F.3d at p. 630; see also id. at p. 631, fn. 2 ["In Terry, reasonable suspicion on a public street, where a citizen has far broader Fourth Amendment interests than those present when visiting a prison, amounted to the fact that three people walked up and down a street repeatedly, looked into a store window repeatedly, and spoke amongst themselves" (italics added)].)
2. Application
The People do not dispute that, pursuant to Sergeant Duarte's request, a correctional officer detained Washington so that Sergeant Duarte could speak with her. We agree with the People's acknowledgment that Washington was detained pursuant to Sergeant Duarte's request. Accordingly, we must determine whether Sergeant Duarte had reasonable suspicion that Washington was involved in criminal activity. (Zaragoza, supra, 1 Cal.5th at p. 56.)
The officer's name is not in the record.
Both federal and California case law have upheld minimally invasive searches of visitors to correctional facilities without any suspicion. (See Spears, supra, 71 F.3d at p. 630 ["Visitors can be subjected to some searches, such as a pat-down or a metal detector sweep, merely as a condition of visitation, absent any suspicion"]; Mathis v. Appellate Department (1972) 28 Cal.App.3d 1038, 1040 ["We conclude that the driver and occupants of a motor vehicle may reasonably be deemed to have consented to search of the vehicle which enters and then parks on . . . a parking lot [of a correctional facility] after passing a sign apprising the motorist that he is entering a correctional facility, and that a vehicle which enters is subject to search"].) In light of our conclusion that reasonable suspicion supported Washington's detention, we need not determine whether the detention was also lawful under the regulatory search rationale unpinning such case law.
After considering the " 'totality of the circumstances' " (Arvizu, supra, 534 U.S. at p. 273), we conclude that Sergeant Duarte had reasonable suspicion to order Washington detained so that he could speak with her concerning his suspicions. Washington entered a correctional facility, after receiving notice that she could be subjected to a search and that bringing drugs into the prison was illegal. Sergeant Duarte, a highly experienced officer who had received training on detecting body movements consistent with illicit behavior, observed Washington both in person and on video monitors for a lengthy period of time. During this time, Sergeant Duarte observed Washington fail to make eye contact with him while he was in the visiting room, peer around the visiting room continuously, look several times toward the officer's podium, and exhibit body language, such as leg crossing and constant hand motion, that is frequently associated with illicit behavior.
Washington's conduct and demeanor, in the context of a prison visit, provided "reasonable suspicion" (Zaragoza, supra, 1 Cal.5th at p. 56) for Sergeant Duarte, an experienced correctional officer, to order Washington detained so that he could speak with her. Further, the record is clear that the detention was "no longer than necessary." (Stier, supra, 168 Cal.App.4th at p. 26.) Sergeant Duarte testified that he arrived at the visiting room less than a minute after Washington was detained, and that he began to question her immediately upon his arrival. There is no evidence of prolonged questioning prior to Washington's admission that she possessed contraband.
Washington's arguments to the contrary are not persuasive. She cites cases such as Williams v. Superior Court (1985) 168 Cal.App.3d 349, 353, in which courts have held that a defendants' isolated and brief " 'furtive gestures' " do not provide reasonable suspicion for a prolonged stop on a public street. As discussed above, Washington's continuous display of body language consistent with illicit behavior while under surveillance in a correctional facility provided reasonable suspicion for Sergeant Duarte to order her detained for a brief period of time so that he could speak to her about his suspicions.
The alleged furtive gestures at issue in Williams were that two defendants in a car each turned and stared at an officer's passing patrol car for five seconds and then raised their hands over their heads upon being stopped by the officer. (Williams, supra, 168 Cal.App.3d at pp. 354-355, 361.) Such gestures bear little resemblance to those described by Sergeant Duarte in this case.
We are not persuaded by Washington's contention that the trial court should have granted her motion to suppress because of the alleged failure of correctional officials to comply with administrative regulations and policies requiring such officials to give a visitor suspected of bringing contraband into a prison the option of leaving the grounds rather than submitting to a search. Even assuming that Sergeant Duarte and his colleagues failed to comply with these regulations, Washington presents no argument that any such failure rendered the detention and ensuing search unconstitutional under the Fourth Amendment such that evidence obtained as a result of the search should have been suppressed.
On appeal, Washington does not cite the regulations or Department policies that she contends were violated. In the trial court, Washington cited such regulations and policies in her briefing, and attached copies of the regulations and policies to her briefs. Among the policies that Washington attached is section 52050.17 of the Department's Operations Manual, which provides in relevant part:
"Any person coming onto the grounds of any Department facility or camp or any Department contracted facility, is subject to having their person, vehicle, and articles of property in their possession searched. Visitors to such a facility are subject to a routine inspection of their persons, vehicles, and any personal property in their possession. Such inspections shall be made to the degree consistent with the facility's security needs.
"When peace officer staff determine that there is reasonable suspicion that the visitor is engaged in criminal activity including, but not limited to, the smuggling of unauthorized items or substances in or out of the institution, the visitor may be subjected to a thorough clothed body search.
"[¶] . . . [¶]
" • A visitor may refuse to submit to an inspection or search. A refusal shall result in the visitor being denied entrance to the facility.
"If there is reasonable suspicion that the person is engaged in felonious activity and that evidence of such crime may be destroyed or disposed of if a search is not immediately conducted, the peace officer, with the concurrence of the watch commander, may detain the person and the property or vehicle to be searched until such time as a search warrant can be obtained. In all such cases the Warden or their designee will be immediately advised of the circumstances and a decision made about the course of action to be pursued."
We emphasize that we do not conclude that Sergeant Duarte or the other officers violated any Departmental regulations or policies. At the suppression hearing, Washington's counsel asked Sergeant Duarte, "Before you asked [Washington] if she had contraband, did you tell her she could leave?" Sergeant Duarte responded, "Yes, I did."
Accordingly, we conclude that the trial court properly determined that Washington's initial detention was proper. D. Washington's admission that she possessed contraband was voluntary
Washington contends that her admission that she had contraband in her possession was involuntary, and therefore, should have been suppressed.
"A confession is involuntary if the ' " 'influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." ' " ' [Citation.] 'A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence.' [Citation.] However, 'no single factor is dispositive in determining voluntariness . . . rather[,] courts consider the totality of circumstances.' " (People v. Wall (2017) 3 Cal.5th 1048, 1065-1066.)
Washington contends that her admission was involuntary because she "was detained in the visiting foyer indefinitely, until she chose to cooperate with Sergeant Duarte's interrogations." She suggests that the presence of "three correctional officers," supports this conclusion. In her reply brief, she maintains that "she was given no choice but to cooperate with the encounter [sic] in order to avoid charges of other obstruction-related offenses."
While Washington argues that she was subjected to a custodial interrogation, and suggests that Sergeant Duarte failed to admonish her pursuant to Miranda before asking her whether she had any contraband in her possession, she does not argue that failure to admonish her of her Fifth amendment right against self-incrimination pursuant to Miranda would entitle her to suppression of her statements pursuant to section 1538.5. (See People v. Mattson (1990) 50 Cal.3d 826, 850-851 ["section 1538.5 may not be used to suppress admissions and confessions on grounds that they are the product of Fifth Amendment and/or Sixth Amendment violations"].) Nor does she argue that a mere Miranda violation would require suppression of the evidence obtained pursuant to the search conducted in light of those statements. (See People v. Brewer (2000) 81 Cal.App.4th 442, 454 ["a finding . . . that a statement was taken in violation of Miranda because of a police failure to give Miranda admonitions . . . would not justify the further suppression of other evidence, including physical evidence, obtained through use of the unlawful but noncoerced statement"].) Accordingly, we need not determine whether Sergeant Duarte was required to admonish Washington of her Miranda rights before asking her whether she had any contraband in her possession.
The record fully supports the conclusion that Washington voluntarily, and of her own free will, admitted to possessing contraband. The record contains no evidence of threats, false promises, or any display of force. The fact that Washington was briefly detained, approached by three officers, and asked by Sergeant Duarte whether she possessed contraband does not constitute evidence that her will was overcome such that her admission was involuntary. Moreover, Sergeant Duarte stated that when he asked Washington whether she had contraband, she "hesitated a bit," and then responded in the affirmative. Thus, there is no evidence that Sergeant Duarte wore Washington down with prolonged questioning or otherwise coerced her admission. Further, contrary to Washington's assertion on appeal, the record is devoid of evidence that Washington admitted to possessing contraband in an attempt to "avoid charges of other obstruction-related offenses."
Accordingly, we conclude that Washington voluntarily admitted to possessing contraband. E. The prosecution established that Washington consented to the search
Washington claims that the prosecution failed to establish that she consented to a search of her person, or that any consent was voluntarily given, and that the evidence obtained pursuant to the search should therefore be suppressed.
One "recognized exception to the Fourth Amendment's proscription against warrantless searches is a search that is based upon consent." (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1198.) However, "[c]onsent that is . . . not voluntary . . . is ineffective to justify a search or seizure." (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
"[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) The voluntariness of a defendant's consent to search "is to be determined in the first instance by the trier of fact; and in that stage of the process, 'The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the [trier of fact]. On appeal all presumptions favor proper exercise of that power, and the [trier of fact's] findings—whether express or implied—must be upheld if supported by substantial evidence.' " (People v. James (1977) 19 Cal.3d 99, 107 (James).)
Washington's primary argument with respect to consent is that the prosecution failed to establish that she signed a written consent form authorizing the search before Officer Velasco performed the search. In support of this contention, Washington notes that the People failed to produce the search form at trial, and the trial court did appear to indicate at one point in its ruling that the consent form was signed after Washington was Mirandized, which would have been after the search.
The court's remarks are ambiguous with respect to whether the court found that the consent form had been signed before, or after, the search. (See pt. III.B.2, ante.) --------
However, even assuming, strictly for the sake of argument, that Washington did not sign the consent form until after she was searched, Sergeant Duarte unambiguously testified that Washington orally consented to an unclothed body search prior to the search:
"[Duarte]: I asked her if she would consent to an unclothed body search.
"[The prosecutor]: And an unclothed body search is -- maybe you can explain what's involved there.
"[Duarte]: It means basically where you remove all your clothing and conduct . . . certain moves, and obviously it's conducted by -- if you're a female, its conducted by two female officers.
"[The prosecutor]: And -- and when you asked her for consent to that, what was her response?
"[Duarte]: She said 'Yes.'
"[The prosecutor]: And that was a verbal 'yes'?
"[Duarte]: Correct."
Sergeant Duarte's testimony in this regard was undisputed.
While Washington argues that any such consent was given only "under submission to authority," we reject that argument for reasons similar to those discussed in connection with our rejection of Washington's argument that her admission to possessing contraband was involuntary. The record contains no evidence of threats, coercion, or other duress from which the trial court could reasonably find that Washington's consent was not freely given.
While Washington argues that Sergeant Duarte did not "convey that he was giving Washington the option of cooperating with him," Sergeant Duarte stated that he "asked" Washington whether she would consent to the search and that she responded in the affirmative. In any event, even assuming that Washington had the right to refuse to consent to the search, the law is clear that Sergeant Duarte was under no obligation to inform her of such a right. (James, supra, 19 Cal.3d at p. 115.)
In addition, Officer Velasco's testimony with respect to the manner by which the contraband was recovered was consistent with a consensual search. When asked whether Washington "voice[d] any objections" to the search prior to its execution, Officer Velasco responded, "No." In addition, Officer Velasco stated that she "ask[ed]," Washington whether she had anything that she wanted to relinquish before the search. According to Velasco, Washington responded affirmatively, removed the contraband from her vaginal area, and gave it to the officer.
Accordingly, we conclude that the prosecution established that Washington consented to the search, and the trial court did not err in denying the motion to suppress evidence obtained pursuant to the search.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.