In re Kevin T.

Filed 10/26/06 In re Kevin T. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

Irma J. Brown, Judge. Affirmed.

Murphy Rosen & Cohen, Philip Kent Cohen and Monica V. Ramallo-Young for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Following the denial of his motion to suppress evidence, Kevin T. admitted he had possessed marijuana for sale (Health & Saf. Code, § 11359) and was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) and placed home on probation.[1] He contends the marijuana and related items discovered during a search of his car were the fruit of an illegal detention and should have been suppressed (Welf. & Inst. Code, § 700.1). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Officer Kevin Kay of the University of California, Los Angeles Police Department testified at the suppression hearing he was on routine patrol just after 11:00 p.m. when he noticed a car parked in a lot near the campus. Two people sat in the front with their seats reclined. Smoke was emanating from the driver’s side window. Officer Kay approached the driver’s side and asked Kevin T. what he and his passenger were doing in the parking lot. Kevin T. did not respond. Officer Kay observed some tobacco products in the car and asked Kevin T. for identification. Kevin T.’s eyes were noticeably bloodshot and watery. Kevin T. produced a driver’s license showing he was 17 years old. While Officer Kay was examining the license, another officer arrived and asked Kevin T. his age. Kevin T. confirmed he was 17 years old. Officer Kay concluded Kevin T., a minor, unlawfully possessed tobacco products and was in violation of the 10:00 p.m. curfew.

Officer Kay asked whether there was anything in the car of potential concern, and Kevin T. surrendered a knife. He also volunteered there was marijuana in the center console. Officer Kay searched the car and found a pipe, two digital scales, plastic bags, three cellular phones and a bag containing marijuana and cash.

Kevin T.’s testimony at the suppression hearing differed from Officer Kay’s. According to Kevin T., he and his passenger were sitting in the parked car, but their seats were not reclined. Kevin T. was smoking a cigarette when a spotlight suddenly shined on him; he turned and saw two police cars. As Officer Kay approached the driver’s side in full uniform, Kevin T. felt scared and believed he was not free to leave the area. He told the officer he and his passenger were waiting to give a friend a ride. Officer Kay asked whether they were drinking alcohol; and Kevin T. said, “No.” By this time the second, uniformed officer was standing by the passenger side. Officer Kay asked the second officer to investigate the contents of a bottle near the passenger’s feet. The officer smelled the bottle and determined it contained only orange juice. Officer Kay then “demanded” identification from Kevin T., who complied by giving Officer Kay his driver’s license.

At the conclusion of the hearing defense counsel moved to suppress the marijuana and other evidence seized as the fruit of an illegal detention. Counsel conceded Officer Kay’s conduct after learning Kevin T. was under 18 years old satisfied constitutional requirements. Counsel argued, however, by approaching the car and demanding identification without a reasonable suspicion Kevin T. or his passenger were engaged in any unlawful activity, Officer Kay illegal detained Kevin T.

The juvenile court denied the motion, concluding the initial contact between Officer Kay and Kevin T. was a consensual encounter. Once Officer Kay learned Kevin T.’s age from his driver’s license, the consensual encounter ripened into a valid detention for unlawful possession of tobacco products and violating curfew.

CONTENTION

Kevin T. contends, as he did before the juvenile court, Officer Kay’s initial questioning and demand for identification constituted an illegal detention.

DISCUSSION

1. Standard of Review

In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Brendlin (2006) 38 Cal.4th 1107, 1113; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Brendlin at p. 1113; People v. Ramos (2004) 34 Cal.4th 494, 505.)

Although the trial court made no express factual findings, it impliedly disbelieved Kevin T.’s testimony and credited Officer Kay’s description of his encounter with Kevin T. Substantial evidence supports that determination. Accordingly, we analyze the propriety of the initial contact between Officer Kay and Kevin T. as described by the officer.

2. Kevin T. Was Not Unlawfully Detained

Not every interaction between the police and an individual is protected by the Fourth Amendment.[2] Police contacts fall into “three broad categories: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821; see People v. Hughes (2002) 27 Cal.4th 287, 327-328.) Unlike consensual encounters, which do not trigger Fourth Amendment scrutiny, detentions must be supported by articulable suspicion that the person has committed or is about to commit a crime. (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389]; In re Manuel G., supra, 16 Cal.4th at p. 821.)

Officer Kay’s initial contact with Kevin T. did not implicate the Fourth Amendment. “Justice Stewart’s opinion in United States v. Mendenhall (1980) 446 U.S. 544, 554 [100 S.Ct. 1870, 64 L.Ed.2d 497], which has been adopted by the court in subsequent cases [citation], states that ‘a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ . . . The high court subsequently made clear that this test ‘states a necessary, but not a sufficient, condition for seizure.’ [Citation.] That is, there must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. [Citation.]” (People v. Brendlin, supra, 38 Cal.4th at p. 1115.) “A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the person’s liberty [citations]; the police conduct communicated to a reasonable innocent person that the person was not free to decline the officer’s request or otherwise terminate the encounter [citation]; and the person actually submitted to that authority [citation] for reasons not ‘independent’ of the official show of authority [citation].” (Brendlin, at p. 1118.)

A police officer may approach and question an individual and ask for identification on the street or in other public places if the individual reasonably feels free under the circumstances to decline the officer’s requests or otherwise to terminate the contact. (Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cty (2004) 542 U.S. 177, 185 [124 S.Ct. 2451,159 L.Ed.2d 292]; INS v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758, 80 L.Ed.2d 474]; Florida v. Bostick, supra, 501 U.S. at p. 434 [“No seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage so-long as the officers do not convey a message that compliance with their requests is required”].)

Kevin T. makes much of his testimony that the initial contact made him feel his liberty was restrained and he had to comply with Officer Kay’s commands, including his demand for identification. Even if the court believed his testimony, Kevin T.’s subjective belief he was not free to leave is irrelevant in assessing whether a seizure had occurred. (In re Manuel G., supra, 16 Cal.4th at p. 821.) Indeed, although “most citizens will respond to a police request, the fact that people do so, and do so without being told they are not free to respond, hardly eliminates the consensual nature of the response.” (INS v. Delgado, supra, 466 U.S. at p. 216.) Instead, “whether a seizure has taken place is to be determined by an objective test, which asks ‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’” (People v. Celis (2004) 33 Cal.4th 667, 673.)

Kevin T. also insists his initial contact with Officer Kay was a detention based on the objective test: Under the circumstances he could not reasonably be considered free to leave. However, circumstances in this case did not reflect coercion or restraint. There was no evidence Officer Kay threatened or used physical force, displayed a weapon, used abusive language, made any threatening gestures or touched Kevin T. Officer Kay simply did not engage in any show of authority consonant with a detention until learning from the driver’s license that Kevin T. was a minor and therefore unlawfully possessed tobacco products and was in violation of curfew. (People v. Perez (1989) 211 Cal.App.3d 1492, 1495-1496 [no detention occurred when uniformed police officer walked to driver’s side of parked vehicle, shined flashlight into vehicle and asked defendant to roll down window after parking patrol car in front of defendant’s vehicle, leaving room for defendant to leave, and turning on patrol car’s high beams and side spotlights; court emphasized officer left room for defendant’s car to leave and did not activate patrol car’s emergency lights]; see United States v. Mendenhall, supra, 446 U.S. at pp. 554-555 [“Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.”].)

Nonetheless, citing this court’s decision in People v. Spicer (1984) 157 Cal.App.3d 213, Kevin T. argues that “[b]y approaching [him] from two fully marked police cars, late at night, fully uniformed, fully armed and shining a spotlight in [Kevin T.’s] face, the officer made it clear to [Kevin T.] (and to any other reasonable person in [Kevin T.’s position]) that he was not free to leave.”[3] Kevin T.’s reliance on Spicer is misplaced: Unlike the case at bar, in which Officer Kay approached Kevin T.’s parked car, the car in which Spicer was a passenger had been pulled over by the police after they observed it weaving between lanes. While one officer administered a sobriety test to the driver, who smelled strongly of alcohol, a second officer approached Spicer, sitting in the front passenger seat, and asked her to produce her driver’s license. (Spicer, at p. 216.) In concluding Spicer’s freedom of movement had been restrained by a show of authority, we emphasized she was confronted by the officer immediately after the police pulled over the car. (Id. at p. 219.) Although we assumed without deciding the traffic stop itself did not constitute a detention of Spicer (id. at pp. 217-218; see People v. Brendlin, supra, 38 Cal.4th at p. 1118), it was nonetheless highly significant in evaluating the circumstances of the encounter that the police approached her only after stopping the car being driven by her companion. The show of authority involved in an officer’s detention of a vehicle for a traffic infraction certainly increases the likelihood that a reasonable person inside the car would not feel free to decline when the officer then approaches and requests identification.

The initial contact between Officer Kay and Kevin T. was a consensual encounter. Accordingly, the suppression motion was properly denied.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

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[1] An allegation Kevin T. unlawfully possessed a deadly weapon (Pen. Code, § 12020, subd. (a)(1)) was dismissed.

[2] Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; see People v. Brendlin, supra, 38 Cal.4th at pp. 1113-1114.)

[3] Kevin T.’s characterization of the initial contact is at odds with the evidence. Officer Kay arrived at the scene and approached Kevin T.’s car alone; the second officer did not arrive until Officer Kay had obtained Kevin T.’s identification upon request. Moreover, neither Officer Kay nor Kevin T. testified the officer shined the police car spotlight in Kevin T.’s face. In any event, “[w]hile the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention.” (People v. Perez, supra, 211 Cal.App.3d at p. 1496.)