In re P.A.

 

 

 

 

 

 

 

 

Filed 7/15/13  In re P.A. CA1/5

 

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
>

>In re P.A., a Person Coming Under the Juvenile Court Law.
>THE PEOPLE, >            Plaintiff and Respondent, >v. >P.A., >            Defendant and Appellant.	A135422         (>Contra> Costa >County>       Super. >Ct.> No. J1200273)   ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

 

BY THE COURT:

 

            IT
IS ORDERED that the opinion filed on June
14, 2013, is modified as
follows and appellant P.A.’s petition for rehearing is DENIED:

            1.  On page 4, in the fourth full paragraph, the
second sentence is deleted.  The
following sentence is inserted in its place: 
“He recognized the gun found beneath the driver’s seat as the weapon
pointed at him.”

            2.  On page 10, in the second full paragraph,
change the word “he” in the third and fourth sentences to the word “she.” 

            3.  On page 12, in the second full paragraph, the
first sentence is deleted.  The following
sentence is inserted in its place: 
“Indeed, much of P.A.’s argument rests on inferences that he draws in a
manner most supportive of his position, from evidence of police activity
occurring at some place and time other than the place and time of P.A.’s
consent to the search (albeit in the same parking lot that night).”

            4.  On page 16, the third sentence of the third
paragraph is deleted.  The following
sentence is inserted in its place: 
“Here, by contrast, there was no direct evidence that Officer McGraw’s
firearm was drawn when he asked P.A. permission to search his SUV.”

            5.  On page 18, in the paragraph that carries
over from page 17, change “around 1:00 a.m.”
to “after 11:00 p.m.” 

            The
modification effects no change in the judgment.

 

 

 

 

 

Date_____________________                        
__________________________P.J.

 

 

Filed 6/14/13  In re P.A. CA1/5 (unmodfied version)

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
>

>In re P.A., a Person Coming Under the Juvenile Court Law.
>THE PEOPLE, >            Plaintiff and Respondent, >v. >P.A., >            Defendant and Appellant.	A135422         (>Contra> Costa >County>       Super. >Ct.> No. J1200273)

 

            P.A.
appeals from a dispositional order in a proceeding commenced under Welfare and
Institutions Code section 602.  He
contends:  (1) the juvenile court erred
by applying an incorrect standard in ruling on his motion to suppress evidence
and, in particular, in deciding that his consent to a search of his vehicle was
voluntary; (2) the evidence was insufficient to support the court’s denial of
the motion to suppress, because there was evidence of coercive circumstances at
the time P.A. consented to the search; and (3) police actions, including
handcuffing P.A., converted his detention into an arrest without probable
cause, and the resulting unlawfulness of the arrest vitiated his subsequent
consent to the search.  We will affirm
the order.

I.  FACTS AND PROCEDURAL HISTORY

            An
amended wardship petition filed under Welfare and Institutions Code
section 602 alleged that P.A. committed felony second degree robbery (Pen.
Code, §§ 211, 212.5) while armed with a dangerous or deadly weapon (Pen.
Code, § 12022, subd. (b)(1)). 

            P.A.
moved to suppress the evidence obtained from a search of his vehicle.  (Welf. & Inst. Code, § 700.1.)  On May
2, 2012, the juvenile court held a combined jurisdictional and
suppression hearing.

            A.  Hearing
on Jurisdiction and Motion to Suppress

                        1.  Evidence
at the Hearing

            Shortly
before 11:00 p.m. on February 17, 2012, victim Taemun An (An) was walking home
from a store on Contra Costa Boulevard in Pleasant Hill, carrying two grocery
bags and a backpack and listening to music on his iPhone.  As he stepped into a crosswalk, “somebody jumped on [him] from the back, so [he] fell
on the ground.”  He testified:  “I found two guys in front of me, one guy
aiming a gun at me, and both of them were repeating, ‘Give me your money, give
me your money.’”

            One
of the assailants was “a little bit chubby.” 
The other, later determined to be appellant P.A., “was a bit skinny and
taller than the chubby one” and was wearing “casual clothes like [a] training
suit or those hoodies.”  He believed the
assailants were African American or Hispanic. 
He did not get a good look at the “skinnier” assailant.

            An
surrendered his wallet.  While he lay on
the ground, one of his assailants removed his iPhone from his pocket.  After repeatedly warning An to “stay here” or
“stay on the ground,” the assailants ran down the street.  An went home and called the police. 

            Pleasant
Hill Police Officer Kristic responded to An’s apartment.  An described the attack, explaining that
there were two suspects, one of whom had a gun similar to the semiautomatic
carried by the officer, and that his iPhone was one of the items taken.  An’s wallet contained about 13 dollars, 50
Philippine pesos, his student ID card, a credit card, a debit card, and a
guitar pick. 

            An
subscribed to a service that permitted him to determine the location of his
iPhone on his laptop by means of a global positioning system (GPS).  An attempted to locate his iPhone before
Officer Kristic arrived but was unsuccessful, because the phone was turned
off.  After the officer arrived, the
phone was apparently turned on, and they were able to track the iPhone’s location. 

            The
computer screen map indicated that the iPhone was in Concord; two units of
officers were sent towards the location. 
Meanwhile, Officer Kristic continued to monitor the location of the
iPhone every 30 seconds and provided updates over the police radio.  The iPhone became stationary at the southwest
corner of Treat and Cowell, south of a gas station and north of a daycare
facility.

            Following
Officer Kristic’s periodic radio reports of the iPhone’s location, Officer
McGraw responded to the intersection of Treat and Cowell.  McGraw had been informed that the phone had
been stolen in a robbery by “black or hispanic males” and a firearm was
involved.  At the southwest corner of the
intersection were a gas station and an adjacent parking lot.  There were only two vehicles in the parking
lot: one was unoccupied; the other was a gray sport utility vehicle (SUV)
“occupied by multiple subjects.”  There
were no other people in the area.

            Based
on the absence of any other person in the vicinity and the GPS signal
indicating the presence of the iPhone, Officer McGraw “found it to be
reasonably suspicious that this carload of people were likely involved in the
robbery.” 

            Officer
McGraw parked behind the vehicle and illuminated it with his “Alley light.”  Because he was the only one at the scene and
it was reported that a gun had been used in the robbery, McGraw drew his
firearm, ordered the occupants to show their hands outside the SUV’s windows,
and waited for additional officers to arrive.

            Pleasant
Hill Police Officer Priebe’s canine unit arrived at the scene, followed by
officers Vermillion and Holdsworth, along with some Concord police
officers. 

            The
SUV occupants were ordered out of the vehicle, one at a time.  The vehicle contained five occupants; P.A.
was the driver.

            Officer
McGraw removed the occupants, who were then handcuffed and placed in separate
patrol vehicles.  During this procedure,
the other officers had their weapons drawn to provide cover.  In addition, Officer Priebe’s canine partner,
whose purpose was to “gain compliance [of the occupants] without having to use
the dog’s teeth or force,” barked as the occupants were taken from the
SUV.  The occupants were handcuffed due
to their number and the possible presence of a firearm. 

            Officer
McGraw asked P.A. if he owned the car, and P.A. replied that he did.  The officer asked P.A. permission to search
the vehicle, and P.A. responded:  “Yes,
go ahead.”  P.A. also made an unsolicited
statement that “everything in the car belonged” to him.

            Officer
McGraw again approached the SUV.  By this
time, all of the occupants had been removed, and the SUV’s doors remained
open.  From outside the SUV, at the open
rear passenger door on the driver’s side, Officer McGraw observed the handle of
a pistol “sticking out from some other clothing and trash” underneath the
driver’s seat.  Officer McGraw removed
the pistol, noticing that it was plastic. 
Officer McGraw also found the victim’s iPhone and wallet on the driver’s
floorboard and a plastic cap pistol beneath the front passenger seat.  The wallet was empty except for a guitar
pick. 

            At
Sergeant Vermillion’s request, Officer Kristic drove An to the parking lot for
a possible in-field identification. 
Kristic read the infield admonishment to An, which he said he
understood.  From within 20 feet, An
viewed the five handcuffed subjects, illuminated by the lights of the police
cars.  He “clearly recognize[d]” the
heavy-set assailant, but “couldn’t really tell . . . which one was the skinny
one.”  According to An, he could not
discern if the other four suspects, including P.A., had been involved in the
robbery, although they were wearing similar clothes.  An testified at trial, however, that P.A. had
“similar physical characteristics” as the second assailant.  By Officer Kristic’s recollection, An was
able to identify the heavier suspect by weight, eliminated the next three, and
was not sure about the last individual (P.A.). 


            An
identified the iPhone and wallet at the scene as his property.  He recognized the gun found beneath the
driver’s seat – a B.B. gun – as the weapon pointed at him.  An recalled that his wallet contained $13 and
a 50-peso Philippine bill, and Officer McGraw found that currency in the pants
pocket of one of the other SUV passengers. 


            Hours
after the robbery, Officer Vermillion questioned P.A. at the police
station.  Vermillion read P.A. his >Miranda rights, and P.A. said that he
understood them.  P.A. admitted that he
had committed the robbery with one of the other passengers in his SUV, that the
other three passengers were not involved, and that he was the one who had been
holding the gun.  Specifically, P.A.
admitted to police, he had spotted An walking, followed him, put up the hood on
his hoodie, tackled An from behind when they reached a “dark area,” told An
“[g]ive me everything you’ve got,” grabbed An’s wallet from his person, and
picked up the iPhone that had fallen from An’s possession during the
robbery.  After the robbery, P.A. tossed
some of An’s “personal stuff” out of the SUV. 


                        2.
Court’s Rulings

            As
set forth in further detail post, the
court denied P.A.’s motion to suppress, sustained the robbery allegation, and
dismissed the arming allegation.

            B.  Dispositional
Order

            At
the dispositional hearing on May 16, 2012, the court declared P.A. a ward of
the court and ordered the probation department to determine an appropriate
placement.  In June 2012, P.A. was placed
at Valley Teen Ranch in Fresno. 

            C.  Appeal

            On
May 8, 2012, P.A. filed a premature notice of appeal.  On June 21, 2012, this court construed the
notice of appeal to have been taken from the juvenile court’s May 16, 2012
dispositional order. 

II.  DISCUSSION

            P.A.
contends:  (1) the court erred by
applying an incorrect standard in determining that his consent to the vehicle
search was voluntary; (2) the evidence was insufficient to support the court’s
denial of the motion to suppress; and (3) the police actions, including the use
of handcuffs, converted the detention into an arrest without probable cause,
and the illegal arrest tainted his consent to search.

            A.  The
Court’s Standard for Determining Voluntariness of Consent

            A
search of an individual’s vehicle may be conducted without a warrant upon the
individual’s consent, if the consent is free and voluntary in the totality of
the circumstances.  (See >Schneckloth v. Bustamonte (1973) 412
U.S. 218, 227 (Schneckloth).)  The prosecutor has the burden of showing, by
a preponderance of the evidence, that the “defendant’s manifestation of consent
was the product of his free will and not a mere submission to an express or
implied assertion of authority.”  (>People v. James (1977) 19 Cal.3d 99, 106
& fn. 4 (James).) 

            P.A.
contends the juvenile court erred by applying an incorrect standard in ruling
on his suppression motion and, in particular, in determining that his consent
to the vehicle search was voluntary. 
Essentially, P.A. argues that the court considered only whether the
police actions were reasonable, and not whether they were coercive, in
evaluating whether the prosecution met its burden of showing the voluntariness
of P.A.’s consent in the totality of the circumstances.  P.A.’s argument is unfounded.

                        1.  Background

            Before
the hearing, P.A. filed a motion to suppress evidence on the ground that it was
obtained by an unreasonable search and seizure. 
The motion asserted that P.A. was searched and seized without a warrant,
and it was the prosecution’s burden to establish a sufficient justification.  There was no specific discussion of the issue
of consent.

            After
the close of evidence at the hearing, including the evidence that P.A. had
consented to the search, defense counsel argued inter alia that P.A.’s consent was involuntary.  Defense counsel stated:  “Given that all these officers were out there
– at least five, plus a canine dog that was barking, we heard – we know it was
night, we know there were weapons pointed towards them – really, there could
not be, under the case law, a really consen[s]ual search.  Rather, it was just a mere compliance with
police authority.”  Defense counsel then
launched into a much lengthier second argument concerning law enforcement’s
right to rely on the GPS data, which she contended was hearsay.  With analogies to “a Harvey-Madden case” and
anonymous tips, defense counsel argued that the officers were not relying on
reliable information when they went to the scene, and the officers’ de facto
arrest was unreasonable. 

            The
prosecutor responded to defense counsel’s second argument, contending it was
neither a “Harvey-Madden” case nor an anonymous tip situation, since the
reporting party was the victim.  The
prosecutor further noted that “this is not a situation where it was merely to
be coercive that [the officers] pulled out their firearms and approached it in
this manner,” but that they did so because the situation was dangerous. 

            The
court then addressed defense counsel’s arguments, starting with the reliability
of the victim and the report of there being a gun, and concluding with the
voluntariness of P.A.’s consent.  The portion
of the court’s comments on which P.A. relies reads as follows:  “That’s the most realistic gun.  It’s frightening – and, obviously – very
frightening.  [¶] I think at that
time they were very appropriate to order the minors out of the car and to ask to
search.  [¶] They’re looking for a
loaded gun.  As far as they know – I
mean, a dangerous gun that was used in an armed robbery – they can’t just leave
it laying there.  [¶] So – and
whatever comments the minor’s made, I find they were voluntary and deny the
motion to suppress.” 

            Based
on this language, P.A. insists that the court determined the voluntariness of
P.A.’s consent based not on the totality of the circumstances, but solely on
the ground that the police action was reasonable. 

                        2.  Analysis

            It
is presumed that a court applies the correct legal standard in making its
ruling.  (Evid. Code, § 664.)  P.A. has not overcome this presumption.  Nowhere did the court in this case state that
it was refusing to consider the totality of the circumstances surrounding
P.A.’s consent, let alone the particular circumstances brought to the court’s
attention at the hearing by defense counsel. 
At no time did the court state that the voluntariness of P.A.’s consent
would be determined by the reasonableness of the police action.  Nor did the prosecutor suggest such a
standard. 

            P.A.
urges us to draw such an inference from the court’s comments quoted above:  “That’s the most realistic gun.  It’s frightening – and, obviously – very
frightening.  [¶] I think at that
time they were very appropriate to order the minors out of the car and to ask
to search.  [¶] They’re looking for
a loaded gun.  As far as they know – I
mean, a dangerous gun that was used in an armed robbery – they can’t just leave
it laying there.  [¶] So – >and whatever comments the minor’s made,
I find they were voluntary and deny the motion to suppress.”  (Italics added.)  But in our view – given the nature of the
arguments presented at the hearing – the court did not conclude that P.A.’s
consent was voluntary because the
police actions were reasonable; it concluded that P.A.’s consent was voluntary >and the police actions were
reasonable.  After all, the defense had
made two arguments:  that the consent was
coerced, and that the detention was unreasonable because it was based on an
unreliable or uncorroborated tip.  This
explains why, after addressing the reasonableness of the police actions and
saying the word “so,” the court apparently stopped itself and used the word
“and” before announcing its conclusion as to the other defense argument
pertaining to consent.  Furthermore, the
court said the officers had “ask[ed] to search” rather than demanded to search,
perhaps suggesting that the court did not find Officer McGraw’s request to be
coercive anyway.href="#_ftn1" name="_ftnref1"
title="">[1] 

            At
any rate, P.A.’s argument is unavailing for another reason.  P.A. urges us to review the court’s ruling on
the suppression motion de novo, which would mean that any error in the trial
court’s standard is immaterial as long as the evidence supports the conclusion
that P.A.’s consent was voluntary under the proper standard.  Similarly, applying a substantial evidence
review, the court’s purported error of law would be harmless if the evidence
was sufficient to establish the requisite consent.  We therefore proceed to the sufficiency of
the evidence.

            B.  Sufficiency
of the Evidence of Voluntary Consent

            We
review the trial court’s determination that P.A.’s consent was voluntary for
substantial evidence.  As our Supreme
Court has admonished:  “Our review of the
trial court’s implied finding that defendant voluntarily consented to the
search is limited.  ‘The . . .
voluntariness of the consent 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 trial court.  On appeal all presumptions favor proper
exercise of that power, and the trial court’s findings – whether express or implied
– must be upheld if supported by substantial evidence.” ’  [Citation.]” 
(People v. Monterroso (2004)
34 Cal.4th 743, 758 (Monterroso); see
also Schneckloth, supra, 412 U.S. at
p. 226 [voluntariness is a question of fact]; People v. McKelvy (1972) 23 Cal.App.3d 1027, 1033-1034 (>McKelvy) [trial court’s implied finding
that the defendant handed contraband to an officer voluntarily was not
supported by substantial evidence].)href="#_ftn2" name="_ftnref2" title="">[2] 

            In
the matter before us, it is undisputed that Officer McGraw asked P.A. for
permission to search P.A.’s vehicle, and P.A. unequivocally replied, “Yes, go
ahead.”  P.A. added that everything in
the vehicle belonged to him.  P.A.
nonetheless contends that the evidence, in its totality, showed that his
seemingly voluntary consent was in fact coerced.

            As
P.A. points out, facts that might show a lack of voluntariness include:  the consenting person was in custody; the
officer had his weapon drawn; the officer failed to administer warnings under >Miranda v. Arizona (1966) 384 U.S. 436;
the officer did not inform the person of his right to refuse to consent; and
the person was told that a search warrant could be obtained.  (United
States v. Chan-Jimenez (9th Cir. 1997) 125 F.3d 1324, 1327.)  Further, P.A. argues, factors such as the
number of police officers present and where and when the search takes place can
contribute to a finding of coercion. 
(See McKelvy, supra, 23
Cal.App.3d at p. 1034.)  Even the
presence of a number of these factors, however, does not compel the conclusion
that a consent was involuntary.  (See,
e.g., Monterroso, supra, 34 Cal.4th
at p. 758; James, supra, 19 Cal.3d at
p. 118.)

            In
the context of this case, P.A. expresses his argument this way:  “A ‘request’ [to search] made to an
unsophisticated 16-year-old by more than a half-dozen police officers with
firearms drawn, in the presence of a barking police dog, while bathed in light
in a deserted parking lot late at night while he is handcuffed in a patrol car
and separated from his companions hardly invites the expression of free
will.”  His argument is unavailing.

            In
the first place, P.A.’s argument goes beyond what defense counsel argued at the
suppression hearing.  Defense counsel did
not argue that P.A.’s consent was involuntary because P.A. was bathed in light,
in a deserted lot, handcuffed in the patrol car, or separated from his
companions.  Nor did he argue that
coercion was shown by the absence of Miranda
warnings or an advisement that P.A. could refuse the search.  He argued only that the search was not consensual
because there were at least five officers plus a barking “canine dog,” at
night, with weapons pointed towards the suspects, and P.A. was only 16 years
old.

            Furthermore,
in making his argument, P.A. misstates the record in several respects.  First, while the age and relative
sophistication of a suspect may be a factor in a determination of
voluntariness, there was no testimony at the hearing that P.A. was – as he now
claims – an “unsophisticated 16-year-old” boy. 
Although the court knew P.A. was a juvenile, there was no testimony
concerning his relative familiarity with law enforcement, criminal procedure,
or his constitutional rights.  Nor was
there evidence that P.A. was particularly susceptible to coercion or displayed
any indication that his consent was anything but free and voluntary.  While “children generally are less mature
. . . than adults” (J.D.B. v.
North Carolina (2011) 131 S.Ct. 2394, 2397), the evidence in this case did
not identify anything in particular that would lead to the conclusion that
P.A.’s maturity level was a factor in his consent.

            Second,
there was no evidence that the “request” to search was made “by more than a
half-dozen police officers.”  To the
contrary, the request was made by a single officer – Officer McGraw – after
P.A. had been placed in a police car. 
While there were other officers at the general scene, there is no
evidence of their specific location when McGraw asked P.A. for his permission
to search the SUV.  Indeed, P.A. tells us
that he was in the patrol car and separated
from his companions, and there was no testimony that the other officers
abandoned those suspects in order to surround P.A. as Officer McGraw asked him
whether he could search the vehicle.

            Third,
there was no evidence that the request to search was made “in the presence of a
barking police dog.”  According to the
testimony at the hearing, the canine was there to encourage the subjects to
comply with the officers’ orders to exit the vehicle, and “also for the purpose
of clearing the car, making sure there wasn’t somebody hiding in it after we
pulled out the people that we can see.” 
The canine was not used to threaten the suspects, but merely “barked and
looked at the occupants of the vehicle as we pulled them out of the car and
handcuffed them, with other officers.” 
There is no indication that the canine did anything after that point,
let alone that it had any possibly coercive influence on P.A. when he was
inside the police vehicle and was asked for permission to search the vehicle.

            Fourth,
there was no evidence that P.A. was “bathed in light.”  The evidence is that Officer McGraw used his
“Alley light” as he pulled up behind the SUV and he had a light on his firearm,
which were directed towards the individuals as they got out of the SUV.

            Fifth,
there was no evidence that Officer McGraw – let alone the “half-dozen police
officers” – had their “firearms drawn” when
McGraw asked P.A. if he could search the SUV.  The testimony from Officer McGraw is that he
drew his firearm before the other officers arrived, he and the other officers
had their firearms drawn while the occupants were still in the SUV, McGraw kept
his firearm drawn as each person was ordered out, and the other officers kept
their weapons drawn while McGraw placed the individuals in separate patrol
cars.  But there was absolutely no
evidence that McGraw or any other officer had a firearm drawn after the
suspects were in handcuffs, and it was apparently only after that point that
McGraw asked P.A. permission to search. 
Certainly there was no testimony that anyone had a gun trained on P.A.
when he was asked to give his consent.

            P.A.
infers Officer McGraw’s gun was drawn
when he sought P.A.’s consent, because McGraw did not specifically testify that
he had holstered it after the suspects were secured in separate patrol
cars.  We question the reasonableness of
this inference.  But even if it were a
reasonable inference, it is not one that we could make:  on appeal, we must draw all reasonable
inferences in support of the ruling.  (>Monterroso, supra, 34 Cal.4th at p.
758.)

            Indeed,
much of P.A.’s argument rests on inferences that he draws in a manner most
supportive of his position, from evidence of police activity occurring at some
place and time other than the place and time of P.A.’s consent to the
search.  Because our role is not to
select from competing inferences from the evidence, but to accept the
inferences favorable to the court’s order, P.A.’s arguments fail to demonstrate
a lack of substantial evidence to support the conclusion that his consent was
voluntary.href="#_ftn3" name="_ftnref3" title="">[3]

            Moreover,
the undisputed circumstances surrounding P.A.’s consent do not preclude a
finding of voluntariness.  It is true
that P.A., when asked to consent to the search, was in “custody” – in the sense
that he was detained upon reasonable suspicion by the time he was taken out of
his vehicle, handcuffed, and placed in a police car.  It also appears to be the case that P.A. had
not been advised of his Miranda
rights or that he had a right to refuse the search.  However, none of these facts, alone or in the
aggregate, compel the conclusion that P.A.’s unconditional consent was
coerced.  (Monterroso, supra, 34 Cal.4th at p. 758 [substantial evidence
supported implied finding that consent to search was voluntary, even though the
defendant was arrested and in handcuffs when he gave his consent, he had not
received any Miranda warnings, and he
had not been informed of his right to withhold consent to the search]; >James, supra, 19 Cal.3d at
pp. 106-118 [substantial evidence of voluntary consent where suspect
agreed to officer’s request to search, even though suspect had been ordered out
of his house at night by four officers, was arrested and handcuffed, was
standing alone with three armed officers around him when his consent was requested,
and had not been advised of his Miranda
rights or his right to refuse the search]; United
States v. Drayton (2002) 536 U.S. 194, 206-207 [advising suspect of the
right to refuse the search is a factor, but is not required for consent to be
voluntary].)href="#_ftn4" name="_ftnref4"
title="">[4]

            Instructive
in this regard is People v. >Ratliff (1986) 41 Cal.3d 675.  There, the
defendant contended that he did not validly consent to the search of his car
when he was abruptly awakened by uniformed police officers with drawn guns,
handcuffed, interrogated without Miranda
warnings, and told that unless he consented to a car search the officers would
simply obtain a warrant and break into the trunk.  (Id.
at p. 686.)  However, noting that “the
evidence supporting defendant’s version of the event was by no means as clear
or uncontradicted as defendant would suggest,” the court of appeal found there
was ample substantial evidence to support the trial court’s finding of
voluntariness.  (Ibid.)  Assuming that the
officers initially drew their weapons, the evidence did not indicate they kept
their guns drawn when the actual request for consent was made; neither the
failure to give Miranda warnings nor
the handcuffing of the suspect rendered his consent involuntary; the trial
court could reasonably conclude that the handcuffs played no role in the
defendant’s decision to consent since the request to search occurred minutes
after he was handcuffed in another room; and the trial court was entitled to
disbelieve the testimony about the officers’ threat in favor of the officer’s
testimony that the defendant freely consented. 
(Id. at pp. 686-687.)

            Here
too, assuming that the officers initially drew their weapons, the evidence did
not indicate they kept their guns drawn when Officer McGraw asked permission to
search P.A.’s car; the absence of Miranda
warnings and the handcuffing of P.A. does not compel the conclusion of
coercion; and there was substantial evidence to support the trial court’s
conclusion that the consent was voluntary.

            In
sum, the evidence did not establish coercion as a matter of law, or facts that
would necessarily preclude a finding of a valid, voluntary consent to the
vehicle search.  Given the undisputed
evidence that P.A. expressly gave the police permission to search his SUV, and
further volunteered that everything in the car belonged to him, there was
sufficient evidence from which a reasonable trier of fact could conclude that
P.A.’s consent was voluntary. 

            P.A.’s
additional arguments in this regard are unavailing.  P.A. emphasizes that, in his estimation,
there were at least seven officers and a canine at the scene, citing >People v. Ledesma (1987) 43 Cal.3d 171,
233-234 (Ledesma).  But Ledesma
does not help his cause.  The pages
he cites from Ledesma appeared in the
separate concurring opinion of the justice who authored the opinion of the
court.  (See id. at p. 228.)  Neither this
concurrence nor Ledesma generally has
anything to do with the facts of this case. 
The point of the cited portion of the concurrence was that defense
counsel had provided ineffective assistance by failing to object to the
introduction of a telephone call the police had intercepted from the defendant,
after three armed uniformed officers had gained admission to an apartment,
searched the apartment for the defendant, and prevented the occupants from
answering the phone when it rang, and then one of the officers picked up the
receiver, falsely identified herself in Spanish as “Millie,” and intercepted
the statement.  (Id. at pp. 234-235.)  The
concurrence observed that the occupants’ purported consent to the officers’
entry did not constitute voluntary consent to the interception of the telephone
call.  (Id. at pp. 235-236.)  On
these facts, the court’s opinion noted that the intercepted telephone call was
“not beyond challenge,” but “wish[ed] to make it clear that we do not decide
here the prosecution cannot rebut the presumption of unreasonableness.”  (Id.
at p. 227 & fn. 11.)  By no means
does this suggest that the presence of several officers and a canine unit at
the scene of a high-risk felony stop compels the conclusion that P.A.’s express
consent to the search of his SUV was involuntary.

            Also
inapposite is McKelvy, >supra, 23 Cal.App.3d 1027, which P.A.
also cites.  In McKelvy, an officer armed with a shotgun approached a suspect while
three other officers carrying a shotgun or carbine moved into position.  When the officer asked the suspect to hand
over the object he had placed in his pocket, the suspect complied.  (Id.
at p. 1032.)  The court ruled there was no
substantial evidence to support a finding that the suspect had turned over the
object voluntarily, no matter how politely the officer had asked:  the suspect’s relinquishment was “under
compulsion of a direct command by the officer” because it was uncontroverted
that the suspect was “standing in a police spotlight, surrounded by four
officers all armed with shotguns or carbines.” 
(Id. at pp. 1033-1034.)  Here, by contrast, it was not uncontroverted
that P.A. was in a spotlight surrounded by shotgun-toting officers when asked
to consent to the search of his SUV. 
Although there were several officers at the scene, there is no
indication their attention (or light, or guns) was directed exclusively on
P.A., who was in a police vehicle, separated from his cohorts, when Officer
McGraw asked P.A.’s permission to search. 


            P.A.
further argues that, “[w]hile physically re[s]trained and confronted with this
overt show of armed force, no reasonable person would believe that he was free
to refuse the requested search.”  In
other words, P.A. implies, police can never use consent to justify a search if
they have handcuffed the suspect and gathered in sufficient number and drawn
their service weapons to safely detain several suspects who may have just
committed an armed robbery with a gun. 
For this extreme and unfounded proposition, P.A. cites >Bumper v. North Carolina (1968) 391 U.S.
543 (Bumper) and People v. Challoner (1982) 136 Cal.App.3d 779, 782 (>Challoner), neither of which said any
such thing.

            In
Bumper, four officers seized a rifle
in a search of the home of the defendant’s grandmother, who had allowed the
officers to enter after they represented that they had a warrant to search the
house.  (Bumper, supra, 391 U.S.
at p. 547.)  The Supreme Court held that
an officer’s claim of authority to search a home under a warrant effectively
tells the occupant there is no right to resist the search, thus precluding a
valid consent.  (Id. at pp. 548-549.)  In the
matter before us, by contrast, there was no evidence that any officer obtained
P.A.’s consent by telling him they had a warrant to search his SUV.

            In
Challoner, supra, 136 Cal.App.3d 779,
numerous officers with guns drawn arrested the defendant and others in front of
a house.  One officer, with his gun still
drawn, went to the front porch and told the defendant’s wife inside that he
wanted to enter the house to search for narcotics and other suspects.  Another officer was close behind.  The wife consented and the officer entered,
finding contraband.  (>Id. at p. 781.)  The court found there was insufficient
evidence that the wife’s consent was voluntary: 
a consent to a search given in response to a request by an armed officer
whose gun is drawn is suspect, and although the drawn gun is >not in itself sufficient to establish
coercion, other evidence established that the consent was not
“ â€˜ â€œuncontaminated by . . . coercion” ’ ” due to the
number of officers present, the arrest of the woman’s husband and others at
gunpoint moments before the request to search, the officer’s failure to knock
before requesting permission to search, the wife’s distance from the door, and
the officer’s display of the weapon when he asked to search.  (Id.
at pp. 782-783.) 

            >Challoner is readily distinguishable
from the matter before us.  Among other
things, Challoner was premised on the
undisputed fact that the officer’s gun was drawn at the time that he requested
consent to the search.  Here, by
contrast, whether Officer McGraw’s firearm was drawn when he asked P.A.
permission to search his SUV is by no means undisputed.  In fact, McGraw did not testify that his gun
was unholstered when he asked P.A. for his consent.

            Lastly,
P.A.’s reliance on People v. Soun
(1995) 34 Cal.App.4th 1499 (Soun) is
misplaced.  In Soun, the court expressly declined
to decide whether there was substantial evidence of a voluntary consent by
the suspects to being transported from the scene to the police department.  (Id.
at p. 1525.)

            In
the final analysis, P.A. fails to establish error.  Substantial evidence supported a finding
that, under the totality of the circumstances, the prosecution had met its
burden of affirmatively demonstrating that P.A.’s consent to the vehicle search
was voluntary.

            C.  Conversion
of Detention to Arrest

            P.A.
contends that, even if his consent was not a product of coercion, it must still
be invalidated as the tainted fruit of an illegal arrest.  (See Florida
v. Royer (1983) 460 U.S. 491; People
v. Haven (1963) 59 Cal.2d 713, 719.) 
He is incorrect.

            P.A.
does not dispute that the police had a sufficient basis for an investigative
detention of the occupants of the SUV. 
He argues, however, that:  the
police actions, including the use of handcuffs, exceeded what was necessary to
investigate and thereby converted the detention into a de facto arrest; the
arrest was unlawful because there was no probable cause to support it; and the
unlawful arrest tainted P.A.’s subsequent consent to the search.  (See James,
supra, 19 Cal.3d at p. 111 [“Consent secured at gunpoint following an
illegal arrest cannot be relied upon to render the evidence obtained by a
search and seizure pursuant thereto admissible”].)

            Specifically,
P.A. argues, he was arrested at the “moment” Officer McGraw ordered him out of
the vehicle, pointed a gun at him, handcuffed him, and placed him in the patrol
car, because those actions were overly intrusive under the circumstances.  (See In
re Antonio B. (2008) 166 Cal.App.4th 435, 440.)  He states: 
“in response to a report of a second degree armed robbery of a
pedestrian, numerous officers from two police agencies converged on a deserted
parking lot late at night, bathed appellant’s SUV with lights, brandished
firearms, shouted orders, and used a barking police dog to challenge the
occupants before they pulled them out, handcuffed them behind their backs and
placed them in separate police cars.”

            P.A.’s
argument is untenable.  The officers had
ample reason to draw their weapons, order the suspects out of the vehicle,
employ the canine to bark in order to gain the suspects’ compliance without the
need for force, and handcuff them.  After
all, the officers had received a report of an armed robbery in which the
perpetrators brandished a firearm, and the GPS tracking device indicated the
stolen phone was at a location where the only observed individuals were in
P.A.’s SUV in a dark parking lot around 1:00 a.m.  As Officer McGraw testified, the use of the
firearm to commit the robbery gave rise to his belief “that there was an
unsecured firearm inside the car – which is, obviously, a great threat to
myself and other people around.” 

            P.A.
argues that those factors are not particularly strong because the GPS signal –
the basis for the detention – could have been from the other vehicle in the
parking lot.  Additionally, he argues,
there was no reason to believe that any of the SUV’s occupants matched the
suspects.  His argument is
unconvincing.  There was no one in the
other vehicle, so that vehicle was not going anywhere and posed no apparent
threat.  The GPS signal provided at least
some indication that the SUV might have contained the suspects, and it was
reasonable to have the suspects get out of the vehicle in order to determine
whether they matched the perpetrators’ description. 

            P.A.
emphasizes the officers’ use of handcuffs in arguing that the police turned the
detention into a de facto arrest.  The
use of handcuffs does not, however, necessarily convert a detention into an
arrest.  (People v. Celis (2004) 33 Cal.4th 667, 675; In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.)  Handcuffs may be used during a detention
where, as here, the detainee is suspected of committing a felony (>Celis, at p. 676) or the officer
has a reasonable basis for believing the detainee may flee or pose a physical
threat (People v. Stier (2008) 168
Cal.App.4th 21, 27-28). 

            The
detention was not turned into an arrest. 
We therefore need not consider whether there was probable cause to
justify an arrest or whether there were intervening circumstance to purge the
taint of an unlawful arrest.  P.A. fails
to establish error.href="#_ftn5" name="_ftnref5"
title="">[5]

III. DISPOSITION

            The
dispositional order is affirmed.

 

 

 

                                                                                                                                                           

                                                                        NEEDHAM,
J.

 

 

We concur.

 

 

                                                                       

SIMONS, Acting P. J.

 

 

                                                                       

BRUINIERS, J.