P. v. Davis

Filed 2/23/07 P. v. Davis CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Benith Davis was awaiting trial on felony charges of being a past-convicted felon in possession of a firearm (Pen. Code,  12021), and possessing heroin for sale (Health & Saf. Code,  11351). Pursuant to a negotiated disposition, defendant entered a plea of guilty to the firearm charge, with an indicated sentence of 16 months; the drug charge was dismissed. The trial court sentenced defendant to state prison for 16 months, in accordance with the parties plea agreement.

Defendant filed a timely notice of appeal, and he obtained a certificate of probable cause. His sole contention is that his suppression motion was erroneously denied. We find this contention to be without merit, and affirm.

BACKGROUND

Defendants suppression motion was heard at the same time as his motion for disclosure of a confidential informant (CI). The latter motion, which was denied, is not at issue here. Because the evidence produced in connection with the suppression motion was not in dispute, the questions on this appeal become issues of law, as to which we conduct an independent review to determine whether the officers actions were reasonable for purposes of the Fourth Amendment. (E.g., People v. Balint (2006) 138 Cal.App.4th 200, 205; People v. Hunter (2005) 133 Cal.App.4th 371, 377; People v. Ferguson (2003) 109 Cal.App.4th 367, 371.) The uncontradicted evidence shows the following:

San Francisco Police Officer Darren Nocetti testified that on the evening of January 6, 2006, a CI provided him with a description of a man named Rasul who was involved in a robbery. Nocetti relayed the information to Officer Moylan, and added that the suspect had just walked past the police station at Eddy and Jones Streets. Officer Nocetti also advised Moylan that there had been a warrant for the suspects arrest, although Nocetti also told Officer Moylan I didnt know if the warrant was still current. No last name for the suspect was provided.

Sergeant Gavin McEachern testified that he was in uniform, and in his marked patrol vehicle when he received a radio report from Officer Moylan advising him that there was a black male subject who had just walked westbound on Eddy toward Leavenworth. That person was wanted for a robbery, and the description was a black male with a black baseball cap on backwards, blue sweatshirt and blue jeans. The person had just walked by the station, so it was only a minute or two old. McEachern went to the area mentioned in the call, and in the 200 block of Leavenworth Street saw defendant, who matched the description exactly.

Sergeant McEachern testified what followed: I pulled up in my car . . . pretty much parallel to him, got out of my car and walked up to him and asked if I could talk to him. [] . . . [] He said, yeah, and he stopped walking. [] . . . [] I just kind of casually walked up to him, and I told him that he might be somebody that we were looking for, and I just engaged him in some very minor small talk. [] . . . [] I asked him his name, and he gave me a name . . . not his real name . . . and I just continued to talk to him. [] I was by myself at the time, so pretty low key. I asked him where he was coming from and where he was going. At some point probably within a minute or two of our contact, I asked him if he was on parole or probation. [] . . . [] He told me he was on parole.

Sergeant McEachern further testified that during the no more than two minutes that he and defendant had been talking, defendant had been very cooperative. McEachern was already concerned for his safety. By now, three other officers had arrived on the scene. After defendant stated he was on parole, he and McEachern continued to make small talk for another two or three minutes. At that point McEachern told defendant I was going to search him to see if he had any weapons or contraband on his person. [] . . . [] I instructed him to put his hands on top of his head, and when he did that it raised up his jacket and exposed a gun in his waistband. Once the weapon was secured, defendant was arrested. A further search discovered heroin in a pants pocket.

After defendant had been arrested, but before he was transported to the station for booking, the CI notified Officer Nocetti that he (the CI) was still following the suspected robber. Later, after the CI had lost track of the suspect, Officer Nocetti learned Rasuls last name, and that there had been a warrant for his arrest, but that it had been cleared prior to that day.

After telling the parties that Ill hear further argument, the court stated my tentative view: is that at some point out on the street there was a detention. That detention was supported by reasonable suspicion and it was not prolonged. And that there was a lawful arrest or lawful parole search that resulted and the contraband that resulted in a lawful arrest.

DISCUSSION

Defendant presents essentially two arguments for reversal. First, he argues that Sergeant McEachern did not have the requisite reasonable suspicion to detain him. Second, he argues that, even if he was initially subject to detention, Sergeant McEacherns failure to verify whether there was an outstanding warrant for defendants arrest extended the detention beyond permissible length. We do not agree with either of these arguments.

As the parties recognize, for Fourth Amendment purposes, dealings between police officers and citizens occupy a spectrum of three stages. The operative question is always whether the citizen is free to terminate the encounter and walk away. The first of the three stages are consensual encounters. These encounters involve no restraint of the citizens liberty, do not require any quantum of justification, and are essentially indistinguishable from two friends chatting on the sidewalk. The second stage deals with detentions. These do involve a restriction of liberty because the citizen is not free to leave. Detentions are permissible if the officer has an articulable suspicion that the person detained has committed or is about to commit a crime. Even so, a detention is limited in time, scope, and purpose to no more restraint of the persons liberty than is reasonably necessary to resolve the detaining officer suspicions. Finally, there are actual or de facto arrests, which are the most severe restriction of personal liberation, and are justified only if supported by probable cause. Detentions and arrests thus constitute seizures within the meaning of the Fourth Amendment. (See, generally, People v. Hughes (2002) 27 Cal.4th 287, 327-328.)

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 officers words and actions would have conveyed that to a reasonable person. [Citation.] Thus, when police engage in conduct that would communicate[] to a reasonable person that he was not at liberty to ignore the police presence and go about his business, there has been a seizure. [Citations.] (People v. Celis (2004) 33 Cal.4th 667, 673.)

The trial court determined that defendant had been detained, but the court did not determine precisely when that detention commenced. Defendant takes the position that he was detained from the moment he was approached by Sergeant McEachern. The Attorney General is equally convinced that the initial interaction was no more than a consensual encounter. Although the point is not dispositive, we think the Attorney Generals conclusion is sounder.

Viewed objectively, we do not think Sergeants McEacherns approach and initial dealings with defendant amounted to a detention. McEachern did not use his vehicle to block defendants movement, but merely parked it on the street parallel to defendants progress along the sidewalk. There was no siren or flashing lights. The uncontradicted evidence was that Sergeant McEachern walked up to defendant and asked if he could talk to defendant. Defendant agreed, and stopped walking. McEachern explained his purpose, and for about two minutes thereafter engaged defendant in small talk. This was no detention:  [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street . . . by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence . . . his voluntary answers to such questions . . . .  (People v.Hughes, supra, 27 Cal.4th 287, 328, quoting Florida v. Royer (1983) 460 U.S. 491, 497.)

Even if we did view the encounter as constituting a detention, it would still be a valid detention. 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. Souza (1994) 9 Cal.4th 224, 231.) The information relayed from Officer Nocettis CI justified Sergeant McEachern detaining defendant to determine if he had committed the robbery. (See, e.g., Whiteley v. Warden (1971) 401 U.S. 560, 568; People v. Ramirez (1983) 34 Cal.3d 541, 547 [an officer in the field may rely on information communicated to him by fellow officers . . . .].)

However, once defendant voluntarily admitted that he was a parolee, and McEachern told him he would be searched, there can be no doubt that a detention was then underway. By that time, McEachern had been joined by the other officers. Viewed objectively, no person who has been told, not asked, that he will be searched by four police officers, would believe that he was  . . . at liberty to ignore the police presence and go about his business . . . . (People v. Celis, supra, 33 Cal.4th 667, 673.)

Regardless of when the detention commenced, defendant could be required to submit to a pat search for weapons to protect the officers safety. (E.g., Illinois v. Wardlaw (2000) 528 U.S. 119, 121-122; Terry v. Ohio (1968) 392 U.S. 1, 27, 30; People v. Huggins (2006) 38 Cal.4th 175, 242; People v. Thurman (1989) 209 Cal.App.3d 817, 822-824.) Moreover, as a parolee, defendant was subject to search or seizure by a . . . peace officer at any time of day or night, with or without a search warrant and with or without cause. (Pen. Code,  3067, subd. (a).) Both the United States and the California Supreme Courts have treated this search condition as authorizing parolee searches that do not require even the reasonable suspicion needed for a detention. (Samson v. California (2006) ___ U.S. ___ [126 S.Ct. 2193, 2199-2202]; People v. Reyes (1998) 19 Cal.4th 743, 752-756.)

In light of the foregoing, our independent review leads us to agree with the trial courts conclusions that (1) there was a detention; (2) the detention was supported by reasonable suspicion; and (3) there was a . . . lawful parole search . . . that resulted in a lawful arrest.

Defendants second contention is that his detention was unduly prolonged. He argues that Sergeant McEachern, having detained defendant to ascertain if he was the robbery suspect reported by Officer Nocetti, ought to have confined himself to determining nothing more than whether defendant was Rasul, and whether the supposed warrant for Rasuls arrest was still outstanding. Yet defendant concedes that McEachern had no apparent way to verify that appellant was, in actuality, Rasul because the officers did not have a last name for Rasul. Defendants reasoning is not persuasive.

It is well settled that an investigative detention must be temporary and last no longer than is necessary to effectuate the purposes of the stop. (Florida v.Royer, supra, 460 U.S. 491, 500.) It is also established that there is no fixed formula for determining how long a detention should last. (United States v. Sharpe (1985) 470 U.S. 675, 686.) The operative inquiry is whether the officer diligently pursued a means of investigation reasonably designed to confirm or dispel his suspicions quickly. (Peoplev. Soun (1995) 34 Cal.App.4th 1499, 1520.) In answering that question, courts also make the common sense allowance that information may come to light during a detention that provides a reasonable basis for extending the detention. (E.g., People v. Russell (2000) 81 Cal.App.4th 96, 102; People v. Valencia (1993) 20 Cal.App.4th 906, 918.)

We independently agree with the trial courts conclusion that the detention was not unduly prolonged. Defendants argument assumes that he was detained before he revealed his status as a parolee. As shown above, this assumption is not necessarily true, because the encounter between defendant and Sergeant McEachern up to that point can be characterized as consensual. Moreover, defendant fails to appreciate that the dynamic of the encounter altered once defendant revealed that status. Up to that point McEachern had to proceed in light of the possibility that defendant was not a lawbreaker. However, that possibility disappeared once defendant revealed that he was a convicted felon. At that point, concerns for his own safety would instantly become more pressing than if the sergeant was speaking to an ordinary law-abiding citizen. During the course of satisfying those concerns, McEachern discovered probable cause to arrest defendant for the new and unrelated offense of illegal weapon possession. Once that arrest was made, the heroin was properly discovered during the ensuing search incident to that arrest.

In any event, the entire encounter took no more than two minutes before defendant revealed he was on parole, with maybe three additional minutes before McEachern ordered him to submit to a search. Even adding several more minutes for the weapon to be discovered, we must agree with the trial court that the detention cannot be condemned as unduly prolonged.

The judgment of conviction is affirmed.

_________________________

Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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