P. v. Hosier

Filed 9/28/07 P. v. Hosier CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

After defendants motion to suppress was denied, he submitted his case to the trial court on the basis of the police reports and was found guilty of one count of possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). In this appeal he renews his challenge to the warrantless search that resulted in the seizure of methamphetamine from him. We find that the search was lawful and affirm the judgment.

STATEMENT OF FACTS[1]

At about 7:00 p.m. on August 13, 2005, Officer Nicholas Gartner of the Concord Police Department and his partner responded in an unmarked patrol vehicle to a report of a battery in the area of Grant Street and Olivera. They questioned the victim, who had been severely beaten, but he would not give the officers any information about the attack. The officers observed defendant walking on the street about 20 to 30 minutes after they contacted the battery victim, but did not detain or speak to him.

Around 9:30 that same evening, the officers encountered defendant in a group of four other people at a nearby Beacon gas station parking lot on the corner of Solano Way and Grant. The neighborhood is a residential high crime area which is the territory of the Norteno street gang. Defendant was wearing an oversized red T-shirt, baggy jeans, and a black baseball cap. The other people with him were also wearing articles of red clothing, which is the color associated with the Norteno gang.

Officer Gartner parked his vehicle in the lot about 15 to 20 feet from the group. As the officers left the patrol vehicle, defendant walked away while the rest of the group stayed stationary. The officer asked defendant, Can you come talk to me? Defendant walked toward the officer; he appeared pretty nervous, and was pacing back and forth. Officer Gartner then recognized defendant as the man he had seen walking down the street an hour and a half before. As defendant approached, Officer Gartner viewed just the top of a standard knife sticking out an inch or so from his front pants pocket. The officer decided to pat search defendant for weapons. While conducting the pat search, Officer Gartner felt a hard, cylinder-shaped object with a bulb end on it in defendants left front pants pocket, which he identified from past experience as a methamphetamine pipe. During a subsequent search incident to arrest, the officer discovered a cigarette pack in defendants left rear pocket that contained two small baggies of methamphetamine.

DISCUSSION

The sole contention presented by defendant is that he was unlawfully detained by Officer Gartner. He claims that the officers directive to come and talk to him was a command rather than a request and thus resulted in a detention. Defendant adds that there was no reasonable suspicion which justified Officer Gartners detention of him, and therefore all of the evidence seized thereafter was the product of the unlawful detention.

We review the trial courts finding that the officers initial contact with defendant was a consensual encounter rather than a detention by applying the substantial evidence test to the factual determinations made by the court, with all presumptions favoring the trial judges findings. (People v. Manderscheid (2002) 99 Cal.App.4th 355, 359.) The determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. (People v. Coulombe (2000) 86 Cal.App.4th 52, 56.)  We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so.  (People v. Lim (2000) 85 Cal.App.4th 1289, 1296, quoting from People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)

 Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: 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 individuals liberty. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citations.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. . . .  (People v. Terrell (1999) 69 Cal.App.4th 1246, 1253, quoting from In re Manuel G. (1997) 16 Cal.4th 805, 821.)

 Although there is no bright-line distinction between a consensual encounter and a detention . . . the police can be said to have seized an individual 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.   [Citations.]  The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.  [Citation.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.](Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) We must make a realistic assessment of appellants encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287; People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs. (People v. Ross (1990) 217 Cal.App.3d 879, 884.)

We begin our analysis in the present case by observing the established rule  that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. [Citations.] [Citation.] The reasonable person test is objective and presupposes an innocent person. (People v. Colt (2004) 118 Cal.App.4th 1404, 1411.) [T]here must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. [Citation.] The [United States Supreme Court] has also cautioned against an undue focus on the fact that government action caused some restriction on an individuals freedom of movement:  a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individuals freedom of movement . . . , nor even whenever there is a governmentally caused and governmentally desired termination of an individuals freedom of movement . . . , but only when there is a governmental termination of freedom of movement through means intentionally applied.  [Citations.] (People v. Brendlin (2006) 38 Cal.4th 1107, 11151116.)

 [I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests or otherwise terminate the encounter. [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officers display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officers request might be compelled. (In re Manuel G., supra, 16 Cal.4th 805, 821.)

Here, defendant was never physically impeded in his movement by Officer Gartner. The officer parked his vehicle in the gas station lot about 15 to 20 feet from the group that included defendant, and did not block their path. None of the other actions taken by the officers prior to speaking with defendant were indicative of any restraint on freedom of movement: the lights and siren of the vehicle were not activated; the officers did not stand in front of defendant or draw their weapons; no show of authority was made.

The only other action taken by Officer Gartner was to state to defendant as he walked away from the group, Can you come talk to me? Although defendant suggests that the evidence is somewhat ambiguous and indicates the officers statement may have been more than a request, the record supports the trial courts contrary finding. When asked what he said to defendant, Officer Gartners testimony was not equivocal. Only when defense counsel asked the officer on cross-examination if he said, Hey, come here for a second, did he respond, Something of that nature. The trial court specifically found that the officer asked the question of defendant, Can you come talk to me, and the evidence supports that finding. We must   presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  [Citation.] (People v. Davis (1995) 10 Cal.4th 463, 509.) We agree with the trial courts assessment that the statement was a request rather than a command.

Upon consideration of the totality of the circumstances presented, we are persuaded that the officers inquiry did not escalate the contact from a consensual encounter into a detention. No application of physical force or assertion of authority preceded the question, and the officer testified that he spoke to defendant in a casual tone. The encounter was very brief and not in the least accusatory in nature. (People v. Hughes (2002) 27 Cal.4th 287, 328.) In conjunction with the request to talk, Officer Gartner did not physically obstruct defendants progress, display a weapon, or otherwise indicate in any manner that defendant was compelled to stay. (In re Manuel G., supra, 16 Cal.4th 805, 821822; People v. Terrell, supra, 69 Cal.App.4th 1246, 12531254.)

The additional facts that when the question was asked defendant was walking away from the officer, who was in uniform, do not transform the contact into a detention. Approaching defendant in a public place and asking him questions were not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave. (In re Manuel G., supra, 16 Cal.4th 805, 822.) An officer has every right to talk to anyone he encounters while regularly performing his duties . . . . Until the officer asserts some restraint on the contacts freedom to move, no detention occurs. (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952, 954955.) As the United States Supreme Court explained in Florida v. Royer (1983) 460 U.S. 491 [497]: [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, 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 in a criminal prosecution his voluntary answers to such questions. [Citations.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. . . . [Citation.] (People v. Hughes, supra, 27 Cal.4th 287, 328; see also People v. Souza (1994) 9 Cal.4th 224, 234; People v. Daugherty (1996) 50 Cal.App.4th 275, 283.)

In view of the totality of the circumstances, we conclude that the police conduct would not have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Before any assertion of authority or manifestation of restraint was exercised, defendant voluntarily acquiesced to the request to speak with him by turning around and walking toward the officer. (United States v. Mendenhall (1980) 446 U.S. 544, 555556; People v. Bowers (2004) 117 Cal.App.4th 1261, 1272; People v. Bouser, supra, 26 Cal.App.4th 1280, 1282, 12871288.) The initial interaction between defendant and Officer Gartner was a consensual encounter. (People v. Hughes, supra, 27 Cal.4th 287, 328.) Therefore, no unlawful detention of defendant occurred before the officers plain view observation of a knife in his front pants pocket. Once the weapon was seen, the officer had reasonable cause to pat search defendant, and subsequently arrest him when the apparent methamphetamine pipe was detected. (People v. Ritter (1997) 54 Cal.App.4th 274, 280; People v. Limon (1993) 17 Cal.App.4th 524, 535; People v. Watson (1970) 12 Cal.App.3d 130, 135.)

Accordingly, the judgment is affirmed.

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[1] The facts pertinent to the search are taken from the reporters transcript of the hearing on the motion to suppress.