P. v. Negrete
Filed 7/11/13
P. v. Negrete CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS
GARIBAY NEGRETE,
Defendant and Appellant.
A135144
(Napa County
Super. Ct. No. CR159257)
Following
an unsuccessful motion to suppress, a
jury convicted defendant Jesus Garibay Negrete of one count of
his suppression motion. He argues that
the evidence implicating him was the product of an unlawful detention. We disagree and affirm the judgment.
BACKGROUND
A. Suppression Hearing Testimony
The parties
developed the historical facts at the suppression
hearing through the testimony of Napa Police Officer Nick Dalessi.
Officer Dalessi was on
patrol with Sergeant Pat Manzer on October 26, 2011, and at approximately 5:30
p.m. they travelled through the Laurel Street Apartments in the 2500 block of
Laurel Street. The officers were in an
unmarked vehicle. At that time, Officer
Dalessi saw a group of men standing around a trash can playing cards and
drinking beer.
Dalessi parked the car about 20 to 25 feet from the men and he and Sergeant
Manzer got out of the car. Both officers were wearing
“police raid attire,†with the words “Police†clearly marked on their clothes
in several locations. The officers’
badges were displayed on the vests they wore.
Officer Dalessi began to walk around the area where the men were playing
cards and drinking beer. Officer Dalessi
then walked towards the men and essentially “walked in a circle around the
group checking to make sure no one had any weapons or contraband or
anything.†He saw numerous cans of
Budweiser in and around that area and a partially full 18-pack of beer in a
separate garbage bag next to where the men were standing. Sergeant Manzer also walked around “kind of
looking around to see if any weapons were in the area and what was going
on.†When defense counsel asked whether
Sergeant Manzer “was also circling the group,†Officer Dalessi replied, “I
couldn’t say circling but walking around.â€
Officer Dalessi recognized appellant as one of the men
playing cards and drinking beer. Officer
Dalessi focused his attention on appellant and walked up to him. Sergeant Manzer was standing close by. Officer Dalessi asked appellant, in English,
how he was doing, and began speaking with appellant in English. Officer Dalessi also asked appellant, in
English, if he was still on probation.
Appellant said that he was not on probation. Officer Dalessi smelled alcohol on appellant
and thought that appellant was under the influence.
Officer Dalessi noticed a
maroon-colored Ford Expedition SUV parked nearby. Because Officer Dalessi had previously had
contact with appellant in that vehicle, the officer asked appellant, in
English, if he was still driving it.
Appellant, in English, replied negatively, and explained that his wife
now drove the Expedition, while he
that was parked nearby.
Officer Dalessi next asked appellant, in Spanish, if he
had any drugs, guns, or knives on him.
Appellant said no, in Spanish.
Officer Dalessi then asked appellant, in English, if he could search
him. Appellant responded by putting
“both of his hands up in the air kind of about shoulder width and shook his
head up and down yes.†Officer Dalessi
had no reason to think appellant did not understand him.
Officer Dalessi then had appellant place his hands
behind his back and began searching him.
Inside appellant’s left front pants pocket Officer Dalessi found a
cigarette box. Underneath the foil of
the box was a white piece of plastic that had been melted on the top to seal
its contents. Officer Dalessi opened the
plastic and found a crystalline substance that he suspected was
methamphetamine.
Appellant also had two sets of car keys in his right
front pants pocket—one set for the Mustang and one for the Ford Expedition
SUV. Officer Dalessi asked appellant in
English if he could search his vehicle.
Appellant may have said yes, but definitely nodded his head up and down
“in a yes fashion.†Officer Dalessi used
the keys to unlock the SUV and searched it.
He explained: “As I unlocked the driver side door I looked off to the
right. Slightly behind the driver seat
kind [of] in the doorjamb area off to the right I located another white larger
piece of plastic which appeared to be the same type of plastic that contained
the contents of methamphetamine that I had found in [appellant’s] pocket. I opened that larger white piece of plastic
and located ten additional baggies that had been melted at the top to seal the
believed to be suspected methamphetamine.â€
Officer Dalessi seized the items.
Officer Dalessi asked Sergeant Manzer to handcuff
appellant. Sergeant Manzer complied, and
Officer Dalessi walked appellant to the unmarked police car and radioed for a
Spanish-speaking police officer to assist in translation. Officer Salem responded within 10 minutes or
so, read appellant his Miranda
name="_ftnref1" title="">[1] rights in Spanish,
and subsequently interviewed him in Spanish.
During the officers’ interaction with appellant they did
not point a gun at him or use force upon him.
Following Officer Dalessi’s testimony,
subjected to an unlawful detention, arguing:
“Here two officers parked a car very near [appellant]. It was near dark. They were wearing raid attire. One officer circled the group while the other
stood nearby possibly walking around the group as well. The attention was focused specifically on
[appellant]. He was asked about guns,
drugs, or knives in Spanish. A bunch of
other stuff was said in English. And I
don’t think under those circumstances a reasonable person would feel free to
terminate the encounter and walk away.
[¶] And certainly there was
no objective reasonable basis to suspect him of criminal activity at that
time. So I don’t think there was a
lawful basis for the detention and the motion should be granted on those
grounds.â€
Appellant argued that the consent he gave Officer Dalessi
to search his person and vehicle was invalid as a result of the
and all evidence seized during the searches as the fruit of the illegal
detention, but additionally sought suppression of the statements he later gave
to Officer Salem as fruit of the illegal detention. Appellant also argued that even if his
encounter with police constituted a consensual encounter, not a detention,
suppression of the methamphetamine seized during the searches of his person and
vehicle was still in order because he involuntarily consented to those
searches. Citing the language barrier,
the nonverbal, ambiguous alleged consent, the testimony that appellant was
under the influence of alcohol, and other factors, defense counsel argued the
prosecution failed to meet its burden of proving that appellant had freely and
voluntarily consented to the searches at issue.
The prosecution argued that
the initial encounter between appellant and Officer Dalessi was consensual, not a detention that
required suspicion of wrongdoing by appellant on the part of the officer. “Officer Dalessi did nothing that converted
this consensual encounter into a detention until he arrested [appellant], but
only after seizing the drugs from his person and vehicle.†The prosecution also argued that appellant
voluntarily consented to the searches.
The trial court ruled that appellant
gave his consent to the searches at issue during a consensual encounter, not a
detention. The court focused on whether
appellant voluntarily consented to the searches. The court found that appellant did
voluntarily consent and denied the motion
to suppress. The trial court issued
the following ruling from the bench: “Officer Dalessi was only one officer of
two, and so it’s two officers not six or ten or anything that would really be
extreme in determining consent. And he’s
in a group of people in this neighborhood.
And he asks . . . if the defendant, who he recognizes, has guns,
drugs, or knives. [Appellant] indicates
no. That indicates to me that he
understood the question. I realize some
is in Spanish some isn’t. Then Officer
Dalessi asks to search. That’s when his
hands go up, but he’s also nodding yes in the affirmative. That’s when contraband is found and then the
keys are found, and he’s asked if he could search the SUV and again the answer
is yes. [¶] I think the conduct
implies consent. And he also is stating,
at least the officer thought he also said yes, but he definitely nods his head
in the affirmative up and down. So I
think it’s a consensual encounter. And I
think it’s voluntary both as to the defendant’s person and as to the car
[.] I think [they] were proper consent
searches. So I will deny the motion to
suppress.â€
A. Standard of Review
We employ a two-tiered standard of
review when evaluating a challenge to a ruling on a motion to suppress
evidence. First, “[w]e defer to the
trial court’s factual findings, express or implied, where supported by
substantial evidence.†(People v.
Glaser (1995) 11 Cal.4th 354, 362.)
Second, in determining if, on the facts so found, a seizure occurred,
and whether that seizure was reasonable, “we exercise our independent
judgment.†(Ibid.; People v.
Nickleberry (1990) 221 Cal.App.3d 63, 68.)
With
respect to factual conflicts in the evidence, it is the superior court, not the
reviewing court, that “is vested with the power to judge the credibility of the
witnesses, resolve any conflicts in the testimony, weigh the evidence and draw
factual inferences in deciding whether a search is constitutionally
unreasonable.†(People v. Woods
(1999) 21 Cal.4th 668, 673.)
Consequently, on appeal, we consider the record in “the light most
favorable†to the judgment below, and “ ‘all factual conflicts must be resolved
in the manner most favorable to the [superior] court’s disposition on the
[suppression] motion.’ †(Ibid.;
In re Arturo D. (2002) 27 Cal.4th 60, 77.)
B. The Trial Court Properly Denied the
Motion to Suppress
Our Supreme Court has explained that
“[p]olice contacts with individuals†can be placed into “three broad categories
ranging from the least to the most intrusiveâ€: (i) “consensual encounters
that result in no restraint of liberty whatsoeverâ€; (ii) “detentions,
which are seizures of an individual that are strictly limited in duration,
scope, and purposeâ€; and (iii) “formal arrests or comparable restraints on an
individual’s liberty.†(
G. (1997) 16 Cal.4th
805, 821.) The traditional dividing line
between a consensual encounter and a seizure is that a seizure occurs when, in
view of all the circumstances, “ ‘a reasonable person would have believed that
he was not free to leave.’ †(Wilson
v. Superior Court (1983) 34
Cal.3d 777, 790.) While a consensual
encounter requires no justification under the Fourth Amendment (In re Manuel G., supra, 16 Cal.4th at p. 821), a person
may not be seized or detained “even momentarily without reasonable,
objective grounds for doing so.†(
U.S. 491, 498 (plur. opn. of White, J.), italics added; People v. Hughes
(2002) 27 Cal.4th 287, 327 [“ ‘consensual encounters’ †“are those
police-individual interactions which result in no restraint of an individual’s
liberty whatsoever—i.e., no ‘seizure,’ however minimal—and which may
properly be initiated by police officers even if they lack any ‘objective
justification,’ †italics added].)
Here,
appellant maintains that the police detained him without reasonable suspicion
before he consented to the searches of his person and his vehicle and, because
his consent resulted from an illegal detention, the fruits of those searches
must be suppressed. The People do not
contend that the officers had reasonable suspicion to justify a detention of
appellant when they approached him in the parking lot. Consequently, the only issue before us is
whether the officers’ contact with appellant constituted a consensual
encounter, which was lawful without reasonable suspicion of criminal activity,
or a detention that was unlawful because it was not supported by reasonable
suspicion.
“The
States Supreme Court has made it clear 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 [of criminal activity] 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 individual’s liberty, does a seizure occur. [Citations.]
‘[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 officer’s 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 officer’s request might be compelled. [Citations.]
The officer’s uncommunicated state of mind and the individual citizen’s
subjective belief are irrelevant in assessing whether a seizure triggering
occurred.†(In re Manuel G., supra, 16
Cal.4th at p. 821.)
Here, Officer Dalessi did not coerce
appellant to submit to questioning or to give his consent to a search “by means
of physical force or a show of authority.â€
(United States v. Mendenhall (1980)
446 U.S. 544, 553.) The officer
approached appellant while he and a group of men were playing cards and
drinking beer in an apartment parking lot.
He walked around the group to check for weapons and/or contraband, but
he did not block or otherwise impede appellant’s movement. Similarly, there is no indication that
Sergeant Manzer blocked or restrained appellant’s movements. While the officers walking around near
appellant might cause a reasonable person to feel himself the object of
official scrutiny, such directed scrutiny did not amount to a detention. (See, e.g., People v. Perez (1989) 211
Cal.App.3d 1492, 1496 [police officer did not detain defendant when he parked
his patrol car in front of defendant’s vehicle, and left room for defendant to
leave]; People v. Franklin (1987) 192
Cal.App.3d 935, 940 [no detention where officer spotlighted defendant and
pulled up to the curb in his patrol car behind defendant].) The questions Officer Dalessi asked appellant
were nonaccusatory, routine, and brief.
That the officers were dressed in “raid attire†is a factor that has “
‘little weight in the analysis’ for determining whether a seizure
occurred.†(People v. Zamudio (2008) 43 Cal.4th 327, 346, quoting
194, 204.) The officers did not charge
at appellant, draw their weapons, or tell appellant that they thought he was
involved in criminal conduct. (See, e.g., Wilson v. Superior Court, supra, 34 Cal.3d at pp. 790-791 [a
reasonable person, when confronted by a narcotics officer and accused of
importing illegal drugs into the state, would not feel free to leave or
otherwise terminate the encounter].) At
no time did Officer Dalessi tell appellant that he was required to answer his
questions or consent to a search. Under
these circumstances, a reasonable person would have believed he was free to
leave or deny the officer’s requests.
Although not directly addressed on
appeal, below appellant emphasized the language barrier and his apparent
intoxication as negating his consent.
Such circumstances are certainly part of the relevant totality of the
circumstances. However, the record amply
demonstrates that appellant appeared to understand the questions directed to
him. When Officer Dalessi asked him if
he could search him, appellant responded by putting both his hands in the air
and nodding his “head up and down yes.â€
Other responses to Officer Dalessi’s questions similarly evince
appellant’s grasp of the conversation:
appellant stated that he was no longer on probation, and explained that
his wife drove the maroon SUV, and he drove the white Ford Mustang. (See, e.g., United States v. Sanchez (8th Cir. 1998) 156 F.3d 875, 878
[defendant’s limited English skills did not vitiate consent];
2004) 372 F.3d 974, 977 [same].) If
indeed appellant did not consent to the searches, Officer Dalessi reasonably
believed otherwise. (See
2009) 588 F.3d 579, 584 [officer reasonably believed that defendant who “spoke
only broken English†consented to search]; see also United States v. Vongxay (9th Cir. 2010) 594 F.3d 1111, 1120
[defendant’s act of raising his hands to his head constituted implied consent
to search].)
Finally, although the record reveals
that appellant appeared to be under the influence of alcohol, nothing indicates
that appellant was incoherent or otherwise lacked capacity to consent. (See United
States v. George (9th Cir. 1993) 987 F.2d 1428, 1430-1431 [consent voluntary
even though defendant “was a sick young man†in weakened condition in emergency
room following heroin overdose].)
Thus, under the totality of the
circumstances, we conclude Officer Dalessi’s encounter with appellant was
consensual, and appellant’s consent to the search of his person and his vehicle
was not the product of an illegal detention.
Accordingly, the trial court properly denied the appellant’s motion to
suppress evidence.
The
judgment is affirmed.
_________________________
REARDON,
ACTING P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
name="_ftn1" title="">[1] Miranda
v. Arizona (1966) 384 U.S. 436.
