P. v. Nguyen











Filed 3/20/17 P. v. Nguyen CA4/3










NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

THUONG HOANG NGUYEN,

Defendant and Appellant.



G052424

(Super. Ct. No. 13WF3828)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Thuong Hoang Nguyen of first degree residential burglary (Pen. Code §§ 459, 460, subd. (a); all further statutory references are to this code) after it found defendant stole a laptop from his neighbor’s apartment. The jury also found true allegations a nonaccomplice of defendant was present in the residence during the commission of the residential burglary. The court sentenced defendant to nine years in prison. Defendant appeals, contending statements he made to police and the fruits of a search of his home were obtained in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
Defendant was charged in an amended information with one count of first degree residential burglary, a felony. It was alleged pursuant to section 667.5, subdivision (c)(21), a nonaccomplice was present during the residential burglary. It was also alleged defendant had previously been convicted of two prior strikes pursuant to sections 667, subdivisions (d) and (e)(2)(A) and 1170.12, subdivisions (b) and (c)(2)(A) and one prior pursuant to section 667, subdivision (a)(1), and that defendant had previously served two prior prison terms pursuant to section 667.5, subdivision (b).
Before trial began, defendant filed motions in limine. Among other requests, defendant moved to suppress statements made during an interview with an officer from the Garden Grove Police Department. The officer conducted the interview without first reading defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He argued statements given during an interview at his residence were obtained in violation of Miranda in that the interview was custodial in nature.
The court held a hearing on the motion to suppress. At the inception of the hearing, defendant’s counsel stated she wanted to expand the motion to also include a post-Miranda interview later given by defendant.
At the hearing Garden Grove Police Officer Thomas Capps testified he was on duty on December 12, 2013 at about 10:00 a.m. when he responded to an address on Gilbert Street. He met George Neumann and his nephew, Garrett Lynn while investigating a possible burglary. They told Capps the suspect goes by the name of Andrew and lives in the apartment north of their building.
Capps proceeded to the apartment Neumann identified. He knocked on the door, and a female answered. Capps was wearing his standard-issue uniform with two badges on each shoulder, a badge on his chest, his name, and a gun belt. Capps said he was looking for Andrew, and the female, Andrew’s mother, gave Capps permission to enter the apartment.[1] Defendant was lying on a mattress in the living room five to eight feet from the door. When Capps walked in the door, he pulled out his handgun and pointed it down towards the ground, because there was a blanket forming a partition that separated part of the living room, and defendant’s hands were not visible. The weapon was out of its holster about five to ten seconds, and as soon as Capps could see defendant did not have anything in his hands, he reholstered the weapon.
Capps asked defendant if he was Andrew, and defendant responded yes. Defendant then agreed to speak with the officer. Capps asked defendant to step outside to talk and to sit down on a stairwell outside the front door, and defendant complied. Capps was standing in front of defendant about five feet away.
Without first reading defendant his Miranda rights, Capps told defendant a neighbor had observed him walk inside an apartment and take a laptop computer. Capps did not identify the neighbor. Defendant responded he did not go inside of Garrett’s apartment. Defendant told Capps a friend had come by his apartment attempting to sell him a laptop computer. Defendant said the friend offered to sell it to him for $100, but he did not have the $100 to spend on the laptop. Capps then asked permission to search defendant’s apartment, and defendant consented. After conducting a five to ten minute interview, Capps waited for a backup officer to arrive, never leaving defendant alone. The interview was not recorded.
Capps searched the area where defendant had been and found a laptop underneath the couch. He took the laptop to Neumann who identified it as the missing property. Capps placed defendant under arrest and read defendant his Miranda rights. Defendant indicated he understood and began speaking with Capps. The questions Capps asked defendant in the second interview were “pretty similar” to the questions he asked at the apartment. When confronted with the fact Capps had recovered the laptop, this time defendant responded his friend brought the laptop to his house and he purchased it from his friend for $100. During the interview, defendant never stated he no longer wished to speak with Capps, nor did he ask to have an attorney present. Like the first, this interview was not recorded.
After hearing Capps’s testimony, defendant’s counsel again expanded the breadth of the motion and orally requested the court also suppress the laptop found during the search. Counsel argued the statements made during the second interview should be suppressed under Missouri v. Seibert (2004) 542 U.S. 600 on the theory the police cannot get the exact same information from a statement given after Miranda that was not allowable before Miranda warnings were given.[2]
The court denied the motion to suppress statements made during both interviews. As to the first interview, the court found it was a consensual encounter but even if it was considered some sort of detention or Terry[3] stop, the officer was still permitted to ask some brief questions to confirm or deny defendant’s involvement in any sort of a crime. As to the second interview, the court found it was conducted after defendant was read his Miranda rights.
A jury found defendant guilty as charged and found true the allegation a nonaccomplice was present. At sentencing the court struck one of the strikes because the crime had been reduced to a misdemeanor. Defendant admitted the remaining prior strike and prison term allegations. The court sentenced defendant to nine years in state prison consisting of the low term of two years doubled to four years because of the prior strike, plus five years for enhancements.
DISCUSSION
We begin by reviewing the sequence of events, which will then govern our analysis. Capps knocked on defendant’s door, obtained his mother’s consent to enter the apartment, entered with his handgun drawn until he could see defendant’s hands, encountered defendant, and asked him to step outside to talk. Defendant agreed, and Capps questioned him without first reading defendant his Miranda rights. This occurred while defendant was sitting on a staircase with Capps five feet away. Defendant made an incriminating statement. Capps then asked defendant’s permission to search his apartment, and defendant consented. During the search, Capps found the laptop. Neumann confirmed the laptop was his. Capps then arrested defendant, took him to jail, read him his Miranda rights, and reinterviewed him. In the second interview, defendant made further incriminating statements.
At trial defendant argued in writing his statements made during the first interview were obtained in violation of Miranda, a Fifth Amendment case.[4] (See Miranda, supra, 384 U.S. at p. 439 [“we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself”].) During oral argument, defendant expanded the request and sought an order excluding unspecified statements made during the second interview and an order suppressing introduction of the laptop into evidence.[5] On appeal defendant appears to have abandoned the Fifth Amendment argument. Having failed to properly brief the issue, we deem it waived. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant’s failure to support contention with meaningful legal analysis waives issue on appeal].)
Instead defendant now contends his statements to police and the fruits of the search of his home violated his rights under the Fourth and Fourteenth Amendments. We review the denial of a motion to suppress in the light most favorable to the court’s ruling, deferring to the court’s express or implied factual findings if supported by substantial evidence, but exercising our independent judgment to determine whether, on those facts, the search or seizure was reasonable under the Fourth Amendment.[6] (People v. Lomax (2010) 49 Cal.4th 530, 563.)
Defendant does not attack Capps’s original entry into his apartment after his mother gave consent.[7] Nor could he. Although Capps did not have a warrant to enter the apartment, one established exception to the warrant and probable cause requirement is a search conducted pursuant to consent. (People v. Woods (1999) 21 Cal.4th 668, 674.) “It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary.” (Id. at p. 675.) Defendant’s mother consented to Capps’s entry into the apartment to speak with defendant. Once Capps made contact with defendant, Capps asked him to step outside to talk.
Defendant freely accompanied Capps to the stairway but nevertheless contends it was at this point he was detained. He contends this detention was illegal, and his statements, including his consent to search his apartment, were tainted and should have been suppressed. Stated another way, defendant contends he was detained at the time he consented to the search of his apartment, which negated the consent. However, defendant fails to develop the consent/detention argument in any coherent fashion.
The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .” (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. (People v. Camacho (2000) 23 Cal.4th 824, 829.) Without a warrant to search defendant’s apartment, and in the absence of probable cause and exigent circumstances, the validity of the search depends on defendant’s purported consent. (See Florida v. Royer (1983) 460 U.S. 491, 497.) “[S]tatements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will.” (Id. at p. 501.) Therefore, we must determine whether defendant was detained when he consented to the search of his apartment.
Detentions are to be distinguished from consensual encounters and arrests. (People v. Gallant (1990) 225 Cal.App.3d 200, 207.) “‘For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police “contacts” or “interactions” with individuals, ranging from the least to the most intrusive. First, there are . . . “consensual encounters” [citation], which 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.” [Citation.] Second, there are what are commonly termed “detentions,” seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police “if there is an articulable suspicion that a person has committed or is about to commit a crime.” [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. [Citation.]’” (Id. at pp. 206-207.)
We disagree defendant was detained when Capps questioned him the first time. The police have detained an individual “‘“if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” [Citation.]’” (People v. Gallant, supra, 225 Cal.App.3d at p. 207.) “Those circumstances may include ‘physical restraint, threat of force, or assertion of authority . . . .’” (Ibid.) Here, a reasonable person in defendant’s position would have believed he was free to leave. Defendant willingly walked outside and responded to Capps’s questions when asked. He was not being held at gunpoint, he was not handcuffed or restrained, and he was not under arrest at the time. Rather, Capps was a comfortable five feet in distance from defendant during questioning. The interview was short, lasting only five to ten minutes. Capps was the only officer present. There is no evidence defendant was coerced by threats of force or that he was subjected to an overwhelming show of force.
As a result, defendant’s individual liberty was not restrained during the first interview, and his interaction with Capps was therefore a properly initiated consensual encounter, not a detention. Police may knock on the door of a residence, speak with the occupant, and request permission to enter and search, a procedure known as “‘knock and talk.’” (People v. Rivera (2007) 41 Cal.4th 304, 311.) “The sanctity of the home is not threatened when police approach a residence, converse with the homeowner, and properly obtain consent to search. The Fourth Amendment’s prohibition against warrantless searches of homes does not apply when voluntary consent to the search has been given by someone authorized to do so.” (Ibid.)
Here, there is no basis to conclude defendant’s consent to speak with Capps and authorize a search of his apartment was involuntary. Defendant had the right to refuse to talk to Capps and to deny him reentry into his apartment. Defendant suggests his consent was not freely given because Capps entered the apartment with his handgun drawn. However, defendant produced no evidence he saw the handgun or knew it had been drawn. Defendant gave consent later, after the handgun had been reholstered, as the two spoke on the stairway. On these facts, we cannot conclude Capps’s drawing of his handgun was a threat of force or assertion of authority sufficient to vitiate defendant’s consent to search his apartment. There was no Fourth or Fourteenth Amendment violation.

DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.



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[1] Capps identified defendant as the person known as Andrew.
[2] In Missouri v. Seibert the court held Miranda warnings given mid-interrogation, after defendant gave an unwarned confession, were ineffective, and therefore the confession repeated after warnings were given was inadmissible at trial. (Missouri v. Seibert, supra, 542 U.S. at p. 604.)

[3] Terry v. Ohio (1968) 392 U.S. 1 is a Fourth Amendment case.
[4] Defendant does not identify which statements to police should have been suppressed other than defendant’s consent to search his apartment.

[5] Ordinarily a motion to suppress is brought under section 1538.5, but defendant did not cite section 1538.5 below or here, nor did he proceed under its mandates. (See § 1538.5, subd. (a) [“A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure . . . .”].) Rather, defendant raised the issue by filing motions in limine on the day of trial, and the court heard oral argument without any written opposition from the People. In any case, the court treated the issue as a motion to suppress.

[6] Even though defendant argued a Fifth Amendment violation below, the court’s ruling suggests to some extent the court analyzed whether a Fourth Amendment violation occurred.

[7] Defendant’s opening brief is confusing on the consent issue. At times it appears he is arguing the original consent by his mother was invalid. As a result, the Attorney General devotes two and one half pages to counter the argument Capps did not have consent to originally enter the apartment by pointing out defendant’s mother gave consent. In his reply, defendant clarifies he is only challenging his consent to search the apartment given during his alleged detention. The briefing is far from clear.