P. v. Sanchez

Filed 9/28/06 P. v. Sanchez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.

Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., and Pat Zaharopoulos, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Antolin Sanchez of possession of methamphetamine for sale (Health & Saf. Code, § 11378), utilizing a fortified house to sell methamphetamine (Health & Saf. Code, § 11366.6), and destroying or concealing evidence (Pen. Code, § 135). He argues the trial court erred by failing to suppress statements he made to police without the benefit of Miranda warnings. (See Miranda v. Arizona (1966) 384 U.S. 436.) He also preserves for federal review his argument the trial court’s imposition of an upper term sentence violated his Sixth Amendment right to a jury trial and denied him due process under the Fourteenth Amendment. (Blakely v. Washington (2004) 542 U.S. 296; but see People v. Black (2005) 35 Cal.4th 1238.) Finding no basis to disturb the judgment, we affirm.

I

FACTS

On the morning of February 20, 2004, five or six officers from the Orange Police Department arrived at Sanchez’s apartment to execute a search warrant. Although in civilian attire, they also wore raid gear including helmets and jackets inscribed on the front and back with the word “POLICE.” Twice, the officers knocked and announced their presence, demanding entry. After receiving no response, they used a battering ram to break down the door and entered the apartment with their guns drawn.

Once inside, the officers found Sanchez in his bedroom and handcuffed him. An officer guarded Sanchez for the minute or two it took the other officers to secure the apartment. Satisfied no other individuals were present, the officers removed Sanchez’s handcuffs, placed him at his dining room table, and began to search his apartment. The unit was so small that a couple of the officers were not needed, and they waited outside the apartment.

Officer Fred Lopez sat down at the table and explained to Sanchez they had a warrant authorizing a search for narcotics. According to Lopez, he informed Sanchez that “[h]e was not under arrest. He was merely being detained pending the outcome” of the search. At no point did Lopez advise Sanchez of his Miranda rights. Lopez asked Sanchez to identify himself and inquired why he did not open the door. Sanchez gave his name, confirmed the apartment was his, and stated he did not open the door because he feared the police.

Almost immediately thereafter, officers searching the bathroom found a plastic baggie floating in the toilet water-tank (i.e., not the bowl), and a crystalline substance on the rug around the toilet. One of the officers called Lopez to the bathroom to view the discovery. When Lopez returned to the table, he asked Sanchez what had been in the bag. Sanchez answered, “seven grams of methamphetamine,” and volunteered he had dumped the contents in the toilet when the officers arrived. Lopez asked whether Sanchez had a scale or packaging for the drugs. Sanchez admitted he had a scale and described how he used pieces of scrap paper for packaging. At this point approximately 15 minutes had elapsed from the officers’ entry into the apartment. The officers continued their search of the home for approximately an hour and a half. They did not find a scale. An officer arrested Sanchez at the conclusion of the search.

Before trial, Sanchez moved to suppress his statements made during the search as the product of a custodial interrogation in violation of Miranda. The trial court denied his motion, finding that a reasonable person in Sanchez’s position would not believe he was in custody tantamount to arrest or otherwise requiring Miranda warnings.

II

DISCUSSION

A. Miranda Warnings Were Not Required

Sanchez argues the trial court erred in admitting his statements to Lopez, which he claims the police obtained in violation of the Fifth Amendment. Because the officers did not subject Sanchez to custodial interrogation within the meaning of Miranda, they were not required to read him his rights, and the trial court therefore properly admitted his statements.

The prosecution may not use statements elicited by the police during custodial interrogation unless preceded by a valid waiver of the defendant’s Miranda rights. (People v. Mickey (1991) 54 Cal.3d 612, 647-648.) Miranda warnings are required only when a suspect “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, supra, U.S. at p. 444.) The Supreme Court later explained that “Miranda become[s] applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440, quoting California v. Beheler (1983) 463 U.S. 1121, 1125.) Whether an individual is in custody is a mixed question of law and fact. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) We defer to the trial court’s findings of fact to the extent that they are supported by substantial evidence, but independently evaluate whether the defendant was in custody. (Ibid.)

“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: (1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of [the] questioning. [Citation.]” (Pilster, supra, 138 Cal.App.4th at 1403, footnote omitted, internal quotation marks omitted.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id. at pp. 1403-1404.)

The trial court concluded Sanchez understood “the situation,” in other words that he was detained pursuant to a search warrant and, as Lopez explained, was not under arrest when the police seated him at his dining room table. Considering the circumstances as a whole, we agree with the Attorney General a reasonable person would not believe his or her detention incident to the search warrant executed here was tantamount to a formal arrest.

Informing a suspect he is not under arrest can be a significant factor (see, e.g., United States v. Salvo (6th Cir. 1998) 133 F.3d 943, 951) but is not dispositive. (See United States v. Newton (2d Cir. 2004) 369 F.3d 659, 676 [“telling a suspect that he is not under arrest does not carry the same weight in determining custody when he is in handcuffs as it does when he is unrestrained”].) Here, the police did not subject Sanchez to the ongoing physical restraint of handcuffs, often a hallmark of a custodial arrest requiring Miranda warnings. (See, e.g., LaFave et al., Crim. Proc. (2d ed. 1999) Interrogation and Confessions, § 6.6(f), at p. 539 [earmarks pointing to custodial arrest include “handcuffing, drawing a gun, holding by the arm, or placing into a police car”].) Physical restrictions generally implicate Miranda because they convey to the suspect that he is “completely at the mercy of the police” (Berkemer, supra, 468 U.S. at p. 438) and his detention is not likely to be “temporary and brief“ (id. at p. 437).

True, the officers had their guns drawn when they entered the apartment, and they handcuffed Sanchez upon locating him, but the trial court could reasonably conclude these actions were primarily a feature of their entry and not Sanchez’s detention. (See Pilster, supra, 138 Cal.App.4th at p. 1404 [“brief handcuffing” for safety purposes not necessarily a formal arrest]; see also United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289 [rejecting argument defendants “automatically“ arrested when handcuffed].) Having secured the premises, the officers holstered their weapons and uncuffed Sanchez within a “minute or two” while they proceeded with the search warrant.

“[I]n the usual case, a person detained during the execution of a search warrant is not ‘in custody’ for purposes of Miranda.” (United States v. Burns (7th Cir. 1994) 37 F.3d 276, 281.) As the court in Burns observed, “Most detentions that occur during the execution of a search warrant, like most Terry stops [Terry v. Ohio (1968) 392 U.S. 1], are ‘comparatively nonthreatening.’ They are often short in duration.” (Burns, supra, at p. 281.) Here, the brevity of Sanchez’s initial detention and questioning favors a finding of noncustody. The statements Sanchez seeks to suppress occurred shortly after the search began and were made in response to Lopez’s opening questions rather than after extended interrogation.

Significantly, Sanchez was detained in his apartment where he sat unrestrained at his dining room table. He was not handcuffed when Lopez questioned him, and officers did not threaten or pressure Sanchez, nor did any officer have his gun drawn. A police presence dominated the scene as they executed the search warrant, but Sanchez’s only interaction with the officers was through Lopez, who sat with him at the table. This is a significant difference from interrogation at the police station, “which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.” (Berkemer, supra, 468 U.S. at p. 438.) Here, in contrast, the interview concluded almost as soon as it began.

Sanchez relies on United States v. Morales (S.D.N.Y. 1985) 611 F.Supp. 242, reversed in part (2d Cir. 1986) 788 F.2d 883. But to recite the facts there, as Sanchez does, is to distinguish them. Sanchez notes that in Morales “[t]he facts that defendant had been detained for almost an hour in an apartment that was not his home and was directed by an officer with a drawn gun to sit on a couch in the living room where another of the five police office[r]s kept watch over him ‘clearly constituted such a deprivation of his freedom of action as to render him in custody.’ (Morales, supra, 611 F.Supp. at pp. 244-245.)” But the Supreme Court has, as noted above, refined the inquiry from merely whether the suspect was “deprived of his freedom of action in any significant way” (Miranda, supra, 384 U.S. at p. 444) to whether the detention is tantamount to formal arrest. (Berkemer, supra, 468 U.S. at p. 440.) As one commentator has noted, the issue under Berkemer “is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest.” (LaFave, supra, § 6.6(c), p. 526.) Under the applicable standard, as discussed, Sanchez’s arguments are without merit.

B. Imposition of an Upper Term Sentence

Sanchez also argues his upper term sentence for possession of methamphetamine for sale violates the Constitution because the court rather than a jury decided the aggravating factors of his offense. He admits this argument has been foreclosed by People v. Black, supra, 35 Cal.4th 1238. He nevertheless argues Black was wrongly decided and predicts its demise in the United States Supreme Court. Time will prove him wrong or right but, in the meantime, we are duty-bound to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III

DISPOSITION

Judgment affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P.J.

FYBEL, J.

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