Filed 5/25/17 P. v. Snell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MATHEW SNELL,

Defendant and Appellant.
D070931



(Super. Ct. No. SCD264019)

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Steven E. Stone, Sharon B. Majors-Lewis, Judges. Affirmed.
Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Mathew Snell contends the trial court erred by denying his motions to suppress 21.39 grams of methamphetamine, which police discovered in defendant's parked car. We conclude defendant's claim lacks merit, and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was arrested on October 1, 2015, after a police search of his vehicle yielded 21.39 grams of methamphetamine. He was charged with one count of possession for sale of a controlled substance. (Health & Saf. Code, § 11378.) He twice moved to suppress the seized methamphetamine based on the assertion the police unlawfully detained him during an encounter that involved the police, defendant, and defendant's passenger, which occurred immediately before the search. According to defendant, the encounter rose to the level of an unlawful detention because the police made a "show of force" when three officers arrived in two vehicles (one of which displayed yellow and white overhead lights) and parked on opposite sides of his car.
Motion to Suppress—Preliminary Hearing
Defendant's first motion to suppress coincided with the preliminary hearing. San Diego Police Officer Matthew Paniagua testified regarding the circumstances that led to the discovery of contraband in defendant's car.
About 7:00 a.m. on October 1, 2015, San Diego Police Officers Paniagua, Efren Peregrina, and Eric Coats were on routine patrol in the area of Bill Cleator Park, which Officer Paniagua knew had problems with drug activity and illegal lodging. Officers Paniagua and Coats rode in one police vehicle and "follow[ed] Officer Peregrina's lead" in the other. The officers were driving one sedan and one SUV, but Officer Paniagua could not recall who was in each vehicle. The vehicles entered the park's parking lot together.
The sole entry point of the parking lot is on the south side of the park, and the lot dead ends at its northern end. The lot is about three blocks long, "two [to] two and a half car lengths" wide, and has "one row of parking spaces facing [perpendicular to] the grass" area. Defendant's sedan was one of several vehicles in the parking lot. He was "legitimately parked," facing "head in." Defendant sat in the driver's seat, David Leschock sat in the passenger's seat.
The officers stopped their vehicles single-file in the parking lot's driving lane, perpendicular to defendant's car. The SUV drove beyond the rear of defendant's car and stopped; the sedan stopped short of defendant's car. The police vehicles were "offset" with defendant's vehicle such that neither one blocked it; he could "back up and leave" if he "pulled out [and] did a hard like kind of turn coming back into his left." Officer Paniagua's vehicle did not have its lights or siren activated, nor to the best of his recollection did Officer Peregrina's.
Officer Paniagua knew that Officer Peregrina wanted to talk to the passenger, but he didn't know why. Officer Peregrina exited his vehicle and approached the passenger, addressing him on the way. Officer Paniagua did "some computer work" in his patrol vehicle before exiting "[s]hortly after" the passenger contact began. He "wasn't really listening to how the conversation with the passenger was going." Officer Paniagua approached the driver's side of defendant's car "to see who else might be in the vehicle," as "a matter of officer safety." Officer Coats was with him, but he did not remember where Officer Coats was standing at the time.
Officer Paniagua "was trying to keep it casual" as he approached the driver's side of the car; he did not draw his weapon. He "pretty immediate[ly]" saw defendant "trying to stuff something" either into his right pocket or the crevice between the driver's seat and the center console. When the officer asked, "Hey, what are you stuffing in there?", defendant responded that it was medical marijuana for which he had a prescription. Officer Paniagua explained to defendant that because he admitted he was in possession of a controlled substance, the officer would be conducting a compliance search. The officer found in defendant's pocket a glass pipe with burnt residue. The officer then handcuffed defendant and searched his car with Officer Coats.
Between the driver's seat and center console, Officer Paniagua found a container with a plastic baggie inside that contained a "crystal-like substance inside," which he "recognized as [a] controlled substance." The parties stipulated for present purposes that the container held 21.39 grams of methamphetamine. Officer Paniagua also found a digital scale with white residue in the glove box, and an eyeglass case in the center console that contained 31.79 grams of a white powdery substance that the parties stipulated had tested negative for controlled substances.
The trial court (Hon. Frederick Maguire) denied the suppression motion, but did "think it's close." The court explained it was "not buying the proposition" that the initial encounter was a detention because defendant's car was "not boxed in." The court found the encounter became a detention once Officer Paniagua asked defendant what he was concealing, but at that point the officer was entitled to detain defendant. The court "appreciate[d]" Officer Paniagua's "candor" and found him credible.
Renewed Suppression Motion
Defendant renewed his suppression motion. The parties stipulated the court could use the preliminary hearing transcript. In addition, defendant called Officer Peregrina as a witness to "supplement some of the things that Officer Paniagua was unable to remember."
Officer Peregrina testified he was partnered with Officer Paniagua in the police SUV on the day in question. Officer Peregrina received a tip that a bicycle "chop shop" might be operating in the park, so he and Officer Paniagua "decided to roll through the park" to see if they could contact anybody or find any items in the bushes that would substantiate the tip. Officer Peregrina saw defendant's car and recognized the passenger, Leschock, as a local transient he had known for about three years. Officer Peregrina decided to contact Leschock to see if he knew anything about the chop shop.
Officer Peregrina drove the SUV past defendant's car and stopped in the driving lane with his rear bumper about four to five feet beyond the rear bumper of defendant's car. The SUV was about halfway between defendant's car and another parking stall one or two spaces away, which was occupied by an SUV. Because he was stopped in a driving lane, Officer Peregrina activated his SUV's "level one" lights —rear-facing, overhead, flashing white and yellow lights—so other drivers would "know [he's] there" and not hit him. He said he never uses the level one lights to make a traffic stop.
Officer Peregrina exited the SUV first, expecting that Officer Paniagua would follow to provide cover. Officer Peregrina said it is customary for an officer to provide cover even during consensual encounters. He approached the passenger side to speak with Leschock, who had one foot outside the open car door. Officer Paniagua approached the driver's side to keep an eye on defendant. Officer Peregrina said he had a "relaxed," "consensual" conversation with Leschock about the chop shop. He wasn't focused on defendant or Leschock as suspects, he was just looking for information. Defendant could have terminated the encounter and left if he wanted. Around this time, Officer Coats arrived alone in a police sedan and parked in the driving lane about three to four car lengths short of defendant's car.
Officer Peregrina said he believed there was enough room for defendant to back his car out and leave. In fact, after defendant was handcuffed, Officer Peregrina moved the police SUV so that the uninvolved SUV that was parked beyond defendant's car could pass through the driving lane to reach the exit. The other SUV had no issues passing the police sedan to reach the parking lot exit.
The trial court (Hon. Steven E. Stone) denied the renewed suppression motion. The court said it would have denied the motion even if it were to base its ruling exclusively on the evidence presented at the preliminary hearing. The court added that it would also have denied the motion even if it were based only on the preliminary hearing record and Officer Peregrina's new testimony about the overhead lights on the police SUV. The court stated it found Officer Peregrina's testimony to be credible, and found that his body-worn camera footage was "the most helpful information."
Based on the totality of the circumstances as presented by the preliminary hearing record, Officer Peregrina's testimony, and the video footage, the trial court found the police did not make "a show of force." As to the relative positioning of the vehicles, the court found (1) there was "lots of spaces between these cars," (2) the police SUV was not parked directly behind defendant's car, and (3) it was parked against the far side of the driving lane. The court found the level one lights were not "the normal emergency lights . . . that one would expect if somebody's being pulled over." The court also found the transcript of the encounter between Officer Peregrina and Leschock "corroborated what the officer said about asking about chop shops, that the purpose was for [a] consensual encounter." Based on the totality of these circumstances, the court found "that a reasonable person would have felt free to decline the officer's request to talk or would have felt free to otherwise terminate the encounter."
A jury found defendant guilty as charged, and he appeals.
DISCUSSION
Defendant contends the trial court erred by denying his motion to suppress the evidence seized during the search of his car. He asserts the police encounter was not consensual because he "was seized by the actions of the officers before the officers reached [his] car and made the observations of [his] movement to secrete the methamphetamine." Because the officers otherwise lacked reasonable suspicion to detain him at that point, defendant asserts the search was unlawful and the trial court should have excluded the fruits of it. We disagree.
"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 individual's liberty." (In re Manuel G. (1997) 16 Cal.4th 805, 821.) "Our present inquiry concerns the distinction between consensual encounters and detentions." (Ibid.)
"An officer may approach a person in a public place and ask if the person is willing to answer questions. If the person voluntarily answers, those responses, and the officer's observations, are admissible in a criminal prosecution." (People v. Brown (2015) 61 Cal.4th 968, 974 (Brown); Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick).) "Such consensual encounters present no constitutional concerns and do not require justification." (Brown, at p. 974; see In re Manuel G., supra, 16 Cal.4th at p. 821; Bostick, at p. 434.)
"However, 'when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,' the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution.' " (Brown, supra, 61 Cal.4th at p. 974; see In re Manuel G., supra, 16 Cal.4th at p. 821; Bostick, supra, 501 U.S. at p. 434.) "In situations involving a show of authority, a person is seized 'if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," ' or ' "otherwise terminate the encounter," ' [citation], and if the person actually submits to the show of authority [citation]." (Brown, at p. 974.) "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." (In re Manuel G., at p. 821.) "The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred." (Ibid.)
In distinguishing between a consensual encounter and a detention in the context of an individual in a parked car, courts also consider whether a police vehicle blocked the citizen's automobile from leaving (see, e.g., People v. Wilkins (1986) 186 Cal.App.3d 804, 809 (Wilkins) [vehicle occupants detained when police vehicle "stopped . . . in such a way that the exit of the parked vehicle was prevented"]; People v. Perez (1989) 211 Cal.App.3d 1492, 1496 (Perez) [no detention where, "[u]nlike Wilkins, the officer parked his patrol vehicle in front of defendant's vehicle and left room for defendant's car to leave"]), or whether the police vehicle displayed its emergency lights (see, e.g., Brown, supra, 61 Cal.4th at pp. 978-980 [driver detained where police vehicle stopped behind his legally parked vehicle and emitted blue and red emergency lights]; People v. Bailey (1985) 176 Cal.App.3d 402, 405-406 (Bailey) ["A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer."]).
However, there is no "bright-line rule that an officer's use of emergency lights in close proximity to a parked car will always constitute a detention of the occupants." (Brown, supra, 61 Cal.4th at p. 980 ["As an example, a motorist whose car had broken down on the highway might reasonably perceive an officer's use of emergency lights as signaling that the officer has stopped to render aid or to warn oncoming traffic of a hazard, rather than to investigate crime."].) The courts also tend to distinguish between use of emergency lights (as in Brown and Bailey) and high-beams or spotlights (see, e.g., Perez, supra, 211 Cal.App.3d at p. 1496 ["While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention."]).
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Ramos (2004) 34 Cal.4th 494, 505.)
Although we agree with the trial court's observation that "it's close," we conclude the challenged portion of defendant's encounter with the police was consensual and did not rise to the level of a detention. According to Officer Peregrina, the police SUV parked first (i.e., before Officer Coats arrived in the sedan), did not block defendant's car in its parking space, and did not impede access to the parking lot exit. He activated only the level one white and yellow lights to alert approaching cars to his stopped vehicle. Officer Peregrina exited the car to have a "relaxed," "consensual" conversation with someone he had known for years. The purpose of the conversation was to gather information about activity in the park that did not relate to defendant or Leschock. Officer Paniagua did some computer work before exiting the SUV to provide cover, and he "tr[ied] to keep it casual" as he approached. The officers did not draw their weapons, touch defendant or Leschock, or speak forcefully to them.
The encounter began before Officer Coats arrived, when defendant and Leschock were not yet outnumbered. Officer Coats arrived without activating the emergency lights or siren of his police vehicle, and he parked several car-lengths away, leaving enough room in the driving lane for a vehicle to pass and reach the parking lot exit (as evidenced by the uninvolved SUV that departed during the incident). On balance, these facts indicate the brief encounter was consensual before the police "pretty immediate[ly]" saw defendant's suspicious movement.
Defendant argues the trial court placed undue emphasis on the fact he was able to leave in his car, not whether he reasonably believed he could have done so. As noted, however, the ability to leave is, in fact, one of the many relevant considerations. (See Wilkins, supra, 186 Cal.App.3d at p. 809; Perez, supra, 211 Cal.App.3d at p. 1496.) Moreover, despite defendant's attempt to downplay the significance of both trial court judges' factual findings that defendant was able to leave, he argues in his reply brief that "a reasonable man who was aware that his car contained controlled substances . . . would have driven away from the park and the officers prior to being detained," but he "was unable to do so because of the unlawful detention." (Italics added.) This argument directly implicates defendant's ability to leave, and we have independently considered it as one of many factors contributing to the totality of the circumstances.
Defendant also emphasizes the fact Officer Peregrina activated the overhead lights on the police SUV. He argues this brings the case within the holding of Brown, supra, 61 Cal.4th 968, which found a detention. We are not persuaded. The police vehicle in Brown activated its blue and red emergency lights directly behind the defendant's parked vehicle late at night, which the deputy testified was "consistent with having made a traffic stop." (Id. at pp. 972-973, 978-979; see Bailey, supra, 176 Cal.App.3d at pp. 405-406 [red light].) By contrast, Officer Peregrina testified he activated his "level one" rear-facing yellow and white lights (which defendant disingenuously refers to as "emergency lights") during daylight to alert other motorists to his stopped police vehicle, not to effectuate a traffic stop. Moreover, the police SUV was parked perpendicularly to defendant's car, so the rear-facing lights presumably were not directed at defendant's vehicle and were thus less targeted than the spotlight in Perez that did not elevate the encounter to a detention. (See Perez, supra, 211 Cal.App.3d at p. 1496.)
Based on our independent review of the totality of the circumstances, we conclude a reasonable person in defendant's position would have believed he was free to leave or otherwise terminate the police encounter.
DISPOSITION
The judgment is affirmed.


HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



AARON, J.