Filed 6/19/17 P. v. Wroe CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLAS AUSTIN WROE,

Defendant and Appellant.
C082407

(Super. Ct. No. 15F2693)



Following a jury trial, defendant Douglas Austin Wroe was convicted of possession of child pornography with a prior conviction for possessing child pornography. Defendant admitted a prior prison term allegation and the trial court sentenced him to a five-year state prison term.
On appeal, defendant contends the trial court erred in admitting statements he made to an officer without Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] warnings. Finding that defendant was not in custody when he made the statements, we affirm.
BACKGROUND
A
The Crime
Elisan Fitch worked in defendant’s home as a nurse for his mother in 2014. Defendant’s mother needed a better mattress, so she and defendant decided to look for one on the computer in his living room. When the computer came on after she moved the mouse, Fitch saw several images of “young boys in Lycra knee-type pants and Speedo-like pants in positions that were not what . . . [she] imagined to be for selling bathing suits.” Fitch asked defendant if she could close the page. He “stiffened” and said she could. Fitch reported the matter to Child Protective Services.
Defendant’s sister, Crystal Robertson, often came to defendant’s house to visit their mother. One time, she noticed images of young girls flashing on a nearby computer screen. The images were professionally done as if for modeling. She thought they were “more glamorous” than “appropriate,” and “very sophisticated and adult-looking.” Robinson asked defendant, “[w]hat is this?” He replied that he did not know, and then turned off the computer screen. When she went home, Robinson told her daughter, whose husband called the police.
On February 18, 2015, Redding Police Investigator Elizabeth Harris executed a search warrant on defendant’s home. Speaking with defendant in front of his house, Investigator Harris told him she was executing a search warrant and asked whether she would find any child pornography on the computers in his home. Defendant replied that she would find nothing of that nature. Asked if there were photos of children in provocative positions or anything else of that nature, defendant replied he saw some of those types of images on his computer, but thought they were downloaded by the home health care worker. Defendant said the photos were “images of youngsters and babies” and “family photos.”
Defendant claimed to frequent a Russian Website where he would download photos of landscapes and other subjects. He had also seen pictures of “youngsters and babies” there. Investigator Harris asked if there were “children in bathing suits or shorts” on the computer. Defendant admitted seeing some photos like that but claimed the home health care worker had downloaded them. His computer was protected by a password, which his grandson knew as well.
Two computers were found in defendant’s home, one in the living room and another in the bedroom. The bedroom computer contained images of juvenile males who were shirtless and wearing underwear.
The pictures were in a documents folder under the name “doug.” The computer’s Internet search history included searches on a common file sharing service for “mdlboys,” “diaper boys two,” “child model,” and “tiny model.” The living room computer contained over a thousand photographs of naked male and female juveniles. The computer was password protected under the username “Douglas Wroe.”
B
Prior Misconduct
Between 2004 and 2007, Timothy Smith lived with defendant who was dating his grandmother at the time. On many occasions, Smith saw defendant looking at images on the computer of little children wearing little or no clothing. Smith did not see anyone else in the home look at the images. It took years for Smith to report what he saw because he was a child when the incident occurred and he did not know right from wrong.
Probation Officer Susan Vonasek interviewed defendant in 2007. Defendant first blamed his girlfriend’s grandchildren for the child pornography found on his computer, but later admitted it was his. He also admitted viewing child pornography on his computer daily for 10 years. Defendant did not believe that viewing child pornography on the Internet was criminal.
C
The Defense
Defendant’s neighbor Michael Bullock visited defendant’s house four to five times a day and saw several people using defendant’s computers. Ten to 12 people used the computer in defendant’s living room. He never saw defendant looking at photographs of children.
D
The Miranda Hearing
Defendant moved to exclude statements he made to Investigator Harris outside his home during execution of the search warrant, asserting they were obtained in violation of Miranda.
At the hearing on the motion, Harris testified that she and five or six other officers executed a search warrant at defendant’s home. Some officers wore polo shirts with badges sewn onto the front and black “BDU-style” pants, while others were in “typical investigator clothing” or “[b]usiness attire.” Their cars were not marked.
Harris knocked on the door, which was answered by a woman with a small child. The pair was detained outside the house. Harris determined defendant was not home, so she called him. She told defendant the police were “at the residence doing a search warrant and asked if he would come back.” She may have told defendant that she needed to speak with him.
Defendant arrived 10 to 15 minutes later. After defendant parked his truck in the driveway, Harris asked him for the keys. Defendant gave them to her, and Harris conducted a patdown search of him. She gave the keys to the officer searching defendant’s truck. Defendant seemed “a little wobbly on his feet,” so she pulled his truck’s tailgate down and had him sit there.
Investigator Harris told defendant she was investigating a report of child pornography. She asked defendant to name the people living in his home and whether child pornography was on the home computer. She did not give a Miranda warning, but told him he was not under arrest and was free to leave. She questioned and talked to him for less than 30 minutes. He was not handcuffed and never told he was under arrest. No other officers were present when she spoke to him.
The trial court denied the motion, finding defendant was not in custody when he answered Harris’s questions.
DISCUSSION
Asserting he was in custody when questioned by Harris, defendant contends the trial court committed prejudicial error in denying his motion to suppress the statements made without a Miranda warning. We disagree.
A criminal suspect’s self-incriminating statements made during a custodial interrogation will be excluded under Miranda unless the suspect knowingly and voluntarily waived the Fifth Amendment privilege against self-incrimination. (People v. Lessie (2010) 47 Cal.4th 1152, 1156.) For Miranda to apply, “ ‘the suspect must be in “custody,” and the questioning must meet the legal definition of “interrogation.” ’ ” (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
“An interrogation is custodial, for purposes of requiring advisements under Miranda, when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood his situation.” (People v. Moore (2011) 51 Cal.4th 386, 394-395.)
“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.] 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.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.)
“ ‘Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must “apply a deferential substantial evidence standard” [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, “a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave” [citation].’ ” (People v. Moore, supra, 51 Cal.4th at p. 395.)
The voluntary nature of the encounter supports the trial court’s finding that defendant was not in custody. Harris did not order defendant to go to his home; she asked him to come over and after learning that a search was being executed there he agreed. Harris did not demand or take the keys to defendant’s truck, but rather asked for and received them from him in order that the truck might be searched. This diminished the effect of the police getting control over the keys to defendant’s truck. Although, some control was exerted over defendant when he was instructed to sit on the tailgate of his truck, this came after Harris saw that his legs were wobbly. Further, while defendant was subjected to a patdown search, a stop and frisk search under Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] is not a custodial encounter warranting Miranda warnings. (Berkemer v. McCarty (1984) 468 U.S. 420, 440 [82 L.Ed.2d 317, 334-335].)
The circumstances surrounding the questioning also support the finding that defendant was not in custody. The questioning was not especially prolonged, taking less than 30 minutes. There was no evidence that the questions asked by Investigator Harris were hostile or accusatory. Instead, she asked him if child pornography would be found on the computer in defendant’s home. The questioning did not take place in the station house, but in front of defendant’s home, albeit during the execution of a search warrant. While other officers were present at the scene, none were with Harris when she questioned defendant. Defendant was not in handcuffs, he was told that he was not under arrest, and, most importantly, that he was free to leave. There was no “formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.” (People v. Moore, supra, 51 Cal.4th at p. 395.)
Taken together, these factors support the trial court’s finding that defendant was not in custody. It was an essentially voluntary encounter in which defendant was not pressured to incriminate himself and which a reasonable person would understand that he or she could terminate and leave. Because defendant was not in custody, a Miranda warning was not required. Accordingly, the trial court’s denial of defendant’s motion was correct.
DISPOSITION
The judgment is affirmed.

/s/
Robie, J.
We concur:


/s/
Hull, Acting P. J.


/s/
Duarte, J.