P. v. Herrera

Filed 6/22/07 P. v. Herrera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Michael Anthony Herrera pleaded guilty to possessing heroin following denial of his motion to suppress evidence. He argues the investigating officer illegally detained him, which led to a parole search of his motel room. We affirm.

I

Factual and Procedural Background

On September 16, 2005, around 6:00 p.m., Anaheim Police Officer Randy Adams saw defendant walk from a motel room and discard something in a trash can about 30 feet away. The motel was located in an area known for [n]arcotic-related offenses, prostitution, and gang-type problems and residents often used heroin. Defendant caught the officers eye because he looked like a gang member on parole, with tattoos; the way he was dressed; his mannerisms; the location.

Adams, dressed in jeans and a colored T-shirt with his sidearm concealed under his shirt, approached defendant, displayed his badge, identified himself as a police officer, and asked if [defendant] would speak with me formally for a moment. Adams spoke in a casual tone, standing about 10 feet away. Defendant responded, Okay, sure.

Adams asked defendant if he was on probation or parole. Defendant admitted he was on parole and acknowledged he lived at the motel. As they spoke, Adams noticed defendants pupils were constricted, he was somewhat slow and lethargic, and his skin appeared droopy. Based on his training and experience, Adams believed defendant was under the influence of heroin and communicate[d] those thoughts to defendant. Defendant denied using heroin that day but admitted it was part of his life, which was years ago . . . .

Adams asked defendant if he would walk with him towards the street in front of the motel. Defendant agreed. As the two men walked together about 25 yards toward the motel entrance, Adams motioned to his plainclothes partner, Officer Joe Atkinson, to approach. Defendant became extremely nervous when Atkinson joined them. Atkinson asked him to sit down. Defendant started to comply, but then took off running toward his motel room. Adams caught up with him at the door and handcuffed him. After taking custody of defendant, the officers searched his motel room. They found on a nightstand a spoon with a piece of brown cotton-like material, a syringe, and plastic wrap containing a black, tarry substance, which turned out to be .2 grams of heroin. The officers placed defendant under arrest.

Defendant testified at the suppression hearing that he walked from his room to the laundry room carrying a cup of noodle soup to microwave. While walking back to his room, he heard a whistle from the front of the motel property. He looked back and saw Adams walking quickly toward him with his hands held up in the air and his badge in it, announcing Anaheim Police Department. The officer approached at a pace that hes going to intercept me before I make the entrance to my room. The officers tone was [e]nough to convey the message that defendant was to stop and he got the impression he may be indicating with his left [] hand that I am also to stop. Defendant saw one other officer at the front of the building wearing a black polo shirt similar to officers in the special forces. At this location, defendant was boxed in. There is a fence behind me. There is a fence to the side of me. My room is two steps [away]. Adams asked What are you doing here? Defendant replied that he stayed there. Adams asked if he was on probation or parole. Defendant replied, Why are you messing with me or Why? Whats up? Adams repeated the question and defendant admitted he was on parole. Adams immediately indicated that I was to accompany him to the front of the property. When they reached the front area, Adams told him to have a seat and that they were going to search his room.

Cross-examined, defendant acknowledged using heroin five days before the incident. He denied that Adams had asked if he could speak to him, but conceded Adams may have asked this question after he had already established that I was on parole . . . . The prosecutor impeached defendant with robbery (1994), grand theft (1991), and burglary (1989) convictions.

Relying on the testimony and photographs, defense counsel argued the initial encounter constituted a detention without reasonable suspicion. He argued it occurred in a little pocket at the end of this building where there [are] two buildings and an alleyway, which is blocked by a fence. His client was essentially . . . trapped in a corner when the officer first approached him.

The court denied the motion, finding defendant had not been detained at the point of Adamss initial questioning. The court noted defendant did stop and talk to Adams and there were two people and they were having a conversation. The court found the situation differed from a forcible detention or one where the suspect ignored the officers questions and was then told, Stop. I need to talk to you . . . .

Defendant pleaded guilty to possession of heroin (Health & Saf. Code,  11350, subd. (a)), possession of drug paraphernalia (Bus. & Prof. Code, 4140), and resisting arrest (Pen. Code,   148, subd. (a)(1)). He admitted several prior convictions and prison terms, including a 1994 conviction alleged under the Three Strikes law. He received a 32-month prison term.

II

Discussion

A. Standard of Review

In ruling on a motion to suppress, the trial court must find the historical facts and apply the law to determine whether officers violated defendants Fourth Amendment rights. We review the courts resolution of the factual inquiry under the deferential substantial evidence standard. The ruling concerning whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (People v. Ramos (2004) 34 Cal.4th 494, 505.)

B. Detention
The Fourth Amendment is not implicated when an officer approaches an individual in a public setting and merely asks if he or she would answer some questions, provided the officer does not induce cooperation by coercive means. (United States v. Drayton (2002) 536 U.S. 194, 200-201; Florida v. Royer (1983) 460 U.S. 491, 497 (plur. opn.).) No objective justification is required for these police-initiated contacts, but the individual need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. (Royer, supra, at p. 498.)

An individual is detained for Fourth Amendment purposes when the suspect is physically restrained by a peace officer or submits to a show of authority. (California v. Hodari D. (1991) 499 U.S. 621, 626; People v. Johnson (1991)

231 Cal.App.3d 1, 10-11 (Johnson).) The requisite show of authority exists when a reasonable person would believe he or she was not free to leave. (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Examples of circumstances that might indicate a seizure even where the person does not attempt to leave include: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating the officer might compel compliance with the request. (United States v. Mendenhall (1980) 446 U.S. 544, 554.) In Mendenhall, the plurality noted no seizure occurred where the events took place in a public concourse, the agents wore no uniforms and displayed no weapons, they did not summon the defendant to their presence but instead approached her and identified themselves as federal agents, and they requested but did not demand to see her identification and plane ticket. (Id. at p. 555) In I.N.S. v. Delgado (1984) 466 U.S. 210, the court noted that police questioning, by itself, is unlikely to result in a Fourth Amendment seizure unless the circumstances of the encounter are so intimidating that a reasonable person would have believed he was not free to leave if he had not responded.

As one noted commentator observed, police may seek cooperation, even where this may involve inconvenience or embarrassment for the citizen, and even though many citizens will defer to this authority of the police because they believe in some vague way that they should. That is, if the moral and instinctive pressures to cooperate are in general sound and may be relied on by the police, then a street encounter does not amount to a [F]ourth [A]mendment seizure merely because of those pressures that is, merely because the other party to the encounter is known to be a policeman. Rather, the confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse. The critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens. [] Under this approach, an officer has not made a seizure if, for example, he interrogated in a conversational manner, did not order the defendant to do something or demand that he do it, did not ask questions which were overbearing or harassing in nature, and did not make any threats or draw a weapon. . . . On the other hand, an encounter becomes a seizure if the officer engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, continuing to interrogate a person who has clearly expressed a desire not to cooperate, renewing an encounter with a person who earlier responded fully to police inquiries, calling to such a person to halt, holding a persons identification papers or other property, . . . blocking the path of the suspect, physically grabbing and moving the suspect, drawing a weapon, and encircling the suspect by many officers . . . . [] [P]otentially incriminating questions do not by themselves make an encounter coercive. (4 LaFave, Search and Seizure (4th ed.), 9.4(a), fns. omitted.)

Here, the evidence shows Adams approached defendant in plainclothes, displayed no weapon, and did not summon or command defendant to submit to questioning. (Cf. People v. Roth (1990) 219 Cal.App.3d 211, 213-215 [Come over here. I want to talk to you]; Johnson, supra, 231 Cal.App.3d at p. 10 [Come down towards me. Step down off that landing]; People v. Verin (1990) 220 Cal.App.3d 551, 555 [Hold it. Police].) He spoke with defendant in a conversational manner. His question concerning probation or parole was not overbearing or harassing in nature. Defendant did not attempt to terminate the contact by departing, nor did he express a desire not to cooperate.

Defendant argues the officers testimony he wanted to speak formally belies any suggestion the initial contact was consensual, just to chat, and notes Adams admitted he was not looking to have a conversation with him because its a great

day . . . . But a request to speak to defendant, even formally, implied a right to refuse. Adamss description of his conversation with defendant as formal, assuming that word was conveyed to defendant, did not significantly add to the inherent pressure of the encounter or constitute conduct significantly beyond that accepted in social intercourse.

The only other distinguishing feature of this case was the location of the questioning. Defendant asserts the physical position in which Adams placed himself, blocking [defendants] egress from the area of the parking lot where the initial contact occurred . . . prevented [defendant] from leaving the area while the officer questioned him. There was no evidence Adams blocked defendant or that a reasonable person would have concluded the officer blocked defendants path. Moreover, the location of the encounter largely was determined by defendant himself. In other words, defendant may have gotten himself into a corner, but Adams did not corner him. Defendant acknowledged his room was just two steps away, and Adams made no effort to prevent him from entering it. The landing in front of defendants room was an area accessible to any member of the public and that location did not convert this otherwise permissible encounter into a Fourth Amendment seizure.

Defendant does not challenge the encounter beyond the initial stage of interaction. Because the trial court did not err in denying the suppression motion, we affirm the judgment.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.