P. v. Alp

Filed 6/22/07 P. v. Alp 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Susanne S. Shaw, Judge. Reversed with directions.

Jackie Menaster, 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, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

* * *

Charles Reginald Alp pleaded guilty to possessing methamphetamine after the trial court denied his motion to suppress evidence. (Pen. Code,  1538.5.) He contends investigating officers lacked reasonable cause to extend his traffic detention and he did not voluntarily consent to the search of his person. We agree with the latter contention and therefore reverse the judgment.

I

Facts and Procedural History

On the afternoon of October 19, 2005, Newport Beach Police Officers Jamie Lopez and Steve Burdette passed a black Honda going in the opposite direction on Irvine Boulevard. Noticing excessive exhaust coming from the car and an object hanging from underneath the engine compartment, the officers made a U-turn and stopped the vehicle for Vehicle Code violations.

Lopez approached Alp, the driver and sole occupant of the vehicle.[1]  Burdette, the backup officer, approached on the passenger side to make sure there were no weapons within the drivers reach. Lopez asked Alp for his drivers license and, after several inquiries about Alps employment, asked if he had ever been arrested. Alp replied he had been arrested for failure to pay child support. Lopez asked Alp if he was on probation and if he had anything illegal in the car. Alp replied No to both questions. Lopez then asked Alp, Do you mind if I search [the car]? Alp responded, Yes, I do.

During Lopezs interrogation of Alp, Burdette looked through the passenger side window and observed a small Ziploc baggie similar to a baggy thats used to package illegal drugs. Burdette could not tell what was in the baggie, but disregarded Alps explanation the baggie contained screws because of Alps nervous behavior.

Burdette took over the questioning, repeating Lopezs inquiries concerning Alps past arrest and whether he had anything illegal in the car. Alp provided the same responses he gave Lopez. Burdette told Alp to get out of the car and accused Alp of being evasive on every question Ive asked you so far. Burdette again asked Alp whether he had any drugs on his person. When Alp replied no, Burdette confronted him, stating: Listen to me. Okay? I been doing this job over 15 years, okay. Start jacking me around, Im gonna own you. Okay? What do you have that I need to know about. I can tell in your eyes . . . . Alp immediately admitted having methamphetamine in his pocket. Burdette said, You dont have a problem with my partner getting it, do you? Alp said he did not. Lopez recovered a small amount of methamphetamine from Alps pocket, but officers did not find any contraband on Alps car.

Defendant testified at the hearing that Burdettes statement he would own him was intimidating. I felt like he was physically owning me in some sense, and it caused him to admit to having something on me.

Defense counsel agreed officers had reasonable suspicion to stop defendant for Vehicle Code violations, but argued officers exceeded the scope of the lawful detention when they threatened defendant during an interrogation concerning drugs. As a consequence, defendant submitted to their authority and admitted carrying contraband. and agreed they could search his pocket, albeit involuntarily. The prosecutor argued Burdettes observation of the baggie justified further inquiry, but acknowledged defendant felt compelled from Burdettes pressure to admit he had drugs in his pocket. The prosecutor maintained it was irrelevant whether defendant voluntarily consented because the officers had probable cause to search. The trial court denied the motion to suppress, finding Alp had consented to the search. Defendant subsequently pleaded guilty and received probation.

II

Discussion

A. Standard of Review

In a suppression motion, the trial court must find the historical facts, select the rule of law and apply it to the facts to determine whether the law as applied has been violated. (People v. Ramos (2004) 34 Cal.4th 494, 505.) 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. (Ibid.) The trial courts factual findings are normally reviewed under the deferential substantial evidence standard. (Ibid.) As to whether defendant voluntarily consented to the search, the appellate court may independently review the trial courts finding if it is based on a video and audio tape of the incident and the facts surrounding the giving of statement are undisputed. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.)

B. The Prosecution Failed to Show Defendant Voluntarily Consented to the Search

Alp contends officers lacked reasonable cause to prolong his traffic detention so they could conduct a general investigation into possible drug possession. Defendant also argues he did not freely and voluntarily confess to possessing methamphetamine or consent to the search of his pocket.[2] We conclude the prosecution failed to carry its burden to establish defendants confession and consent were voluntary.

Consent to search is a recognized exception to the warrant requirement. (People v. James (1977) 19 Cal.3d 99, 106 (James).) But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting consent would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 228 (Schneckloth).)

The prosecution has the burden of proving defendant freely and voluntarily consented to the search. (Bumper v. North Carolina (1968) 391 U.S. 543, 548-549.) In determining voluntariness, courts must assess the totality of all the surrounding circumstances . . . . (Schneckloth, supra, 412 U.S. at p. 226; James, supra, 19 Cal.3d at p. 106.) This means taking account . . . of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. (Schneckloth, at p. 229.)

Schneckloth instructs there is no talismanic definition of voluntariness, mechanically applicable to the host of situations where the question has arisen, but cases dealing with involuntary confessions offer guidance to its meaning. (Schneckloth, supra, 412 U.S. at p. 224.) Such authority is particularly appropriate in this case in which Alp first confessed to criminal activity before submitting to the search. For instance, in People v. Brommel (1961) 56 Cal.2d 629, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17, the California Supreme Court concluded a defendant involuntarily confessed after officers informed him they did not believe his claims of innocence and warned him to expect no leniency from the court because they would tell the judge the defendant was a liar. (Brommel, at p. 633.) The court deemed the officers warning both a threat, . . . and an implied promise, that if defendant told the officers the story that they were insisting that he tell them they would not write Liar on the document and defendant might expect a break from the court. (Id. at pp. 633-634; see also People v. McClary (1977) 20 Cal.3d 218, 223, 229 [officer improperly threatened minor with death penalty, accused her of lying, and promised leniency if she confessed], overruled on other grounds in Cahill, at p. 510, fn. 7.)

Similarly, an interrogation tactic conveying a threat of harsher treatment unless a defendant consents to a search vitiates any consent obtained. (Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 268 [courts have denied the efficacy of any consent to a search obtained by covert threats of official sanction]; People v. Valenzuela (1994) 28 Cal.App.4th 817, 832 (Valenzuela) [consent to search coerced because officer did not return green card until granted permission to search].) Thus, the main issue in these fact-driven cases is whether a defendant made an essentially free and unconstrained choice . . . to either confess or consent to search, or whether a defendants will was overborne by improper police conduct. (People v. Memro (1995) 11 Cal.4th 786, 827.)

Here, the prosecution failed to meet its burden to show defendant voluntarily confessed and consented to the search of his pocket and possessing the methamphetamine. Lacking a reasonable, articulable suspicion Alp possessed drugs, officers nevertheless continued to subject Alp to a barrage of questions that veered from the ostensible basis for the traffic detention. The salient factor in our analysis is Burdettes warning he would own Alp if he [s]tart[ed] jacking me around . . . .

Based on the undisputed evidence presented at the suppression hearing, including the disturbing video capturing Burdettes threat he would own Alp, we conclude the prosecution failed its burden to establish the threat did not compel Alps cooperation. After Burdette warned defendant he would own him, the officer stated, What do you have that I need to know about? I can tell in your eyes . . . like [unintelligible]. Whats going on? Defendant then admitted possession and acquiesced to a search. The Attorney General claims Burdettes statement demonstrates Alp exhibited symptoms consistent with drug intoxication in [his] eyes. The evidence and argument show Burdettes statement referred to the officers belief Alp had been evasive in his responses, not an assertion defendant was under the influence of drugs.

Burdettes threat, Im gonna own you, did not merely encourage Alp to tell the truth; rather, it powerfully and unequivocally conveyed the message that if Alp failed to provide the answers the officer expected to hear, dire consequences would follow. Alp understood Burdettes statement as at least a physical threat, testifying, I felt like he was physically owning me in some sense . . . . Notably, the threat came after the officers repeatedly asked Alp to reveal incriminating information, brushing aside his steadfast denials. (See Schneckloth, supra, 412 U.S. at p. 226 [repetitive nature of questioning a factor to consider in evaluating coerciveness].) In these circumstances, an officer announcing to a detained suspect he would own him unless he gave the officer what he sought conveys the message resistance is futile. Confronted with the officers statement, the threatened individual is forced to make a choice which cannot be countenanced provide the officers with whatever response they want or face the repercussions inherent in the threat. (See, e.g., United States v. Ivy (1998) 165 F.3d 397, 403 [threat to arrest suspects girlfriend is highly coercive].) Where the suspects will has been overborne and his capacity for self-determination critically impaired (Schneckloth, at p. 225) due to an official threat which makes it unwise or fruitless to resist (Valenzula, supra, 28 Cal.App.4th at pp. 832-833), the search cannot stand. (Ibid.)

III

Disposition

The judgment is reversed with directions to grant the motion to suppress.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] The factual summary of the detention is based on the evidence presented at the suppression hearing, which included a video and audio recording of the incident activated from the officers patrol car. A transcript of the audio recording is presented for the readers convenience.

The patrol cars video recorder captured the following exchange between defendant and the officers: [Lopez]: Stay in the car, please. Stay in the car. [] [Defendant]: [unintelligible] [] Q: How you doing? [] A: Hi. [] Q: Go head and turn off the car for me. [] A: Fine . . . sure. [] [unintelligible] [] Q: You got something hanging from, from underneath the car. Do you . . . [] A: Seriously? [] Q: Yeah. Ill let you see it in a little bit. Do you, do you have your drivers license with you? [] A: Here it is. [] Q: Where you coming from? [] A: Right around the corner, Holly Street. [] Q: You, uh, work in there? [] A: Yeah. [] Q: Okay. You still live at Cypress? [] A: Yes, I do. [] Q: Okay. Man, what do you do there? Youre painting? Little painting? [] A: Yeah. [] Q: Okay. Charles, dont, dont take offense at this; I ask everybody this. Have you ever been arrested before? [] A:  Yes, I have. [] Q: And are you on probation or parole? [] A: No. [] Q: No? Whatd you get arrested for? [] A: Child support. [] Q: Child support? Okay. You been taking care of all that . . . . [] A: Yeah. All . . . . [] Q: Now? [] A: All been done . . . finally. [] Q: Okay. Anything in the car I should know about? [] A: No. [] Q: Anything like that? Do you mind if I search it? [] A: Yes, I do. [] Q: You do mind? [] A: Uh, huh. [] Q: Okay. What whats the thing hanging from your . . . . [] A: Uh . . . can I look? [] Q: Yeah. [] A: I have no idea. [] Q: Okay. [] A: No idea what, what it is. What it could be. [] Q1 [Burdette]: Do you have the paper in his pockets out? [] A: Pardon me. [] Q1: You on probation or parole today? [] A: No. Im not. [] Q1: No? [] A: No, Im not. [] Q: No. [] Q1:  Whats baggie in the center console of your car. [] A: Baggie at center console? [] Q1: Yeah. [] A: The baggies, uh, probably screws in it? [] Q1: Screws in it? [] A: Yeah, Ill show it to you if you like. [] Q1:  You have nothing illegal in there? [] A: No, I dont. I can show you the baggie if you like. [] Q1: Wheres the last time you been arrested? [] A: Oh, its a belt. Uh, I havent been arrested for four years probably. [] Q1: What was it for? [] A: Child support. [] Q1: Child? Nothing else? [] A: No. [] Q: Anything illegal on your person today? [] A: No. [] Q:  You sure? [] A: Yeah, Im sure. [] Q1: Go ahead and stand up for me, please. [] A: Excuse me, sir. Why? [] Q1: Cause I asked you to. [] A: Im sorry. Im . . . . [] Q: Okay? A: I dont mean smart ass. [] Q1: Youre out of the car; I dont know if you got weapons, or not. [] A: Youre right, youre right. [] Q1: Okay? Youre being evasive on every question Ive asked you so far; it just seems a little strange to me. [] A: . . . Im sorry. [] Q1: Do you understand where Im coming from? [] A: Yes, I do, sir. [] Q1: Okay. Anything illegal on your person today? [] A: No, sir. [] Q1: Listen to me. Okay? I been doing this job over 15 years, okay. Start jacking me around, Im gonna own you. Okay? What do you have that I need to know about? I can tell in your eyes . . . like [unintelligible]. Whats going on? [] A:  [unintelligible]. [] Q1: What kind of drugs? [] A: Speed. [] Q1: What kind of speed? Crystal meth, meth? [] A: Meth. [] Q1: Okay. Wheres that speed? [] A:  In my pocket. [] Q1: Which pocket? [] A: Right here. [] Q1: The right front pocket? You dont have a problem with my partner getting it, do you? [] A: Nope.

[2] The prosecutor below argued consent was irrelevant because officers had probable cause to search defendant. The Attorney General does not raise this argument and acknowledges the issue of defendants consent is relevant to determining the validity of the search. We agree. The prosecutor below mistakenly assumed Burdettes observation of a small Ziploc baggie protruding from an ashtray furnished the requisite probable cause to broaden the scope of the investigation and further detain defendant. Although the parties stipulated to the officers expertise in narcotics enforcement, no evidence was presented explaining why a single Ziploc baggie provides the basis to extend a motorists detention and search his or her pockets. Absent this foundation, the legality of the search turns solely on the validity of defendants purported consent.