P. v. Robledo

Filed 9/29/06 P. v. Robledo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. James Pierce, Judge. Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

Peter Robledo pled guilty to possession of a dirk or dagger, following denial of his motion to suppress evidence (Pen. Code, § 1538.5).[1] He was sentenced to 180 days in county jail. He contends that his section 1538.5 motion should have been granted, as his detention by a police officer violated the Fourth Amendment. We reject the contention, and affirm.

FACTS

There was a stipulation at the section 1538.5 hearing that the evidence was seized without a warrant. The sole witness was Long Beach Police Officer Jonathan Calvert. He testified:

Around 4:15 p.m. on August 22, 2005, Calvert was alone in a marked patrol car, near the west bank of the Los Angeles river bed. He noticed that, about 30 feet in front of him, appellant was walking across a paved access road. Calvert’s attention was drawn to appellant because appellant was holding what Calvert thought was a hand-rolled marijuana cigarette. Calvert drove up to appellant and asked to speak with him. He immediately inquired whether appellant was on parole or probation. Appellant said he had recently been discharged from parole, for possession of marijuana for the purpose of sale. Calvert asked if the hand-rolled cigarette contained marijuana. Appellant said it contained tobacco. Calvert asked if appellant was certain that he had completed parole. Appellant said he was not on parole, but there might be an outstanding warrant for his arrest.

At some point, Calvert inspected the hand-rolled cigarette, and verified that it contained tobacco. He obtained identifying information from appellant, “ran him” on the patrol car’s computer, and learned that there was an arrest warrant for him, in the amount of $366. He told appellant that there was a small warrant for him, as appellant had thought, but “he wasn’t in any trouble.”

Calvert then asked appellant if he belonged to a gang, as appellant “looked like a gang member” and had numerous tattoos. Appellant named the gang to which he had formerly belonged, and gave his gang moniker. He said he had renounced his gang ties several years earlier, after being shot twice in the head with a handgun.

Calvert told appellant that he needed to take care of the small warrant. He did not intend to arrest appellant on that basis. Appellant “turned to start walking away.” Calvert then asked appellant “if by any chance he had any weapons on him.” The question was asked “because of the old gang ties, the tattoos, [and] the area . . . .” Calvert thought he should have asked about weapons at the beginning of the encounter.

Appellant “turned around, faced [Calvert] and said, ‘Yeah, I’ve got an ice pick.’ “ He explained that he kept the ice pick in his back right pocket for protection, as it was dangerous to live in the river bed. He also said he had found the ice pick about 35 minutes before he met Calvert. Calvert handcuffed appellant, searched him, and found a seven-inch ice pick in his pocket.

The entire encounter lasted five to 10 minutes.

On cross-examination, Calvert clarified that he did not smell marijuana at any point. He originally thought appellant had marijuana because in that area, on previous occasions, there had been “several subjects with marijuana cigarettes that looked identical to the one that [appellant] was holding.” However, from 30 feet away, it was “almost impossible to tell” whether a hand-rolled cigarette contained tobacco or marijuana. Calvert also indicated that he exited the patrol car before questioning appellant.

On redirect examination, the prosecutor asked Calvert, “Up until the point you placed handcuffs on Mr. Robledo, was he free to leave?” Calvert answered, “Yes. After I had told him to take care of the warrant, he was pretty much free to go . . . . And then, until I put handcuffs on him, he was not being detained or arrested.”

The trial court gave this detailed explanation for denying the suppression motion:

“I think this was initially a detention. I would call it a detention. I think he was inquiring about this -- whether or not this cigarette was, in fact, tobacco or marijuana.

“Does he have the right to do that?

“I think so.

“While it’s consistent with innocent activity, a hand-rolled tobacco cigarette, I think the officer articulated some facts that there’s a lot of marijuana down there at this river bed. It’s kind of an abandoned-type area. He’s evidently stopped a lot of people with marijuana down there.

“Can he at least temporarily detain him to check it out?

“I think the answer to that question is yes. That’s what we want our police officers to do, to check it out.

“At some point in time, though, he is satisfied that’s not a problem. But that time --

“By the way, the whole thing lasts ten minutes, he says, maximum, five to ten minutes. So some time in between there.

“He stops initially to check out this cigarette. I think he has a right to do that. He did do that. He detained him initially. Then he starts engaging him in a conversation.

“By the way, your client, there is no question, volunteered a lot of information that he didn’t really have to answer to this officer. But they are engaged now in a conversation. He talks to him about probation or parole, and he kind of gives him an equivocal answer: Maybe I am, maybe I’m not. No, I think I’m discharged. I’ve been off for a while.

“But it’s the defendant that says he thinks he might have a warrant out for him. So the officer runs a warrant, all again within this five- or ten-minute time period. And sure enough, there’s this small warrant there. It kind of confirms what the defendant had volunteered himself.

“The officer wasn’t going to arrest him for that.

“He then engages him. I don’t think he launches a full investigation that now he is detaining him for a half hour or 45 minutes or an hour in length. Certainly, not appropriate. But now that he’s stopped him to check out this cigarette and you can engage him in a conversation for five or ten minutes and no more than, and I think the answer to that question is I don’t see any problems with it.

“It’s the defendant who offers the information about the warrants, the defendant who offers the information about being a gang member, out of a gang for a couple of years, being shot in the head. This is all information that’s not coming from the officer. It’s coming from the defendant.

“It’s the defendant who offers, yes, I have a weapon. It’s in my back pocket.

“Now, what does the officer do at that point?

“Now he handcuffs him and retrieves the weapon now. He says, ‘After I told you about the warrant, you ought to go get it checked out.’ But he wasn’t going to arrest him. He was free to go at that point.

“ ‘By the way, do you have any weapons?’

“ ‘Yeah, I do. It’s an ice pick, and it’s in my back pocket.’ And that’s sure enough what happened.

“Could he detain him now to retrieve the ice pick?

“I think the answer to that is yes.

“So I do not find an unreasonable search and seizure under the Fourth Amendment under these circumstances. The motion to suppress under 1538.5 is denied.”

DISCUSSION

Appellant argues that Calvert had no basis for detaining him in the first place, or, alternatively, should not have continued the questioning after ascertaining that the hand-rolled cigarette contained tobacco. Respondent maintains that the entire encounter was consensual, or, alternatively, that Calvert had reasonable cause to detain appellant, and the detention was over before appellant mentioned the ice pick.

A. The Applicable Law

In reviewing the trial court’s ruling, we defer to its factual findings, if supported by substantial evidence, and exercise independent judgment on whether the search or seizure met the requirements of the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)

B. Analysis

The record supports the trial court’s finding that the initial contact between Calvert and appellant was a detention. While walking near the river bed, appellant was stopped by Calvert, an armed officer in a patrol car. Calvert stopped appellant to investigate whether appellant was engaged in criminal activity, possession of marijuana. A reasonable person in appellant’s position would not have believed at that point that he was free to walk away.

The record also supports the trial court’s finding that the initial detention was reasonable. Appellant was holding a hand-rolled cigarette that had the appearance of a marijuana cigarette. He was in an area where previous suspects had possessed marijuana. Those facts provided an objective manifestation that appellant might be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) “Indeed, police officers are required to investigate any possible involvement in criminal activity in order to dispel any such suspicions.” (People v. Daugherty (1996) 50 Cal.App.4th 275, 288.)

We recognize certain factual similarities between this case and People v. Raybourn (1990) 218 Cal.App.3d 308. The court there invalidated the detention of “a somewhat nervous person who appeared to be a transient walking on a public street in broad daylight with a camera around his neck.” (Id. at p. 311.) The difference here is the existence of facts that raised a reasonable suspicion of criminal activity, due to the history of marijuana being found inside hand-rolled cigarettes in that area.

Finally, we find no Fourth Amendment violation in the subsequent discovery of the ice pick. Calvert had ascertained that the cigarette contained tobacco and that there was only a small outstanding warrant for appellant. He had decided not to arrest him. When appellant “turned to start walking away,” Calvert “asked him if by chance he had any weapons on him . . . .” Appellant “turned around,” faced Calvert, and said, “Yeah, I’ve got an ice pick.”

Appellant was not detained when Calvert asked him about weapons, as the circumstances would not have communicated to a reasonable person a lack of freedom to terminate the encounter. (Manuel G., supra, 16 Cal.4th at p. 821.) According to Calvert, appellant was “pretty much free to go,” after he told him to take care of the warrant. Appellant turned to walk away. He could have continued walking away. He chose to turn around and answer, when Calvert asked him if he had a weapon. “Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.” (Ibid.) We therefore conclude that there was no Fourth Amendment violation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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[1] Subsequent code references are to the Penal Code unless otherwise stated.