Filed 9/28/17 P. v. Aquino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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, Kazuharu Makino, Temporary Judge. (Pursuant to Cal.Const., art. VI, § 21.) Affirmed.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald

A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

This case turns on the distinction between a consensual encounter and a detention for purposes of the Fourth Amendment. It arose out of a contact that occurred between appellant and the police early one morning in the City of Stanton. There is no dispute the statements appellant made during the contact provided reasonable suspicion to believe he was involved in criminal activity. The only question is whether the police had already detained appellant by the time he made those statements. We think not. Because the police did not detain appellant until after they had reasonable suspicion to do so, the trial court properly denied appellant’s motion to suppress, and we affirm the judgment against him.

FACTS

On the night of October 24, 2015, Orange County Sheriff’s Deputy Bryce Simpson and his partner Vincent Renzi were on patrol in Stanton. As they were driving around the city, they saw appellant driving a tan Toyota Camry on multiple occasions. Around midnight, they saw him driving in the parking lot of a McDonald’s restaurant, and around 2:30 a.m., they saw him pull into a gas station. The deputies ran a computer check on appellant’s car and discovered it was registered to someone in San Diego. They also noticed the car was in violation of the Vehicle Code because it did not have a front license plate. However, they did not initiate a traffic stop for that infraction. In fact, they did not stop appellant at any point that evening. But when they saw him driving near Beach Boulevard and Lampson Avenue at 3:30 a.m., they decided to follow him to see where he was going.

Appellant drove into a dark alley, pulled over to the side of the alley and parked the Camry, even though Simpson did not use his overhead lights or siren or signal in any other manner. As appellant was getting out of his car, Simpson pulled up behind him and parked his squad car about 20-25 feet away. Simpson then activated the exterior spotlights on both sides of his squad car and exited the vehicle. Meanwhile, his partner Renzi opened the passenger door and assumed a standing position behind it.

Appellant was just beginning to walk away from the driver’s side of the Camry when Simpson asked if he would be willing to talk to him for a minute. Appellant said yes and walked over and met Simpson near the front of his squad car. At that time, Simpson noticed appellant was holding a key. Fearing the key could be used as a weapon, he asked appellant to put it on the hood of his squad car, and appellant did so. Simpson then asked appellant if he could pat him down for weapons, and appellant said yes. In conjunction with the patdown, appellant also agreed to let Simpson reach into his pockets and remove any items that were in his possession. Simpson placed those items next to the key on the hood of his squad car. The record does not disclose what those items were, but they were not contraband of any kind; up until this point in the encounter there was no evidence appellant was involved in any criminal activity.

But Simpson asked appellant a series of questions to which he gave suspicious answers. When Simpson asked where he was going, appellant said home, but he gave an address in Garden Grove, not Stanton, as his residence. When Simpson asked where he was coming from, appellant said he had just gotten off work, but that didn’t jibe with the deputies’ earlier observations of him. And when Simpson asked who owned the Camry, appellant was unable to give him a straight answer about whose car it was. Based on appellant’s responses, Simpson told him he was going to have to detain him so he could find out what was going on. Appellant insisted he had not done anything wrong, but Simpson placed him in the back of his squad car. Simpson then asked appellant if he could look in the Camry for registration, and appellant said, “Yeah, do whatever you need to do.”

Inside the vehicle, Simpson found registration papers for that car and another Toyota Camry. After running a records check on the Camry appellant had been driving, Simpson discovered it had been reported stolen from a garage in Westminster. Simpson also discovered the key appellant had placed on his hood had been shaved down so it could bypass door locks and ignitions.

Appellant was arrested and charged with car theft and possessing burglary tools, i.e., the shaved key. Pursuant to Penal Code section 1538.5, he moved to suppress the evidence that was discovered during his encounter with the deputies. The motion was based on the theory appellant was detained when Simpson patted him down and took his property, but the court found that part of the encounter was consensual in nature. The court also found that, based on appellant’s answers to Simpson’s questions about where he was going and coming from and who owned the Camry, there was reasonable suspicion to detain him. Therefore, the court determined all evidence discovered during the encounter was legally obtained. Following that ruling, appellant pleaded guilty and was sentenced to three years in prison. This appeal followed.

DISCUSSION

Appellant concedes his answers to Simpson’s questions provided reasonable suspicion for his detention, and respondent admits that prior to receiving those answers, Simpson lacked reasonable suspicion to detain appellant. Thus, the critical question is whether appellant was detained before he answered Simpson’s queries. Although it’s a close call, we answer that question in the negative.

The Fourth Amendment to the United States Constitution gives citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” (U.S. Const., 4th Amend.) However, not every encounter between the police and the public implicates that right. Indeed, the United States Supreme Court has made it clear “a seizure does not occur simply because a police officer approaches an individual and asks a few questions” or asks to “examine the individual’s identification” or asks for “consent to search[.]” (Florida v. Bostick (1991) 501 U.S. 429, 431, 434-435.)

Rather, the seizure of a person – commonly known as a detention – occurs only when the police restrict the person’s freedom of movement by means of physical force or a show of authority. (United States v. Mendenhall (1980) 446 U.S. 544, 553.) “So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [citation] the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” (Florida v. Bostick, supra, 501 U.S. at p. 431.) On review, we 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 officer’s requests or otherwise terminate the encounter.” (Id. at p. 439.)

Here, appellant voluntarily pulled over his vehicle in a public alley. Because the deputies did not activate their emergency lights, direct appellant to stop or impede his movement in any way, our record shows nothing coercive about the manner in which the encounter initially transpired. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1237-1238 (Frank V.) [absent any display of authority, defendant was not detained when he pulled over to the side of the road on his own volition].) Upon pulling up behind appellant’s car, Deputy Simpson did activate the spotlights on his squad car, but standing alone, that was insufficient to constitute a detention. (People v. Garry (2007) 156 Cal.App.4th 1100, 1111.) And although appellant was outnumbered two-to-one by the police, Simpson’s partner Renzi took up a standing position behind the spotlight on the passenger side of the squad car and took no part in the encounter. There is no evidence appellant could see him from where he was or that Renzi ever left that position prior to the time appellant was placed in the back of the patrol car. (Compare People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034 [detention found where the defendant was surrounded by four heavily-armed police officers].) We don’t consider his standing by the car door significantly different from remaining seated in the car. Therefore, the detention issue primarily turns on appellant’s interaction with Simpson.

The record shows Simpson exited his car as appellant was walking away from his. Simpson did not order appellant to stop. Instead he asked appellant if he would be willing to speak with him, and when appellant said yes, the two of them met at the front of the squad car. (Compare People v. Roth (1990) 219 Cal.App.3d 211, 215 [detention found where officer commanded the defendant to come to him].) At the suppression hearing, Simpson testified he could not recall exactly how it was that he and appellant ended up meeting there. However, Simpson said his usual custom and practice in that situation is to ask the person if he or she would mind speaking to him at the front of his car, where the lighting is good. Therefore, in the absence of contrary evidence, we may presume appellant voluntarily met Simpson at that location. (See generally People v. Woods (1999) 21 Cal.4th 668, 673 [in reviewing a suppression motion, an appellate court views the facts in the light most favorable to the trial court’s ruling].)

It also appears that the overall tone of the encounter was civil in nature; there is no evidence Simpson raised his voice, displayed his weapon or threatened appellant in any manner. In addition, the questions he posed to appellant were not accusatory in nature. They seem reasonably designed to help Simpson figure out why appellant was abandoning his car in a dark alley at 3:30 in the morning. (Compare People v. Garry, supra, 156 Cal.App.4th at p. 1111 [detention found where police officer rapidly approached the defendant and questioned him about his legal status in an intimidating fashion].) As we have noted, the police do not implicate the Fourth Amendment merely by approaching a person and asking him a few questions, even if the questions are “potentially incriminating.” (Florida v. Bostick, supra, 501 U.S. at p. 439.)

Nevertheless, appellant argues that, as a matter of law, he was detained when Simpson patted him down. In so arguing, appellant relies on Frank V., supra, 233 Cal.App.3d 1232, but in that case, the patdown was conducted without the defendant’s consent. (Id. at p. 1237.) While we agree with the Frank V. court that an unconsented-to patdown generally constitutes a detention (id. at p. 1240, fn. 3), that case is inapt because the patdown here was consensual. Because “[appellant] consented to the patdown and never withdrew consent . . . [his] liberty and freedom of movement were not restricted by any show of authority or physical restraint during the patdown; rather, [his] liberty and movement were restricted because he consented to a restriction.” (State v. Kinkade (Ore.App. 2012) 270 P.3d 371, 374.) Under these circumstances, the patdown did not transform the encounter into a detention. (Id. at pp. 374-375; see also People v. Bennett (1998) 68 Cal.App.4th 396, 402 [defendant not detained when placed in back of police car because he consented to being seated there].) The same analysis applies to the removal of the belongings from appellant’s pockets, which like the patdown itself, appellant freely consented to.

That brings us to what is perhaps the thorniest factor in the case – appellant’s relinquishment of the shaved-down key he had in his possession when he approached Deputy Simpson. For the reasons explained above, the mere act of surrendering the key is not problematic from a Fourth Amendment perspective because appellant voluntarily agreed to do so. But, as a practical matter, once a suspect turns over an item of personal property to the police it usually makes it harder for them to end the encounter by walking away, especially if they need the item to go about their daily business. In recognition of this, courts tend to view a suspect’s relinquishment of important personal items, such as a driver’s license or a green card, as a factor that indicates a detention has occurred. (See, e.g., People v. Linn (2015) 241 Cal.App.4th 46, 65 [defendant detained when officer retained her driver’s license to run a records check, “as defendant’s walking away without it would have limited her ability to function”], citing United States v. Chavez–Villarreal (5th Cir. 1993) 3 F.3d 124, 128 [defendant detained when border agent retained his alien registration card because the card was vital to defendant’s legal presence in this country].)

But here the police did not take possession of the property in question. Instead, Deputy Simpson just had appellant place the key on the hood of his squad car. This situation was less intrusive than one in which the police acquire and then hold a suspect’s property. (Compare United States v. Chan-Jimenez (9th Cir. 1997) 125 F.3d 1324, 1326 [motorist detained where the police retained possession of his driver’s license and registration papers] with People v. Daugherty (1996) 50 Cal.App.4th 275, 285 [suspect not detained where following consensual search of her airline ticket and carry-on bag the police relinquished control of those items].)

Based on all the circumstances presented, we simply cannot say appellant was detained for purposes of the Fourth Amendment before reasonable suspicion developed by virtue of his responses to Deputy Simpson’s questions. Therefore, the trial court rightly denied appellant’s motion to suppress the evidence that was discovered during the encounter.[1]

DISPOSITION

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.