P. v. Roden

Filed 10/12/06 P. v. Roden CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Joshua Roden pleaded no contest to possession of a firearm by a felon, and admitted a violation of probation in a second case, in exchange for three years of formal probation and 180 days confinement in county jail.

On appeal, defendant contends the court erred in denying his motion to suppress the evidence forming the basis of the charges against him. We affirm the judgment.

Facts and Proceedings

At approximately 2:45 a.m., Redding Police Officers Ryan Ham and Brian Berg were on patrol in the residential area of Lawrence Road and LeBrun Lane, a location notorious for drug activity and crime. Ham noticed a Ford Explorer parked on the opposite side of the street with two men, one of them the defendant, sitting inside and a plume of smoke coming from the driver’s side window.

Berg parked the marked patrol car across the street and approximately 60 to 75 feet south of defendant’s truck. Neither the siren nor the overhead red and blue lights were activated on the patrol car; however, the spotlight was turned on and directed at the Explorer. Ham walked over to talk with the driver, with Berg following about 10 feet behind. Both officers were in uniform, but neither one had his gun drawn.

Speaking in a calm tone, Ham engaged the defendant in a cordial conversation, asking him how he was and what he was doing in the area. According to Ham, defendant gave no explanation for being there. Ham asked defendant if he would consent to a search of his person, and defendant replied, “Yeah, sure.” Although Ham later noted in his report that the request for consent was made after he asked the defendant to step out of the truck, Ham testified that it was more likely that he followed his usual procedure and asked for consent prior to asking the defendant to exit the truck. Berg confirmed that he heard Ham make the request while the defendant was still in the truck.

During Ham’s conversation with the defendant, Officer Duval arrived in a second marked police unit. Duval, also in uniform, approached the passenger side of the truck and asked the passenger to step out.

Both men got out of the Explorer. While Duval searched the passenger, Ham conducted a pat-down search of defendant, finding nothing. According to Ham, defendant was free to leave at that time because “[i]t was a consent search” and he had “no grounds to . . . hold him there.” Berg also testified that the defendant was free to leave.

Ham asked defendant if there was anything illegal in the truck. Defendant replied, “No.” When Ham asked, “Do you mind if we search the vehicle,” defendant consented. While Berg searched the truck, defendant stood next to Ham. Neither defendant nor the passenger were in handcuffs or under arrest.

The search of defendant’s vehicle turned up a handgun with a mutilated serial number, and some ammunition. Defendant was arrested and charged with possession of a firearm by a felon (count 1), illegal possession of ammunition (count 2), obliterating the identification of a firearm (count 3), and possession of a concealed firearm in a vehicle by a felon (count 4). He pleaded not guilty to all charges.

Defendant moved to suppress the evidence obtained as a result of the search on the grounds that it was the product of an illegal detention. The trial court denied the motion, finding first that the officers requested defendant’s consent to search his person before asking him to step out of the car, and further finding that, “if there’s a parked vehicle in a residential neighborhood at three o’clock in the morning with two people sitting there,” the officers would be remiss to “at least walk up to it and find out, you know, what is going on.” The court added, “The people decide [to] start up their car and drive off, that’s their right. If the officer then stops then, well, then we have got a different situation. So it’s hard for me to imagine that there was anything wrong. In fact it might have been wrong had they just driven by and smiled and later there had been a burglary in the area. So definitely reasonable for them to approach.” The court also noted that, although “it’s a close case,” the search was consensual given that the defendant could simply have denied Ham’s request to search.

Defendant entered a plea of no contest to count 1 and admitted he violated probation in a separate pending case in exchange for a 180-day sentencing “lid” as to both cases. The court sentenced defendant accordingly, placing him on three years formal probation and imposing 90 days confinement in county jail as to each case to run consecutive, for a total of 180 days in jail, minus the appropriate presentence credits.

Defendant filed a timely notice of appeal.

Discussion

Defendant contends that Ham and Berg “lacked an objectively reasonable suspicion that a crime occurred or was occurring” when they stopped to check out the situation. Defendant urges that, as a result of the officers’ actions, he was illegally detained and the firearms and ammunition found during the subsequent search of his truck must be suppressed.

The People argue that the contact between the officers and defendant was a consensual encounter that did not constitute a detention. We agree.

I

Standard of Review

In reviewing rulings on a motion to suppress, we view the evidence in the light most favorable to the trial court’s ruling. (People v. Woods (1999) 21 Cal.4th 668, 673.) We defer to the court’s factual findings if they are supported by substantial evidence. (Ibid.) We then select the applicable rules of law and apply those rules to the factual findings de novo. (People v. Williams (1988) 45 Cal.3d 1268, 1301.)

II

Facts and Circumstances Constituting a Detention

A detention “involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’” (People v. Bailey (1985) 176 Cal.App.3d 402, 405.)

“‘”Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” [Citation.] “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” [Citation.] A person has been “seized” within the meaning of the Fourth Amendment when, in view of all of the surrounding circumstances, a reasonable person would have believed that he was not free to leave.’” (People v. Perez (1989) 211 Cal.App.3d 1492, 1495, citing People v. Wilkins (1986) 186 Cal.App.3d 804, 808-809.)

“Where a consensual encounter has been found, police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.” (People v. Franklin (1987) 192 Cal.App.3d 935, 941.)

Defendant argues that a detention occurred when Ham and Berg “parked their patrol car; pointed their spotlight on the Explorer; exited the patrol car; and approached the Explorer to speak with [defendant] and his passenger” and that, as a result of those actions, a reasonable person in defendant’s position would not have felt free to leave. We disagree.

The act of spotlighting defendant’s truck, in and of itself, is not sufficient to constitute a show of authority such that a reasonable person would not feel free to leave. “While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention.” (People v. Perez (1989) 211 Cal.App.3d 1492, 1496; see also People v. Rico (1979) 97 Cal.App.3d 124, 130; People v. Franklin, supra, 192 Cal.App.3d at p. 940.) The next question, then, is whether the other acts, such as the positioning of the patrol car and the fact that the officers approached the Explorer, constituted additional overt action sufficient to convince a reasonable man he was not free to leave. We think not.

According to both Ham and Berg, the patrol car bearing the markings of a police unit was parked across the street and approximately 60 to 75 feet away from the Explorer. No attempt was made to box defendant in with the patrol car or otherwise prevent him from leaving in his vehicle. The distance between the patrol unit and the Explorer alone dispels the notion of a detention. Additionally, the siren was off, and the overhead red and blue lights were not activated. We find no evidence of a detention related to the patrol unit.

We are similarly not persuaded that the conduct of the officers in approaching the vehicle, speaking with the defendant and asking for consent to search his person and his vehicle constituted a detention. Although both Ham and Berg were dressed in police uniform, it does not appear that they approached the Explorer in a manner that suggested an overt exercise of police authority. Both officers testified that they walked over to the defendant’s vehicle, neither reaching for nor drawing their weapons. When Ham spoke to the defendant, he did so in a cordial manner, using a calm tone and asking questions as opposed to issuing commands. They requested, rather than demanded, that defendant give his consent to be searched. Defendant consented. Ham asked if he could search the truck and, again, defendant voluntarily gave his consent.

In short, a reasonable person in defendant’s position would have believed he was free to leave. Neither the patrol car nor the officers prohibited defendant from physically leaving, either on foot or in the Explorer. Nothing about the patrol unit suggested that defendant was being detained. Ham and Berg never issued any commands; they simply approached the truck and talked to the defendant. He was asked if he could be searched and he said, “Yeah, sure.” He got out of the vehicle to be searched, but was not handcuffed or arrested. He was then asked if his truck could be searched and he again consented. All of these facts together lead us to the conclusion that no detention occurred.

Because we find no detention, and that the search of both defendant’s person and his vehicle were consensual, we need not address the issue of whether there was reasonable articulable suspicion to support a detention.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

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