P. v. Doucette

Filed 1/21/10 P. v. Doucette 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Thomas M. Goethals, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Jon Michael Doucette appeals from his conviction following the trial courts denial of his motion to suppress evidence pursuant to California Penal Code section 1538.5. Defendant argues that his initial detention was unlawful and therefore the subsequent search should have been suppressed by the trial court. We conclude that the evidence does not support a detention but a consensual encounter which requires no objective justification, and the subsequent search was permissible by virtue of defendants consent and his parole status. Thus, we find no error and affirm.

I

FACTS

At around 6:00 a.m. on February 3, 2009, Cypress Police Officer Rebecca Mondon answered a call reporting a suspicious person loitering around a gas station on Valley View. The person was described as wearing a brown sweater and dark pants. It was still dark outside, and it was raining.

When Mondon arrived at the gas station and spoke to the clerk, she was informed that the suspicious person was no longer there, but had been seen walking north on Valley View approximately two minutes earlier. Mondon notified dispatch and her backup officer, and proceeded north on Valley View to look for the individual. There was no one else about.

Mondon spotted defendant, the only person out, who was wearing a plaid coat over a black shirt and grey tank top, and tan pants. Mondon and her partner approached defendant on foot, speaking to him when they were approximately five feet away. Their vehicles remained behind in the street, about 10 feet away. Neither officer turned on their overhead lights, but Mondon did turn on her side alley light.

Mondons partner asked if they could speak with him, and defendant answered yes. Defendant looked around a lot, and Mondons first thought was that he might try to run. Defendant did not seem to fear the police, but it seemed to Mondon that he was not sure why they were stopping him, and he just wanted to get away.

Defendant was then asked if he was on probation or parole, and when he said that he was, the officer asked if he could search defendant. Defendant again answered yes. The search revealed a small plastic bag with a white crystalline substance inside defendants front pocket, as well as a clear glass pipe with a bulbous end in another pocket. Mondon recognized it as a pipe commonly used to smoke methamphetamine. The entire encounter, from the time Mondon left her vehicle to the time defendant revealed his parole status and consented to a search, lasted approximately 10 to 30 seconds.

In an amended information, defendant was charged with possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) (count one), and possession of drug paraphernalia, in violation of Health and Safety Code section 11364 (count two). The information further alleged that defendant had a prior conviction. Defendant filed a motion to suppress pursuant to Penal Code section 1538.5, subdivision (i).

The court heard the motion and concluded that the encounter between defendant and the police was consensual. The court noted: I think this was a consensual encounter. They walk up, as police officers have a right to do, and talk to [defendant] and say Can we talk to you? And within a very, very, very brief period of time, his status as a parolee comes out. And once that happens, I think school is out.

Following the courts ruling, defendant pled guilty to counts one and two, and the prior allegation was dismissed. Defendant was sentenced to the low term of 16 months on count one, and the sentence on count two was suspended. Defendant now appeals.

II

DISCUSSION

An appellate courts review of a ruling on such a motion is governed by well-settled principles: We defer to the trial courts findings of fact that are supported by substantial evidence, but in all other respects the courts ruling is subject to independent review. [Citation.] (People v. Britton (2001) 91 Cal.App.4th 1112, 1118.)

Defendants key argument is that the initial police encounter with him amounted to a detention, which could not be justified by the required reasonable suspicion. Therefore, the subsequent search was also illegal and its fruits should have been suppressed. Respondent, however, argues the encounter was consensual.

To determine whether the Fourth Amendment is implicated, we do not look to the defendants experience or the officers subjective intent, but instead focus on the response of a reasonable person. (Michigan v. Chesternut (1988) 486 U.S. 567, 574.) [A] person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554, fn. omitted.) Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officers request might be compelled. (Ibid.) By contrast, a consensual encounter results in no restraint on an individuals liberty, and therefore, no seizure within the meaning of the Fourth Amendment. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)

Defendant relies on People v. Garry (2007) 156 Cal.App.4th 1100 (Garry), for the proposition that no reasonable person in his position would have felt free to leave. In Garry, an officer patrolling late at night in a high-crime, high-drug area where street sales often occurred and police had been assaulted, observed Garry standing on a corner. (Id. at pp. 1103-1104.) The officer turned the patrol cars spotlight directly on Garry, exited his car, and walked briskly towards him, covering about 35 feet in two and a half to three seconds, while asking Garry to confirm his parole status and disregarding his assertion that he was merely standing outside his home. (Id. at p. 1104.) After learning that Garry was on parole, the officer decided to detain him and, after Garry resisted detention, the officer arrested him and searched him, finding certain illegal substances. (Ibid.)

The court concluded that an unlawful detention had occurred because the officers actions, taken as a whole, would be very intimidating to any reasonable person and that only one conclusion is possible from this undisputed evidence: that [the officers] actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was not free to decline [his] requests or otherwise terminate the encounter. (Garry, supra, 156 Cal.App.4th at pp. 1111-1112.)

Based on the totality of the circumstances, we find that Garry is distinguishable from the instant case. In Garry, the officer approached Garry in a brisk manner, covering 35 feet in three seconds, while inquiring about Garrys legal status. (Garry, supra, 156 Cal.App.4th at p. 1104.) He did not ask Garry if he could speak to him, and his demeanor was intimidating. Here, the two officers approached in a far more casual manner, and while defendant looked as if he did not want to be there, he answered yes when asked if the officers could talk with him. Further, he did not back away as Garry did.

While the facts seem similar, the tone of the two encounters is entirely different. 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.) While the manner and mode in Garry was very intimidating to any reasonable person, (Garry, supra, 156 Cal.App.4th at pp. 1111) the evidence demonstrates that the officers conduct in this case was different, far more casual and not likely to lead a reasonable person to conclude that compliance was compulsory.

Further, nothing else the officers did gave the impression that defendant was not free to leave. Defendant was not touched, the officers did not brandish their weapons or stand overly close to defendant, and there is no evidence that either their demeanor or tone of voice indicated compulsion. (United States v. Mendenhall, supra, 446 U.S. at p. 554.)

We therefore conclude the encounter was consensual, and as such, no showing of reasonable suspicion was required. [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.] (Florida v. Royer (1983) 460 U.S. 491, 497.)

If there is no detention no seizure within the meaning of the Fourth Amendment then no constitutional rights have been infringed. (Florida v. Royer, supra, 460 U.S. at p. 498.) Because the subsequent search was justifiable based either on defendants consent or his parole status, the search was also permissible. Thus, we find the trial court did not err by denying defendants motion to suppress.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

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