P. v. Steinwand

Filed 11/18/08 P. v. Steinwand CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown and Douglas M. Elwell, Judges. Affirmed.

Warren P. Robinson, 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, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

The San Bernardino County District Attorney filed an information charging defendant and appellant Craig Alan Steinwand with possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. The information further alleged that defendant had three prior convictions for possession of a controlled substance for sale within the meaning of Health and Safety Code section 11370.2, subdivision (b), and that he served three prior prison terms, within the meaning of Penal Code section 667.4, subdivision (b).

After the trial court denied defendants motion to suppress evidence under Penal Code section 1538.5, defendant pleaded no contest to possession of methamphetamine for sale and admitted that he suffered one prior conviction for the same offense. The trial court sentenced defendant to five years in prison and dismissed the remaining allegations.

On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence. For the reasons set forth below, we shall affirm the judgment.

I

STATEMENT OF FACTS^[1]

On November 29, 2005, Upland Police Department Officer Imran Ahmed was dispatched to 512 North Eighth Avenue in Upland to conduct a safety check on the driver and passenger in a brown Acura, who had been reported to be fighting. After arriving at the house, Officer Ahmed found the car parked in the alley near the residence. Defendant was sleeping in the car.

Officer Ahmed contacted defendant and told defendant that the officer was investigating a possible battery. Defendant responded by telling the officer that he was on parole. Thereafter, the officer asked defendant for consent to search his person and car; defendant consented to both searches. In the car, Officer Ahmed found a nylon bag in the passenger seat with two plastic containers, each containing 113 grams of methamphetamine.

II

DISCUSSION

A. The Trial Court Properly Denied Defendants Motion to Suppress.

Defendant contends that the trial court erred in denying his motion to suppress evidence under Penal Code section 1538.5. We disagree.

At the hearing on defendants motion to suppress, Officer Ahmed was the sole witness. Officer Ahmed testified that on the date of the incident, he was a new officer and on patrol with both a partner and a field training officer. About 6:00 p.m., he received a call from the San Bernardino County Sheriffs Department. Dispatch indicated that a female had flagged down a deputy and reported she saw a white, balding male hitting a female in the area of Foothill and Vineyard, and that the male was driving a brown Acura. Dispatch also informed Officer Ahmed that the Acura was registered to defendant at 512 North Eighth Avenue.

Officer Ahmed drove to the residence. Two houses were located at the address; one house was in front of the other. At the first house, Officer Ahmed contacted Steve Swenson. Swenson told the officer that defendant and the car should be in the alley east of the house.

Officer Ahmed went to the alley and found the car parked; defendant was asleep inside the car. Officer Ahmed and his training officer contacted defendant while his partner remained toward the rear of defendants car. None of the officers drew their weapons. Officer Ahmed knocked on defendants window and woke him up. Defendant then opened the door to the car. Officer Ahmed asked defendant for his drivers license and told defendant that he was there to investigate a possible battery involving defendant, which was alleged to have taken place in defendants car. Defendant handed the officer his drivers license and responded that he had been in the area of Foothill and Vineyard, had been involved in a road rage incidence, had not been involved in any verbal or physical confrontation, and had no passenger that evening. Defendant then informed Officer Ahmed that he was on parole. Officer Ahmed then asked defendant for consent to search his person and car; defendant consented.

Inside the car on the front passenger seat, Officer Ahmed found a nylon bag with two plastic containers, each filled with 113 grams of methamphetamine. The officers arrested defendant. After the arrest, it was discovered that defendant had been discharged from parole.

At the hearing on the motion to suppress, defense counsel argued that the motion should be granted because there had never been a consensual encounter; hence, the prosecution had to show reasonable suspicion of the polices detention of defendant. Citing the Harvey-Madden rule (People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017), defense counsel argued that there had not been a showing of reasonable suspicion to justify the detention of defendant because nothing indicated the report received by the San Bernardino County Sheriffs Department was reliable. Defense counsel then argued that even if the detention was lawful, the search exceeded the scope of defendants consent.

In response, the prosecution argued that the initial encounter between defendant and the police was consensual, and that the officers were entitled to rely on defendants erroneous statement that he was on parole. Next, the prosecutor argued that if defendant were detained, police had reasonable suspicion to detain him, and once detained, defendant consented to the searches.

After hearing the evidence and argument of counsel, the trial court held that when the officers knocked on defendants car window, asked a couple of questions, and asked for defendants drivers license, the encounter was consensual and defendant could have refused to cooperate. The court also held that once defendant told Officer Ahmed he was on parole, it was reasonable for the officer to rely on that information and to conduct a parole search. Additionally, the court found that defendant consented to the search of his car, which included the search of any containers . . . contained in the vehicle. Therefore, the trial court denied defendants motion to suppress evidence.

B. Standard of Review

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the courts resolution of the factual inquiry under the deferential substantial evidence standard. 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. (People v. Ramos (2004) 34 Cal.4th 494, 505.) [W]e view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 969.)

C. The Trial Court Properly Denied the Motion

As will be discussed post, the trial court properly denied defendants motion to suppress evidence because the initial encounter was consensual, and during the consensual encounter, defendant informed Officer Ahmed that defendant was on parole.

1. Initial encounter

Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] (In re Manuel G. (1997)16 Cal.4th 805, 821.)

Our present inquiry concerns the distinction between consensual encounters and detentions.

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. [Citation.] [] 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 individuals 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. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officers display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officers request might be compelled. [Citations.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.] (In re Manuel G., supra,16 Cal.4th at p. 821; see also United States v. Mendenhall (1980) 446 U.S. 544, 554.) In the absence of some evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. (United States v. Mendenhall, at p. 555.)

Applying the foregoing principles, we conclude there was no evidence the contact was anything other than a consensual encounter. The evidence established that Officer Ahmed went to defendants house to conduct a safety check. In doing so, Officer Ahmed spoke with another resident who informed the officer that defendant and his car could be found in the alley east of the house. Officer Ahmed then went to the alley and found defendant alone and asleep inside the car. Officer Ahmed then knocked on the drivers side window in order to contact and question defendant. After hearing the officers knock, defendant voluntarily opened the drivers side window, listened to the officer, responded to the questions posed by the officer, and provided identification in response to the officers request. Thereafter, defendant informed the officer that he was on parole and consented to a search of his person and car.

From the evidence, the trial court properly concluded that Officer Ahmeds contact with defendant was consensual because a reasonable person would have felt free to leave, or otherwise terminate the encounter. Notwithstanding, defendant argues that the encounter was not consensual because defendant had been asleep, and he did not consent to being awakened by Officer Ahmed. This argument is nonsensical. Here, when the officer saw that defendant was sleeping, the officer knocked on the window to initiate an encounter. Officer Ahmed did what any person could do lawfully to wake up a sleeping person in a car. After hearing the officers knock, defendant could have ignored the officer and refused to respond. Instead, defendant voluntarily opened the door to his car and conversed with Officer Ahmed. The evidence showed that (1) there was no restraint on defendant; (2) no display of weapons by the officers; (3) no touching of defendant; and (4) no intimidating language or gestures used by the officers, in order to gain defendants cooperation. Instead, the evidence established that the encounter was consensual.

2. Detention

Assuming arguendo that the encounter between defendant and the officers amounted to a detention, the detention was reasonable.

For this analysis, we must first determine whether the officers had a reasonable suspicion that defendant was involved in criminal activity, sufficient to support the detention. (See People v. Harris (1975) 15 Cal.3d 384; People v. Gatch (1976) 56 Cal.App.3d 505, 508-509.) A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233 (Souza); In re Tony C. (1978) 21 Cal.3d 888, 893-894 (Tony C.), superseded by statute on another ground as stated in People v. Lloyd (1992)4 Cal.App.4th 724, 733; United States v. Arvizu (2002) 534 U.S. 266, 274-276; United States v. Sokolow (1989) 490 U.S. 1, 7-8.)

It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation. (Tony C., supra, 21 Cal.3d at p. 892, citing Terry v. Ohio (1968) 392 U.S. 1, 22.) However, the police are not free to detain citizens at will. In order to justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific or articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience . . . to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch, is unlawful, even though the officer may be acting in complete good faith. [Citation.] (In re James D. (1987) 43 Cal.3d 903, 919-920, quoting Tony C., at p. 893; see also People v. Renteria (1992) 2 Cal.App.4th 440, 443; Souza, supra, 9 Cal.4th at p. 231 [detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity].)

Here, the officers actions were reasonable and the totality of the circumstances warranted the officers detention of defendant. Officer Ahmed received information from the San Bernardino County Sheriffs Department dispatcher that a female had flagged down a deputy and reported that she saw a white, balding male hitting a female in the area of Foothill and Vineyard, and that the male was driving a brown Acura. Dispatch also informed Officer Ahmed that the car was registered to defendant at 512 North Eighth Avenue. After arriving at the address, the officer was directed to an alley where defendant and his car could be found. Officer Ahmed went to the alley and found the brown Acura and defendant, who matched the description given. At that point, Officer Ahmed had reasonable suspicion that defendant may have been involved in criminal activity since he was in the car that had been reported to be involved in the battery, and defendant matched the description of the male suspect. Therefore, assuming arguendo that the officer encounter with defendant was not consensual, the detention is supported by reasonable suspicion.

3. Harvey-Madden rule

Next, defendant argues that the motion should have been granted because the prosecution failed to establish that defendant was detained pursuant to the Harvey-Madden rule because the female informant, reporting officer, or dispatcher failed to testify.

Under the Harvey-Madden rule, when law enforcement officers rely solely on information obtained from another police officer as the basis for a search or arrest, the prosecutor must establish the source, or reliability, of the other officers information. (Remers v. Superior Court (1970) 2 Cal.3d 659, 667.) To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. (Id. at pp. 666-667.)

[T]he dispatcher or the person providing the probable cause need not testify if other evidence is presented circumstantially proving that the police did not make up the information. (People v. Johnson (1987) 189 Cal.App.3d 1315, 1320 (Johnson).) Thus, in People v. Orozco (1981) 114 Cal.App.3d 435, where an anonymous caller reported that people were shooting out of a car, the [P]eople never proved that such a call was made but they did prove that there were cartridges within four to five feet of the passenger door to the car when the police looked for them. (Id. at p. 444.) The court rejected the defendants Harvey-Madden challenge to the detention and subsequent search because [t]he presence of the cartridges certainly supports a very strong inference that the police did not make up the information from the informant. (Id. at pp. 444-445.) And in Johnson, although the People did not offer testimony from the police dispatcher who had informed officers in the field of a possible burglary in progress, the court held police had probable cause to detain and arrest the defendants because [t]he officers observations corroborated the broadcast information in that (1) the defendants were Black males of approximately the same age of and dressed nearly identically to the suspects described in the radio broadcast; and (2) they were observed standing in the park, 10 yards from the rear fence of the burglarized home . . . and in the immediate vicinity of the area where the officers were directed by the dispatcher. (Johnson, at p. 1320.)

The Harvey-Madden rule is inapplicable to the facts of this case because defendants detention was not based solely on information provided by the sheriff departments dispatch. When Officer Ahmed arrived at defendants house, he found both defendant and his car, which matched the description given by the informant. Also, defendants statement to the officer, that he was in the vicinity of Foothill and Vineyard earlier that daythe location reported by the informant to the policecorroborated the information provided by dispatch. Further, nothing in the record supports an inference that the officer manufactured the call from dispatch, and there was no evidence offered to show that the source of information came from police channels rather than a citizen informant. As in Johnson and Orozco, police observations at the scene constituted strong circumstantial proof that the sheriffs department did not make up the information broadcast to the officers in the field. Therefore, the prosecutions failure to have the dispatcher testify was harmless. (People v. Orozco, supra, 114 Cal.App.3d at p. 444.)

4. Search of defendants car

Defendant argues that, if we concluded that the initial encounter was consensual or defendants detention was lawful, the motion should still have been granted because defendants consent to search did not extend to the search of the nylon bag. We disagree.

a. Parole status

All California parolees are subject to a parole search condition that permits any law enforcement officer to search him, his residence, and any property under his control. (People v. Reyes (1998) 19 Cal.4th 743, 746.) In Samson v. California (2006) 547 U.S. 843, the United States Supreme Court held that a suspicionless search of a parolee is lawful and does not violate the Fourth Amendment, so long as the officer conducting the search is aware of the parolees status. (Id. at p. 857.)

In this case, Officer Ahmed testified that when he contacted defendant, defendant voluntarily informed the officer that defendant was on parole. Once Officer Ahmed learned of defendants parolee status, it was lawful for the officer not only to search defendants person, but all property under defendants control, including his car and the containers contained therein. (Samson v. California, supra, 547 U.S. at p. 857; People v. Reyes, supra, 19 Cal.4th at p. 746.)

Notwithstanding, defendant argues that the search was unlawful because the prosecution failed to establish that defendants mistaken statement as to his parole status was not a result of government action. Defendant argues that, if his belief that he was on parole was a result of the governments failure to inform him that he was discharged, Officer Ahmed should not have been entitled to rely on defendants statement. Defendants argument is without merit.

In In re Jeremy G. (1998) 65 Cal.App.4th 553, the court concluded that evidence, obtained by an officer who conducted a search after being told by a minor that the minor was subject to a search term, was admissible. The court held that it was immaterial that the minor was wrong, and that the minor was not subject to a search term. The question here is not whether the minor had a searchable condition attached to his release; rather the question is whether [the officer] was reasonable in relying on the minors statement that he had such a condition. (Id. at p. 556.) The court concluded that police could reasonably believe the minor was aware of his legal circumstances and would not make a statement against his interest unless it was true. (Ibid.) Here, too, it was reasonable for Officer Ahmed to rely on defendants statement that he was on parole.

To the extent defendant argues that the government may have engaged in misconduct resulting in defendants misunderstanding that he was still on parole, defendant has forfeited that argument by failing to raise it in the court below. (People v. Fulcher (2006) 136 Cal.App.4th 41, 53-54; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.)

b. Defendants consent

Assuming arguendo that the search was not a valid parole search, defendant argues that the search of his car was also unlawful because the scope of his consent was exceeded when Officer Ahmed searched inside defendants nylon bag.

A search conducted pursuant to a valid consent may violate the Fourth Amendment if it exceeds the scope of consent. (People v. Jenkins, supra, 22 Cal.4th at p. 974.) Whether a search conducted under a valid consent violated the Fourth Amendment by exceeding the scope of the consent is usually defined by the expressed object of the search based on what reasonably would have been understood by the exchange between the officer and the person giving consent. (Ibid.) In People v. Jenkins, the court noted open-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way. (Id. at p. 975.) Further,   [f]ailure to object to the continuation of a vehicle search after giving general consent to search is properly considered as an indication that the search was within the scope of the initial consent.   [Citations.] (People v. Bell (1996) 43 Cal.App.4th 754, 771-772.) Whether a search exceeds the boundaries of consent is a question of fact determined by the totality of circumstances. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)

Here, the record shows that defendant gave Officer Ahmed consent to search the entire vehicle without limitation. After Officer Ahmed asked for defendants consent to search the car, defendant stated, sure. Defendant gave an open-ended consent to search, thus, the officer properly searched the entire vehicle, including the nylon bag. Moreover, there is no evidence that defendant objected to the officers search. Furthermore, there is no evidence that Officer Ahmed limited his search to evidence of the battery; instead, the evidence showed that the officer asked for consent to search the car, without limitation.

In conclusion, based on the above, we find that the trial court properly denied defendants motion to suppress evidence.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P. J.

MILLER

J.

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^[1] The statement of facts is taken from the evidence presented at the hearing on the motion to suppress evidence because defendant pled guilty before trial.