P. v. Lira



















Filed 1/10/13 P. v. Lira
CA2/6









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
SIX




>

THE PEOPLE, Plaintiff and Appellant, v. ERNEST LIRA, Defendant and Respondent.

2d Crim. No. B238745 (Super. Ct. No. BA388935) (Los Angeles County)

A
Sheriff's deputy saw the respondent, Ernest Lira, carrying a "bright
colored" women's purse. Lira also had
a knapsack on his back. The href="http://www.fearnotlaw.com/">trial court opined that "a man with
a purse is not unusual in Los
Angeles." Perhaps.
But, when the contents of the purse are poured into the knapsack and the
purse discarded, the interest of an observant Sheriff's deputy is properly and
lawfully aroused. As we shall explain,
the initial contact between the deputy and Lira was a "consensual
encounter," not a detention, and the facts presented here "permit --
even demand -- an investigation: the
public rightfully expects a police officer to inquire into such circumstances
'in the proper discharge of the officer's duties.' [Citation.]" (In re
Tony C. (1978) 21 Cal.3d 888, 894, superseded by statute on another issue.)

Lira
was charged with receiving stolen property
(Pen. Code, § 496, subd. (a)),href="#_ftn1"
name="_ftnref1" title="">[1]
with an alleged prior "strike" conviction (§§ 1170.12, subds.
(a)-(d), 667), and prior prison term (§ 667.5, subd. (b)). The trial court granted Lira's motion to
suppress evidence (§ 1538.5) and dismissed the case (§ 1385, subd. (a)). The People appeal. (§ 1238, subd. (a)(7).) We reverse.

FACTUAL AND
PROCEDURAL BACKGROUND

Los
Angeles County Sheriff's Deputy Guadalupe Rivas was driving by Union Station in
Downtown Los Angeles one morning. Alone
in his marked patrol car, Rivas saw Lira standing on the sidewalk holding a
bright-colored women's purse. Rivas saw
Lira pour the contents of the purse into a backpack he had removed from his
shoulder, throw the purse to the ground, close the backpack and return it to
his shoulder. Rivas immediately
approached Lira to determine if the transferred property belonged to him. Rivas did not intend to cite Lira.

On
contacting Lira, Rivas "asked him what he was up to, what was going
on." Lira "stated that he had
been walking by and saw a purse on the floor, said he decided to pick it up and
noticed it was empty. So he threw it
back on the floor . . . ."
Rivas then asked Lira "if he had any ID on his person." Lira said it "probably" was in his
backpack. Rivas asked Lira if he
"could take the backpack," and Lira handed it to him. While Lira stood in front of the vehicle, the
deputy placed the backpack on the hood of the vehicle and opened it. Inside the backpack, the deputy "found
numerous miscellaneous items" which he checked for Lira's
identification. After finding an
organizer or billfold containing a woman's identification, Rivas placed Lira
under arrest.

The
trial court granted Lira's motion to
suppress evidence under section 1538.5href="#_ftn2" name="_ftnref2" title="">[2]
and dismissed the charges. The court
explained: "In my view, Deputy
Rivas did not have quite enough to detain the defendant. A man with a purse is not unusual in Los Angeles. The deputy knew nothing about the defendant,
and he knew nothing about whose purse it was or whose contents were in the
purse. . . . In short, all the deputy
had was a bit of a hunch coupled with the circumstance of a man with a purse
emptying its unknown contents into his large carryall." The trial court elaborated: "Had the deputy had a report of [a]
recent . . . purse-snatching in the vicinity, that might have been enough. Ditto, a recent lost purse. Had the deputy had information about the defendant
that he was on parole or probation for receiving stolen property or
misappropriating lost property, that might have been enough. If he knew something about the contents, that
might have been enough. But,
unfortunately, he did not have any of that."

DISCUSSION

On
appeal, the People contend the trial court erred in granting the motion to
suppress because (1) Deputy Rivas's initial contact with Lira was a consensual
encounter, (2) even if the contact was a detention, it was lawful and (3)
Lira consented to the search of the backpack.
We agree.

On
review of the trial court's denial or grant of a suppression motion, we defer
to the trial court's factual findings if supported by substantial evidence, but
exercise our independent judgment to determine whether, on the facts found, the
search or seizure was reasonable under the Fourth
Amendment. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Glaser (1995) 11 Cal.4th 354, 362.)

The
Fourth Amendment proscribes "'. . . unreasonable searches and
seizures . . . .'" (>United States. v. Mendenhall (1980) 446
U.S. 544, 550, 554-555 (Mendenhall).) A consensual encounter with a police officer
is neither "unreasonable" nor a "seizure." (Id. at
pp. 554-555.) A consensual encounter occurs, for example,
when an officer approaches a person in public and asks how he or she is doing,
or questions a person at a crime scene in a nonaccusatory and routine manner to
determine whether he or she may have information about the crime. (People
v. Mendoza (2011) 52 Cal.4th 1056,
1081.) "Unlike a consensual
encounter, a detention is a seizure within the meaning of the Fourth Amendment
of the United States Constitution; a seizure occurs when an officer restrains a
person's liberty by force or show of authority.
[Citation.]" (>Ibid.)

"'Although
there is no "bright-line" distinction between a consensual encounter
and a detention . . . "the police can be said to have seized an individual
'only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.'"' [Citations.] '"The test is necessarily imprecise,
because it is designed to assess the coercive effect of police conduct, taken
as a whole, rather than to focus on particular details of that conduct in
isolation."' [Citation.]" (>Ford v. Superior Court (2001) 91
Cal.App.4th 112, 124.)
"Circumstances establishing a seizure might include any of the
following: the presence of several
officers, an officer's 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 officer's request might be compelled.
[Citations.]" (>In re Manuel G. (1997) 16 Cal.4th 805,
821.) "In the absence of some such
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." (Mendenhall, supra, 446
U.S. at p. 555.)

Here, the trial court
concluded Rivas's initial contact with Lira was a detention. The facts are not in dispute. Thus, we apply our independent judgment in
determining whether the officer's conduct was reasonable. (People
v. Camacho, supra,> 23 Cal.4th at p. 830.) In our view, the trial court's analysis was
faulty from the beginning: the encounter
was, as a matter of law, "consensual" and did not constitute a
detention.

The trial court accepted Rivas's testimony that he saw Lira toss a
women's purse onto a public sidewalk after dumping its contents into a
backpack. The court acknowledged the
deputy then approached Lira on the sidewalk and asked "what he was up to,
what was going on." There is no
evidence the deputy, who was acting alone, used words, gestures or other
coercive conduct to detain Lira. To the
contrary, the evidence suggests Lira was at all times free to disregard the
deputy's questions and walk away. (See >Mendenhall, supra, 446 U.S. at pp. 554-555.)

The
deputy's request to see Lira's identification did not convert the contact into
an unlawful detention. In >Mendenhall, the officers asked to see
the respondent's identification and airline ticket. (Mendenhall,> supra, 446 U.S. at p. 555.) The court determined that "[s]uch
conduct, without more, did not amount to an intrusion upon any constitutionally
protected interest. The respondent was
not seized simply by reason of the fact that the agents approached her, asked
her if she would show them her ticket and identification, and posed to her a few
questions. Nor was it enough to establish
a seizure that the person asking the questions was a law enforcement
official. [Citations.]" (Ibid.;> accord Florida v. Royer (1983) 460 U.S. 491, 501 ["Asking for and
examining [the defendant's airline] ticket and his driver's license were no
doubt permissible in themselves . . . ."].) Indeed, Lira concedes Rivas's request for
identification, in and of itself, does not characterize the contact as a
detention.

Nonetheless,
even if the contact could be construed as a detention, it was lawful given the
totality of the circumstances. To
justify a detention, "the circumstances known or apparent to the officer
must include specific and articulable facts which, . . . [would cause the
officer] to suspect that (1) some activity relating to crime has taken place or
is occurring or about to occur, and (2) the person [the officer] intends to
stop or detain is involved in that activity." (In re
Tony C., supra,> 21 Cal.3d at p. 893.) "The corollary to this rule . . . 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. . . ." (Ibid., citing Terry v. Ohio
(1968) 392 U.S. 1, 22.)

The
trial court determined Rivas did not have reasonable suspicion to detain Lira
because all he had "was a bit of a hunch coupled with the circumstance of
a man with a [women's] purse emptying its unknown contents into his large
carryall." This analysis omits the
fact that Rivas saw Lira throw the purse on the ground after emptying its
contents into the backpack. It also
omits the fact that Lira falsely told the deputy he had picked up the purse,
"noticed it was empty" and then threw it back on the floor. Rivas testified he did not find it suspicious
that Lira was holding a women's purse.
He found it suspicious that Lira "transferr[ed] items from [the]
purse into his backpack and then discard[ed] the purse . . . ."

Officers
are expected "to draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information available
to them that 'might well allude an untrained person.' [Citations.]" (U. S.
v. Arvizu (2002) 534 U.S. 266, 273.)
It is not the function of judges "to second-guess on-the-spot
decisions of officers in the field under these circumstances." (People
v. Wilson (1997) 59 Cal.App.4th 1053, 1063; see Tamborino v. Superior Court (1986) 41 Cal.3d 919, 925.) The totality of the circumstances supported a
reasonable suspicion that Lira possessed and was concealing stolen property,
i.e., the contents of the discarded purse.

Lira contends that even
if the initial detention was lawful, it became unlawful when Rivas searched his
backpack. We are not persuaded. Consent to a search may be nonverbal and
implied by conduct. (>People v. Harrington (1970) 2 Cal.3d
991, 995, superseded on other grounds as stated in People v. Coffman (2004) 34 Cal.4th 1, 116-117.) Indeed, the trial court observed
"consent can be by an act."

In United States v. Drayton (2002) 536 U.S. 194, 204, the Supreme
Court found voluntary consent when police officers boarded a bus and requested
consent to search persons and luggage.
An officer asked the defendant, "Mind if I check you?" The defendant gave no verbal response, but
lifted his hands above his legs. (>Id. at p. 199.) During a patdown of the defendant's thighs,
the officer detected hard objects which turned out to be contraband. (Id.
at p. 194.) The court concluded the
defendant's actions were an implied consent to search. (Id.
at p. 204.) The court noted
"[t]here was no application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no blocking of exits, no
threat, no command, not even an authoritative tone of voice. It is beyond question that had this encounter
occurred on the street, it would be constitutional." (Ibid.;
see Mendenhall, supra, 446 U.S. at pp. 554-555.)

Here, the encounter
occurred on the sidewalk next to the street.
When Rivas asked for identification, Lira said it "probably"
was in his backpack. When the deputy
asked Lira if he could "take" the backpack to check for
identification, Lira handed it to him.
This nonverbal gesture constituted consent. (United
States v. Drayton, supra, 537
U.S. at p. 204; People v. James
(1977) 19 Cal.3d 99, 113 ["Indeed, no words at all need to be spoken; in
appropriate circumstances, consent . . . may be unmistakably manifested by a
gesture alone"].)

DISPOSITION

The
orders granting the motion to suppress evidence and dismissing the charges against
Lira are reversed.

NOT
TO BE PUBLISHED.









PERREN,
J.





We concur:







GILBERT,
P. J.







YEGAN,
J.

William C. Ryan, Judge

Superior Court County of Los Angeles

______________________________



Steve
Cooley, District Attorney of Los Angeles County, Irene Wakabayashi, Head Deputy
District Attorney, Phyllis C. Asayama and Scott D. Collins, Deputy District
Attorneys for Plaintiff and Appellant.

Ronald
L. Brown, Public Defendant of Los Angeles County, Jennifer Bergman and Albert
J. Menaster, Deputy Public Defenders for Defendant and Respondent.