IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
November 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FRANK MARTINEZ GONZALES, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Reardon, J.
P. v. Gonzales CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his suppression motion was denied, appellant Frank Martinez Gonzales pled nolo contendere to possession of heroin. (Health & Saf. Code, § 11350, subd. (a).) Granted a three-year term of probation, he appeals. Gonzales contends that his suppression motion should have been granted because he was detained without justification at the time of the possession. We affirm the judgment.
In the late afternoon of October 20, 2009, another Fairfield police officer asked Officer Adam Brunie to stop someone he suspected of possessing narcotics. In a marked police car, Officer Brunie went to the location described to him and saw on the sidewalk a man--later identified as appellant Frank Martinez Gonzales--matching the description given to him. At the time, Officer Brunie wore a uniform labeled with law enforcement insignia, was armed with a gun and had a radio on his person.
Officer Brunie parked his car behind the man, got out of it and approached Gonzales from behind, asking if he could speak with him. The officer did not identify himself as a police officer, as this was apparent from the circumstances. Gonzales turned around and said "Yeah, that's fine. What can I do for you?" At the same time, Officer Brunie reported through his radio that he was engaged in a consensual encounter with Gonzales.
Officer Brunie told Gonzales that neighbors had reported instances of loitering and had asked the police to assist them. When asked if he lived in the neighborhood, Gonzales replied that he did not, giving an address about a mile away. Officer Brunie asked if Gonzales had any identification and if he did, if he minded if the officer saw it. Gonzales said that he had some and that he had no problem with Officer Brunie looking at his identification. Officer Brunie asked if Gonzales would sit on the curb and the man did so, handing his identification to the officer.
The officer radioed his dispatcher with the name and birthdate on Gonzales's identification. Holding the identification card, Officer Brunie asked if Gonzales had ever been arrested before. Gonzales admitted that he was out on bail on a charge of domestic violence. Then, Officer Brunie asked if Gonzales had anything illegal on his person. Gonzales nodded and stated that he did. From the time that Officer Brunie received Gonzales's identification until this admission, no more than 30 seconds elapsed.
At this point, Officer Brunie considered detaining Gonzales, as he was uncertain what the illegal item was. He called for backup and while it was on its way, Officer Brunie asked what Gonzales had that he considered illegal. Gonzales replied that he had a small amount of heroin on him, loaded in a syringe. He moved to his back pocket as if to retrieve it, but the officer stopped him. When Officer Brunie said that he would remove the heroin, Gonzales indicated that it was in his sock. Once his backup officer arrived, Officer Brunie searched Gonzales, finding a loaded syringe with what appeared to be heroin in the man's left sock. The officer seized the syringe.
Gonzales was charged with possession of heroin and unauthorized possession of a hypodermic needle and syringe. (Health & Saf. Code, § 11350, subd. (a); Bus. & Prof. Code, § 4140.) Having entered a plea of not guilty, he moved to suppress evidence of the heroin and the syringe. (Pen. Code, § 1538.5 (section 1538.5).) At the November 2009 preliminary hearing, Officer Brunie testified about his encounter with Gonzales. It was stipulated that the syringe contained a useable amount of heroin. After the hearing, the magistrate denied the suppression motion and held Gonzales to answer for the two charges.*fn1 An information was soon filed charging him with these possession offenses.
Gonzales's renewed motion to suppress was denied by the trial court in February 2010. A week later, he entered into a plea agreement, pleading nolo contendere to the heroin possession charge in exchange for dismissal of the other charge and a grant of probation.*fn2 (Health & Saf. Code, § 11350, subd. (a).) In April 2010, he was placed on probation for three years.
A. Standard of Review
In his sole contention on appeal, Gonzales asserts that his suppression motion should have been granted. He reasons that Officer Brunie's manner was intimidating, such that he had been unlawfully detained when asked if he possessed anything illegal. Both the magistrate and the trial court concluded that there was no detention, finding Gonzales's encounter with the officer to be consensual. The distinction is critical because a detention implicates the Fourth Amendment of the United States Constitution, but a consensual encounter between a peace officer and an individual does not. (People v. Rivera (2007) 41 Cal.4th 304, 309; In re Manuel G. (1997) 16 Cal.4th 805, 821.) If evidence was improperly seized, Gonzales is entitled to suppress it. (§ 1538.5; People v. Garry (2007) 156 Cal.App.4th 1100, 1105.)
When a motion to suppress is made at the preliminary hearing, the magistrate sits as the trier of fact. (§ 1538.5, subds. (c)(1), (i); People v. Ramsey (1988) 203 Cal.App.3d 671, 677-678; see People v. Laiwa (1983) 34 Cal.3d 711, 718 [former law].) When the motion is renewed in the trial court on the basis of the preliminary hearing transcript alone, the trial court sits as a reviewing court. It is bound by the magistrate's findings of facts to the extent that they are supported by substantial evidence. (§ 1538.5, subd. (i); People v. Ramsey, supra, 203 Cal.App.3d at pp. 678-679.)
On appeal, we review the magistrate's findings of fact to again determine if substantial evidence supports them. We draw all inferences and make all presumptions in favor of those factual findings as long as they are supported by substantial evidence. We exercise our independent judgment to determine whether--applying the facts properly found by the magistrate--the officer acted reasonably under the Fourth Amendment.*fn3 (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198; People v. Thompson (1990) 221 Cal.App.3d 923, 940; People v. Ramsey, supra, 203 Cal.App.3d at p. 679.) The prosecution bears the burden of proof on these issues. (See Florida v. Royer (1983) 460 U.S. 491, 497 [consent]; see also People v. Williams (1999) 20 Cal.4th 119, 127 [§ 1538.5 motion].) If the encounter was not consensual, then the prosecution must either demonstrate that a detention was lawful or risk suppression of the seized evidence. (See § 1538.5; Florida v. Bostick (1991) 501 U.S. 429, 433-434.)
B. Legal Principles
The Fourth Amendment requirement that the seizure of a person be founded on an objective justification applies even to a brief detention falling short of a traditional arrest. (United States v. Mendenhall (1980) 446 U.S. 544, 551.) However, no restraint on an individual's liberty implicating that Fourth Amendment protection results if the individual engages in a consensual encounter with police. (Florida v. Royer, supra, 460 U.S. at p. 498; United States v. Mendenhall, supra, 446 U.S. at pp. 553-554; In re James D. (1987) 43 Cal.3d 903, 911; People v. Garry, supra, 156 Cal.App.4th at p. 1106.) The prosecution bears the burden of proving that the encounter was consensual. (Florida v. Royer, supra, 460 U.S. at p. 497.)
A law enforcement officer does not violate the Fourth Amendment merely by approaching an individual in a public place and asking if he or she is willing to answer some questions. (Florida v. Bostick, supra, 501 U.S. at p. 434; Florida v. Royer, supra, 460 U.S. at p. 497; In re James D., supra, 43 Cal.3d at p. 912.) Consent is voluntary as long as the officers do not convey a message that compliance with their requests is required. (See Florida v. Bostick, supra, 501 U.S. at pp. 435, 437; People v. Jenkins (2004) 119 Cal.App.4th 368, 373.) Some physical force or nonverbal show of authority is required to show a restraint on a person's liberty rising to the level of a seizure triggering the protection of the Fourth Amendment. (Florida v. Bostick, supra, 501 U.S. at p. 434; People v. Garry, supra, 156 Cal.App.4th at pp. 1110-1112.)
Whether or not a law enforcement encounter was consensual turns on the totality of the circumstances. (Florida v. Bostick, supra, 501 U.S. at p. 439; People v. Rivera, supra, 41 Cal.4th at p. 310.) Facts tending to support a finding of a detention include the presence of multiple officers, the display of a weapon, physical touching of the individual by police, or the use of language or tone of voice indicating that compliance might be compelled. (United States v. Mendenhall, supra, 446 U.S. at p. 555; In re Manuel G., supra, 16 Cal.4th at p. 821; People v. Garry, supra, 156 Cal.App.4th at p. 1106.) Considering all the circumstances, if a reasonable person would have felt free to decline the police request, the encounter may be found to be a consensual one that did not implicate the Fourth Amendment. (Michigan v. Chesternut (1988) 486 U.S. 567, 573; Florida v. Royer, supra, 460 U.S. at p. 498; United States v. Mendenhall, supra, 446 U.S. at p. 554; In re Manuel G., supra, 16 Cal.4th at p. 821.) The test is not what the police officer subjectively believed, but what a reasonable person would have believed. (United States v. Mendenhall, supra, 446 U.S. at p. 554 fn. 6; People v. Garry, supra, 156 Cal.App.4th at p. 1106.)
C. Detention or Consensual Encounter?
Gonzales cites several factors that he contends contradict a finding of a consensual encounter. First, he urges us to conclude that Officer Brunie startled him by suddenly approaching him from behind. The record does not support the inferences that Gonzales would have us make. Although the officer testified that he approached Gonzales from behind, there was no evidence that he did so suddenly or that the man was startled by his appearance. To the extent that we draw inferences, they must support the magistrate's findings of fact, not go against them. (See, e.g., People v. Ramsey, supra, 203 Cal.App.3d at p. 679.)
Next, Gonzales contends that by explaining that he was investigating a crime, Officer Brunie engaged in coercive conduct. We disagree. A police officer who informs an individual that he or she is conducting official business does not necessarily convey that the individual is suspected of some illegal activity. The questions that Officer Brunie asked did not accuse Gonzales of criminal involvement.
Third, Gonzales cites the fact that the officer asked for and retained his identification card. It is significant that Officer Brunie did not demand Gonzales's identification, but merely asked if he might see it. (See United States v. Mendenhall, supra, 446 U.S. at p. 555.) The United States Supreme Court has repeatedly held that, by itself, asking for and receiving an individual's identification does not compel a finding of a detention. (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185; Florida v. Bostick, supra, 501 U.S. at p. 434; Florida v. Royer, supra, 460 U.S. at p. 501; People v. Cartwright (1999) 72 Cal.App.4th 1362, 1370; but see People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 [reasonable person would not feel free to leave once identification handed to police].)
Fourth, he points to the fact that Officer Brunie asked him to sit on the sidewalk curb during their encounter as evidence that it was not consensual. While this factor might tend to support a finding that a detention had occurred in other circumstances, we note that Gonzales sat on the curb at the officer's request, not as the result of any order. A request, rather than a command directing one's movements, does not constitute a restraint for purposes of the Fourth Amendment. (People v. Cartwright, supra, 72 Cal.App.4th at p. 1370.)
Finally, Gonzales asserts that Officer Brunie never told him that he was free to decline to answer questions or to leave. As he acknowledges, Officer Brunie was not required to do so. (See, e.g., United States v. Mendenhall, supra, 446 U.S. at p. 555.)
While some of the circumstances--if viewed in isolation--might support a conclusion that a nonconsensual encounter had occurred, we assess the coercive effect of the official conduct as a whole. (In re Manuel G., supra, 16 Cal.4th at p. 821; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) None of the other undisputed facts in the trial court record tend to support a finding of a lack of voluntary consent. Officer Brunie encountered Gonzales alone. (See United States v. Mendenhall, supra, 446 U.S. at p. 555.) The officer was armed, but did not draw or display his weapon. (See, e.g., People v. Harrington (1970) 2 Cal.3d 991, 997.) He repeatedly asked for Gonzales's compliance, but did not demand it. (See, e.g., People v. Cartwright, supra, 72 Cal.App.4th at p. 1370.) Gonzales voluntarily handed over his identification to Officer Brunie and did not ask for its return. No physical contact or obstruction occurred. No threats were issued. Officer Brunie gave no verbal or nonverbal indication that Gonzales was not free to leave. The entire encounter was brief. (See, e.g., People v. Terrell, supra, 69 Cal.App.4th at p. 1254.) Nothing about Officer Brunie's manner suggested that he would require Gonzales to answer his questions. (See, e.g., People v. James (1977) 19 Cal.3d 99, 113.) Based on the totality of the circumstances, we are satisfied that the People met their burden of proving that Officer Brunie's encounter with Gonzales was consensual. (See People v. Terrell, supra, 69 Cal.App.4th at p. 1254.)
A consensual encounter--unlike a detention--requires no articulable suspicion that one has committed or is about to commit a crime. (People v. Rivera, supra, 41 Cal.4th at p. 309; In re Manuel G., supra, 16 Cal.4th at p. 821.) As we find that the encounter with Officer Brunie was consensual, there was no need to establish the prerequisites for a lawful detention. The magistrate properly denied the motion to suppress.
The judgment is affirmed.
We concur: Ruvolo, P.J. Sepulveda, J.