Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR181328
Margulies, J.
Following the denial of his motion to suppress evidence obtained from a search of his person, defendant Delon Larone Adams pleaded no contest to possession of cocaine base for sale pursuant to a negotiated disposition. He contends on appeal that the evidence against him was the product of an unlawful detention. Finding no Fourth Amendment violation, we affirm the judgment.
I. BACKGROUND
A. Trial Court and Appellate Proceedings
Defendant was charged by felony complaint with one count of possession for sale of cocaine base in November 2005. (Health & Saf. Code, § 11351.5.) The complaint further alleged that defendant had failed to remain free from prison custody for a period of five years. (Pen. Code, § 667.5, subd. (b).)
All further statutory references are to the Penal Code.
Defendant pleaded not guilty and filed a motion to suppress evidence pursuant to section 1538.5, which was heard in conjunction with the preliminary hearing in July 2006. At the conclusion of the hearing, the magistrate denied the motion to suppress and held defendant to answer on the charge.
The district attorney thereafter filed an information setting forth the same charges contained in the complaint. Pursuant to a negotiated disposition, defendant pleaded no contest in September 2006 to one felony count of possession for sale of cocaine base and admitted the prior prison term allegation. The parties agreed as a condition of the plea bargain that defendant would be allowed to appeal the ruling on the motion to suppress evidence. The trial court accepted defendant’s change of plea, suspended imposition of sentence, placed defendant on formal probation for three years, and ordered defendant to serve 165 days in county jail. Defendant filed a timely notice of appeal. In a nonpublished opinion (People v. Adams (Jan. 22, 2008, A115657)), this court held that defendant failed to properly renew his suppression motion in the superior court before changing his plea, and failed to obtain a certificate of probable cause, thereby waiving the right to appeal the denial of his suppression motion. We reversed and remanded the case so that defendant would have the opportunity to withdraw his plea.
On remand, defendant withdrew his plea and the charge and enhancement were reinstated. Defendant filed a renewed motion to suppress evidence submitted on the transcript of the July 2006 preliminary hearing. The trial court again denied the motion. Defendant thereafter entered into a second negotiated disposition, agreeing to plead no contest to the charge of possession of cocaine base for sale and to admit the prior prison term allegation in exchange for a resumption of probation and the trial court’s issuance of a certificate of probable cause. The court accepted defendant’s change of plea and reinstated him on probation with no additional jail time.
Defendant filed a timely notice of appeal and the trial court issued a certificate of probable cause.
B. Facts Pertaining to Motion to Suppress
On November 13, 2005, at approximately 10:48 a.m., uniformed City of Vallejo Police Sergeant Lee Horton was sitting in his marked patrol car at the corner of Florida and Tuolumne Streets watching a bus stop across the street. This was a high-crime area in which there had been “a lot of shootings, ... some murders, a lot of drug dealing [and] prostitution.” Horton saw two men sitting at the bus stop, which was about 100 or 150 feet away. One of them was defendant. Horton did not observe any activity by the men causing him to suspect they might be involved in drug dealing at that location.
Horton sat there for a while reading some training materials in his car. He observed another Vallejo police officer, Officer Abney, drive by him and make a traffic stop nearby. At that point, Horton decided to pull across the street. He parked a distance behind the bus stop in front of a car dealership, walked up to the men, and asked them how they were doing. Defendant said they were fine and that “he didn’t do anything wrong.” Horton responded that he “hadn’t accused them of anything.” Defendant pointed to Horton’s car and said, “The lights aren’t on.” Horton replied, “I didn’t say you did anything wrong.” Horton then asked defendant for some identification and he produced a California identification card.
Horton looked at the card and “ran his name with dispatch.” As he was doing so, Officer Abney arrived on the scene after her traffic stop. According to Horton, defendant “started sweating profusely and seemed nervous and asked me if he could take off his sweatshirt.” Horton replied, “Sure, you can do anything you want.” Defendant kept repeating that he had not done anything wrong. Horton told him that he often stopped to talk to people at the bus stop because “we have a problem with people selling drugs on that corner.” Horton estimated his conversation with defendant lasted five or six minutes. He characterized defendant’s behavior as “kind of argumentative.”
Dispatch informed Horton that defendant was on parole for possession for sale. Horton observed defendant looking around and “had the feeling that he was going to probably get up and run.” Horton decided to call for another unit. Another officer soon arrived and Horton told defendant he was going to conduct a parole search. He asked the defendant if he had any illegal narcotics or weapons on his person. Defendant said he did not. He also asked defendant for his consent to search his person and defendant said he did not mind. In defendant’s pockets, Horton found numerous empty Ziploc baggies and one baggie containing seven rocks of crack cocaine.
Horton placed defendant under arrest. Defendant stated that he had given his parole officer a dirty test. After being read his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant waived his rights and told Horton he was selling the drugs to support his own habit and admitted the rocks were crack cocaine. Defendant had a cell phone and $63 on his person. He had no pipes in his possession and did not appear to be under the influence of narcotics.
II. DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress under section 1538.5 because the evidence presented at the preliminary hearing shows that (1) Sergeant Horton detained him without any reasonable suspicion of criminal activity, and (2) the contraband seized from him during the ensuing parole search must therefore be suppressed under applicable Fourth Amendment case law as the product of an illegal detention.
A. Standard of Review
Where, as here, a motion under section 1538.5 was made previously at the preliminary hearing and the matter is resubmitted to the superior court on the preliminary hearing transcript, the superior court is the reviewing court rather than the factfinding court. (People v. Ramsey (1988) 203 Cal.App.3d 671, 678–679.) The superior court is bound by the factual findings of the magistrate and must draw all inferences in favor of the magistrate’s findings, if they are supported by substantial evidence. (Id. at p. 679.) On appeal from the denial of the motion in the superior court, the appellate court disregards the findings of the trial court and reviews the determination of the magistrate who ruled on the motion to suppress. (Ibid.) The appellate court, in reviewing the magistrate’s findings, applies the same standard: all presumptions are drawn in favor of the magistrate’s factual determinations and the appellate court must uphold the magistrate’s express or implied findings if they are supported by substantial evidence. (Ibid.) The appellate court then exercises its independent judgment and determines whether, under the facts as found by the magistrate, the police acted reasonably under the Fourth Amendment. (People v. Leyba (1981) 29 Cal.3d 591, 597.)
B. Applicable Law
Since voter approval of Proposition 8 in June 1982, federal constitutional standards, as interpreted by the United States Supreme Court, have governed review of issues related to the suppression of evidence seized by the police in California. (People v. Camacho (2000) 23 Cal.4th 824, 830.) Lower federal court decisions in this area are not binding on California state courts. (Id. at p. 830, fn. 1.) If there is no conflict between state and federal law, state law governs. (In re Lance W. (1985) 37 Cal.3d 873, 886–888.)
Federal Fourth Amendment jurisprudence recognizes three distinct categories of police interaction with individuals, each entailing different constitutional implications: “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 individual’s liberty. [Citations.]... 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.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
A detention occurs “when an officer intentionally applies hands-on, physical restraint to a suspect [citations] or initiates a show of authority to which a reasonable innocent person would feel compelled to submit [citation], and to which the suspect actually does submit [citation] for reasons that are solely related to the official show of authority.” (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367, citing, inter alia, California v. Hodari D. (1991) 499 U.S. 621, Brower v. Inyo County (1989) 489 U.S. 593 & Florida v. Bostick (1991) 501 U.S. 429 (Bostick), italics omitted.) The test for the existence of a show of authority is an objective one, and thus, “[n]either the officer’s uncommunicated state of mind nor the subjective belief of the individual citizen is relevant to the determination of whether a police contact is a detention....” (In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. omitted.) The focus of the inquiry is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable innocent person that he was free to disregard the police presence and go about his business. (Bostick, at p. 437; Cartwright, at p. 1364.)
C. Analysis
Defendant argues that the following factors weigh in favor of a determination that his encounter with Sergeant Horton was a detention without justification rather than a consensual contact requiring no justification: Horton’s repositioning of his car from across the street, the number of officers who eventually pulled up to the scene, the fact that defendant was never specifically told he was free to leave, and Horton’s request for and retention of defendant’s identification card while he called and asked dispatch to run defendant’s name. Defendant places special emphasis on the last factor, relying on two cases-People v. Castaneda (1995) 35 Cal.App.4th 1222 (Castaneda) and United States v. Chan-Jimenez (9th Cir. 1997) 125 F.3d 1324 (Chan-Jimenez)-that found detentions had occurred when law enforcement officials requested and retained the defendants’ identification.
In Castaneda, a police officer approached Castaneda as he was sitting in the passenger seat of an illegally parked car. (Castaneda, supra, 35 Cal.App.4th at p. 1225.) The officer requested identification and asked Castaneda who owned the car. (Id. at pp. 1225–1226.) Castaneda handed the officer his identification card and told him the car was owned by a friend who lived in a nearby apartment but he did not know which apartment his friend resided in. (Id. at p. 1226.) The officer radioed for information on the car’s registration as well as Castaneda’s warrant status while another officer filled out a parking citation for the car. (Ibid.) He received information that there was an outstanding warrant for Castaneda’s arrest. (Ibid.) A search incident to Castaneda’s arrest on the warrant turned up drug contraband on his person. (Ibid.) On appeal, Castaneda contended that no justification existed to support his detention. (Ibid.) The Court of Appeal reasoned that Castaneda was not detained when the officer approached him and began asking him questions, nor when the officer asked him to produce identification. (Id. at p. 1227.) However, the court held that Castaneda was detained once he “complied with [the] request and submitted his identification card to the officers, ” because at that point, a reasonable person would not have felt free to leave. (Id. at p. 1227.) Nevertheless, the court upheld the denial of Castaneda’s suppression motion on the grounds that a brief detention-long enough to verify ownership of the vehicle-was in fact justified because the car was illegally parked and the officer could reasonably suspect that Castaneda was not being honest about its ownership. (Id. at pp. 1227–1228.)
There are no facts in the record before us to suggest that Sergeant Horton ordered defendant to produce his identification card or used any form of coercion to obtain it. To the extent that Castaneda may be read to support a per se rule that a person’s voluntary submission of his identification card to an officer converts a consensual encounter into a detention, we disagree with it. An officer’s retention of a defendant’s identification card may be a relevant factor in determining whether an encounter is consensual, but it cannot be the sole, dispositive factor. The cases instruct us to look at the totality of the circumstances, and counsel against applying any uni-factor test or simple rule. (See Bostick, supra, 501 U.S. at pp. 439–440; Florida v. Royer (1983) 460 U.S. 491, 506–507.)
Chan-Jimenez is also not persuasive. In Chan-Jimenez, an Arizona police officer in an unmarked vehicle decided to follow a pickup truck driven by Chan-Jimenez and run a check on the truck’s license plates. (Chan-Jimenez, supra, 125 F.3d at p. 1325.) The officer explained that he followed the truck because it “ ‘didn’t appear to belong in the area.’ ” (Ibid.) After driving another one and one-half miles, Chan-Jimenez, and his passenger pulled over to the side of the road, got out, and raised the truck’s hood. (Ibid.) Officer Price, who was not uniformed, pulled in behind the truck and activated his emergency light to indicate that he was a police officer; he then got out of his truck and identified himself as such. (Ibid.) Without inquiring whether Chan-Jimenez needed help with his vehicle, Price requested his driver’s license and vehicle registration documents, which Chan-Jimenez handed him. (Ibid.) Instead of returning the driver’s license or registration documents to Chan-Jimenez after looking at the documents and confirming that they were “ ‘in order, ’ ” Price asked whether he could look under the tarp covering the bed of the truck. (Ibid.) Officer Price had his hand on his revolver at all times during the encounter, did not inform Chan-Jimenez that he could to refuse to consent to his search, and did not offer to return the papers. (Ibid.) Chan-Jimenez moved to the rear of the truck and raised the tarp without making any verbal response to Price’s request to look into the truck bed. (Ibid.) Price observed drug contraband in the truck bed. (Ibid.) Chan-Jimenez and his passenger fled on foot but were apprehended and arrested a few hours later. (Ibid.)
The appellate panel found that Chan-Jimenez had been illegally detained at the point when Officer Price failed to return his driver’s license and registration, and proceeded with an investigation: “After Officer Price examined Chan-Jimenez’s driver’s license and vehicle registration, and found nothing out of order, he nonetheless retained possession of these documents. By doing so, he manifested an intent to restrain Chan-Jimenez’s freedom-Chan-Jimenez could not lawfully drive away without the documents. Moreover, Officer Price kept his hand on his revolver-possibly a desirable safety measure, but one that also let Chan-Jimenez know that there could be adverse consequences for any failure to submit to authority. A reasonable person in Chan-Jimenez’s position would not have felt free to leave....” (Chan-Jimenez, supra, 125 F.3d at p. 1326.)
The facts in Chan-Jimenez are distinguishable. Here, Sergeant Horton did not retain defendant’s identification card for longer than it was necessary to complete a warrant check, did not keep his hand on his revolver as a show of force or authority, and did not “manifest[] an intent to restrain [defendant’s] freedom, ” by any other means. People v. Terrell (1999) 69 Cal.App.4th 1246 (Terrell) is closer on the facts to our case than is Chan-Jimenez. Two police officers observed Terrell and two other men seated on a park bench. (Id. at p. 1251.) One of the men appeared to be under the influence of a controlled substance. (Ibid.) After engaging Terrell in a brief conversation, one of the officers asked him whether he had any identification. (Ibid.) Terrell responded by producing a California driver’s license. (Ibid.) The officer ran a “ ‘wants and warrants’ check” that revealed an outstanding warrant, whereupon Terrell was arrested. (Ibid.) A search of his fanny pack produced drug contraband. (Ibid.) The Terrell court concluded that no detention occurred prior to Terrell’s arrest: “The totality of circumstances surrounding appellant’s arrest reveals that appellant’s initial encounter with the police was consensual, including appellant’s spontaneous and voluntary action in handing Officer Trevino his driver’s license. At no time did he ask the officer for his driver’s license back. During the entire encounter, which lasted about three minutes, neither Officer Trevino nor his partner, by words or conduct, indicated that appellant was not free to leave. No reasonable inference therefore could be drawn that the encounter was a detention rather than a consensual encounter.” (Id. at p. 1254.)
In United States v. Analla (4th Cir. 1992) 975 F.2d 119 (Analla), two officers in marked police cars pulled up on either side of Analla’s parked car as he was speaking on a pay telephone. (Id. at p. 122.) Officer Parker approached Analla, telling him he would like to speak to him when he finished his call. (Ibid.) The officer asked him for his license and registration. Analla retrieved his license from his car, leaving the driver’s side door ajar, and handed it to Parker. (Ibid.) The two officers stood on the passenger side of Analla’s car while Parker used his walkie-talkie to check the license with the dispatcher. (Ibid.) While Parker was checking Analla’s license, a third officer arrived, approached Analla, and asked him for permission to search his vehicle. (Ibid.) Analla consented and the ensuing search turned up a weapon used in a murder that took place the night before. (Ibid.) The appellate court held that the officers’ pre-search encounter with Analla was consensual: “When officer Parker approached Analla and asked to see his license and registration, Analla was not seized. Analla’s cooperation with Parker did not convert the encounter into a seizure, even though Parker did not tell Analla that he was free to leave or to refuse the request. Although Parker was accompanied by officer McCoy, neither had his gun drawn. There is no evidence of any use or threat of physical force, and, although Analla claims that the officers’ tone of voice was intimidating, the district court found to the contrary. Parker necessarily had to keep Analla’s license and registration for a short time in order to check it with the dispatcher. However, he did not take the license into his squad car, but instead stood beside the car, near where Analla was standing, and used his walkie-talkie. Analla was free at this point to request that his license and registration be returned and to leave the scene.” (Id. at p. 124.)
We find Terrell and Analla more persuasive than Castaneda and Chan-Jimenez on the record before us. Castaneda attaches dispositive weight to an officer’s retention of a defendant’s identification papers, which is not consistent with United States Supreme Court precedents requiring consideration of the totality of the circumstances. Chan-Jimenez involved coercive behavior and circumstances that were not present here.
Based on our review of the evidence, we do not find that Sergeant Horton or the other officers presented defendant with any type of coercive conduct that would have convinced a reasonable, innocent person he was not free to leave. Horton parked his car a good distance away from defendant, not blocking defendant from leaving. He did not activate his overhead lights or siren, or shine his spotlight on defendant. He approached defendant on foot in a nonthreatening manner, and initiated his contact with defendant and his companion by asking them how they were doing. When defendant responded that they “were fine” and had done nothing wrong, Horton reassured them that he had not accused them of doing anything wrong. At no point in the interaction did Horton display or place his hand on his weapon. He did not physically touch defendant or his companion, or attempt to separate them or obstruct their path. He at no point addressed them in a language or tone that could be considered commanding, threatening, or intimidating. Under the case law, the fact that Horton asked for and retained defendant’s identification card while he conducted a warrant check did not convert the encounter into a seizure. When defendant asked if he could take off his sweatshirt, Horton responded that he could do anything he wanted. When defendant insisted he had not done anything wrong, Horton repeated that he was not accusing defendant of criminality and told him the police often stopped to talk to people at the bus stop because that corner had a drug-sale problem. The duration of the encounter-five to six minutes until Horton learned of defendant’s parole status - was brief. Horton did not request more back up until after he learned defendant was on parole for possession for sale.
The further points defendant emphasizes-Horton’s repositioning of his car from across the street, the number of officers who eventually pulled up to the scene, and the fact that defendant was never specifically told he was free to leave-do not in our view alter the impression left by the totality of the circumstances. Although Horton did move his vehicle to defendant’s side of the street, he did not screech to a halt in front of defendant or otherwise use the vehicle as part of a display of force or authority. To the contrary, Horton parked it a distance away and walked up to the bus stop where defendant was seated. Moreover, Horton approached defendant by himself. Only one other officer showed up as Horton ran his check on defendant’s warrant and parole status. Finally, although Horton never specifically told defendant he was free to leave, he did tell him he could do anything he wanted, and nothing in his conduct communicated to defendant that he was not free to leave.
Considering the totality of the circumstances, we find that Sergeant Horton’s contact with defendant prior to learning of his parole status was consensual in nature and did not constitute a detention for Fourth Amendment purposes. We therefore find no error in the trial court’s denial of defendant’s motion to suppress.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J. Banke, J.