Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF119123A . Charles P. McNutt, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
Following the denial of her motion to suppress evidence (Pen. Code, § 1538.5), appellant Christine Cole pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The court suspended imposition of sentence and placed appellant on three years’ probation.
On appeal, appellant’s sole contention is that the court erred in denying her suppression motion. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In accordance with the usual rules governing appellate review of the denial of a suppression motion, we set forth the facts in the light most favorable to the denial of the motion. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
Bakersfield Police Officer William Caughell testified to the following. At approximately 3:15 a.m. on May 11, 2007 (May 11), he made contact with a Mr. Trout in the parking lot of a motel located at 505 Union Avenue in Bakersfield. Trout told the officer he “was on active probation with search terms.” After verifying Trout’s probation status and learning from him the number of the room in which he was staying, Officer Caughell and two other police officers went to that room “[t]o conduct a probation search.”
Officer Caughell further testified to the following. Upon entering the room, he saw appellant, asleep on the bed. The officer also saw “[m]ethamphetamine smoking pipes”; they were “[o]n the dresser,” “in plain sight[.]” Appellant was not on probation.
Bakersfield Police Officer Kennisha Price testified that at 3:15 a.m. on May 11 she went to a motel room located at 505 Union Avenue in Bakersfield to assist in a “probation search.” Upon entering the room, she saw appellant asleep on the bed. Officer Caughell, who had entered the room ahead of Officer Price, awakened appellant and “requested that she exit the room while [the] officers were inside.”
Except as otherwise indicated, the remainder of our factual statement is taken from Officer Price’s testimony.
Officer Price testified she believed there were two other officers present in the room when she entered. Officer Caughell testified there was only one other officer present when he awakened appellant.
Officer Price did not draw her gun. When asked if the other officers had their guns drawn, she testified, “I don’t believe so.” Officer Caughell testified that he did not draw his weapon.
Appellant complied with Officer Caughell’s request that she leave the room. Officer Price accompanied her as she did so and asked appellant her name and date of birth. Appellant responded, “she had ID” in her purse, which was located inside the room. Officer Price then asked appellant “if it was okay” for the officer to “retrieve[] [appellant’s] ID from her purse,” and appellant gave her consent.
Appellant’s purse was “on the side of the bed.” Officer Price opened the purse and saw “two syringes loose inside the main compartment of [the] purse.” One of the syringes had a “small amount of liquid … that [was] partially … red in color” in it, which led the officer to believe the syringes contained “narcotics.”
Procedural Background
The parties stipulated that the search of appellant’s purse was conducted without a warrant. The People asserted below that appellant consented to the search, and therefore no warrant was required.
DISCUSSION
“The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures.” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) “A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the ‘specifically established and well-delineated exceptions.’ [Citations.] It is ‘well settled that one of the specifically established exceptions to the [search warrant] requirement[] . . . is a search that is conducted pursuant to consent.’ [Citations.]” (People v. Wood (1999)21 Cal.4th 668, 674.) “Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
Appellant contends the prosecution failed to meet its burden of proving that her consent to the search of her purse was voluntary, and therefore the court erred in denying her suppression motion. Her argument consists of two parts. She first argues that the prosecution failed to establish the voluntariness of her consent because that consent was the product of an unlawful detention.
“Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure.” (People v. Zamudio, supra, 43 Cal.4th at p. 341.) The People do not dispute, and we agree with appellant, that appellant was detained by police. (People v. Souza (1994) 9 Cal.4th 224, 229 [detention occurs when “a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away”].) The People argue, however, that the detention was not constitutionally unreasonable. We agree.
In Michigan v. Summers (1981) 452 U.S. 692 (Summers), police officers, arriving with a warrant to search a house for narcotics, encountered the defendant walking down the front steps. They requested his assistance in entering the house, but he said he had left his keys inside. The officers then detained the defendant while they entered and searched the house. Upon finding drugs and learning that the defendant owned the house, police arrested him, searched him and found more drugs on his person. (Id. at p. 693.)
As our Supreme Court stated in Glaser, supra, 11 Cal.4th at page 364, “The high court [in Summers] focused on whether the defendant’s initial detention met ‘the ultimate standard of reasonableness embodied in the Fourth Amendment.’ [Citation.] To decide the question the court examined ‘both the character of the official intrusion and its justification.’ [Citation.]” (Id. at p. 364.) After noting several factors it believed lessened the intrusiveness of the detention, the court addressed the justification side of the equation, and identified three police interests furthered by the detention: preventing flight in the event incriminating evidence is found, minimizing risk of harm to the officers, and facilitating an orderly search through cooperation of the residents, who would have access to locked areas. (Summers, supra, 452 U.S. at p. 702-703.) On the matter of officer safety, the court noted that “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.” (Id. at p. 702.) Balancing the competing interests, the court held that the officers conducting a search for contraband pursuant to a search warrant had “the limited authority to detain the occupants of the premises while a proper search is conducted.” (Id. at pp. 704-705, fns. omitted, italics added.)
In Glaser, six police officers, including one who was a member of a “Narcotics Task Force,” arrived at a house to search it pursuant to a search warrant. The defendant arrived approximately 20 seconds ahead of the officers and was “‘about to open the gate’” that led to the driveway of the house when one of the officers directed the defendant, at gunpoint, to get down on the ground and lie face down. (Glaser, supra, 11 Cal.4th at p. 360.) The defendant obeyed and the officer handcuffed him. Within five minutes, another officer, who had gone inside the house, came back outside, and approximately one minute later defendant was led into the house. (Ibid.) Our Supreme Court held that the “initial brief detention,” i.e., the approximate five-minute period that ended when the second officer returned to the driveway, “was justified by the need to determine what connection defendant, who appeared to be more than a stranger or a casual visitor, had to the premises, and by the related need to ensure officer safety and security at the site of a search for narcotics.” (Id. at p. 365.)
In reaching this conclusion the court, following Summers, considered the degree of intrusiveness of, and the justification for, the detention. With respect to the former factor, the court noted that the intrusiveness of an encounter was increased by the defendant being held at gunpoint, but diminished by the “extremely brief” (Glaser, supra, 11 Cal.4th at p. 366) duration of the detention and the fact that the detention “occurred not in a public place, but at the back gate of a private residence” where, given the virtual absence of witnesses, “[t]he embarrassment and stigma sometimes associated with a detention were thus reduced or eliminated” (id. at p. 367).
The court cited two government interests justifying the detention: (1) the officers’ concern for their safety, a concern that was heightened by the potential for violence inherent in any situation involving illegal drugs, and (2) the “government interest in determining the identity of the person entering premises being searched ….” (Glaser, supra, 11 Cal.4th at p. 368.) This latter interest, the court stated, was “related to, though broader than, the officers’ need for security.” (Ibid.) The court explained: “The risk posed by residents or familiars of the household, who may be involved in the criminal activities therein, is obviously greater than that posed by mere visitors who happen unwittingly on the scene. In addition, determining the identity and connection to the premises of a person who is already present on the search site, or who enters during the search, allows officers to ascertain whether the other interests identified in Summers warrant detention of the person during the search. The ‘legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found’ (Summers, supra, 452 U.S. at p. 702), for example, is present only if there is reason to suspect the person of involvement in criminal activities on the premises. Similarly, only those with ownership, control or knowledge of the premises will be able to assist in the ‘orderly completion of the search.’ (Id. at p. 703.) Searching officers therefore have a legitimate interest in determining the identity and connection of a person present at or entering a search site.” (Ibid.)
In rejecting the defendant’s argument that he was “‘simply a visitor to the premises’” and that therefore “neither the holding nor the rationale of Summers [were] applicable” (Glaser, supra, 11 Cal.4th at p. 370), the court noted the following: The defendant, who was in the process of entering the premises to be searched, displayed an “apparent familiarity with the premises.” (Id. at p. 371.) “The officers who stopped [the defendant] did not know who he was…. [N]o evidence suggested [the officer who initially detained the defendant] knew whether defendant resided at the house or was merely visiting. While defendant may be correct he was not an occupant in the sense the Summers court used that term, the officers who detained him did not know that at the time.” (Id. at p. 370.)
Here, as in Glaser, supra, 11 Cal.4th at page 365, “To test the detention against ‘the ultimate standard of reasonableness embodied in the Fourth Amendment’ (Summers, supra, 452 U.S. at pp. 699-700), we balance the extent of the intrusion against the government interests justifying it, looking in the final and dispositive portion of the analysis to the individualized and objective facts that made those interests applicable in the circumstances of the particular detention.” (People v. Matelski (2000) 82 Cal.App.4th 837 [applying Summers intrusiveness/government interest balancing to detention during a probation search of a residence].)
With respect to intrusiveness, we note first that the court reasonably could conclude that no guns were drawn. (Cf. Glaser, supra, 11 Cal.4th at p. 366 [detaining suspect at gunpoint increased degree of intrusiveness].) Second, Officer Price testified that upon making contact with appellant, she asked appellant her name and if she had documentation of her identity, and that when appellant responded, the officer asked if she could search her purse. Insofar as the record indicates, these events occurred in rapid succession. Thus, the court reasonably could have concluded that the detention, from the time of its inception to the point at which appellant consented to the search of her purse, was brief. As Glaser states: “While the length of the detention is only one circumstance, here its brevity weighs heavily in favor of a finding of reasonableness.” (Id. at p. 367.)
With respect to government interests justifying the detention, we note that although, unlike Glaser and Summers, the officers here did not have a search warrant and the record here does not support the inference that they were in the motel room for the specific purpose of searching for drugs, the court reasonably could have found that the officers found evidence suggesting the presence of illegal drugs, in plain view, immediately upon entering the room. And the fact that appellant was sleeping in the room, like the Glaser defendant’s act of opening the gate, suggested a “familiarity with the premises ….” (Glaser, supra, 11 Cal.4th at p. 371.)
Appellant argues, and we assume without deciding, that she was “a mere visitor in Trout’s motel room rather than an occupant.” However, there is nothing in the record to suggest that at the moment the officers entered they could have known this. And as indicated above, the fact that she was asleep on the bed suggested that she well could have been more than a “mere visitor.” On this record, when we consider the brevity of the detention; the absence of any show of armed force; the presence of drug paraphernalia and the resulting heightened security concerns; and the fact that appellant was asleep on the bed when the officers entered, we conclude the officers had grounds to suspect a connection to the room sufficient to justify a brief detention for the purposes of identification and officers’ safety. Thus, appellant’s consent to search her purse was not the product of an unlawful detention.
Appellant also contends the prosecution did not establish her consent was voluntary because “[t]he circumstances in the instant case were inherently coercive.” In support of this claim, she argues that she gave her purported consent soon after being “awakened from sleep by several officers surrounding her,” and “her only personal item -- her purse -- was inside the room, to which she had no access.” These factors, though they may militate in favor of a finding of involuntariness, do not compel such a finding.
Whether consent was voluntary or was the product of coercion on the part of searching officers is a question of fact to be determined from the totality of the circumstances. (People v. Jenkins (2000) 22 Cal.4th 900, 973.) Accordingly, as indicated above, “we view the [evidence] in the light most favorable to the court’s rulings, deferring to those express or implied findings of fact supported by substantial evidence.” (Ibid.)
See footnote 1.
In People v. James (1977) 19 Cal.3d 99, the court, in rejecting the defendant’s challenge to the validity of his consent to search, noted: “[T]he arresting officer neither held defendant at gunpoint, nor unduly detained or interrogated him; the officer did not claim the right to search without permission, nor act as if he intended to [search] regardless of defendant’s answer.” (Id. at p. 113.) The court here reasonably could have reached the same conclusions. In addition, the fact that Officer Price asked appellant for permission to search her purse also suggests a lack of coercion. “‘The mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.’” (Id. at p. 116.) And, as demonstrated above, there is no merit to the claim that appellant was unlawfully detained. Based on the totality of the circumstances in the instant case, we conclude the evidence was sufficient to support a finding that appellant voluntarily consented to the search of her purse. Accordingly, her challenge to the denial of her suppression motion fails.
DISPOSITION
The judgment is affirmed.