Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF1488, Richard W. Stanford, Jr., Judge.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzales and Andrew Mestman Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Substantial evidence supports the trial court’s determination that consent to search defendant’s residence was freely and voluntarily given. Defendant was detained, and not in custody, when she was questioned by the police, so the trial court did not err in admitting her statements into evidence. Because defendant’s motion to discover the contents of the personnel files of two police officers was not preserved for appeal, the issue is waived. We affirm.
I
FACTS
A jury found defendant Sandra Ann Gomez guilty of one count of possession for sale of methamphetamine and one count of possession for sale of marijuana. The court suspended imposition of sentence and placed defendant on three years’ formal probation. One of the terms and conditions of her probation is to serve 365 days in Orange County jail.
Scott McManus, an investigator with the Anaheim Police Department was assigned to the narcotics unit on February 12, 2007, and was involved in a surveillance of defendant. Another officer radioed he observed “what he believed to be a hand-to-hand transaction that occurred between Miss Gomez and a witness later identified as Kunawongse.”
McManus went to the scene. He was wearing “raid gear” which consists of a police vest that says “police” on the front and back and has a cloth badge. He was also wearing a Sam Browne belt which held handcuffs, gun and a radio. He was asked how many officers were present at the scene. He testified: “I believe, we had five and then th[ere] was at least one patrol officer that was there, uniformed patrol officer.”
By the time McManus arrived at the scene, other officers had already detained defendant. McManus proceeded to interview Kunawongse who said he had just paid defendant for transporting marijuana.
At trial, he was asked what tone of voice he used when speaking with defendant, and responded: “Just as I am speaking to you.” McManus told defendant what Kunawongse had just said, and she denied it. McManus testified defendant “eventually admitted that she was a methamphetamine user, that there was a pipe in her apartment with maybe a little bit of methamphetamine in it so I asked her if I could get it and she told me no.” He then “moved on to another interview.”
During the times McManus was going back and forth questioning the various subjects, defendant was “sitting or standing where I left her.” He said there was a planter next to the strip mall where she was seated. He added: “There were officers in different locations and I am sure there was an officer in that area keeping an eye on people that were there.”
McManus saw a young man across the street. He introduced himself and “told him that I was conducting a narcotic investigation, that I believed his mother was involved in the sales of narcotics and I observed him, it was instantaneously, I observed his cheeks flush and he began to shake.” McManus then “told him that I believed that he knew about the sales and that he was also - I also had information that he was possibly selling marijuana at school for his mother.” At first the young man denied it, but McManus said “he eventually told me that his mother was involved in the sales of methamphetamine and marijuana. He never did tell me that he was involved. And he eventually told me that there was methamphetamine and marijuana in his bedroom at their apartment and it was in his bedroom because that’s where his mother had placed it.”
McManus returned to defendant and confronted her with the information he learned from her son. Defendant was not handcuffed. At first defendant denied what her son said, but McManus said “she eventually then admitted to me that what her son told me was true and that there was, in fact, methamphetamine and marijuana inside a safe that she had placed inside her son’s room.”
McManus went back to defendant with a consent form after he spoke with another subject. He read it to her. McManus said one of the sentences on the consent form is: “No promises, threats or coercion have been made to induce me to consent. I do so freely and voluntarily.” Defendant asked McManus: “Aren’t you threatening me?” McManus said defendant also said “she felt that I was threatening to arrest her son if she didn’t sign this form.” McManus told defendant: “I do not want you to sign this form if you feel threatened in any way.” Defendant signed the form.
After defendant signed the form, McManus returned to the son and asked him to sign the form. He asked whether or not his mother had signed it. McManus showed him defendant’s signature, and he signed the form, too.
After that, the police searched defendant’s residence and McManus found the drugs “exactly as described to me by the defendant and her son. It was in a safe, a briefcase-type safe made by Century. It was in her son’s bedroom.”
After the narcotics were found, defendant was arrested. McManus said the investigation, during which he said defendant was not free to leave, took “between an hour and an hour and a half.”
Timothy A. Miller, a lieutenant with the Anaheim Police Department, was asked what information he had which instigated surveillance that day. He responded: “The information basically came from two different sources and each of the sources indicated that they believed that Sandra Gomez was involved in the sale of narcotics.” He said the police were following defendant and Miller “observed Miss Gomez.” He said defendant walked across a parking lot next to an Audi. Miller saw “a male subject exit the driver’s side of the Audi, get out, walk around the front of the Audi and come up to Miss Gomez and they shook hands.” Miller saw “the male place his right hand into his pocket. I saw them both, both Miss Gomez and the male subject whose last name I think is Kunawongse, they both looked around the parking lot. [¶]... [¶] They both looked away from each other, looked around the parking lot as if they were attempting to detect if there was surveillance going on or if there was someone watching what they were doing.” Miller then “[s]aw the male subject, Mr. Kunawongse, reach into his right rear pants pocket, remove a wallet and take cash out of the wallet. He folded it in half and handed it to Miss Gomez.” Miller said he “believed a narcotic transaction had occurred.”
At that point, Miller, who was wearing “regular street clothes” in an unmarked car, approached defendant and Kunawongse and identified himself as a police officer. When asked if he had his weapon drawn, he responded: “As I approached them, I did have my weapon drawn out by the side, down by my leg, and I also exposed a badge that I had clipped to the front of my belt next to my holster identifying myself as a police officer.” Miller “directed both subjects to put their hands on top of their head....” Defendant was holding the cash that Mr. Kunawongse had handed to her “approximately $1100” in her right hand.
Miller said Officer Schleuter approached the two from the rear wearing a police vest. At that point, Miller said he noticed some movement in the backseat of the Audi. The windows of the Audi were tinted, but Miller could see “two subjects seated in the backseat.” Miller said: “I turned my attention towards them, I saw the male subject, whose last name was Zepeda, reaching with his left hand up towards the center console of the car and I could see he had an object in his hand but I couldn’t tell what it was.” Miller pointed his gun at the two in the Audi. At that point, none of the four were handcuffed. In the glove box of the Audi was “approximately $5,200.”
The passenger in defendant’s car was contacted by another officer and placed in handcuffs. Miller said he did not scream nor did he hear any other officers shout at the subjects or “tell anyone that they were going to blow their head off if they didn’t cooperate.”
II
DISCUSSION
Motion to Suppress Evidence
Defendant claims the search of her home violated her Fourth and Fourteenth Amendment rights. The Attorney General says the “court properly denied appellant’s Penal Code section 1538.5 motion.” (All further statutory references are to the Penal Code.)
Prior to trial, defendant moved the court to suppress evidence against her pursuant to section 1538.5. The motion states 3.3 grams of methamphetamine and 41.13 grams of marijuana were confiscated from her residence during a warrantless search.
Defendant’s declaration is attached to the motion. In it, she declares she was arrested in a market close to her home. She says the police officers approached her using profanities and with guns drawn. She said she was terrified. They asked permission to search her home and she said she refused. She states: “10. Approximately one hour later my 17 year old son, [A.G.] came walking up and Investigator McManus took him aside and spoke with my son. After speaking with my son, Investigator McManus came up to me and told me ‘I have been doing my homework and know your son goes to Western High School and gets good grades. If you do not consent and allow me to search your apartment I am going to get a search warrant and take your son down and I am going to turn him into a piece of [profanity] in the gutter and I’ll make sure he goes nowhere in life.’ [¶] 11. I still refused and Investigator walked away and then later came back and again told me that my son would be in trouble if I did not sign the form. Finally, after approximately one hour of arrest/detention, I agreed to sign the form because I wanted to protect my son. When I signed the form I made it clear to Investigator McManus that the only reason I was signing the form is because what he said about my son and I did feel threatened by him.”
The court conducted a lengthy hearing. In its ruling on the motion to suppress, the court took a long time in explaining the significance of the facts brought out during testimony, and concluded: “Under the circumstances, the way in which the whole thing went down, there are certainly several factors that could have contributed to and made it a close issue as to whether or not a person under her circumstances would have felt unable to refuse. And that comes from all of the same factors which result against her now, but it certainly it true the longer you keep somebody there the less likely they are to feel they can do anything about it. [¶] And, also, as soon as you start mentioning something about the person’s family and what might happen to the family, there certainly are some arguments that that is going to coerce somebody into consenting, even if it’s not put in the same sentence. It’s going to put them in the mind where they feel, a reasonable person’s mind, where they feel they don’t have the ability to refuse. [¶] So the way in which it went down, it’s certainly not a frivolous motion. I see how under the circumstances she might have felt that way because of the actions, how long it too[k], how it was said, and what was said. There are coercive factors, but the test is not met.” The court denied the motion.
“‘Our role in reviewing the resolution of [a motion to suppress] is limited. The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings-whether express or implied-must be upheld if supported by substantial evidence.” [Citations.]’ [Citation.]” (People v. Siripongs (1988) 45 Cal.3d 548, 566-567.) “In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“A warrantless search may, of course, be based on the consent of a person, other than the accused, who has joint dominion or control over the area or thing to be searched. However, the defendant may challenge the validity of the consent insofar as the search infringed his own expectations of privacy under the Fourth Amendment. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 445.)
If a defendant “freely consents to an entry or search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable. [Citations.]” (People v. Michael (1955) 45 Cal.2d 751, 753.) “A consent to search is invalid if not freely and voluntarily given. [Citation.] [¶] The voluntariness of consent is a question of fact to be determined from the totality of circumstances. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 445.)
Defendant invites this court to reweigh the evidence and believe her instead of McManus. That credibility determination was properly made by the trial judge, who believed McManus. Substantial evidence supports the trial court’s finding that consent to search was freely and voluntarily given.
Defendant’s Statements
Defendant argues her statements were obtained in violation of her privilege against self-incrimination, and were improperly admitted into evidence. In the trial court, she filed a motion to suppress “statements made by the defendant to law enforcement officers on February 12, 2007, after being detained at approximately 4:30 PM by officers of the Anaheim Police Department at a parking lot at the corner of Knott Avenue and Orange Avenue.”
During argument at the hearing, defense counsel said: “[W]hen she was initially contacted by police officers in this case, not McManus but other police officers, guns were drawn upon her. Officer Schlueter it appears from the reports and from previous testimonies from other hearings, Officer Schlueter took her California driver’s license. The officers had my client sit down and another officer stood over her the whole time and this was throughout. She was questioned at different times by McManus. He questioned her, came back, questioned her, came back. [¶] My argument is that during this whole time this would amount to a custodial interrogation and she was never read her Miranda [Miranda v. Arizona (1966) 384 U.S. 436] rights previously to giving these statements. I’d ask that the court exclude all statements made to McManus.”
The prosecutor told the court “guns were initially drawn on not only Miss Gomez but there were other individuals there that were [also] part - that were subjects of the investigation. Also, that the guns were not drawn the entire time. When the questioning occurred of Ms. Gomez, there were no guns drawn on her.” The prosecutor pointed out there was a detention for purposes of a continuing investigation, but that “defendant was not in fact in custody, not arrested, and gave all her statements, which ultimately led to an arrest prior to any custody or arrest, and therefore Miranda was not necessary.”
After counsel argued, the court remarked: “So it would seem to me on the issue of whether or not she would believe that she’s free to leave under the circumstances, the fact that she’s told that she’s not being arrested doesn’t really help. I mean if she’s already had her identification taken, been told to sit on the curb, somebody’s standing over her watching her and she’s told she’s not under arrest, it probably still amounts to a detention, a temporary - what’s known as a temporary detention. So you can call that custody or not, it doesn’t matter. The question is, is the custody for purposes of Miranda, that there are requiring the rights to be given before any interrogation is required.” Neither counsel had anything more to add at that point.
The court ruled as follows: “So it seems to me under the circumstances, no formal arrest, told not under arrest, though valid suspicion of criminal activity, no actual crime discovered yet of any sort, but her, under the circumstances, most likely as a reasonable person not being able to think that she could just stand up and walk away. It’s not the situation which is custodial for purposes of Miranda. And throughout all of this, the conversations that she’s having with law enforcement are all admissible. They’re not requiring of Miranda and so I can’t exclude them. Sorry.”
“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ‘“give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
“Under Miranda and the long line of cases following it, a suspect cannot be subjected to custodial interrogation unless there has been a knowing and intelligent waiver of the rights to remain silent, to the presence of an attorney, and, if indigent, to the appointment of counsel; and ‘police interrogation must cease once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney.’ [Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 585.)
“Under the Fourth Amendment,... a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that provoke suspicion.’ [Citation.] ‘[T]he stop and inquiry must be “reasonably related in scope to the justification for their initiation.”’ [Citation.] Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” (Berkemer v. McCarty (1984) 468 U.S. 420, 439, fn. omitted.)
In People v. Lopez (1985) 163 Cal.App.3d 602, the Court of Appeal listed five objective indicia of custody for Miranda purposes: (1) formal arrest; (2) absent formal arrest, the length of the detention; (3) location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer. (Id. at p. 608.)
Defendant concedes she was not formally arrested. The investigation at the scene took between an hour and an hour and a half, which is not surprising because it likely took a long time for the officers to speak with defendant, Kunawongse, the two people in the backseat of the Audi, the passenger in defendant’s car and defendant’s son. Defendant was interviewed by McManus outside, next to a market. She was either standing or sitting on a planter while she was questioned and while others were being questioned. While an officer was “keeping an eye on people,” no one was specifically assigned to guard defendant. Miller said none of the officers shouted and McManus said he used his normal tone of voice and did not threaten defendant. There were approximately six officers at the scene, which works out to one officer for each person being interviewed.
We note an absence of any objective indicia of arrest. It appears McManus was conducting standard on-the-scene questioning, trying to piece together what had happened. We look to the totality of the circumstances. (People v. Forster (1994) 29 Cal.App.4th 1746, 1754.) We conclude defendant was detained just long enough for the police to perform a routine investigation, but she was not in custody for Miranda purposes when she answered McManus’s investigative questions.
Pitchess Motion
Defendant contends the court erred in denying her motion filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, to discover the contents of the personnel files of McManus and Miller. The court conducted a hearing and concluded the sealed declaration was inadequate. The motion was denied without prejudice. There is no indication another motion or declaration was ever filed. “As a general rule, failure to preserve an issue in the trial court will preclude a party from raising that issue on appeal. [Citations.]” (People v. Dossman (1991) 235 Cal.App.3d. 1433, 1436.) Accordingly, the issue has been waived.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.