Opinion
E051652 Super.Ct.No. RIF141643
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER FELIPE PELAYO-VERDUZCO, Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Alexander Felipe Pelayo-Verduzco guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378 (count 1) and possession of brass knuckles (Pen. Code, § 12020, subd. (a)(1) (count 2)). The jury also found true that defendant possessed 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)) and that he committed count 1 while in possession of a semiautomatic handgun (Pen. Code, § 12022, subd. (c)). Defendant was thereafter placed on formal probation for a period of 60 months on various terms and conditions, including serving one year in county jail. Defendant's sole contention on appeal is that the trial court erred in denying his suppression motion. We reject this contention and affirm the judgment.
In the alternative, defendant claims, assuming his arguments are not cognizable on appeal, that he received ineffective assistance of counsel. Because we address defendant's claims on its merits, we need not decide this alternative issue.
I
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant's sole issue on appeal involves the denial of his suppression motion, the factual background is taken from the hearing on that motion.
Defendant filed a suppression motion pursuant to Penal Code section 1538.5, claiming, among other things, that his detention lacked reasonable suspicion and was unduly prolonged. The People subsequently filed their opposition, arguing defendant's motion failed to state with particularity any basis for the motion.
A hearing on defendant's suppression motion was held on February 9, 2010. At that hearing, Detective James Avila of the Corona Police Department testified that in January 2008 he was conducting an investigation of the Hanger 18 Board Shop located inside the Corona indoor swap meet. Detective Avila had obtained a search warrant to search the board shop and a person named Rogelio Valero, a security guard who worked at the shop. Detective Avila had a Soundex or a Department of Motor Vehicle (DMV) picture of Valero but had not seen him in person.
On February 6, 2008, undercover Corona Police Officer Lisa Larios was working inside the swap meet and had informed Detective Avila there was a security guard who resembled Valero standing by a back door to the board shop. When Detective Avila arrived at the swap meet, he saw defendant dressed in a security guard uniform standing inside the board shop behind the counter. Defendant was also wearing a utility belt with a handgun in a holster. While other officers contacted patrons in the shop and directed them out, Detective Avila approached defendant with another officer and asked him if he could step out from behind the counter. Detective Avila also requested that defendant keep his hands away from his handgun and baton.
Detective Avila then asked defendant if he could search him; defendant responded in the affirmative. The detective also asked defendant if he had any drugs on him; defendant nodded his head up and down and looked at his left breast pocket. Detective Avila searched defendant and found several bags of methamphetamine in his breast pocket. Defendant was thereafter arrested. Another officer searched the rest of defendant's person and found additional bags of methamphetamine in defendant's pants pocket. After defendant was arrested, Detective Avila asked him whether he could search his residence. Defendant consented and signed a written consent form.
Defendant was cooperative and complied with the detective's requests. He was not handcuffed, and law enforcement did not have their firearms out. Altogether there were seven officers in the immediate area of the "little shop." Two officers were in full uniform, and five were in civilian clothes with mesh vests noting "Police" on the right breast and bigger letters of "Police" on the back.
Detective Avila believed that defendant resembled the Soundex photograph of Rogelio Valero and that defendant was Rogelio Valero. On cross-examination, Detective Avila acknowledged that the Soundex photograph indicated that Valero was born in 1969, whereas defendant was born in 1983. Detective Avila also agreed that defendant's name plate was on his uniform and that he had seen it.
Following argument from counsel, the trial court denied defendant's motion to suppress, concluding defendant's consent to search was voluntary. The court noted that the police had a search warrant to search the board shop "in addition to the individual, Rogelio Valero, who law enforcement believed was, in fact, a security guard at that swap meet." The court further pointed out that in executing the search warrant, the police had the right to secure the premises, including any individual located therein. Additionally, the court found: "The first search of the defendant occurs prior to any detention or arrest. He's simply contacted in the store, asked to come out from behind the counter, and requested to keep his hands away from his firearm . . . . [¶] And then the testimony established that [defendant] was asked if he had any drugs in his possession. That's a preliminary question that police oftentimes ask individuals. It doesn't require any type of Miranda admonishment at that point in time. And the defendant nods up and down in an affirmative manner and looks at his pocket on his shirt, and the officer, in fact, asked [defendant] if he could search him. He was given consent and found the initial baggies in his shirt pocket." The court also stated that although there were seven police officers in the general location of the board shop, they were there to execute a warrant with the subject being an armed security guard and that at least two officers escorted two female patrons out of the shop while Detective Avila spoke to defendant. The court concluded that there was no showing the consent to search was involuntary or coerced.
II
DISCUSSION
Defendant contends the trial court erred in denying his suppression motion because (1) the officers had no right to search him under the search warrant; and (2) he was detained once the detective asked him to step out from behind the counter. He further argues that his consent to search was involuntary because it was a product of an unlawful detention.
The standard an appellate court employs in its review of a denial of a motion to suppress evidence is well settled. In evaluating a challenge to the trial court's ruling on a motion to suppress evidence, we defer to its factual findings, whether express or implied, if they are supported by substantial evidence. (People v. Sardinas (2009) 170 Cal.App.4th 488, 493.) We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Not every encounter between the police and a citizen is protected by the Fourth Amendment. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) Police contacts with individuals fall into three broad categories: (1) consensual encounters; (2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A consensual encounter does not trigger Fourth Amendment scrutiny, but a detention requires an "articulable suspicion that the person has committed or is about to commit a crime." (Ibid.)
A consensual encounter "may properly be initiated by police officers even if they lack any 'objective justification.'" (People v. Hughes (2002) 27 Cal.4th 287, 327.) Hence, a detention does not occur when a police officer merely approaches a person on the street, or here, in a parked vehicle, and asks a few questions. (In re Manuel G., supra, 16 Cal.4th at p. 821.) In determining whether an encounter is consensual, a court considers all the circumstances to determine whether a reasonable person would have felt free to decline the police officer's request to talk or to otherwise terminate the encounter. (Ibid.) "'"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.) We must make a realistic assessment of defendant's encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287.) "What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs." (People v. Ross (1990) 217 Cal.App.3d 879, 884.)
Circumstances that might indicate a detention are "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." (In re Manuel G., supra, 16 Cal.4th at p. 821.) However, neither the officer's uncommunicated state of mind nor the individual's subjective belief are relevant in determining whether a detention has occurred. (Ibid.)
"[T]here must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. [Citation.] The [United States Supreme C]ourt has also cautioned against an undue focus on the fact that government action caused some restriction on an individual's freedom of movement: '"a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement . . . , nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement . . . , but only when there is a governmental termination of freedom of movement through means intentionally applied."' [Citations.]" (People v. Brendlin (2006) 38 Cal.4th 1107, 1115-1116.)
Here, assuming, without deciding, defendant was being detained when Detective Avila asked him if he could step out from behind the counter, we find the detention to be lawful.
In Michigan v. Summers (1981) 452 U.S. 692 [101 S.Ct. 2587, 69 L.Ed.2d 340] (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 & fn.1.)
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.]" After noting several factors it believed lessened the intrusiveness of the detention, the court in Summers 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, fn. omitted.) 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 p. 705, fn. 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" duration of the detention (Glaser, supra, 11 Cal.4th at p. 366) 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 a 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' [citation], 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.' [Citation.] 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 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 [the] defendant resided at the house or was merely visiting. While [the] 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, "[t]o test the detention against 'the ultimate standard of reasonableness embodied in the Fourth Amendment' [citation], 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."
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, prior to the execution of a valid search warrant for the board shop and the security guard, Detective Avila was informed by an undercover officer that there was a security guard that resembled the subject of the search warrant at the back door of the board shop. When Detective Avila first contacted defendant, the detective was in the process of executing the search warrant. Defendant, wearing a security guard uniform with a handgun attached to his utility belt, was found inside the board shop behind the counter. Detective Avila testified that defendant resembled the subject of the search warrant. Detective Avila also stated that upon making contact with defendant, he asked defendant to step out from behind the counter, keep his hands away from his handgun and baton, and if he could search him. 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 his person, 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, like Glaser and Summers, the officers here did have a search warrant, and the record indicates that they were at the board shop for the specific purpose of searching for drugs. Moreover, defendant was found in the board shop, matching the description of the subject of the search warrant. Further, the fact that defendant was behind the counter of the board shop, suggested a "familiarity with the premises . . . ." (Glaser, supra, 11 Cal .4th at p. 371.)
Defendant argues "'[a] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.'" He relies on Ybarra v. Illinois (1979) 444 U.S. 85 [100 S.Ct. 338, 62 L.Ed.2d 238] (Ybarra), but Ybarra is distinguishable.
In Ybarra, officers executed a warrant authorizing them to search a bar and the person of a bartender who had allegedly sold heroin there. They had no objective grounds to believe that any patron then on the premises, including the defendant, had purchased heroin from the bartender or anyone else there. They did not recognize the defendant or see him do anything suspicious. Nevertheless, they searched him, along with the other patrons (purportedly for weapons), and found heroin on him. (Ybarra, supra, 444 U.S. at pp. 87-91.)
In finding that the officers' conduct violated the Fourth Amendment, the Supreme Court stated, "[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citation.] Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." (Ybarra, supra, 444 U.S. at p. 91)
Since Ybarra deals mainly with probable cause to justify a warrantless search, it does not support defendant's claim that "mere propinquity to others independently suspected of criminal activity" (Ybarra, supra, 444 U.S. at p. 91) can never give rise to the reasonable suspicion required for an investigative detention. (See U.S. v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed.2d 1].)
Ybarra addresses reasonable suspicion only in rejecting the State's fallback argument that the search could be justified under the stop-and-frisk standard articulated in Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889]. The court disagreed because, unlike in Terry, the officers had no "reasonable belief that [the defendant] was armed and presently dangerous, . . . the predicate to a patdown of a person for weapons." (Ybarra, supra, 444 U.S. at pp. 92-93, fn. omitted.) Here, in contrast to Ybarra and Terry, the officers did not detain defendant to perform a nonconsensual patdown search. Thus, this holding in Ybarra is also inapposite.
Moreover, unlike here, because there was no evidence of drug dealing at the bar, there was no reason to believe the bar patrons were involved in crime or presented a threat to the officers. The patrons may have been near the bartender, but there was no reason to believe they had any connection to him or his possible criminal activities. In contrast, defendant resembled the subject of the warrant who was suspected of drug trafficking and was found in the shop suspected of selling narcotics. Because of defendant's particularized connection to the board shop and his similarity to Valero, the officers had reason to believe he might be involved in criminal activity. The officers were therefore justified in detaining defendant for further investigation. A police officer may temporarily detain a suspect "based only on a 'reasonable suspicion' that the suspect has committed or is about to commit a crime." (People v. Bennett (1998) 17 Cal.4th 373, 387.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)
The detention here was reasonable. As indicated above, law enforcement was in the process of executing a search warrant at the board shop when they first encountered defendant behind the counter of the board shop wearing a security uniform and resembling the subject of the warrant. When we consider the brevity of the detention; the absence of any show of armed force; the resulting heightened security concerns; and the fact that defendant, who was armed, looked like the subject of the warrant and was found at the location of the warrant when the officers entered, we conclude the officers had grounds to suspect defendant was involved in criminal activity to justify a brief detention. Thus, defendant's consent to search his person was not the product of an unlawful detention.
Defendant also contends the People did not establish his consent was voluntary because "of an unlawful assertion of authority . . . ." In support of this claim, he argues that he gave his purported consent soon after seven officers came to the shop with five wearing mesh vests bearing the words "Police" in big letters on the front and back of the vests and asking him to step out from behind the counter. 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 ruling, deferring to those express or implied findings of fact supported by substantial evidence." (Ibid.)
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. Defendant was cooperative and complied with the detective's requests. Defendant was not handcuffed, and police did not have their firearms out. In addition, the fact that Detective Avila asked defendant for permission to search his person 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.) Additionally, as demonstrated above, there is no merit to the claim that defendant 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 defendant voluntarily consented to the search of his person.
Accordingly, because we find no Fourth Amendment violation, the trial court was correct in denying defendant's motion to suppress evidence.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: RAMIREZ
P.J.
HOLLENHORST
J.