Opinion
A148698
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. DYLAN BLAINE STREETER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1600579A)
Dylan Blaine Streeter (appellant) appeals from a judgment entered after he pleaded guilty to possession of a firearm by a felon. Appellant contends the court erred in (1) failing to reassign the hearing on his motion to suppress evidence to another judge and (2) denying his motion to suppress. We reject both contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2016, at approximately 6:04 p.m., Humboldt County Sheriff's Sergeant Jesse Taylor was in uniform driving a marked patrol vehicle in downtown Garberville. He observed a light blue minivan with two occupants pull into the parking lot of the Humboldt House Inn. The vehicle caught his attention because a light blue minivan had been seen fleeing the scene of a burglary he investigated several days earlier. In addition, Taylor was aware that a light blue minivan had been reportedly "casing" a neighborhood in Redway that morning.
Taylor turned his car around and entered the parking lot to investigate. He parked alongside the parking stalls about four to six spaces away from the minivan, which was parked front first in one of the stalls. Taylor's patrol car did not block the minivan from exiting the lot.
Taylor observed the minivan for just over a minute. During that time, the minivan's occupants remained seated in the vehicle. According to Taylor, the lighting in the parking lot was sufficient to permit his vehicle to be identified as a police car by the people in the minivan. Taylor decided to make contact with the vehicle's occupants. He pointed the patrol vehicle's side spotlight at the minivan's rear window, "illuminating the entire interior." Taylor walked up to the minivan, identified himself, and tapped on the driver's side window. The driver rolled down the window.
As Taylor spoke with the driver, whom he later identified as appellant, he recognized the passenger as Shaun Stringfellow, a probationer he had arrested previously. Taylor also "[f]airly quickly" noticed that two knife handles were protruding from appellant's waistband.
Despite recognizing Stringfellow and seeing appellant's knives, Taylor did not give any orders to the vehicle's occupants. Instead, he explained the reason for approaching the vehicle and engaged in "small talk." Taylor asked appellant to identify himself. Appellant first responded verbally by providing his name and birthdate, and later provided a driver's license to Taylor. Taylor initiated a records check and quickly learned that appellant had an outstanding infraction warrant and that Stringfellow was on probation with outstanding warrants.
Under cross-examination, Taylor could not recall with certainty when he obtained appellant's driver's license, including whether it was before or after appellant exited the minivan. After reviewing his report, Taylor testified that appellant initially identified himself verbally by providing his name and date of birth. Taylor used the information supplied verbally by appellant, and not the driver's license, to initiate the warrants check.
While preparing to arrest Stringfellow, Taylor continued to engage appellant in conversation. Within about two minutes of the initial contact with appellant, and shortly after Taylor learned of the warrants, a second deputy arrived and arrested Stringfellow.
At that point in time, Taylor did not intend to arrest appellant on the infraction warrant and had not formed any suspicion that appellant had committed a crime. Nevertheless, he decided to order appellant out of the van and patsearch him for Taylor's own safety. In explaining why he chose to patsearch appellant, Taylor noted that appellant was still seated in the minivan armed with knives next to an area Taylor intended to search. In addition, Taylor pointed out that he had discretion to cite appellant on the infraction warrant.
Taylor asked appellant to get out of the vehicle so that he could conduct the patsearch. Appellant complied. As he conducted the patsearch, Taylor felt hard objects underneath appellant's clothing at the waistline. He lifted appellant's shirt and observed a military style belt. Appellant volunteered that he had a firearm on his person, at which point Taylor handcuffed him.
The minivan was then searched. The search revealed two long guns hidden underneath other property in a rear cargo area that could be accessed from the front seats by crawling through the middle row of seats.
In a two-count information filed in February 2016, the Humboldt County District Attorney charged appellant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)).
Appellant moved to suppress all evidence discovered as a result of his encounter with officers on February 2. Taylor was the sole witness to testify at the hearing on the motion to suppress. On the basis of Taylor's testimony, defense counsel argued that the encounter with appellant was an unlawful detention from the outset, when Taylor turned on the spotlight and approached the minivan. In the alternative, even if the initial encounter were consensual, defense counsel contended it became an unlawful detention when Taylor asked for appellant's name, birthdate, and driver's license. The trial court denied the motion.
After the motion to suppress was denied, appellant pleaded guilty to being a felon in possession of a firearm. The remaining charge was dismissed on the People's motion. The court sentenced appellant to the middle term of two years in state prison. This timely appeal followed.
DISCUSSION
I. The Trial Court's Purported Failure to Reassign the Suppression Motion
Appellant argues that the court abused its discretion and deprived him of his due process right to a fair hearing by not reassigning the suppression motion to another judge. He claims the assigned judge had previously ruled on the legality of the challenged police conduct and therefore was not impartial. As we explain, appellant forfeited his claim of error, which in any event lacks merit.
The ostensible basis for the trial judge's alleged bias is a ruling the judge made shortly after appellant was arrested that found probable cause to maintain appellant in custody for an arrest made without a warrant. Taylor, the sheriff's sergeant who testified at the suppression hearing, completed a form entitled, "Statement of Probable Cause for Arrests Made Without a Warrant and Arrestee Is Booked into Jail." Under a section of the form in which the arresting officer is directed to state facts comprising probable cause for a warrantless arrest, Taylor wrote: "On the above date, I conducted a vehicle investigat[ion] on a suspicious vehicle [in Garberville]. The driver, Dylan Streeter, had two knives on his person. During a patsearch for weapons, I located a loaded .45 Colt hand gun, ammo, and later, suspected methamphetamine." At the bottom of the form, the judge marked an "X" next to "Probable Cause Found," signed the form, and noted the time and date the form was signed. There is no indication in the record that any hearing was held with regard to this matter or that the judge heard anything about the facts of the case other than what is reflected on the form itself. Nevertheless, appellant argues on appeal that the judge who signed the form finding probable cause for the arrest should have sua sponte recused herself from hearing the motion to suppress more than two months later because she "had previously . . . shown her hand on the issue of police lawfulness to stop, search and arrest."
As an initial matter, appellant forfeited his claim of error by failing to object in the trial court. In general, a "specific and timely objection to judicial misconduct is required to preserve the claim for appellate review." (People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) Appellant contends there could be no forfeiture of the claim because a lack of impartiality is a structural error giving rise to a due process violation. We are not persuaded, at least under the circumstances presented here. A claim of "invidious bias" may not be forfeited on appeal as a result of the failure to object in the trial court. (See People v. Geier (2007) 41 Cal.4th 555, 613.) Here, however, appellant does not suggest the trial judge publicly displayed a bias or lack of impartiality. Instead, he asks the court to infer that the judge, having already made one previous ruling in the case, would have a " 'confirmatory' bias" that would tend to make the judge confirm or reinforce the earlier decision. Although appellant cites no case law addressing this type of bias or whether it may legally form the basis for a claim that a judge is not impartial, his argument appears to be a due process bias claim that is subject to forfeiture. (See People v. Johnson (2015) 60 Cal.4th 966, 979-980.)
Even if appellant's judicial bias claim was not forfeited, the argument fails on the merits. Although the mere appearance of bias may support a judge's disqualification under state disqualification statutes (see Code Civ. Proc., § 170.1 et seq.), more is required when a defendant claims on appeal that a judge's bias amounts to a violation of the due process clause. (People v. Cowan (2010) 50 Cal.4th 401, 457.) To establish a due process violation, the appellant bears the burden of identifying objective facts establishing a "constitutionally intolerable probability of actual bias." (Ibid.) Generally, there must be a showing of "extreme" or "extraordinary" facts demonstrating actual bias. (People v. Freeman (2010) 47 Cal.4th 993, 1006.)
Here, the record reflects no evidence of bias, prejudice, or hostility by the assigned judge. The mere fact the assigned judge found probable cause to arrest appellant without a warrant does not suggest the judge was predisposed to rule a particular way on a motion to suppress months later. Indeed, in finding probable cause for the warrantless arrest, the judge did not necessarily make any determination about the validity of the search that preceded the arrest. The focus of the probable cause determination was on whether there was evidence that a crime had been committed and not on whether the search passed constitutional muster. Appellant's due process claim therefore fails as a factual matter.
Further, as a legal matter, appellant's claim is tenuous at best. Essentially, appellant suggests that a judge should be disqualified from hearing a case once he or she has issued an adverse decision that is, in one party's view, clearly erroneous. No authority is cited for this proposition. Judicial officers commonly issue rulings on sequential matters involving the same evidence in a single case. (See, e.g., Pen. Code, § 1538.5, subd. (b) [motions to traverse or invalidate search warrant should be heard by the magistrate who issued the warrant].) Indeed, it is a judge's duty to consider the evidence and pass upon it. The mere discharge of that duty—even erroneously—does not, without more, constitute evidence of bias. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219; Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786; People v. Carter (2005) 36 Cal.4th 1215, 1244.)
Appellant described the judge's finding of probable cause for the warrantless arrest as "plainly ludicrous" absent any explanation as to why Taylor believed the vehicle he investigated was suspicious.
Accordingly, even assuming appellant's challenge was not forfeited as a result of the failure to object, we conclude the assigned judge had no obligation to recuse herself from hearing appellant's motion to suppress.
II. Motion to Suppress
Appellant argues that the court erred in denying his motion to suppress because the encounter with Taylor constituted an unlawful detention. In addition, appellant argues that there was no justification to handcuff him and conduct a patdown search even if circumstances otherwise warranted a brief detention. We address these issues in turn after setting forth the legal principles that guide our review.
A. Governing Legal Principles
For purposes of assessing an unlawful seizure claim under the Fourth Amendment, there are basically three different categories or levels of police contact with individuals. (People v. Hughes (2002) 27 Cal.4th 287, 327.) The least intrusive type of interaction is a consensual encounter, which may be initiated by law enforcement even if there is no objective justification for the contact. (Ibid.) The most intrusive type of contact is an arrest or a restraint on an individual's liberty comparable to an arrest, which is permissible only if police have probable cause to arrest the individual for a crime. (Id. at pp. 327-328.) We are concerned here with what is commonly referred to as a detention, an interaction that falls between a consensual encounter and an arrest. A detention is considered a seizure under the Fourth Amendment and must be strictly limited in duration, scope, and purpose. (Id. at p. 327.) To justify a detention, the police must have a reasonable, articulable suspicion that the individual had committed or was about to commit a crime. (Ibid.)
As a general matter, a person contacted by law enforcement has been detained within the meaning of the Fourth Amendment only if, " 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed he [or she] was not free to leave.' " (In re Christopher B. (1990) 219 Cal.App.3d 455, 460; accord, People v. Hughes, supra, 27 Cal.4th at p. 328.) The test of whether a detention has occurred is an objective one. The subjective beliefs of the officer and the individual citizen involved in the encounter are not relevant in assessing whether a police encounter amounts to a detention except when the officer's overt acts communicate his or her state of mind. (People v. Franklin (1987) 192 Cal.App.3d 935, 940.) Police conduct that "might indicate a 'detention' or 'seizure' under a reasonable person standard include a threatening police presence, the display of a weapon by an officer, the physical touching of the citizen approached, or the officer's language or voice indicating compliance with police demands might be compelled." (In re Christopher B., at p. 460.) However, "[t]here is no bright line rule indicating the point at which police conduct becomes a seizure." (Ibid.)
"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
B. Whether Appellant Was Detained
Appellant first asserts he was detained without any articulable suspicion that a crime had been committed "the moment Sergeant Taylor trained his spotlight on the rear of the van and illuminated the entire interior." To the extent appellant contends the use of a police spotlight alone constitutes a detention, he is mistaken. In People v. Garry (2007) 156 Cal.App.4th 1100, 1107 (Garry), the court reviewed published decisions assessing whether the use of a spotlight amounted to a detention for purposes of the Fourth Amendment. The court concluded the "cases have not found the use of a spotlight alone to constitute a detention." (Id. at p. 1111.) For example, in People v. Rico (1979) 97 Cal.App.3d 124, 130, the appellate court reasoned that the "momentary use of [a] spotlight and the notable absence of any additional overt action is . . . insufficient to be categorized as a detention." Instead, the cases that address the use of a spotlight have considered that fact as part of the totality of the circumstances in "determining whether there was a show of authority sufficient to establish [a detention]." (Garry, at p. 1111.)
Appellant next asserts that, even if the use of a spotlight did not constitute a detention, he was clearly detained "by the time the officer stood outside the driver's door, tapping on the glass, and physically blocking appellant from exiting the vehicle or driving away." He adds that the ensuing conversation was coercive.
The analysis in People v. Perez (1989) 211 Cal.App.3d 1492 (Perez) is instructive in assessing appellant's claims. There, a police officer parked his patrol vehicle near a car occupied by two people. The officer left plenty of room for the car to leave. He shined his high beams and spotlights, but not his emergency lights, "in order to get a better look at the occupants and gauge their reactions." (Id. at p. 1494.) The officer then walked to the car, tapped on the driver's side window with a flashlight, shined the flashlight into the window, and asked the defendant to roll down his window. (Ibid.) The appellate court concluded "the conduct of the officer here did not manifest policy authority to the degree leading a reasonable person to conclude he [or she] was not free to leave. While the use of high beams and spotlights might cause a reasonable person to feel himself [or herself] the object of official scrutiny, such directed scrutiny does not amount to a detention." (Id. at p. 1496.) The court emphasized that the defendant's car was not blocked in by the police car or prevented from leaving and the officer had not activated his emergency lights. (Perez, at p. 1496.)
Insofar as appellant relies on cases involving the police use of emergency lights, those authorities are inapposite. California courts make a distinction between the use of emergency lights, which typically conveys a directive to stop, and the use of a spotlight for illumination, which may or may not constitute a detention depending upon all of the surrounding circumstances. (Compare People v. Bailey (1985) 176 Cal.App.3d 402, 405-406, with Garry, supra, 156 Cal.App.4th at p. 1111.)
By contrast, in Garry, supra, 156 Cal.App.4th at page 1112, the Court of Appeal concluded there was a sufficient show of authority in addition to the use of a spotlight to qualify as a detention. There, after observing defendant for only "five to eight seconds," the officer "bathed defendant in light, exited his police vehicle, and, armed and in uniform, 'briskly' walked 35 feet in 'two and a half, three seconds' directly to him while questioning him about his legal status." (Id. at p. 1111.) In addition, the officer "immediately questioned defendant about his probation and parole status, disregarding defendant's indication that he was merely standing outside his home. In other words, rather than engage in a conversation, [the officer] immediately and pointedly inquired about defendant's legal status as he quickly approached." (Id. at pp. 1111-1112, fn. omitted.)
The circumstances here more closely resemble the facts in Perez as opposed to those in Garry. At the moment Taylor turned on his spotlight, there was little if anything else to suggest coercion. Appellant had parked his car on his own and was not the subject of a traffic stop. Taylor did not park close to appellant's minivan or block him from driving away. The spotlight was only directed at defendant's minivan for a few moments before Taylor approached. Moreover, there was no show of force. Taylor was alone and not accompanied by any other officers. He was not carrying a shotgun and did not draw any weapon. And, although he tapped on the glass and asked to speak with appellant, nothing in the record suggests he approached appellant in an aggressive or physically intimidating manner. There is no evidence that he raised his voice or issued any commands. Instead, he engaged appellant and Stringfellow in casual "small talk."
Furthermore, there is no evidence to support appellant's assertion that he was physically blocked from leaving. Appellant was not prevented from leaving simply because Taylor was standing at the side of the car. The fact that Taylor stood next to the driver's side window and knocked on the glass is no different from the circumstances described in Perez, supra, 211 Cal.App.3d at page 1494. Indeed, unlike the situation here, in Perez the officer also shined a flashlight into the vehicle. (Ibid.) Yet, the Perez court still concluded the officer's conduct did not amount to a detention. (Id. at p. 1496.) Appellant has not pointed to any other evidence to suggest that the tenor of the encounter was menacing or intimidating. Therefore, we agree with the trial court that the encounter did not constitute a detention, at least until Taylor conducted a nonconsensual patdown search, which we address separately below.
In a footnote, appellant asserts that Taylor's request for and retention of his driver's license also weighs in favor of finding that he was detained. Insofar as appellant suggests he was detained simply because Taylor asked for his name and date of birth during a casual encounter, we disagree. (See People v. Bouser (1994) 26 Cal.App.4th 1280, 1287.) Nevertheless, the fact that an officer requests and retains a driver's license has a bearing upon whether a reasonable person would feel free to leave. (See People v. Linn (2015) 241 Cal.App.4th 46, 67.) But little, if any, coercion is exerted when an officer examines a license and promptly returns it. (See People v. Leath (2013) 217 Cal.App.4th 344, 353.)
Appellant asks us to infer that Taylor examined appellant's driver's license before he ran the warrant check and then held the license until the results were received. The record does not necessarily support either inference. Although Taylor was initially unable to recall precisely when he obtained appellant's license, upon further examination he testified that he first asked appellant for his name and date of birth and ran the warrant check using the verbally supplied information. Thus, the trial court could have reasonably inferred that Taylor did not request appellant's license until after he had already run the warrant check. As for the issue of whether Taylor retained the license, the record contains no evidence that Taylor held onto the license, much less that he retained it for some extended period of time.
To the extent the record below reflects ambiguity concerning when Taylor asked for the license and how long he held onto it, we are not free to choose any inferences that conflict with the trial court's ruling. (People v. Woods (1999) 21 Cal.4th 668, 673.) We presume the trial court implicitly found that Taylor did not take appellant's driver's license before running a warrant check or retain it for an unreasonable period of time. Thus, we are not convinced that the request for appellant's license transformed an otherwise consensual encounter into a detention.
C. Legality of the Patsearch
As a final matter, appellant challenges the legality of the patsearch for the first time on appeal. He contends that, even if circumstances warranted a brief detention, there was no justification to patdown or handcuff appellant. We disagree.
An officer may briefly detain the companion of the subject of a search warrant in order to protect officer safety, even if the companion is not the subject of the warrant or suspected of criminal activity. (See People v. Samples (1996) 48 Cal.App.4th 1197, 1206.) The officer may also protect his or her own safety by conducting a patdown search of persons who are close companions of the person who is the subject of the warrant. (Id. at pp. 1210-1211.) Although this case involves the execution of arrest warrants rather than a search warrant, the same officer safety concerns are implicated, particularly where, as here, the officer was conducting a search of appellant's vehicle incident to the arrest of the passenger in appellant's vehicle.
In assessing whether a patsearch of a detained individual is lawful, we ask whether "a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." (Terry v. Ohio (1968) 392 U.S. 1, 27.) It is unnecessary for the officer to be "absolutely certain" the individual is armed. (Ibid.)
Here, Taylor testified that he ordered the patdown of appellant for his own safety before he conducted a search of the vehicle incident to Stringfellow's arrest. Taylor not only suspected that appellant was armed with a weapon but knew that for a fact. It was not unreasonable under the circumstances to ask appellant to get out of the vehicle while it was searched. It was also not unreasonable to patsearch appellant, who was armed with knives, himself had an outstanding infraction warrant, and appeared to be a close companion of Stringfellow, a probationer whose arrest prompted a search of appellant's vehicle. Further, Taylor did not act unreasonably in handcuffing appellant, an action that was taken only after appellant volunteered that he was carrying a gun.
Appellant urges that other less intrusive options may have been available to Taylor. However, the record does not reflect that these alternatives were available and, in any event, the law does not require an officer to utilize them, particularly if doing so would create unnecessary risk to officer safety. (People v. Collier (2008) 166 Cal.App.4th 1374, 1378.)
Thus, we conclude that the patdown search was independently justified by objective facts supporting Taylor's safety concerns and not, as appellant asserts, the fruit of an unlawful detention.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.