Opinion
E065690
08-09-2017
THE PEOPLE, Plaintiff and Respondent, v. TOMMIE BUCKNER, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene S. Sevidal, Kristen Ramirez, and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1500857) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene S. Sevidal, Kristen Ramirez, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Tommie Lee Buckner was contacted by two deputy sheriffs while he was walking down a dark road at around midnight. After casual conversation, defendant was asked if he was carrying any weapons. Defendant said he was carrying a knife and agreed to allow one of the deputies to retrieve it from his pants pocket. Defendant was then arrested for carrying a concealed weapon.
Defendant appeals from judgment entered following jury convictions for carrying a concealed dirk or dagger (Pen. Code, § 21310; count 1) and possession of a controlled substance in a jail (§ 4573.6; count 2). The court further found defendant suffered a prior serious and violent conviction. The trial court sentenced defendant to five years and four months in state prison.
Unless otherwise noted, all statutory references are to the Penal Code. --------
Defendant contends the trial court erred in denying his motion to suppress evidence on the ground he was unlawfully detained and searched in violation of his rights under the Fourth Amendment. Defendant further argues that all evidence obtained during, and subsequent to, the unlawful detention must therefore be suppressed. We conclude the deputies' contact with defendant was a consensual encounter before the retrieval of defendant's knife. We therefore affirm the judgment.
II
FACTS
Because the key issue here is whether defendant was unlawfully detained, the relevant facts are taken primarily from Deputy Manila's testimony presented during the pretrial hearing on defendant's motion to suppress. Deputy Manila was the sole testifying witness. No other evidence was presented at the hearing. Our review is limited to the evidence that was before the trial court when it ruled on the motion to suppress. (People v. Garry (2007) 156 Cal.App.4th 1100, 1105, fn. 2 (Garry).)
Deputy Manila testified during the hearing on defendant's motion to suppress that on January 23, 2015, at around 11:30 p.m., Deputy Manila was on patrol with his partner, Deputy Donner. They were headed eastbound (E/B) when they saw an African American man (defendant) walking westbound (W/B) on Bear Valley Road. Defendant was walking on the sidewalk on the E/B side of the street.
Deputy Manila first noticed defendant when Deputy Manila was approximately 20 or 30 yards from defendant. Deputy Manila pulled over and parked his patrol car next to the curb about 10 to 15 yards in front of defendant. Deputy Manila turned on the patrol car spotlight to illuminate the general area because the area was dark and the patrol car was blocking part of the traffic lane. Otherwise drivers might not see the car. He also activated the back-facing overhead emergency lights so that other drivers would drive around the patrol car and not hit it. The front-facing emergency lights were not activated.
Deputies Manila and Donner walked toward defendant as defendant walked on the sidewalk toward the patrol car and the deputies. Deputy Donner was holding a flashlight, with the beam shining on the ground. Deputy Manila testified that when he and Deputy Donner got out of the patrol car, they "[j]ust got out of the car and walked up casually to talk to him." Deputy Manila described their walk toward defendant as "[j]ust a walk, brisk walk." Deputies Manila and Donner did not say, "stop, police, put your hands up" or anything of that nature. When approaching defendant, they did not give him any commands. Their weapons were not drawn. Deputy Manila did not tell defendant he was suspected of a crime or was being investigated.
After Deputies Manila and Donner, who were in uniform, walked up to defendant, Deputy Manila casually conversed with him. Deputy Manila said "hi" to defendant and "[H]ey, how's it going?" Defendant said he was on the way to the store. Their conversation began casually. It was conversational, not interrogative. Deputy Manila was about three feet away from defendant during the conversation. Deputy Donner was four or five feet behind Deputy Manila. He was there to back up Deputy Manila in the event something happened. Deputies Manila and Donner did not physically restrain defendant or lay hands on him until after defendant said he had a knife and Manila retrieved it from defendant's pocket.
Deputy Manila testified that when he saw defendant walking down the street by himself, Deputy Manila decided to pull over and talk to him casually. He had no reason to stop defendant. Deputy Manila testified he just wanted to talk with him. Deputy Manila was not investigating anything. Deputy Manila did not see defendant engage in any criminal activity before initiating conversation with him.
For officer safety purposes, Deputy Manila asked defendant if he had any weapons on him that Deputy Manila should know about. Defendant said he had a knife in his front pocket. Deputy Manila asked defendant if, for safety purposes, Deputy Manila could retrieve the knife. Defendant consented. Deputy Manila found a nine-inch knife in a sheath in defendant's jeans pocket. Defendant was wearing jeans under his sweats and a jacket. The knife was not visible in plain view. Upon locating the knife, Deputy Manila placed defendant under arrest and handcuffed him. Deputy Manila did a patdown search to make sure defendant did not have any other weapons, escorted him to the patrol car, and then transported him to the detention center.
When Deputy Manila and defendant entered the detention center, Deputy Manila advised defendant of his Miranda rights. Defendant indicated he understood his rights and began speaking to Deputy Manila about the facts of his arrest. Defendant said he wanted a full explanation of why he was arrested, because his knife was in a sheath. Deputy Manila explained defendant's charges, and that defendant's knife was a concealed weapon, because it was inside his pocket. After defendant was booked into jail, he was stripsearched according to standard procedures. A pipe and four bags of methamphetamine were found concealed in defendant's buttocks.
III
WHETHER THERE WAS A DETENTION
Defendant contends the trial court erred in denying his motion to suppress evidence under section 1538.5. He argues the motion should have been granted because the People failed to meet their burden of establishing that, when the deputies contacted him, a reasonable person would have believed that he was not free to leave. Therefore he was unlawfully detained. We disagree. A. Procedural Background
Before the trial, defendant filed a motion under section 1538.5 to suppress all physical evidence seized from him, on the ground he was unlawfully detained. The People filed opposition, arguing the deputies' initial contact with defendant was a consensual encounter. The trial court conducted a thorough hearing on defendant's motion to suppress, which included testimony by Deputy Manila. After listening to testimony and extensive argument on the motion, the trial court denied defendant's motion to suppress, concluding the initial encounter was consensual, not an unlawful detention. The court explained: "There is no physical force or show of authority, and for that reason I'm going to deny defendant's motion." B. Law Applicable to Motion to Suppress
Law enforcement officers' contacts with individuals may be placed into the following three 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." (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G).) The key issue here is whether Deputies Manila and Donner's contact with defendant was a consensual encounter or a detention. "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.]" (Ibid.; in accord, Garry, supra, 156 Cal.App.4th at p. 1106.)
The test for determining whether a law enforcement contact is a consensual encounter or detention is whether, "'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" (Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, quoting United States v. Mendenhall (1980) 446 U.S. 544, 554.) The court must "'determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.]'" (Manuel G., supra, 16 Cal.4th at p. 821.) This determination is fact driven and turns on the totality of the circumstances surrounding the incident.
Circumstances that may support a finding there has been a detention include "'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. [Citations.] The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred." (Manuel G., supra, 16 Cal.4th at p. 821; in accord, Garry, supra, 156 Cal.App.4th at p. 1106.)
"The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.]" (Manuel G., supra, 16 Cal.4th at p. 821.) "An officer may approach a person in a public place and ask if the person is willing to answer questions. If the person voluntarily answers, those responses, and the officer's observations, are admissible in a criminal prosecution. [Citations.] Such consensual encounters present no constitutional concerns and do not require justification." (People v. Brown (2015) 61 Cal.4th 968, 974 (Brown).)
In reviewing the trial court's ruling on defendant's motion to suppress, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (Garry, supra, 156 Cal.App.4th at p. 1106; in accord, Brown, supra, 61 Cal.4th at pp. 974-975.) Here, the relevant facts presented at the hearing on defendant's motion to suppress are undisputed. C. Discussion
The issue here is whether defendant was unlawfully detained before Deputy Manila retrieved defendant's knife and handcuffed him. This turns on whether a reasonable person in defendant's position would have believed that he was not free to leave. (People v. Wilson, supra, 34 Cal.3d at p. 790.) Defendant argues that he was detained based on the very nature of Deputies Manila and Donner's intimidating acts when they contacted him. Defendant contends that any reasonable person in his position would not have felt free to disregard the officers and leave the scene.
It is undisputed the officers did not command defendant to do anything in this case. Instead, defendant relies primarily on the officers' nonverbal actions, including their use of a spotlight to illuminate the area and activation of the back-facing overhead emergency lights, and the deputies "briskly" walking toward defendant. The People argue the deputies used the spotlight and back-facing overhead emergency lights to illuminate the area because the parked patrol car was blocking part of a traffic lane, and the deputies approached defendant merely to casually converse with him.
In People v. Franklin (1987) 192 Cal.App.3d 935 (Franklin), which is factually similar to the instant case in significant respects, the court held there was no detention. In Franklin, a police officer noticed the defendant walking down the street alone in a known crime area after midnight. Franklin was wearing a full-length coat, which seemed odd on a warm summer evening. The officer noticed that when he shined his patrol car spotlight on Franklin, Franklin appeared to be concealing something. The officer stopped his car directly behind Franklin. The officer got out of the car and met Franklin in the area of the headlights. Without the officer initiating any conversation, Franklin repeatedly asked, "'What's going on?'" (Id. at p. 938.) The trial court concluded that, up to this point, Franklin had not been detained, and denied defendant's motion to suppress.
In affirming the trial court order denying defendant's motion to suppress, the court in Franklin, supra, 192 Cal.App.3d 935, observed that "the officer did not block appellant's way; he directed no verbal requests or commands to appellant. Further, the officer did not alight immediately from his car and pursue appellant. Coupling the spotlight with the officer's parking the patrol car, appellant rightly might feel himself the object of official scrutiny. However, such directed scrutiny does not amount to a detention. [Citation.] Thus, appellant's approach toward the patrol car appears as a voluntary act and not a submission to a show of authority. Appellant's claim that he was detained improperly is rejected." (Id. at p. 940.)
With regard to the officer shining the spotlight on Franklin, the court in Franklin stated that, "[w]hile the spotlighting of appellant alone fairly can be said not to represent a sufficient show of authority so that appellant did not feel free to leave [citation], the question is whether the immediate act of pulling to the curb behind appellant constituted an 'additional overt action' [citation] sufficient to convince a reasonable man he was not free to leave. We think not." (Franklin, supra, 192 Cal.App.3d at p. 940.) The court explained that, when an officer does not attempt to block a pedestrian's way, there is no detention. (Ibid.) We conclude the officers' use of the back-facing overhead emergency lights to illuminate the area in this case was not an overt action or a show of authority. The officers also did not attempt to block defendant's way.
The court in Franklin concluded the consensual encounter, however, converted into a detention when the officer told Franklin to remove his hands from his pockets. (Franklin, supra, 192 Cal.App.3d at p. 941.) When Franklin did so, the officer saw blood on Franklin's hands and a vial containing a white powdery substance. When Franklin put his hands back in his pockets, the officer again told him to remove them. At that point, defendant fled, with the officer in pursuit. (Id. at p. 938.)
The Franklin court explained that, "Where a consensual encounter has been found, police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not." (Franklin, supra, 192 Cal.App.3d at p. 941.) The Franklin court concluded that the nature of the officer's request that Franklin remove his hands from his pockets, did not convert the consensual encounter into a detention. (Ibid.) "However, if the manner in which the request was made constituted a show of authority such that appellant reasonably might believe he had to comply, then the encounter was transformed into a detention." (Ibid.)
In the instant case, the nature of Deputy Manila's inquiries as to whether defendant was carrying any weapons and whether Deputy Manila could retrieve defendant's knife, did not convert the encounter into a detention. As the court concluded in Franklin, all we know is that the officer asked defendant if he was carrying any weapons. "Such a request, an asking, reasonably cannot be construed as a show of authority sufficient to transform the encounter into a detention." (Franklin, supra, 192 Cal.App.3d at p. 942; see People v. Epperson (1986) 187 Cal.App.3d 115, 120.)
In Garry, which is factually distinguishable from the instant case, the court reversed the trial court ruling denying the defendant's (Garry) motion to suppress evidence. The court in Garry held there was a detention on the ground there had been a show of authority so intimidating as to communicate to a reasonable person that he was not free to terminate the encounter. (Garry, supra, 156 Cal.App.4th at p. 1112.)
In Garry, an officer pulled up in his patrol car about 35 feet from the defendant, who was standing next to a parked car on a street corner, in a high crime area, at around midnight. After observing the defendant from his patrol car for five to eight seconds, the officer turned on the patrol car's spotlight, illuminating Garry. The officer, who was armed and in uniform, exited his vehicle and briskly walked 35 feet in two to three seconds directly to Garry. Garry appeared nervous, shook, and walked backwards, away from the officer. Garry told the officer he lived "right there," pointing to his house on his right. (Garry, supra, 156 Cal.App.4th at p. 1104.) The officer said he wanted to confirm that and asked Garry if he was on probation or parole. Defendant said he was on parole, upon which the officer decided to detain Garry to find out why Garry was there. The officer grabbed defendant. Defendant pulled away "violently." (Id. at p. 1104.) As defendant resisted, the officer put him in an arm-shoulder lock, put Garry on the ground, and handcuffed him. The officer asked Garry if he had any weapons and Garry said he had none. (Ibid.)
The Garry court acknowledged that, "while cases have not found the use of a spotlight alone to constitute a detention [citations], they also indicate its use should be considered in determining whether there was a show of authority sufficient to establish one occurred." (Garry, supra, 156 Cal.App.4th at p. 1111.) With regard to the use of a spotlight, the Garry court cited the following cases: People v. Rico (1979) 97 Cal.App.3d 124, 130 ["momentary use of the spotlight and the notable absence of any additional overt action is . . . insufficient to be categorized as a detention . . . ."]; Franklin, supra, 192 Cal.App.3d p. 940 ["Coupling the spotlight with the officer's parking the patrol car, appellant rightly might feel himself the object of official scrutiny. However, such directed scrutiny does not amount to a detention."]; People v. Perez (1989) 211 Cal.App.3d 1492, 1494 ["While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention"]; but see People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034 [finding there was a detention where the defendant was "standing in a police spotlight"]; People v. Roth (1990) 219 Cal.App.3d 211, 215 (Roth) [finding a detention where there was use of a spotlight, in addition to officer's verbal orders]. (Garry, at pp. 1107-1111.)
The court in Garry further noted that, when determining whether there has been a detention, the court should consider "both an officer's verbal and nonverbal actions in order to 'assess[] the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.' [Citation.]" (Garry, supra, 156 Cal.App.4th at p. 1110; see Franklin, supra, 192 Cal.App.3d at p. 940 [finding no detention, in part because the officer directed no verbal requests or commands]; Roth, supra, 219 Cal.App.3d at p. 215 [finding there was a detention because officer ordered defendant to stop and approach a police patrol car].)
The Garry court also noted that several cases "place great significance on how the officers physically approach their subjects. (See Franklin, supra, 192 Cal.App.3d at p. 940 [noting that the officer did not try to block appellant's way and finding no detention in part because the officer did not leave his vehicle]; People v. Perez, supra, 211 Cal.App.3d at p. 1496 [same]; People v. Jones[ (1991) 228 Cal.App.3d 519,] 524 [noting that the officer parked the police car a mere 10 feet away on a diagonal against traffic in a 'sudden' approach]; People v. McKelvy, supra, 23 Cal.App.3d at p. 1034 [referring to four officers approaching the defendant while displaying shotguns or carbines.].)" (Garry, supra, 156 Cal.App.4th at pp. 1110-1111.)
In Garry, the court concluded that the officer's testimony made it clear that the officer's actions, taken as a whole, constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was not free to decline the officer's requests or otherwise terminate the encounter. The Garry court reached this conclusion based on the officer's testimony that, after only five to eight seconds of observing Garry from the police vehicle, the officer "bathed appellant in light, exited his police vehicle, and, armed and in uniform, 'briskly' walked 35 feet in 'two and one-half, three seconds' directly to him while questioning him about his legal status." (Garry, supra, 156 Cal.App.4th at p. 1111.) "In other words, rather than engage in a conversation, [the officer] immediately and pointedly inquired about defendant's legal status as he quickly approached." (Garry, supra, 156 Cal.App.4th at pp. 1111-1112.) In addition, after defendant said he was on parole, the officer grabbed the defendant, forced him to the ground and handcuffed him.
The instant case is distinguishable from Garry. Unlike in Garry, here, there is no evidence the deputies rushed toward defendant, covering 35 feet in two and a half to three seconds, while questioning him pointedly about his legal status. Instead, after Deputies Manila and Donner walked up to defendant, Deputy Manila engaged in casual conversation with defendant. The deputies did not grab defendant, and they did not handcuff him until after Deputy Manila retrieved defendant's knife. Also, unlike in Garry, there was no testimony that the officers suddenly illuminated defendant, and the defendant in Garry backed away, whereas defendant in the instant case continued to approach the deputies as they walked toward him.
Based on the factors discussed in Garry, the court in People v. Mendoza (2011) 52 Cal.4th 1056 (Mendoza) found there was a consensual encounter, not a detention. The defendant in Mendoza was convicted of first degree murder with special circumstances of intentional killing of a police officer, and murder for the purpose of avoiding lawful arrest. At 1:30 a.m., the decedent, Officer Fraembs, contacted defendant and his two companions, one of whom was the defendant's girlfriend. While out on patrol, Officer Fraembs noticed the two men and woman on a "lonely industrial street." (Id. at p. 1080.) Defendant's girlfriend testified Officer Fraembs stopped and asked in a friendly manner, "How are you guys doing tonight?" (Id. at pp. 1064, 1080.) Defendant responded with "'an attitude,'" saying something like, "What the hell are you stopping us for." (Ibid.) Officer Fraembs told defendant and his girlfriend to sit down on the curb. Officer Fraembs told the other male, who had a knife in a visible knife sheath hanging from his belt, to go over to the patrol car. While Officer Fraembs conducted a patdown search of the individual, defendant pulled out a gun and fatally shot Officer Fraembs.
In addressing the issue of whether Officer Fraembs was acting lawfully when the defendant shot him, the Mendoza court concluded the officer initiated a lawful consensual encounter when he approached the defendant and his two companions. (Mendoza, supra, 52 Cal.4th at p. 1081.) Mendoza noted that "'law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place'" or "'by putting questions to him if the person is willing to listen.'" (Ibid., quoting Florida v. Royer (1983) 460 U.S. 491, 497.)
The defendant in Mendoza argued that the consensual encounter transformed into an illegal detention when Officer Fraembs directed defendant and Flores to sit on the curb and told the other individual to go over to the patrol car. (Mendoza, supra, 52 Cal.4th at p. 1081.) In addressing this proposition, the Mendoza court stated that "[a] consensual encounter may turn into a lawful detention when an individual's actions give the appearance of potential danger to the officer. [Citation.] 'The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' [Citations.]" (Ibid.)
In the instant case, the officers' consensual encounter did not transform into an unlawful detention when Deputy Manila asked if defendant was carrying any weapons or when Deputy Manila retrieved defendant's knife. Defendant voluntarily told Deputy Manila he was in possession of a knife and consented to Deputy Manila removing his knife. The retrieval of defendant's knife constituted lawful conduct under Mendoza, based on a reasonable concern for officer safety, and also because defendant voluntarily responded and agreed to the retrieval of his knife. (Mendoza, supra, 52 Cal.4th at pp. 1081-1082.)
In Manuel G., supra, 16 Cal.4th at page 820, the California Supreme Court reversed the Court of Appeal ruling holding that there was an illegal detention. The court in Manuel G. based its holding on the following facts: "[Deputy] Sims's uncontradicted testimony indicated that after the deputy got out of his patrol car, the minor continued walking toward him. Sims asked whether they could talk, and the minor responded to his questions. Sims did not draw his gun or deter or stop the minor from continuing what he was doing. Approaching the minor in a public place and asking him questions were not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave." (Manuel G., at p. 822, citing Florida v. Bostick (1991) 501 U.S. 429, 434.)
The Manuel G. court concluded that up until the minor threatened to kill Deputy Sims and his friends, nothing in the record suggested the deputy "had, by words, gestures, or other coercive conduct, restrained the minor in any manner." (Manuel G., supra, 16 Cal.4th at p. 822.) The court further concluded that the minor's detention was lawful after he made the threats. (Ibid.) When the minor threatened the deputy and Deputy Sims ordered the minor to sit on the curb, the consensual encounter transformed into a lawful detention. (Id. at pp. 822-823.) The Manuel G. court explained that "there is no evidence in the record suggesting that Sims, by words, gestures, or other coercive conduct, restrained the minor in any manner before the minor threatened to kill Sims." (Id. at p. 823.) The Manuel G. court added, "Moreover, even if the testimony upon which the minor relies might support a finding that the encounter was a detention, we must view the evidence in the light most favorable to the judgment below. [Citation.] If the circumstances reasonably justify the juvenile court's finding, we cannot reverse merely because the circumstances also might support a contrary finding. [Citation.] This rule applies equally to express and implied findings. . . . Properly applying that standard in this case, we cannot say the deputies' uncontradicted testimony did not furnish substantial evidence that the encounter was consensual." (Id. at p. 823.)
Likewise, here, Deputy Manila's uncontradicted testimony showed that, after Deputies Manila and Donner got out of the patrol car, defendant continued walking toward them. Deputy Manila casually conversed with defendant and defendant voluntarily responded to Manila's inquiry as to whether defendant was carrying any weapons. As in Manuel G., the consensual encounter transformed into a lawful detention and arrest when Deputy Manila retrieved defendant's knife. There is no evidence in the record suggesting that Deputies Manila and Donner, by words, gestures, or other coercive conduct, restrained defendant in any manner before discovering he was unlawfully carrying a concealed knife. (Manuel G., supra, 16 Cal.4th at p. 823.)
Defendant relies on Brown, supra, 61 Cal.4th 968, for the proposition that when the deputies approached him, a reasonable person would have believed that defendant was not free to leave or otherwise terminate the encounter. Brown is not on point. In Brown, a deputy sheriff investigating a 911 report of a fight in progress, pulled his patrol car behind the defendant's parked car and activated the emergency lights. As the deputy walked up to the defendant's car, he saw the defendant sitting behind the wheel. He appeared intoxicated. The Brown court held that the deputy detained the defendant, because a reasonable person under those circumstances would not have felt free to leave. The Brown court, however, also held that the detention was lawful because it was supported by a reasonable suspicion necessary to support the investigative stop. (Brown, supra, 61 Cal.4th at p. 972.)
In discussing whether the officer's contact with the defendant in Brown was a detention or consensual encounter, the court in Brown, stated that "[t]he Supreme Court has long recognized that activating sirens or flashing lights can amount to a show of authority." (Brown, supra, 61 Cal.4th at p. 978.) However, the Brown court clarified that, "[t]o be clear, we do not adopt a bright-line rule that an officer's use of emergency lights in close proximity to a parked car will always constitute a detention of the occupants. '[A]ny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account "'all of the circumstances surrounding the incident'" in each individual case.'" (Brown, at p. 980; italics added.)
Brown, supra, 61 Cal.4th 968, is distinguishable in that it involves an investigative encounter with a defendant in a vehicle. The Brown court addressed whether a stop involving a driver in a parked car is analogous to a vehicular stop, where the car has been moving. Brown does not involve noninvestigative contact with a pedestrian. Furthermore, in Brown, the deputy pulled behind the defendant's car with the emergency lights activated, in a manner similar to a vehicular stop, in which a reasonable person who is a driver of a car would believe he or she was not free to leave or otherwise terminate the encounter.
We conclude based on the totality of the circumstances that Deputies Manila and Donner's initial encounter with defendant was consensual, not an unlawful detention. Neither the deputies nor their patrol car blocked defendant's freedom of movement or path. When Deputy Manila parked the patrol car next to the curb, 15 to 20 yards in front of defendant and walked toward defendant, defendant continued walking on the sidewalk toward the deputies. Although Deputy Manila turned on the spotlight and back-facing emergency lights, he explained there was reason for doing this. It was dark, the street was dimly lit, and the patrol car was partially impeding a traffic lane. Deputy Manila stated that the spotlight and back-facing emergency lights were necessary to illuminate the area for traffic approaching from behind the patrol car. Otherwise drivers might not see the patrol car and hit it. There is no evidence the spotlight was directed at defendant, and only the back-facing emergency lights were activated for the purposes of preventing cars from hitting the patrol car. The front-facing emergency lights facing defendant were not activated.
In addition, Deputy Manila testified there was no use of physical force, no display of weapons, no threats or authoritative commands, and no show of authority other than the fact the deputies were wearing uniforms and exited a patrol car. They walked "briskly" toward defendant but remained on the sidewalk and there was no evidence that their approach was intimidating or aggressive. The deputies did not command defendant to approach them or stop, or do anything until after Deputy Manila retrieved defendant's knife, at which point defendant was lawfully detained and arrested for unlawfully carrying a concealed knife. Deputy Manila testified the deputies did not stop defendant in the course of conducting an investigation and Deputy Manila initiated contact with defendant by engaging in casual conversation.
As the Franklin court stated, "Where a consensual encounter has been found, police may inquire into the contents of pockets [citation] . . . or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not." (Franklin, supra, 192 Cal.App.3d at p. 941.) Here, Deputy Manila's testimony indicates that the deputies did not coerce or force defendant to respond to Deputy Manila's inquiry as to whether defendant was carrying any weapons. Defendant may have rightly felt himself the object of official scrutiny. "However, such directed scrutiny does not amount to a detention." (Franklin, at p. 940.) "'[It] [is not] enough to establish a seizure that the person asking the questions was a law enforcement official. [Citations.]' [Citation.] Not every street encounter between an officer and a citizen is a seizure triggering Fourth Amendment protections." (People v. Epperson, supra, 187 Cal.App.3d at p. 120.)
The totality of the circumstances supports the trial court's determination that during a consensual encounter deputies Manila and Donner, defendant voluntarily agreed to cooperate with the deputies by answering Deputy Manila's questions and by allowing Deputy Manila to retrieve defendant's concealed knife. We therefore reject defendant's contention that he was unlawfully detained. In turn, since defendant's contact with the deputies was a consensual encounter, and defendant's consent to the retrieval of his knife was the product of a lawful encounter, the evidence seized from defendant need not be excluded. The trial court thus appropriately denied defendant's motion to suppress.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.