Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 205558
Kline, P.J.
Salvadore Chavez (defendant) appeals his plea-based conviction and two-year prison sentence for one count of possessing a controlled substance for sale (Health & Saf. Code, § 11378), special allegations having been admitted but additional sentence stayed. He entered a plea of guilty after his motion to suppress evidence was denied, and he claims on appeal that the denial was erroneous (Pen. Code, § 1538.5, subd. (m)). We uphold the denial and resulting judgment.
Background
At issue on the suppression motion was an encounter, parole search and arrest of defendant shortly after 7:38 p.m. on March 29, 2008, by plainclothes officers in front of a house at 805 Vienna Street in San Francisco (the house). This and later searches of a car and defendant’s Treat Street residence, led to discovery of methamphetamine, packaging, a scale, cash, and papers with names and dollar amounts written down. We focus our review on testimony on the contested initial encounter and search.
Campos.
Officers Chad Campos and Brian Hopkins were in an unmarked car and plainclothes when directed to the house by Officers Amy Hurwitz and her partner Robert Toomey. Since the house had been under ongoing surveillance, the units responded as a team. Campos testified that he arrived to find the other officers there in front of the house, Hurwitz talking with men later identified as Edward Munoz and Terry Blue, who stood near a driveway blocked with parked cars, one of which was a white car. Campos parked in front of the house but across the street.
As he pulled up, Campos saw defendant (unknown to him) descending a stairway from the house with an open can of beer, and a young woman about three quarters up the stairs, above him. Hurwitz pointed at defendant, a direction for Campos to contact him. Defendant walked on down the stairs to the sidewalk and parked cars but then, as Campos walked up, “made an immediate turn around and started walking up the staircase.” Campos reached the bottom of the stairs and, leaning against the staircase, as defendant was about halfway back up, asked him if he was on parole or probation. (Hopkins was also in front of the house then but not “with” Campos, and each officer had his “star” exposed on the clothes.) Defendant stopped and responded that he was on parole.
A parole officer confirmed parole status and search authority in testimony.
Campos decided to do a parole search after confirming parole status. He asked-but did not “order”-defendant to step down the stairway, and defendant came down and stood next to him by the white car. Campos related the parole information to Toomey, and heard when confirmation of defendant’s parole status came back over the radio. Campos looked on as Toomey did a parole search of defendant that produced packets of suspected methamphetamine. Defendant was arrested and spoke with the officers, telling them that a car he had been driving-the white one-was his girlfriend’s. Campos searched it and found a scale in the center console. Campos later participated in the search of defendant’s residence.
Hurwitz.
Officer Amy Hurwitz testified that she and Toomey were in an unmarked car surveilling the house, known for methamphetamine trafficking, when they decided to contact two men, Munoz and Blue, working on a vehicle, one of two that were blocking the sidewalk, a traffic code violation. As they stood speaking with the men, Hurwitz could not see the door of the house but saw defendant and a female, later identified as Linda Lucero, emerge at the top of the stairs, defendant holding a can of Budweiser that, from a visible flip-top, Hurwitz knew was open. Campos and Hopkins had arrived, and Hurwitz and her partner were in plainclothes but with department-issued stars clearly displayed on their outermost garments. Hurwitz wore a gun. She often wore a jacket that covered it but was not sure whether she wore a jacket that day; nor did she recall “how the other officers appeared.” She had no handcuffs or baton visible. “At least” those four plainclothes officers were present when defendant came out of the house, but none had guns drawn. Three other officers were also on the scene at some point, but Hurwitz could not say when they arrived.
Hurwitz knew Munoz from prior contacts. He and Blue were advised about the code violation, but neither one was cited or arrested. She did not think that either one was handcuffed, yet said initially that Munoz was.
Hurwitz did not know defendant and did not approach him at first, but directed Campos to contact him. Campos did, and Hurwitz heard defendant reply that he was on parole as she walked over toward them. The inquiry about parole, she testified, was by “Toomey” (sic). She did not recall either officer ordering defendant down the steps, but heard radio verification of his parole status and was present when Toomey searched him. The search produced, in a front pants pocket, a soft eyeglass case holding 12 plastic bags of suspected methamphetamine and, in a wallet, $350 in cash and a suspected pay-owe sheet. Defendant was arrested at that point. Defendant told them he had driven a car parked in front of the house, but said it belonged to Lucero and claimed to be with her. After a registration check showed it registered to Kristen Martinez, Toomey conducted a parole search of it and found the scale. After defendant was transported to Ingleside Station, all four officers in the two units conducted a search of defendant’s Treat Street residence.
Mendieta (Lucero).
Linda Mendieta (maiden name Lucero) testified for the defense that she walked out the door of the house with defendant that evening; she had known him a long time but was not romantically involved. It was still bright out as she left the house, and she saw two officers in front and two more just pulling up in an unmarked car. Her account of events from there on partially differed from the officers’ accounts. She said that both officers from the unmarked car “rushed up the stairs, ” nearly to the top, where she and defendant stood side by side. The officers then “touched” or “pushed” their arms (but did not “grab”) and led them to the bottom of the stairs, where they were each searched and checked for parole status (she not being arrested). Mendieta did not see Munoz or Blue, but she saw the search of defendant that produced something from his pocket. She did not see any officer go to a car before defendant was searched (possibly suggesting that no parole check was done first), but she later said she did not remember whether a radio check was done after defendant was patted down.
Munoz.
Munoz testified that he lived at the house, worked as a mechanic, and was working that day on a car in the garage when Hurwitz came up, without a badge displayed, and asked to see his brother-in-law, Rick. Thinking she might be a friend of Rick’s, he told her Rick was not there but asked how he could help. Hurwitz pulled out a badge and told him to come outside. She searched him and Blue; then she and another officer sat them down on the driveway “while they took care of the other business.” From where he sat on the far side of a car, Munoz could not see the front door from which defendant came, but just before sitting down, Munoz recalled, Officers Toomey and Campos said to defendant, “hey, and ran up to him, and they chained him.” (Munoz had a criminal case pending for a later warrant search, by the same four officers, that revealed a sawed-off shotgun in his room.)
Galbiso and Barone.
Mary Jane Galbiso and Augustus Barone were not eyewitnesses but testified for the defense about citizens’ complaints they had respectively brought against Officers Toomey and Hurwitz, incidents evidently discovered through a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531). Galbiso complained of Toomey’s treatment of a subtenant at her apartment building, and Barone complained of his treatment by Hurwitz at a sobriety checkpoint, when urine sample readings later cleared him of being under the influence.
Ruling.
The court denied suppression, concluding that the initial encounter between Officer Campos and defendant was consensual, not a detention, that Campos’s inquiry about parole status was permissible, and that defendant’s answer justified the officer in detaining him to confirm and then conduct a parole search.
The court did not rest on the legality of a detention but did say that, because defendant was not “in a public place, ” it did not see justification in defendant having an open container. The court also remarked that the officers’ purpose was not “to enforce parking violations or open container violations, ” but to investigate a “problem house, ” saying: “And there is nothing wrong with that. But we need to be straightforward about why they were there.”
Neither side argues on appeal that the officers’ purpose in going to or being at the location bore on the legality of what transpired.
The court then ruled: “I think that-and I listened to the testimony of the defense witnesses, and I-I think, you know, they’re-they’re expressing what they remember. And they seem very straightforward and honest to me. And I don’t think that they’re-I think that they-that the information that they offered was helpful as far as it went. But, ultimately, none of it, in my view, suggested that the testimony of Officer Campos was untrue or inaccurate. [¶] And I think that what he did was to approach the defendant, Mr. Chavez, and in a way that was legally acceptable, was in effect a consensual encounter, asked him whether he was on parole or probation. And having received the information from Mr. Chavez that he was on parole, then proceeded in a manner that was consistent with the process utilized in [People v. Bennett (1998) 68 Cal.App.4th 396 (Bennett)]. [¶] And so I think that it was an appropriate consensual encounter, not a detention. And the subsequent search was justified by Mr. Chavez’s parole status. So, for that reason, the motion is denied.”
Discussion
The key issue is whether defendant was detained when he told the officer he was on parole. “As the United States Supreme Court has explained: ‘ “[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” ’ [Citation.] In this context, a seizure occurs only ‘when the officer, “ ‘by means of physical force or show of authority, ’ ” terminates or restrains [a person’s] freedom of movement [citation] “through means intentionally applied...” [citation].’ [Citation.] The dispositive question is whether, ‘ “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave...” [citation].’ [Citation.] ‘[W]hen a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter...” [citations].’ [Citation.] The test is ‘objective, ’ not subjective; it looks to ‘the intent of the police as objectively manifested’ to the person confronted. [Citation.] Accordingly, an ‘officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant....’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341, italics omitted.)
“Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. [Citations.] Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage-provided they do not induce cooperation by coercive means. [Citation.] If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.” (United States v. Drayton (2002) 536 U.S. 194, 200-201.)
Whether a seizure occurred is a mixed question of law and fact qualifying for independent review. “Accordingly, ‘we review the trial court’s findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently. [Citations.]’ [Citation.] We must accept factual inferences in favor of the trial court’s ruling. [Citation.] If there is conflicting testimony, we must accept the trial court’s resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them. [Citations.]” (People v. Zamudio, supra, 43 Cal.4th at p. 342.)
Relying on the hearing judge’s prefatory comments about defense witnesses “expressing what they remember” and “seem[ing] very straightforward and honest to me, ” defendant constructs two versions of the facts. One accepts everything Mendieta and Munoz said and discounts any inconsistent testimony from the officers. The other tries to reconcile all testimony somewhat more favorably to the ruling. Under either construction, defendant urges, the ruling upholding the encounter as consensual cannot logically stand.
We reject the version that posits all defense testimony as accepted below. The judge’s general musings about defense witnesses “expressing what they remember” and “seem[ing] very straightforward and honest” do not pass for findings on inconsistencies in the evidence. As this Division has said, “musings do not amount to findings” (People v. Bishop (1993) 14 Cal.App.4th 203, 214), and, of course, even straightforward and honest accounts are not necessarily accurate or convincing. Moreover, this judge stated right afterward: “[T]he information that [the defense witnesses] offered was helpful as far as it went. But, ultimately, none of it, in my view, suggested that the testimony of Officer Campos was untrue or inaccurate. [¶] And I think that what he did was to approach the defendant, Mr. Chavez, and in a way that was legally acceptable, was in effect a consensual encounter, asked him whether he was on parole or probation.” Thus the judge found that Campos’s version was not “untrue or inaccurate, ” and that is the finding to which we must defer as we resolve all conflicting facts and inferences in support of the ruling (People v. James (1977) 19 Cal.3d 99, 107).
Campos’s account was that, on a signal from Hurwitz, he left his car, came across the street, and saw defendant retreat back up the staircase. Campos reached the bottom of the staircase, leaned against it and, as defendant was about halfway back up, asked him whether he was on probation or parole. Defendant stopped on the steps and told him he was on parole. Resolving all conflicts in favor of the ruling, just one officer asked for his parole status, was not running at him, was not “with” his partner at the time, and did not follow defendant up the steps. There were four officers on the street by then, but the first two to have arrived were in the driveway, speaking with Munoz and Blue. All four had stars (badges) displayed, but questioning by an officer who wears a badge does not itself constitute a seizure. (United States v. Drayton, supra, 536 U.S. at p. 204.) The evidence does not resolve certainly whether all four officers had firearms, or wore them visibly. Even if they did: “That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.” (Id. at p. 205.) None of these officers had a weapon drawn, and nothing reveals that Campos used a commanding or threatening tone when he asked defendant if he was on parole.
Defendant, of course, had good reason for apprehension due to his circumstances. Putting aside the issue of the open beer, we presume he came down the stairs knowing he was on parole with a search condition and had 12 bags of methamphetamine in a pants pocket. His reaching the bottom of the stairs and then turning heel (upon seeing officers, as Campos testified), raises the strong inference that, realizing officers were present, he thought it better not to be there given his particular circumstances. Those, however, are subjective beliefs irrelevant to our inquiry into coerciveness. (See generally People v. Zamudio, supra, 43 Cal.4th at p. 341; People v. Celis (2004) 33 Cal.4th 667, 673.) The test is how a reasonable person-not a parolee carrying drugs packaged for sale-would feel in the circumstances.
Defendant evidently felt free enough to leave that he did so, going back up the stairs, and we do not see how a question about his parole status changed the objective circumstances significantly. The Bennett case, cited by the court below, had comparable facts and a specific question about parole status: “In the initial contact between Bennett and Officer Gonzales, nothing was done to restrain Bennett’s liberty in any way. Instead, Gonzales approached Bennett and asked, ‘Can I talk to you for a moment?’ Bennett replied, ‘Yes.’ When Gonzales inquired whether Bennett was on parole, Bennett again answered in the affirmative. When asked whether he would mind waiting in the back of the police car while Gonzales ran him for warrants, Bennett again agreed and... was ‘very cooperative.’ Gonzales spoke in a polite, conversational tone and applied no physical or verbal force that might have caused a reasonable person to feel compelled to respond. From all appearances, Bennett’s responses were all voluntarily given, and nothing was done by Gonzales to transmogrify the consensual tone of the conversation or stop Bennett from simply walking away.” (Bennett, supra, 68 Cal.App.4th at pp. 402, fn. omitted.) The testimony here shows no inquiry whether defendant was willing to wait while the officers verified his parole status, but he had already said he was on parole by then, sufficient information to justify a detention for a parole search. (Cf. In re Jeremy G. (1998) 65 Cal.App.4th 553, 556 [good faith exception defeats suppression where minor replies, even in error, that he was subject to a search condition].) The court also correctly distinguished a case from our own division, where an officer illuminated the defendant with his patrol car’s spotlight, then rushed at him over a distance of 35 feet before closing in and asking him his legal status and then parole status. (People v. Garry (2007) 156 Cal.App.4th 1100, 1111-1112.)
The motion being sufficiently resolved on the ground that the encounter was consensual, we have no reason to reach issues like reasonable suspicion or whether the parole search condition attenuated any illegal taint.
Disposition
The judgment is affirmed.
We concur: Lambden, J., Richman, J.
Officer Toomey briefly took the stand but said nothing germane to the legality of the encounter, only that he was Hurwitz’s partner that evening.