Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. VA101004, Yvonne T. Sanchez, Judge
Leonard J. Klaiff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Jose Ibarra appeals from the judgment following his guilty plea to possession of a controlled substance (methamphetamine). (Health & Saf. Code, § 11377, subd. (a).) He admitted a prior serious felony conviction within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced him to 32 months in prison (the low term of 16 months doubled) and dismissed 3 prior prison term allegations. (Pen. Code, § 667.5, subd. (b).)
Appellant contends the trial court erred when it denied his pretrial motion to suppress evidence, after which he changed his plea. We affirm.
Factual and Procedural Background
On May 22, 2007, Deputy Sheriff Raul Zuniga and his partner, Deputy Edwards, were on patrol near 70th Street in the Florence-Firestone area of Los Angeles County, a high crime area. Around 6:00 p.m., Deputy Zuniga noticed a man (appellant) and woman walking down the street. Appellant was wearing clothing typical of gang attire (dark-colored baggy pants and a black jersey). He had a shaved head and gang-tattooed arms.
Deputy Edwards slowed the patrol vehicle, drove alongside appellant, and asked him if he was on probation or parole. Appellant was not ordered to stop. Appellant replied, "Yeah, I'm on parole." The deputies then got out of the car, Deputy Zuniga with his gun lowered at his side.
Speaking in a conversational tone, Deputy Edwards asked Appellant if he had any contraband on his person. Appellant said, "Yeah." Deputy Edwards then searched appellant and recovered a small cellophane bag containing a substance that resembled crystal methamphetamine. He was arrested for possession of a controlled substance.
Appellant moved to suppress the evidence on the ground that he had been unlawfully detained. The trial court denied the motion, concluding that the interaction between appellant and the officers was a "consensual encounter" during which appellant admitted to being on parole. The court added that there was no search until appellant admitted being in possession of contraband.
DISCUSSION
Appellant acknowledges that suspicionless searches of parolees are permissible under the Fourth Amendment as long as they are not arbitrary, capricious or for the purpose of harassment. (People v. Reyes (1998) 19 Cal.4th 743, 752.) He contends, however, that the "limited Fourth Amendment protections afforded to parolees would be rendered meaningless if the police are permitted to ask a person who is merely walking on a public sidewalk, doing nothing . . . suspicious, if he or she is on probation or parole." He argues the actions of the police in this case were arbitrary and violative of his Fourth Amendment rights. We disagree.
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We 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. [Citation.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Under this standard of review, we conclude that appellant was not seized within the meaning of the Fourth Amendment when he revealed his parole status. A seizure does not occur simply because a police officer approaches an individual on the street and asks a few questions. (Florida v. Bostick (1991) 501 U.S. 429, 434.) "So long as a reasonable person would feel free 'to disregard the police and go about his business,' [citation], the encounter is consensual and no reasonable suspicion is required. . . . 'Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'" (Ibid.; see also In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Appellant argues that it is arbitrary and harassing for an officer to approach an individual and ask whether the person is on probation or parole if the officer does not know the answer to the question and the only purpose of the question is to obtain an affirmative response in order to conduct a search. For authority, appellant relies on dicta in a footnote in Samson v. California (2006) 547 U.S. 843. In Samson, the search was upheld because the officer knew the individual was on parole at the time of the search. In dicta, the court stated that under California precedent it would be unreasonable for an officer to conduct a suspicionless search of a parolee without knowledge that the individual was on parole. (Id. at p. 856, fn. 5.) The court cited People v. Sanders (2003) 31 Cal.4th 318, where officers, who did not know of a resident's parole status when they searched his home, could not later use that status to justify the search. (Id. at p. 322). Neither Samson nor Sanders aid appellant, because the officers knew that appellant was on parole at the time of the search.
An officer may inquire as to an individual's parole status during a consensual encounter. (People v. Bennett (1998) 68 Cal.App.4th 396, 402-403.) In Bennett, a police officer conducting a prostitution sweep approached the defendant and asked if he was still on parole. After the defendant responded affirmatively, he agreed to wait in the patrol car while the officer ran a warrant check. (Id. at p. 399.) In affirming the denial of the defendant's motion to suppress, the Court of Appeal recognized that the contact was "a classic consensual encounter" for which "no justification was required." (Id. at pp. 402-403.) The court noted that "[f]rom all appearances, [defendant's] responses were all voluntarily given, and nothing was done by [the officer] to transmogrify the consensual tone of the conversation or stop [defendant] from simply walking away. [Fn. omitted.]" (Id. at p. 402.)
Here, the officers pulled alongside appellant in their patrol car and asked him if he was on probation or parole. They did not flash any emergency lights, their weapons were not yet drawn, and appellant was not asked or ordered to stop. Like the defendant in Bennett, appellant was free to keep walking and was not obligated to answer the officer's question. The trial court properly concluded that this was a consensual encounter. Once appellant revealed he was on parole, however, the officers could lawfully detain and search him without reasonable suspicion. Still, the officers did not search him until he admitted he was in possession of contraband.
A search is arbitrary only when the motivation for the search is unrelated to rehabilitative, reformatory or legitimate law enforcement purposes, or when the search is motivated by personal animosity towards the parolee. (People v. Reyes, supra,19 Cal.4th at pp. 753-754; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) There is no basis to conclude that the search was unrelated to legitimate law enforcement purposes, or that it was motivated by personal animosity. Appellant has not shown that the search was conducted in an unreasonable manner. The trial court properly denied appellant's motion.
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.