Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR186972
Siggins, J.
Walter Watrous appeals from a judgment of conviction for possession of methamphetamine for sale. He contends the trial court erred when it denied his motion to suppress evidence discovered in a search at the time of his arrest. We affirm.
BACKGROUND
The following facts are derived from the transcript of the hearing on defendant’s motion to suppress evidence. Vallejo Police Officer William Badour testified that he and Detective Postolaki were on patrol in the vicinity of the Traveler Inn in Vallejo. Officer Badour had previously arrested people for drug offenses at the inn, and he described it as a “low rental” motel. The owners had previously told Badour they “don’t want people on the property who aren’t staying there . . . because of the drug trafficking and the problems that come with it.” The property was posted with no trespassing signs.
As the officers drove onto the parking lot, Officer Badour saw defendant sitting in the front passenger seat of a parked station wagon. The officers pulled past defendant, parked their patrol car 10 or 15 yards away, got out and walked toward the station wagon. Officer Badour said that as the officers approached, defendant “wouldn’t look at us. He kept his hand, his right hand, he kept placing it down by his right leg.” Badour testified that defendant “would take [his hand] from our sight, and reach it down alongside the door by his right pant leg” where the officers could not see it. Detective Postolaki ordered defendant at least twice to put his hands up where officers could see them. Defendant would briefly comply, but then “his hand would disappear back down towards his leg again.”
Officer Badour asked defendant to open the car door. Defendant did not comply. Badour then approached the car and opened the driver’s side door. Defendant put his hands on top of his head and Officer Badour removed him from the car.
Officer Badour asked if defendant “had anything illegal on him.” Defendant replied, “[i]t ain’t mine.” Defendant then admitted he was on probation with a search clause and Officer Badour searched him. Officer Badour found a pack of cigarettes containing $110 and eight small Ziploc bags of methamphetamine in a metal Altoids container in defendant’s right pants pocket, defendant had numerous similar empty baggies in his right front jacket pocket and $544 in his back pocket. Defendant had a key to room number 147 of the Traveler Inn on a chain around his neck. Officer Badour entered room number 147 and found a digital scale in a dresser drawer.
On cross-examination, Officer Badour testified that he could not see defendant’s hands when he started to approach the car. But, when the officers were eight to 10 yards away, defendant’s right shoulder “ducked a little and we could see his hand go to his right pant leg area. That’s when [Detective Postolaki] told him to put his hands up.” Defendant brought his hands up into view but “never raised them way up in the air or anything.” When defendant dropped his hands back down towards his pant leg, the officers drew their weapons and again told defendant to raise his hands.
When the officers reached the car, Officer Badour ordered defendant to open the door because he was concerned defendant might have a gun. When defendant did not comply, Badour went to the driver’s side of the car to remove him.
The court denied the suppression motion in a detailed ruling from the bench which we will quote at length. It explained: “My understanding of the facts, is that this property had been posted No Trespassing because of the frequent drug sales that went on in this area. The officers were aware of that, and they had been asked to ensure, in community policing, that trespassers didn’t loiter on this property. And in passing by, they saw the parked car with the defendant in the passenger seat. At that point they have a very legitimate reason to approach the defendant and ask him what his business is. [¶] . . . [¶]
“When the police approached, the defendant was not being detained initially. They did not block the car. As they approached, they testified that they saw what they considered to be suspicious movements.
“Now, I have some problem with Officer Badour’s description of these movements, because as the cross-examination pointed out, it was clearly before the police got really [close] to the car, they were unable to—they would have been unable to see down into the side of the car where they said the defendant continued to reach. But there’s no question at that point that the one officer was on the passenger side, and Officer Badour went around to the driver’s side and their guns were drawn, they were seeing some kind of furtive gesture going on, and that is supported by the fact that they drew their guns.
“And at this point, I don’t see any difference in this situation, whether the defendant is in the car or out of the car. And what starts as a nondetention situation, one where the officers are simply conducting a meet and greet type of situation, and then furtive gestures arouse their suspicions, if the attending circumstances justify it, and make it reasonable for them to believe that there may be a weapon involved. I think the officers at that time have an absolute right to detain a defendant on a Terry basis, a detention that is tactically made. And I think that’s exactly what we have here, because all [defendant] had to do was respond at that point, or drive away, or anything, other than sit there with these furtive gestures. If he had gotten out of the car, or remained in the car, but when the police reasonably detect what could be reasonably, under the circumstances, activity which suggested to them that a person may be armed, and certainly we know that firearms are very, very common with drug transactions. We see it all the time. The officers don’t have to wait until the gun is produced. They don’t have to wait until the first shot is fired, and that’s what we have here.”
The court concluded that the officers had reasonable cause for believing defendant may have been armed and for the detention that followed when defendant admitted he was on probation and subject to search. It denied the motion to suppress.
Defendant was tried by the court. He was acquitted of transporting methamphetamine, convicted of possessing methamphetamine for sale, and sentenced to state prison for the middle term of two years. This appeal timely followed.
DISCUSSION
I. Standard of Review
When we review the denial of a motion to suppress we defer to the factual findings of the trial court. (People v. Snead (1991) 1 Cal.App.4th 380, 383-384.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court and all presumptions favor its findings. (People v. Leyba (1981) 29 Cal.3d 591, 597; People v. James (1977) 19 Cal.3d 99, 107.) We review the court’s legal conclusions de novo and apply our independent judgment to measure the facts determined by the trial court against the constitutional standard of reasonableness. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Leyba, supra, at p. 597.)
II. The Court Correctly Found the Initial Encounter Between Defendant and the Officers Was Consensual
“Police contacts with individuals may be placed into three broad 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.) A consensual encounter does not trigger Fourth Amendment scrutiny unless and until it loses its consensual nature. (Florida v. Bostick (1991) 501 U.S. 429, 434.)
“[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to 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.” (Florida v. Bostick, supra, 501 U.S. at p. 439.) Relevant circumstances include the number of officers present, the display of weapons, physical touching, language and tone of voice. (In re Manuel G., supra, 16 Cal.4th at p. 821; United States v. Mendenhall (1980) 446 U.S. 544, 554.) “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” (INS v. Delgado (1984) 466 U.S. 210, 216.)
Here, as officers approached defendant when he was sitting in the station wagon, there was certainly no detention. Police may approach citizens on the street without implicating the Fourth Amendment. (In re Kemonte H. (1990) 223 Cal.App.3d 1507, 1511; Florida v. Royer (1983) 460 U.S. 491, 497; see also United States v. Mendenhall, supra, 446 U.S. at pp. 547-548, 555.) The officers did nothing inappropriate in merely approaching defendant to ascertain whether he had a reason to be parked on the motel grounds.
Nor will we conclude Detective Postolaki’s command to defendant to put his hands in the air transformed the consensual encounter into a detention. A similar contention was made in In re Frank V. (1991) 233 Cal.App.3d 1232, where the defendant asserted he was detained when an officer ordered him to remove his hands from his pockets. We agree with the Frank V. court that “Telling persons to keep their hands in sight is not the same as telling them to stay.” (Id. at p. 1239.) Just like that court, “We are sensitive to the delicate balance between Fourth Amendment rights and a police officer’s safety. ‘ “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” [Citation.] . . . Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.”. . . [¶] What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.’ ” (Id. at p. 1238.) The same reasoning applies in this case.
We also agree with the trial court that defendant’s behavior provided adequate cause for the very brief investigative stop that occurred when the officers removed defendant from the car and began to question him. It is well established that circumstances short of probable cause to make an arrest may justify a police officer to stop and briefly detain a person for questioning or other limited investigation. (Terry v. Ohio (1968) 392 U.S. 1, 20-21; In re Tony C. (1978) 21 Cal.3d 888, 892.) To justify an investigative detention, however, the officer must be aware of specific and articulable facts supporting an objectively reasonable suspicion that the person may be involved in criminal activity. (Terry v. Ohio, supra, at p. 21; People v. Aldridge (1984) 35 Cal.3d 473, 478.) If the circumstances are consistent with criminal activity, the officer may detain an individual to further investigate even if the circumstances are equally consistent with an innocent explanation. (People v. Souza (1994) 9 Cal.4th 224, 233; People v. Brown (1990) 216 Cal.App.3d 1442, 1449.)
In this case, the officers had sufficient reason to suspect defendant was armed. He was observed sitting in a car parked in a motel parking lot known as a trouble spot for drug sales and where Officer Badour had previously made arrests for drug offenses. “An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.” (People v. Souza, supra, 9 Cal.4th at p. 240.) When defendant became aware of the officers’ presence he quickly looked away and avoided making further eye contact. Although that action alone did not justify a detention, it was among the various circumstances the officers could and did reasonably consider. (Id. at p. 227; People v. Carlson (1986) 187 Cal.App.3d Supp. 6, 24 [defendant’s avoidance of eye contact with officers was one of several circumstances justifying detention].) Then, despite the officers’ orders to raise his hands, defendant would show them and drop them from view. We agree with the trial court’s considered judgment that the totality of the circumstances support a reasonable suspicion of criminal activity such as to warrant detaining defendant for the few moments it took to remove him from the car and ascertain that he was on probation and subject to search. In the trial court’s apt words, under these circumstances the officers were not required to wait until a gun was produced or for a shot to be fired.
Defendant argues that “[i]f the officers were in fact afraid appellant was going to shoot them, it would seem logical to find out first if he had a weapon. The whole weapon ‘justification’ was just an excuse to search appellant for contraband.” This is no more than a challenge to Officer Badour’s credibility, the assessment of which is left strictly to the trial court. (People v. Leyba, supra, 29 Cal.3d at p. 597.) Moreover, the fact these officers drew their weapons corroborated their concern for their safety to the satisfaction of the trial court.
III. Defendant’s Miranda Rights Were Not Implicated
Defendant contends, for the first time on appeal, that the detention constituted a custodial interrogation such that the officers were required to administer a Miranda warning before they asked him any questions. We disagree. “Although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” (California v. Beheler (1983) 463 U.S. 1121, 1125.)
Miranda v. Arizona (1966) 384 U.S. 436.
People v. Celis (2004) 33 Cal.4th 667 is instructive. There, our Supreme Court explained that “ ‘[t]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ [Citations.] Important to this assessment, however, are the ‘duration, scope and purpose’ of the stop.” (Id. at pp. 674-675.)
The length or brevity of the stop is a critical factor in this assessment. (People v. Celis, supra, 33 Cal.4th at p. 675.) Here, it was at most a matter of minutes before defendant admitted he was on probation and subject to a search condition. As to the scope of the police intrusion, Celis observes that “stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest. (See People v. Soun (1995) 34 Cal.App.4th 1499, 1517 [detention when the defendant ‘was removed from the car at gunpoint by a large number of police officers, was forced to lie on the ground, was handcuffed and placed in a patrol car, was transported from the site of the stop a distance of three blocks to a parking lot,’ where he was held for 30 minutes]; In re Carlos M., supra, 220 Cal.App.3d at p. 384 [detention when the defendant was handcuffed and transported to hospital for identification by rape victim; 30-minute duration]; Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077 [‘A brief . . . restriction of liberty, such as handcuffing, during a Terry stop is not a de facto arrest’]; Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d 987, 991 [driver stopped at gunpoint and ordered out of his truck, handcuffed and held in a patrol car for between 45 and 60 minutes was detained, not arrested]; United States v. Alvarez (9th Cir.1990) 899 F.2d 833, 838-839 [investigative detention when the defendant forced at gunpoint to get out of his car]; United States v. Buffington (9th Cir. 1987) 815 F.2d 1292, 1300 [no arrest when driver was stopped at gunpoint, ordered out of car and forced to lie on the ground]; United States v. Bautista (9th Cir.1982) 684 F.2d 1286, 1289 [handcuffing did not convert detention into arrest]; but see People v. Campbell (1981) 118 Cal.App.3d 588, 595-596 [the defendant functionally under arrest when police at an airport stopped him at gunpoint, handcuffed him, and took him to an office for questioning; restraint went beyond that ‘reasonably necessary for a detention’].)” (Ibid.)
Viewed in the context of these authorities, the brief and minimally intrusive restraint on defendant’s freedom of movement did not rise to the degree associated with a formal arrest. A Miranda warning was not required.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.