Filed 5/10/16 P. v. Pierce CA4/1
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                       COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                                 D068218

          Plaintiff and Respondent,

          v.                                                                (Super. Ct. No. SCD259018)

VERONICA PIERCE,

          Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.



          Jordan H. Schweller for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina Y. Lane-

Erwin and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and

Respondent.
       Veronica Pierce appeals from a judgment after guilty verdicts on two counts of

marijuana-related offenses. Pierce challenges the trial court's denial of her motion to

suppress evidence following her detention and a warrantless search prior to her arrest.

We will affirm on the basis that, because Pierce was not in custody at the time of the

search, she was not entitled to the protections of Miranda v. Arizona (1966) 384 U.S. 436

(Miranda).

                                              I.

                  FACTUAL AND PROCEDURAL BACKGROUND1

       On October 8, 2014, San Diego Police Department Detective John Mc Gill was

working an undercover assignment with the narcotics task force's commercial interdiction

team. After surveilling Pierce and her codefendant, Tyrone Jabari White, for most of the

day, McGill detained Pierce at the FedEx shipping center on 47th Street in San Diego. At

the time of the initial contact by McGill, Pierce was at the counter, filling out a shipping

label for a box in her possession, and White was outside in the parking lot. McGill did

not believe he had probable cause to arrest Pierce or White at that time.

       As McGill approached Pierce, he identified himself as a police officer; showed her

his badge; and said, " 'Let's go outside with your friend.' " McGill was not in uniform,

and although he was carrying a gun, it was under his shirt and not in view. McGill took

the box off the counter, and Pierce accompanied him outside. In the parking lot, five or


1      "In reviewing the trial court's denial of a motion to suppress evidence, we view the
record in the light most favorable to the trial court's ruling . . . ." (People v. Jenkins
(2000) 22 Cal.4th 900, 969 (Jenkins).)

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six police officers were talking with White approximately 20 feet away from McGill and

Pierce.

          Once outside, McGill asked Pierce about her relationship with White. Pierce

could not identify White by name, although she stated that she had been driving around

with her "friend" all day. McGill requested and Pierce produced her personal

identification, which indicated that she was from New York.

          With heightened suspicion, McGill explained to Pierce: he had been a police

officer for over 30 years; he had followed her and White all day — to a Postal Annex

store where White had purchased several collapsed boxes and Styrofoam peanuts, to the

United States Post Office on Stevens Way, to a residence near 68th Street, and then to the

FedEx shipping center; and he believed the box contained marijuana. Although Pierce

did not say anything, she shook her head in a manner to indicate "no." McGill

responded, " 'If [the box] doesn't have marijuana, is there cocaine in it?' " — to which

Pierce replied, " 'No. Just a little weed.' " (Italics added.) The police officers opened the

box, found what they believed to be marijuana and McGill arrested Pierce.2 Pierce was

not advised of her rights under Miranda up to this point.

          The entire event — from McGill's initial contact inside the FedEx store to Pierce's

incriminating statement in the parking lot — took less than five minutes. At no time was




2      The record is not clear as to whether McGill or one of the other officers opened
the box and made the determination that it contained marijuana.

                                               3
Pierce under arrest or in handcuffs or otherwise restrained (and, indeed, no police officer

other than McGill even approached Pierce) until her arrest.

       The District Attorney charged Pierce and White with transporting more than

28.5 grams of marijuana in violation of Health and Safety Code section 11360,

subdivision (a), and possession of marijuana for sale in violation of Health and Safety

Code section 11359.

       Relying on Penal Code section 1538.5, Pierce filed a motion to suppress all

evidence, observations and other fruits of the warrantless search and seizure that took

place immediately before her arrest.3 After hearing the evidence at the preliminary

examination, the court denied the motion and found sufficient cause to hold Pierce to

answer the two-count complaint.4

       On the first day of trial prior to selecting a jury, in an in limine motion Pierce

renewed her motion to suppress her incriminating statement regarding weed. After

hearing evidence and argument, the court denied the motion, ruling that there was no

Miranda violation because Pierce was not in "custody" for purposes of Miranda at the

time she made the statement.




3      "A defendant may move for the return of property or to suppress as evidence any
tangible or intangible thing obtained as a result of a search or seizure on . . . the following
grounds: [¶] (A) The search or seizure without a warrant was unreasonable." (Pen.
Code, § 1538.5, subd. (a)(1).).)

4     The court denied a similar motion brought by White, who also was held to answer
the complaint. White is not involved in this appeal.

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       The case proceeded to trial, and the jury found Pierce guilty on both counts. The

court sentenced Pierce to 120 days in jail and three years of felony probation and ordered

her to pay $2,264 in various fees, fines and assessments.

       Pierce timely appealed.

                                            III.

                                      DISCUSSION

       Pierce contends the trial court erred in denying her motion to suppress evidence on

two grounds. First, she argues that her detention by McGill was constitutionally infirm,

because he lacked the requisite reasonable suspicion to stop and question her. Next, she

argues that McGill's search and seizure were constitutionally infirm, because she was in

custody at the time she made the incriminating statement about the weed and had not

been advised of her rights under Miranda. Pierce did not meet her burden of establishing

reversible error on either ground; thus, we will affirm the judgment.

A.     Pierce Forfeited Appellate Review of the Reasonableness of McGill's Suspicion to
       Detain Her

       Pierce first contends that McGill unlawfully detained her. She argues that, because

McGill's surveillance of her during the day — more specifically, his use of binoculars

and a long-lens camera — was an unreasonable search, McGill did not have the requisite

reasonable suspicion to stop and detain her under Terry v. Ohio (1968) 392 U.S. 1.5



5       "Reasonable suspicion is a lesser standard than probable cause, and can arise from
less reliable information than required for probable cause . . . ." (People v. Wells (2006)
38 Cal.4th 1078, 1083.)

                                             5
       We need not and do not address this argument, however. Pierce forfeited

appellate review of the issue by not properly raising it in the trial court.

       "[I]f defendants have a specific argument other than the lack of a warrant as to

why a warrantless search or seizure was unreasonable, they must specify that argument as

part of their motion to suppress and give the prosecution an opportunity to offer evidence

on the point. . . . [¶] . . . [¶] [U]nder [Penal Code] section 1538.5, as in the case of any

other motion, defendants must specify the precise grounds for suppression of the

evidence in question . . . ." (People v. Williams (1999) 20 Cal.4th 119, 130, citations

omitted.) "Defendants cannot . . . lay a trap for the prosecution by remaining completely

silent until the appeal about issues the prosecution may have overlooked." (Id. at p. 131.)

"[Defendants] must set forth the factual and legal bases for the motion . . . . '[T]he scope

of issues upon review must be limited to those raised during argument . . . . This is an

elemental matter of fairness in giving each of the parties an opportunity adequately to

litigate the facts and inferences relating to the adverse party's contentions.' " (Id. at

p. 136, citations omitted; accord, People v. Weaver (2001) 26 Cal.4th 876, 924 [issue not

preserved for appeal where defendant did not raise issue in written motion to suppress or

orally at hearing].)

       In the trial court, Pierce did not include an unlawful detention — i.e., a lack of

reasonable suspicion — as a basis on which the evidence should be suppressed.6 Thus,



6      To the extent Pierce mentioned "detention" in the boilerplate legal authorities in
her motion to suppress (decided at the preliminary examination), her failure to have
included the detention as part of her renewed motion (decided on the first day of trial) is
                                               6
the issues on review here do not include the reasonableness of the stop and arguable

detention.

B.     The Trial Court Did Not Err in Denying Pierce's Motion to Suppress

       The principal issue on appeal is whether Pierce was "in custody" at the time of her

incriminating statement regarding the weed. If so, then McGee's failure to have given

Pierce Miranda warnings requires a reversal of the order denying the motion to suppress;

if not, then the trial court properly denied the motion.

       1.     Law

       In Miranda, supra, 384 U.S. 436, 444, the United States Supreme Court imposed

constitutional limitations — which the Court described as "procedural safeguards

effective to secure the privilege against self-incrimination" — on police authority to

conduct a custodial interrogation of a suspect. Our state high court summarized these

safeguards as follows: " ' "[B]efore being subjected to 'custodial interrogation,' a suspect

'must be warned he has a right to remain silent, that any statement he does make may be

used as evidence against him, and that he has a right to the presence of an attorney, either

retained or appointed.' " ' " (People v. Kopatz (2015) 61 Cal.4th 62, 80 (Kopatz), quoting

from Miranda, at p. 444.) Evidence obtained in violation of these safeguards is


fatal to her preservation of the issue for appellate review. (People v. Lilienthal (1978) 22
Cal.3d 891, 896-897; People v. Richardson (2007) 156 Cal.App.4th 574, 584 [to preserve
issue for appeal, defendant must have "raised the search and seizure issue in the superior
court — i.e., at some point after preliminary proceedings before the magistrate"]; People
v. Garrido (2005) 127 Cal.App.4th 359, 364 ["where the defendant moves to suppress
evidence at the preliminary hearing, he or she must again raise the issue of the validity of
a search in superior court in order to preserve the issue for appeal"].)

                                              7
"constitutionally inadmissible." (Miranda, at p. 440.) Stated differently, "[a]bsent

'custodial interrogation,' Miranda simply does not come into play." (People v. Mickey

(1991) 54 Cal.3d 612, 648.)

       To determine whether Pierce was "in custody" at the time of her incriminating

statement, the test is "whether a reasonable person would have felt he or she was at

liberty to leave [either the FedEx store or the parking lot] or to decline [McGill's]

request[] to go [outside] and be interviewed there." (Kopatz, supra, 61 Cal.4th at p. 80;

see Yarborough v. Alvarado (2004) 541 U.S. 652, 663 [" 'would a reasonable person have

felt he or she was not at liberty to terminate the interrogation and leave' "].) If a

reasonable person in Pierce's position would not have felt she was at liberty to leave, then

the evidence from Pierce's interview in the parking lot is inadmissible, because it was

obtained from a person who was unlawfully "seized in violation of the Fourth

Amendment" — i.e., in custody without the benefit of the safeguards that result from not

being told her rights against self-incrimination under Miranda. (Kopatz, at p. 80.)

       In ruling on a defendant's motion to suppress evidence based on a Fourth

Amendment claim, the trial court finds the historical facts, selects the appropriate law and

applies it to the facts to determine whether there has been a violation of law. (Kopatz,

supra, 61 Cal.4th at p. 79.) On appeal, we review the factual findings for substantial

evidence and the application of the law to those facts de novo.7 (Ibid.) Under the



7      Without authority, Pierce contends that the standard of review is abuse of
discretion. The People do not suggest a standard of review.

                                               8
substantial evidence test, we review the whole record in a light most favorable to the

order denying suppression (Jenkins, supra, 22 Cal.4th at p. 969) to determine whether it

discloses "evidence ' "reasonable in nature, credible, and of solid value; it must actually

be 'substantial' proof of the essentials which the law requires in a particular case" ' "

(People v. Samuel (1981) 29 Cal.3d 489, 505).

       2.     Analysis

       The trial court found that up to and including the time at which Pierce made the

statement in the parking lot regarding weed she was merely detained, not in custody.

That finding is supported by substantial evidence: McGill was not in uniform; McGill

did not display a weapon or handcuffs; the events took place in a public commercial

establishment; McGill was the only officer who approached Pierce;8 Pierce was not

placed under arrest; and the entire event from McGill's initial contact inside the FedEx

store to Pierce's incriminating statement in the parking lot took less than five minutes.

       Citing People v. Manis (1969) 268 Cal.App.2d 653, Pierce suggests that once

McGill "accused [Pierce] of trafficking in cocaine," the stop "went from mere detention

to custody." We disagree. We do not consider McGill's question " 'If [the box] doesn't

have marijuana, is there cocaine in it?' " to be accusing Pierce of trafficking in cocaine.

Indeed, the authority on which Pierce relies, Manis, fully supports our conclusion: "Only



8       Although we recognize that the evidence on this point is conflicting, in our review
of the record we consider only the substantiality of the evidence in support of the ruling
actually made, not whether other evidence in the record " 'might also be reasonably
reconciled with a contrary finding.' " (People v. Snead (1991) 1 Cal.App.4th 380, 384
[sufficiency of evidence in support of ruling on motion to suppress].)
                                               9
when suspicion focuses sharply enough to provide reasonable cause for arrest or charge

does the relationship between the police and the person detained become that of accuser

and accused." (Id. at p. 667, italics added.) Here, when Pierce and McGill were in the

parking lot, there is nothing to suggest that McGill had reasonable cause to arrest Pierce

at the time of his question; thus, there is nothing to suggest that McGill's question was an

accusation sufficient for a reasonable person in Pierce's situation to believe she was then

in custody. Indeed, as Manis reaffirms, the requirement to provide Miranda warnings

does not affect " '[g]eneral on-the-scene questioning as to facts surrounding a crime.' "

(Id. at p. 669, quoting from Miranda, supra, 384 U.S. at p. 477.)

       The trial court's findings are supported by substantial evidence, and our

independent review does not disclose any error in the court's application of the

appropriate law to the facts.

                                      DISPOSITION

       The judgment is affirmed.



                                                                                   IRION, J.

WE CONCUR:



NARES, Acting P. J.



MCDONALD, J.



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