Filed 8/20/14 P. v. Gutierrez CA4/2

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                                       E059786

v.                                                                      (Super.Ct.No. FVA1200766)

FREDRICK RECEL GUTIERREZ,                                               OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Arthur Harrison and

Gerard S. Brown, Judges. Affirmed.

        Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Tami Falkenstein Hennick and Sean

M. Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       Defendant and appellant Fredrick Recel Gutierrez was charged by information with

possession of a controlled substance for sale (Health & Saf. Code, § 11378, subd. (a), count

1). Defendant pled not guilty, and then moved to suppress the prosecution’s evidence

against him pursuant to Penal Code section 1538.5.1 The trial court denied the motion. The

prosecution subsequently amended the information to add a charge of transportation of a

controlled substance. (Health & Saf. Code, § 11379, count 2.) Then, pursuant to a plea

agreement, defendant pled guilty to count 2, in exchange for the dismissal of count 1, the

dismissal of another case, and release on his own recognizance. The trial court placed

defendant on probation for a period of three years, under specified conditions.

       Defendant now contends that the trial court erred in denying his motion to suppress

evidence. We affirm.

                                 FACTUAL BACKGROUND

       The following statement of facts is derived from the hearing on the motion to

suppress: On April 21, 2012, at approximate 12:30 a.m., Officer Samuel Siggson was on

patrol and noticed defendant parked in front of a residence, talking on his cell phone.

Officer Siggson stopped his patrol car parallel to defendant’s car, about one and one-half car

lengths away. He did not block defendant’s car. Officer Siggson turned on his spotlight to

illuminate defendant’s car and observed defendant for about 20 to 30 seconds. When the

officer turned on his spotlight, defendant immediately hung up his cell phone, leaned over



       1   All further statutory references will be to the Penal Code, unless otherwise noted.

                                                2
toward the backseat, and frantically moved things around, as if he was trying to hide

something. Officer Siggson got out of his patrol car and walked at a normal pace to the

driver’s side of defendant’s car. He did not have any weapons drawn. Officer Siggson

stood at arm’s length from the driver’s side window and started talking to defendant. He

noticed objective indications of methamphetamine ingestion; he observed that defendant

was sweating, he spoke rapidly, and he had a nervous expression on his face. The officer

asked defendant what he was doing in the area, and defendant said he was waiting for his

friend. Officer Siggson asked why he was sweating, and defendant said he did not want to

get in trouble. The officer asked him his name, and defendant voluntarily handed him his

driver’s license. Officer Siggson asked if he could search his car, and defendant said, “Go

ahead.” The officer also asked if he had anything illegal on him. At first, defendant did not

respond. He asked again, and defendant said he wanted to be honest with him and admitted

he had a methamphetamine pipe. Officer Siggson had defendant step out of the car and

asked him where the pipe was. Defendant pointed to his front pant pocket. The officer felt

something, which was consistent with a pipe, and he retrieved it. Officer Siggson testified

that he had participated in hundreds of investigations involving narcotics paraphernalia,

including methamphetamine pipes. Based on his training and experience, he recognized

defendant’s pipe as a methamphetamine pipe. Officer Siggson arrested defendant, placed

him in the patrol car, and then searched his car. He found another methamphetamine pipe in

the glove box, and a box in the backseat floor area containing four baggies of

methamphetamine.


                                              3
       On cross-examination, Officer Siggson testified that, up to the point he approached

defendant, defendant had not committed any type of crime.

       The prosecution argued that there was no detention, and that defendant’s consent to

search was voluntary. He pointed out that Officer Siggson did not immediately get out of

his patrol car, but sat and observed defendant. Then, he did not “briskly walk” toward

defendant’s car. Officer Siggson initially just asked defendant what he was doing there.

       Defense counsel argued that there was an unlawful detention. Officer Siggson shined

a very bright spotlight on defendant’s car and kept it there for over 30 seconds. Counsel

asserted that it was Officer Siggson’s “custom and practice” to have his hand around his

safety belt, which included his gun on it. Siggson asked defendant questions, while still

shining the spotlight on him, and Siggson held onto defendant’s driver’s license. Defense

counsel argued that “there’s no way” defendant would feel free to leave the scene, under

these circumstances, and that “it was a detention from the get-go.” Counsel further argued

that the consent to search his car was not voluntary.

       The court reviewed the facts and noted that the shining of a spotlight alone did not

constitute a detention. It further noted the time of the encounter and that the officer decided

to investigate by illuminating the area and the subject vehicle with a spotlight. The court

commented that “[w]e don’t require the officers to go blind as they attempt to fulfill their

duties to investigate.” The court stated that the officer observed defendant acting in a

furtive manner when the spotlight was turned on, yet the officer was “restrained” and

continued to observe him. The court noted that, upon approaching defendant and talking


                                               4
with him, the officer observed symptoms of defendant being under the influence of

methamphetamine. The court found that there was a detention “along that process,” noting

that it was “probably once he talked to the defendant . . . and noted objective symptoms of

methamphetamine use.” It was at that point that defendant was not free to leave. The court

stated that, once the officer investigated further, he asked defendant if he had anything

illegal on him, and he obtained consent to search the car. The court then denied the motion,

concluding that the officer’s actions were reasonable.

                                         ANALYSIS

            The Court Properly Denied Defendant’s Motion to Suppress Evidence

       Defendant argues that his detention was unlawful because the officer did not have

reasonable suspicion at the initiation of the encounter. He contends that he was not free to

leave the scene because of Officer Siggson’s “coercive” conduct. He concludes that all

evidence found as a result of the detention and search should have been suppressed. We

disagree.

       A. Standard of Review

       “The Fourth Amendment of the federal Constitution requires state and federal courts

to exclude evidence obtained from unreasonable government searches and seizures.

[Citation.] Penal Code section 1538.5 allows a defendant to move to suppress evidence

obtained in an improper seizure. [Citation.]” (People v. Garry (2007) 156 Cal.App.4th

1100, 1105-1106.) “As the finder of fact in a proceeding to suppress evidence [Citation],

the superior court is vested with the power to judge the credibility of the witnesses, resolve


                                               5
any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding

whether a search is constitutionally unreasonable. [Citation.]” (People v. Woods (1999) 21

Cal.4th 668, 673 (Woods).) Accordingly, on review of a motion to suppress, “‘all factual

conflicts must be resolved in the manner most favorable to the [superior] court’s disposition

on the [suppression] motion.’ [Citation.] But while we defer to the superior court’s express

and implied factual findings if they are supported by substantial evidence, we exercise our

independent judgment in determining the legality of a search on the facts so found.

[Citations.]” (Id. at pp. 673-674.)

       B. Defendant Was Not Detained at the Start of His Encounter With Officer Siggson

       Defendant claims that he was detained at the start of his encounter with Officer

Siggson, since a reasonable person would not have felt free to leave. We conclude that the

encounter was consensual.

       “The Fourth Amendment protects against unreasonable searches and seizures.

[Citations.] ‘A detention is reasonable under the Fourth Amendment when the detaining

officer can point to specific articulable facts that, considered in light of the totality of the

circumstances, provide some objective manifestation that the person detained may be

involved in criminal activity.’ [Citation.]” (People v. Hernandez (2008) 45 Cal.4th 295,

299 (Hernandez).) “[T]he reasonable suspicion standard of Terry v. Ohio (1968) 392 U.S. 1

[20 L.Ed.2d 889, 88 S.Ct. 1868] is not a particularly demanding one, but is, instead,

‘considerably less than proof of wrongdoing by a preponderance of the evidence.’

[Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146 (Letner).)


                                                 6
       “[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.] ‘[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.’ [Citation.] This test assesses the coercive effect of police conduct

as a whole, rather than emphasizing particular details of that conduct in isolation.

[Citation.] Circumstances establishing a seizure might include any of the following: 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.]” (In re Manuel G. (1997) 16 Cal.4th 805,

821 (Manuel G.).)

       Here, the circumstances demonstrated a consensual encounter, rather than a Fourth

Amendment detention. Officer Siggson’s conduct toward defendant was not coercive.

When he approached defendant, Officer Siggson was alone. He walked at a normal pace to

the driver’s side of defendant’s car. He had a gun as a part of his police uniform, but did not

draw his weapon. There was no evidence that he even had his hand on his safety belt.


                                               7
Furthermore, Officer Siggson remained an arm’s length away from defendant’s car window

when he started talking to him, so there was no physical touching.

       Officer Siggson’s conversation with defendant was likewise consensual. “An officer

has every right to talk to anyone he encounters while regularly performing his duties.”

(People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) There was no evidence that he

used a coercive tone of voice or language. (Manuel G., supra, 16 Cal.4th at p. 821.) He

proceeded to simply ask defendant what he was doing in the area, what his name was, etc.

       Defendant claims that he was seized when Officer Siggson first approached him. He

claims that a reasonable person would not have felt free to leave because Officer Siggson

“parked his car in a way that partially obstructed [defendant’s] exit from the cul-de-sac.”

However, the evidence showed that the officer parked his car parallel to defendant’s car,

about one and one-half car lengths away. Officer Siggson specifically testified that his

patrol car did not block defendant’s car from leaving the location.

       Defendant also points out that Officer Siggson shined a bright spotlight on him for 20

to 30 seconds, “essentially letting [him] cook under the psychological heat of the spotlight.”

He also left the spotlight on when he approached defendant. However, “[w]hile 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. [Citations.]”

(People v. Perez (1989) 211 Cal.App.3d 1492, 1496.)

       Defendant further argues that the encounter was coercive because Officer Siggson

asked him accusatory questions, including whether he had anything illegal on him.


                                              8
However, the evidence showed that Officer Siggson initiated the conversation by simply

asking defendant what he was doing in the area and what his name was. Officer Siggson

testified that he asked defendant if he had anything illegal on him for officer safety purposes

(e.g., in case defendant had a weapon). Moreover, Officer Siggson noticed signs that

defendant had used methamphetamine, so it was reasonable for him to ask if defendant had

anything on him. (See post, § C.)

       Finally, defendant asserts that Officer Siggson’s “display of authority [by his]

appearance,” and particularly, the display of a weapon, contributed to the coerciveness of

the encounter. However, Officer Siggson was simply dressed in his full uniform, which

included his weapon. His appearance as an officer cannot be construed as a show of

authority sufficient enough to make the encounter an unlawful detention.

       In view of the circumstances, the trial court properly concluded that the initial

encounter with defendant was not a detention.

       C. Defendant Was Lawfully Detained, and He Consented to the Search of His

Person and His Car

       Defendant next argues that his consent to be searched was involuntary because it was

the product of an unlawful detention; thus, all of the evidence discovered should have been

excluded. However, as discussed ante, defendant was not unlawfully detained.

Furthermore, his consent to search his person and car were voluntary.

       We note, as the trial court did, that defendant was not detained until after Officer

Siggson began asking him questions. Officer Siggson had reasonable suspicion to detain


                                               9
defendant, based on his observation of objective indications of methamphetamine ingestion.

He noticed that defendant was sweating and speaking rapidly, and that he had a nervous

expression on his face. Officer Siggson testified that he had extensive experience in

narcotics investigations, and had come in contact with narcotics users “on a daily basis.”

“Law enforcement officers may ‘draw on their own experience and specialized training to

make inferences from and deductions about the cumulative information available to them

that “might well elude an untrained person.” [Citations.]’” (Hernandez, supra, 45 Cal.4th

at p. 299.)

       Defendant asserts that courts have held that “mere nervous, furtive, or evasive

conduct” in front of officers will not justify a detention. However, “the possibility of

innocent explanations for the factors relied upon by a police officer does not necessarily

preclude the possibility of a reasonable suspicion of criminal activity. [Citation.]” (Letner,

supra, 50 Cal.4th at p. 146.) Moreover, defendant was not just nervous; he exhibited signs

such as sweating and rapid speech. We conclude that, in light of the relatively low

reasonable suspicion standard, Officer Siggson could reasonably detain defendant, since he

had articulable facts which showed that defendant may be involved in criminal activity.

(Ibid.; see also, People v. Souza (1994) 9 Cal.4th 224, 231.)

       Furthermore, there is no basis for invalidating Officer Siggson’s search and seizure

of the evidence. “A search conducted without a warrant is unreasonable per se under the

Fourth Amendment unless it falls within one of the ‘specifically established and well-

delineated exceptions.’ [Citations.] It is ‘well settled that one of the specifically established


                                               10
exceptions to the requirements of both a warrant and probable cause is a search that is

conducted pursuant to consent.’ [Citations.]” (Woods, supra, 21 Cal.4th at p. 674.) The

evidence shows that when Officer Siggson asked defendant if he had anything illegal on

him, defendant said he wanted to be honest with him. Defendant proceeded to tell Officer

Siggson that he had a methamphetamine pipe. When the officer asked if he could search his

car, defendant consented to the search by saying, “Go ahead.”

       In sum, the police officer had reasonable suspicion to detain defendant, and the

searches of his person and car were valid, based on defendant’s consent. Therefore, the trial

court properly denied defendant’s motion to suppress evidence.

                                          DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 HOLLENHORST
                                                                           Acting P. J.
We concur:


McKINSTER
                          J.


CODRINGTON
                          J.




                                             11
