Filed 9/9/16 P. v. Taylor CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                          B270475

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA110932)
         v.

BRANDON TAYLOR,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Wade
Olson, Judge. Affirmed.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                   INTRODUCTION
       Defendant Brandon Taylor appeals following his nolo contendere plea to six
counts including possession of a firearm, possession of a controlled substance, and
destruction of evidence. Before he pleaded nolo contendere, Taylor moved to suppress
evidence of contraband in his possession at the time of his arrest. The trial court denied
the motion.
       After review of the record, Taylor’s court-appointed counsel filed an opening brief
asking this court to review the record independently pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende). We have reviewed the record and see no arguable error that
would result in a determination more favorable to Taylor. We therefore affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       A.     Stop and arrest of defendant
       Officer Craig Voors of the Glendora Police Department testified about relevant
events at the preliminary hearing and the hearing on Taylor’s motion to suppress. Officer
Voors was on patrol when he saw Taylor walking down the street in the 1000 block of
South Glendora Avenue at about 3:50 p.m. on October 12, 2015. He pulled over and got
out of his car to speak with Taylor. The People and the defense jointly offered into
evidence a dash-cam video of the encounter, as well as a separate audio recording from
the recording device Officer Voors was wearing at the time. The prosecution and defense
each proffered separate written transcripts of the audio exhibit, which are nearly
identical.1
       The video and Officer Voors’s testimony show that Taylor was carrying two
duffle bags, and he was wearing a small backpack. After Officer Voors got out of his car,
he began asking Taylor questions, first asking if he was “coming out of the hills” nearby,
if everything was all right, and, “Do you have any ID on you? Where are you headed?”
The People’s transcript notes that approximately 37 seconds into the conversation, Taylor


       1
        The Court has viewed the dash-cam video, listened to the separate audio
recording, and read the transcripts submitted by both parties.
                                             2
handed Officer Voors his identification.2 The video indicates that Taylor handed Officer
Voors his entire wallet, unfolded, presumably to expose his identification card. Officer
Voors testified that he did not give Taylor’s identification back to him during the
encounter.
       Officer Voors asked Taylor where he lived. Taylor explained that he lived in
Ontario, and that he had taken a Greyhound bus out to visit a woman, but they had gotten
into an argument and parted ways. Officer Voors asked Taylor if he had money to get
back home, and Taylor replied that he did. Officer Voors asked whether Taylor had ever
been arrested, and Taylor replied that he was due in court the following Thursday on a
charge for driving under the influence.
       Two minutes and 24 seconds into the conversation, Officer Voors relayed Taylor’s
information to dispatch. He then asked Taylor if he had been arrested for anything else,
and Taylor replied that he had been arrested for possession of marijuana in the past.
Officer Voors asked, “Do you have anything illegal on you at all? Would it be alright
[sic] if I checked?” Taylor responded, “Yeah.”
       Officer Voors asked Taylor to take off his backpack, and Taylor complied,
handing Officer Voors the backpack. Officer Voors set it aside, and asked Taylor to
interlace his fingers behind his back. At this point in the video, a second police officer,
whom Officer Voors later identified as Corporal Tibbetts, stepped into view. Officer
Voors later testified that no other officers were on the scene until after Taylor had been
arrested. Officer Voors asked Taylor again, “You said nothing illegal on you, right?”
Taylor replied, “No, sir.” Officer Voors asked, “Cool if I check real quick?” Taylor
answered, “Yeah.”
       As Officer Voors was searching Taylor’s person, he received a call from dispatch
that Taylor had an outstanding warrant. When he finished searching Taylor, Officer
Voors asked Taylor to sit down on the curb with his legs straight out in front of him,

       2
         Neither the video nor audio recording include time notations. The prosecution’s
transcript of the audio recording includes periodic time notations, and defense counsel
later agreed that they are roughly accurate. We therefore rely on these time notations.
                                              3
crossed at the ankles. Corporal Tibbetts moved close to where Taylor sat, and remained
standing. Officer Voors then opened Taylor’s backpack, looked inside, took out a pair of
sandals, looked inside again, and set the backpack down. Officer Voors later testified
that there was a loaded, operable, six-shot .32-caliber revolver in the backpack.
       He approached Taylor from behind and said, “Put your hands behind your back for
me. You just got a small warrant for the DUI, man.” Taylor quickly bent his legs and
pulled his hands forward and out of Officer Voors’s grasp, as if he were going to get up
from the curb. Officer Voors and Corporal Tibbetts pushed Taylor to the ground and
handcuffed him. The officers then took Taylor out of view of the video. Less than eight
minutes elapsed between the time Officer Voors approached Taylor and when Taylor was
placed in the police car. Officer Voors later testified that he arrested Taylor on the
warrant and for possession of a loaded firearm.
       Officer Voors also testified at the preliminary hearing about events in the police
car and at the police station; the following summary is taken from that testimony. On the
way back to the police station in the patrol car, Officer Voors saw Taylor reaching around
in his pants. Officer Voors asked Taylor what he was reaching for, and Tayor replied that
he was reaching for ecstasy. Once they arrived at the police station, Corporal Tibbetts
read Taylor his rights. Taylor indicated that he had ecstasy in the front of his pants.
Taylor was uncooperative and refused to remove some of his clothing for a search;
therefore officers handcuffed him and removed his clothing. They found in Taylor’s
underwear “several individual baggies containing a powdery substance and also
compressed powdery substance that looked like pills.” Officer Voors then realized that
Taylor was chewing on something, and when officers tried to get him to spit it out, it
appeared that Taylor swallowed before spitting out a clear plastic baggie. Taylor told
Officer Voors that he had swallowed ecstasy.
       Seven baggies were recovered from Taylor’s underwear. The parties stipulated
that one baggie was found to contain 12.2425 grams of solid substance that contained
heroin, two baggies were found to contain no controlled substances, and two were not


                                              4
tested. Officer Voors testified that based on the quantity of the substance containing
heroin, it was his opinion that it was likely intended for sale.
       The People charged Taylor with the following: Count 1, possession of a controlled
substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (a felony); count 2,
possession of a controlled substance for sale (Health & Saf. Code, § 11351) (a felony);
count 3, possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (a felony);
count 4, possession of ammunition (Pen. Code, § 30305, subd. (a)(1)) (a felony); count 5,
destroying evidence (Pen. Code, § 135) (a misdemeanor); and count 6, resisting,
delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)) (a misdemeanor).
The People also alleged that Taylor had several felony convictions dating back to 2000.
       B.       Taylor’s motion to suppress evidence
       Taylor moved pursuant to Penal Code section 1538.53 to suppress “all evidence
seized from the backpack, from defendant’s person, seized during the arrest of the
defendant, all observations made by law enforcement after the arrest, and any and all
statements made by the defendant.” (See § 1538.5, subd. (a)(1)(A) [“A defendant may
move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a
search or seizure on either of the following grounds: (A) The search or seizure without a
warrant was unreasonable.”].)
       Taylor argued that although the encounter with Officer Voors started
consensually, “Officer Voors almost immediately obtain[ed] Mr. Taylor’s identification”
and did not give it back. Officer Voors was “basically interrogating Taylor as to the
circumstances that brought him to Glendora and not giving him back his wallet with his
identification.” Corporal Tibbetts arrived and was “clearly acting as back up for an
encounter that smacks of starting out as a consensual encounter but very quickly turned
into a detention as the officer’s suspicions of unlawful activity persisted without apparent
reason.” Because Taylor was illegally detained when he gave Officer Voors consent to
search, he argued, his consent was not voluntary. Taylor argued that all evidence should


       3
           All further statutory references are to the Penal Code unless otherwise indicated.
                                               5
therefore be suppressed because the search violated his rights under California law and
the Fourth and Fourteenth Amendments to the United States Constitution.
       The People opposed the motion, arguing that the encounter was consensual and
Taylor “was free to terminate the encounter at any point up to his arrest, therefore no
seizure took place until his arrest.” The prosecution argued that the totality of the
circumstances, including the brevity of the encounter and the conversational tone,
indicated the encounter was consensual. The prosecution cited several California cases
hold that obtaining a person’s identification does not convert a consensual encounter into
a detention. They also argued that Taylor clearly consented to the search through words
and conduct. In addition, the People argued that all the evidence inevitably would have
been discovered despite any police misconduct, because a lawful arrest on Taylor’s
outstanding warrant would have uncovered the contraband.
       At the hearing on Taylor’s motion, the parties stipulated that “the search and
seizure and any evidence seized thereafter was not subject to a search warrant or arrest
warrant.” Officer Voors was called as a witness, and he testified to the facts summarized
above. The court accepted the video recording, audio recording, and transcripts into
evidence. Defense counsel argued that Officer Voors’s questions were more in the nature
of an interrogation than a conversation, that Officer Voors took Taylor’s wallet and did
not give it back, and that under the totality of the circumstances it was not reasonable to
hold that a person would feel free to leave.
       The court observed that Taylor never asked Officer Voors to leave him alone,
because he did not say anything along the lines of, “Hey man, just let me go. Just let me
go on my way,” or “Can I have my I.D. back? You guys are hassling me.” Defense
counsel objected that this placed the burden on a defendant to protest, but the court did
not agree. The court noted that the conversation between Officer Voors and Taylor
included comments about the weather and Taylor’s explanation of parting ways with a
woman, and said, “Nothing in those conversations, nothing about the activity of the
officer that the court observed, did it say that it rose to the level that his responses of
cooperation were not voluntary, but were submission to authority.”

                                               6
       The court also noted, “The search of his personal belongings did not take place
until after the officer was advised by dispatch that he had a $40,000 traffic warrant.” The
court found that the backpack search was therefore incident to Taylor’s arrest. The
“timing of . . . dispatch saying he has a warrant kind of seals the deal” because when
Officer Voors asked Taylor to sit on the curb with his ankles crossed, the nature of the
encounter had changed because of the arrest warrant. The court denied the motion.
       Taylor pleaded nolo contendere to all six counts. He also admitted his prior
convictions. The court sentenced him to prison for two years pursuant to his plea
agreement and imposed various fines and restitution.
       Taylor filed a notice of appeal referencing the trial court’s denial of his motion to
suppress. Taylor has not submitted a certificate of probable cause for his appeal.
       Taylor’s appointed counsel on appeal filed a brief requesting that we
independently review the record for error. (Wende, supra, 25 Cal.3d at p. 441.) We
directed counsel to send the record and a copy of the brief to Taylor, and notified him of
his right to respond within 30 days. Taylor filed a letter raising several questions relating
to the initial stop, the search at the police station, and the evidence discussed at the
preliminary hearing.
                        SCOPE AND STANDARD OF REVIEW
       “Penal Code section 1237.5 provides that a defendant may not appeal ‘from a
judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has
applied to the trial court for, and the trial court has executed and filed, ‘a certificate of
probable cause for such appeal.’ [Citation.] ‘Despite this broad language, we have held
that two types of issues may be raised on appeal following a guilty or nolo plea without
the need for a certificate: issues relating to the validity of a search and seizure, for which
an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues
regarding proceedings held subsequent to the plea for the purpose of determining the
degree of the crime and the penalty to be imposed.’ [Citation.]” (People v. Shelton
(2006) 37 Cal.4th 759, 766.) Section 1538.5, subdivision (m) states in part, “A defendant
may seek further review of the validity of a search or seizure on appeal from a conviction

                                                7
in a criminal case notwithstanding the fact that the judgment of conviction is predicated
upon a plea of guilty.” (See also Cal. Rules of Court, rule 8.304(b)(4)(A) [following a no
contest plea, no certificate of probable cause is required to challenge the denial of a
motion to suppress evidence under section 1538.5].)
       Taylor has not presented a certificate of probable cause, and specified in his notice
of appeal that he intended to challenge the ruling on his section 1538.5 motion. We
therefore consider issues relating only to the validity of the search and seizure of
evidence in this case. To the extent Taylor raises other challenges to his convictions,
those challenges are not appealable under section 1237.5.4
       “A defendant may move to suppress evidence under section 1538.5 on grounds
that a search without a warrant was unreasonable. A warrantless search is presumptively
unreasonable, and the prosecution bears the burden of demonstrating a legal justification
for the search. (People v. Redd (2010) 48 Cal.4th 691, 719, [108 Cal.Rptr.3d 192, 229
P.3d 101].) In reviewing a trial court’s ruling on a motion to suppress, we defer to the
trial court’s factual findings, express or implied, where supported by substantial evidence.
(Ibid.) And in determining whether, on the facts so found, the search was reasonable for
purposes of the Fourth Amendment to the United States Constitution, we exercise our
independent judgment. (Redd, at p. 719.)” (People v. Simon (2016) 1 Cal.5th 98, 120.)
                                      DISCUSSION
       “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.” (U.S. Const., 4th

       4
         In his letter to the court, Taylor presents the following challenges not related to
the validity of the search and seizure: whose fingerprints were on the weapon, whether
the amount of heroin recovered was sufficient to sustain a conviction relating to intent to
sell, whether Miranda rights were properly given at the police station, and whether the
dash cam video properly conveyed the moment when Officer Voors first saw Taylor.
Taylor also raises issues relating to an interview after Taylor was at the police station,
which was not presented to the trial court and is not included in the record on appeal.
None of these issues relate to the search and seizure, so we will not consider them
pursuant to section 1237.5. In addition, Taylor asked that we admit into evidence the
video of his interview at the police station. As the trial court did not consider this
evidence and it is not relevant to the appealable issues here, Taylor’s request is denied.
                                              8
Amend.) “As the text makes clear, ‘the ultimate touchstone of the Fourth Amendment is
“reasonableness.”’ [Citation.]” (Riley v. California (2014) ___U.S.___, 134 S.Ct. 2473,
2482 [189 L.Ed.2d 430].) “In the absence of a warrant, a search is reasonable only if it
falls within a specific exception to the warrant requirement.” (Ibid.)
       Two exceptions are potentially relevant here: Taylor’s consent to the search, and
search incident to a valid arrest. We will consider both exceptions.
       A.     Consent to search
       “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.)
       Taylor argues in his letter to this Court that his encounter with Officer Voors
“starts off as a consensual encounter. But it turns into a dention [sic] with the kind of
questions [Officer Voors asked], in conju[n]ction with taking the identification.” He
asserts that a consensual encounter “becomes a detention when a[n] officer recieves [sic]
a[n] I.D., bus ticket, plane ticket, etc.” Taylor also contends that “the officer[’]s inquiry
changes a consensual encounter into a detention,” and here the questioning had “more of
the indicia of somebody who’s being detained because there’s a suspicion that there’s
criminal activity afoot. That’s the hallmark of a detention, not the hallmark of a
consensual encounter.” He concludes that the exclusionary rule bars the admission of
any evidence arising from the unlawful detention. These arguments echo Taylor’s
motion to suppress evidence in the trial court, in which he also argued that he was
detained at the time he gave consent to search, and therefore his consent was not
voluntarily given.
       “It is ‘well settled that one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search that is conducted pursuant
to consent.’ [Citations.]” (People v. Woods (1999) 21 Cal.4th 668, 674.) “Consent that
is the product of an illegal detention is not voluntary and is ineffective to justify a search

                                               9
or seizure.” (People v. Zamudio (2008) 43 Cal.4th 327, 341 (Zamudio).) “When the
prosecution asserts that a defendant has consented to a search, the prosecution bears the
additional burden of proving by a preponderance of the evidence ‘that the defendant’s
manifestation of consent was the product of his [or her] free will and not a mere
submission to an express or implied assertion of authority.’ [Citation.]” (People v.
Espino (2016) 247 Cal.App.4th 746, 756.)
       “Under these principles, the threshold issue here is whether defendant was
detained when he gave consent. . . . 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.]” (Zamudio, supra, 43
Cal.4th at p. 341.) The test is objective, not subjective. (Ibid.) The question is therefore
“‘not whether the citizen perceived that he was being ordered to restrict his movement,
but whether the officer’s words and actions would have conveyed that to a reasonable
person.’ [Citation.]” (In re J.G. (2014) 228 Cal.App.4th 402, 409.) In determining “the
coercive effect of police conduct as a whole,” we may consider whether multiple officers
were present, if any of the officers displayed a weapon, and whether the officer’s
language or tone indicated that compliance was compelled rather than voluntary. (Id. at
pp. 409-410.)
       Here, the evidence indicates that the encounter between Officer Voors and Taylor
was entirely consensual. About thirty seconds into the conversation, Taylor handed
Officer Voors his wallet. After speaking for about three minutes, Officer Voors asked,
“Do you have anything illegal on you at all?” and “Would it be alright [sic] if I
checked?” Taylor responded, “Yeah.” Shortly after that, Officer Voors asked, “You said
nothing illegal on you right?” Taylor responded, “No sir.” Officer Voors asked, “Cool if
I check real quick?” Taylor said, “Yeah.” Nothing about the language or tone of either
Officer Voors or Taylor suggests that compliance was compelled rather than voluntary.
“Approaching a person, requesting to speak with him, [and] asking for permission to
search him . . . do not transform an otherwise consensual encounter into a detention.”
(People v. Coulombe (2000) 86 Cal.App.4th 52, 57, fn. 3.)

                                             10
          There were two officers present, because by the time of the search Corporal
Tibbetts had arrived to the scene. But neither displayed a weapon, and the arrival of a
second officer is not a show of force that shifts a consensual encounter into a detention.
(Compare In re J.G., supra, 228 Cal.App.4th at p. 411 [the presence of four uniformed
officers and three marked patrol cars when minor defendant gave consent to search a
backpack suggested a detention rather than a consensual encounter].) The presence of
Corporal Tibbetts, without more, does not suggest that the consensual encounter became
a detention before Taylor gave consent to the search.
          The totality of the circumstances therefore indicates that Taylor’s consent to the
search was freely provided, and Taylor was not detained at the time he gave consent. The
search therefore did not infringe Taylor’s constitutional rights to be free of unreasonable
searches and seizures.
          B.     Search incident to Taylor’s arrest
          The prosecution also argued that even if Taylor had been unlawfully detained and
therefore had not given valid consent to search, the evidence inevitably would have been
discovered due to Taylor’s outstanding warrant and the related arrest. “Among the
exceptions to the warrant requirement is a search incident to a lawful arrest.” (Arizona v.
Gant (2009) 556 U.S. 332, 338.) “Evidence need not be suppressed as ‘fruit of the
poisonous tree,’ though actually procured as the result of a Fourth Amendment violation
against the defendant, if it inevitably would have been obtained by lawful means in any
event.” (People v. Boyer (2006) 38 Cal.4th 412, 448.) “‘The question is whether the
evidence was obtained by the government’s exploitation of the illegality or whether the
illegality has become attenuated so as to dissipate the taint. [Citation.]’ [Citation.]”
(Ibid.)
          “[T]he general framework for analyzing a claim of attenuation under the Fourth
Amendment is well settled. [Citation.]” (People v. Brendlin (2008) 45 Cal.4th 262, 268-
269 (Brendlin).) We consider “the three Brown factors—i.e., the temporal proximity of
the unlawful seizure to the subsequent search of the defendant’s person or vehicle, the
presence of intervening circumstances, and the flagrancy of the official misconduct in

                                               11
effecting the unlawful seizure.” (Brendlin, supra, 45 Cal.4th at p. 269, citing Brown v.
Illinois (1975) 422 U.S. 590, 603-604.)
       An outstanding warrant, discovered prior to a search that reveals contraband,
attenuates the taint of an unlawful stop. (Brendlin, supra, 45 Cal.4th at pp. 269-270.)
Courts have “‘have all but unanimously concluded that, in this kind of situation, this first
Brown factor’”—temporal proximity—“‘is outweighed by the others.’ [Citation.]”
(Brendlin, supra, 45 Cal.4th at p. 270; see also Utah v. Strieff (2016) ___U.S.___, 136
S.Ct. 2056, 2062 [where an officer found contraband “only minutes after the illegal stop,”
temporal proximity did not bar admission of the evidence].)
       “As to the second Brown factor, the case law uniformly holds that an arrest under
a valid outstanding warrant—and a search incident to that arrest—is an intervening
circumstance that tends to dissipate the taint caused by an illegal traffic stop.” (Brendlin,
supra, 45 Cal.4th at p. 271.) Once an officer discovers that a defendant has an
outstanding warrant, the officer has an obligation to arrest the defendant. (Strieff, supra,
136 S.Ct. at pp. 2062-2063.) And once the officer is authorized to arrest the defendant,
“it [is] undisputedly lawful to search [the defendant] as an incident of his arrest to protect
[the officer’s] safety.” (Id. at p. 2063.)
       The third Brown factor, the flagrancy of the official misconduct, “is generally
regarded as the most important because ‘it is directly tied to the purpose of the
exclusionary rule—deterring police misconduct.’ [Citation.]” (Brendlin, supra, 45
Cal.4th at p. 271.) Here, the third factor is not applicable because as we held above, the
evidence indicates that the encounter was entirely consensual. (Compare Strieff, supra,
136 S.Ct. at p. 2063 [the officer was negligent because he “should have asked Strieff
whether he would speak with him, instead of demanding that Strieff do so.”].) Even if
we were to assume that Taylor was illegally detained at the time of the search, there is no
evidence to support a finding that Officer Voors “had a design and purpose to effect the
stop ‘in the hope that something [else] might turn up.’ [Citation.]” (Brendlin, supra, 45
Cal.4th at p. 271.) Small or negligent errors in police judgment in effecting a stop


                                              12
“hardly rise to a purposeful or flagrant violation of [a defendant’s] Fourth Amendment
rights.” (Strieff, supra, 136 S.Ct. at p. 2063.)
       In short, Officer Voors’s discovery of Taylor’s warrant before the search of
Taylor’s backpack sufficiently attenuated any arguable illegality of the search. The trial
court did not err by denying Taylor’s motion to suppress the evidence.
       We have examined the entire record, and are satisfied no arguable issues exist in
the appeal before us. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006)
40 Cal.4th 106, 110; Wende, supra, 25 Cal.3d at p. 443.)
                                       DISPOSITION
       The judgment is affirmed.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                        COLLINS, J.

We concur:



EPSTEIN, P. J.




MANELLA, J.




                                              13
