Filed 3/3/14 P. v. Guess CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C073648

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F00949)

         v.

PAUL THOMAS GUESS,

                   Defendant and Appellant.




         Police contacted defendant Paul Guess after a neighbor reported him sleeping in
front of a home. During their conversation with defendant, the officers requested
permission to search him. He consented; they found methamphetamine and Ambien on
him. After the magistrate denied his motion to suppress, he pled no contest to possession
of methamphetamine for the purposes of sale. He now appeals, arguing the officers
unlawfully detained him and his consent to be searched was a product of the unlawful
detention. We disagree and affirm.



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                   FACTUAL AND PROCEDURAL BACKGROUND
       Around midnight on a night in February, a neighbor called police to report a man
sleeping in front of a house; two officers were sent to check out the situation. The
officers were in standard uniforms with guns on their utility belts.
       The officers arrived at the home in separate vehicles and saw a man sitting in front
of the house with his face down. The officers parked a couple of houses down from
where the man was sitting, walked up to the house, and asked him why he was there. The
man said that his friend lived there and that he was waiting for her to return home. One
of the officers asked the man for his name and the man responded that his name was Paul
Guess (defendant). The officer then asked defendant for his identification and defendant
pulled his identification from his pocket and handed it to the officer. The name defendant
gave and the name on his identification were consistent.
       The officer then asked defendant if he was on probation or parole and defendant
said he was not. The officer asked if he could search defendant for anything illegal and
defendant said, “ ‘[g]o ahead.’ ” The officer found a bag with two and one-half white
pills; the pills were Ambien. The officer also found another bag with a white crystalline
substance that turned out to be methamphetamine. Defendant did not have a prescription
for the Ambien.
       Defendant was charged with possession of methamphetamine for the purpose of
sale and possession of zolpidem tartrate (Ambien). He filed a motion to suppress. The
magistrate denied the motion, finding that defendant was detained relying on People v.
Castaneda (1995) 35 Cal.App.4th 1222 but was still able to consent and had validly
consented to the search. Defendant pled no contest to possession of methamphetamine
for the purposes of sale and was sentenced to county jail for two years.
                                      DISCUSSION
       Defendant argues that “[u]nder the totality of the circumstances, [he] was
unlawfully detained -- a reasonable person would not have felt free to terminate the

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encounter with the police. [His] consent to search was the product of the unlawful
detention and therefore [his] motion to suppress should have been granted.” We
disagree. We find this was a consensual encounter, not a detention, and therefore
defendant’s consent was not the product of an unlawful detention.
       In reviewing the denial of a motion to suppress, we must accept all facts in support
of the ruling, including all reasonable inferences and deductions, if supported by
substantial evidence. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
       A police officer may approach an individual in a public place and ask questions
without implicating the Fourth Amendment to the United States Constitution. “The
United States Supreme Court has made it clear that 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.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) “[T]o 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 (1991) 501 U.S. 429,
439 [115 L.Ed.2d 389, 401-402].) 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. (United States
v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509].)
       Defendant argues the totality of the circumstances here, “including maintaining
custody of [his] identification even in the face of his truthfulness, demonstrate[s] an

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unlawful detention.” We disagree. Under the totality of the circumstances, defendant
was not detained.
       Defendant contends that taking someone’s identification “can have an inherently
coercive effect and cause a reasonable person to believe he or she is not free to terminate
the encounter.” Defendant relies on two cases to support this argument. We are not
persuaded.
       First, in Florida v. Royer (1983) 460 U.S. 491, 501 [75 L.Ed.2d 229, 239], the
court considered the totality of the circumstances and found that the defendant turning
over his identification was part of the reason the defendant had been detained. The court
in Royer concluded that “[a]sking for and examining Royer’s ticket and his driver’s
license were no doubt permissible in themselves, but when the officers identified
themselves as narcotics agents, told Royer that he was suspected of transporting
narcotics, and asked him to accompany them to the police room, while retaining his ticket
and driver’s license and without indicating in any way that he was free to depart, Royer
was effectively seized for the purposes of the Fourth Amendment.” (Ibid.)
       In the instant case, the officer completed the permissible action of asking
defendant for his identification. But contrary to defendant’s argument, there is nothing to
suggest that the officers exhibited more coercive behavior. There are no facts indicating
that the officers told defendant they suspected him of anything or asked him to
accompany them anywhere.
       It is apparently true that the officer still had defendant’s identification in his
possession when he asked defendant if defendant was on probation or parole and if he
could search defendant for anything illegal. On this limited evidence, we cannot
conclude that a reasonable person would have felt he could not ask for his identification
back and/or refuse to answer the officer’s questions.
       Second, defendant points to Castaneda for the statement that “once Castaneda
complied with [the officer’s] request and submitted his identification card to the officers,

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a reasonable person would not have felt free to leave.” (People v. Castaneda, supra, 35
Cal.App.4th at p. 1227.) To the extent the Castaneda court intended to conclude that a
person is always detained when one hands over identification to the police, we disagree.1
While handing an officer identification is certainly one fact to consider in the totality of
the circumstances, we are unwilling to say that doing so is a detention in every case. The
test for a detention remains whether, based on the totality of the circumstances, a
reasonable person would not feel free to disregard an officer and otherwise go about his
or her business because of the officer’s use of physical force or show of authority.
       As defendant acknowledges, “[t]here is recent authority deciding that voluntary
relinquishment of identification does not, by itself, equate to a detention or seizure.” The
court in People v. Leath (2013) 217 Cal.App.4th 344, 353 rejected Castaneda and
adopted the rule that “a voluntary relinquishment of one’s identification card does not
constitute a seizure as long as the encounter is consensual under the totality of the
circumstances.” We agree. Here, considering the totality of the circumstances, this was a
consensual encounter.
       Defendant also argues that “People v. Garry [(2007)] 156 Cal.App.4th 1100
supports [his] argument that the totality of the circumstances show the encounter ripened
into an unlawful detention.” We disagree. In Garry, the officer shone the patrol car’s
spotlight on the defendant, parked and got out of his car, “ ‘briskly’ ” walked toward the
defendant, and immediately asked the defendant whether he was on probation or parole.



1       There is some ambiguity in Castaneda because the court there concluded that the
defendant was detained once the officers began writing him a ticket, leaving the
possibility that he was not detained until that time. (People v. Castaneda, supra, 35
Cal.App.4th at p. 1227.) On the other hand, the statement that a reasonable person would
not have felt free to leave once he or she complied with the officer’s request for
identification suggests the Castaneda court found the detention occurred at that time,
before the ticket writing began. We disagree with Castaneda to the extent the case
suggests a bright-line rule fixed on the handing over of identification.

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(Id. at pp. 1111-1112.) The officer intimidated the defendant so much that he looked
shocked, backed up a few steps, and blurted out that he lived in a nearby house. (Id. at
p. 1104.) While the court in Garry found a detention, the facts here do not amount to the
same level of intimidation. Here, there is nothing in the record to indicate the officers
shone a spotlight, or even a flashlight, at defendant. Additionally, the officers began the
encounter by asking defendant routine questions rather than immediately asking him if he
was on probation or parole. Accordingly, there are no facts here that indicate defendant
was detained through a show of authority.
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                 , J.



We concur:



      NICHOLSON             , Acting P. J.



      HOCH                  , J.




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