Filed 7/15/13 P. v. Scott CA2/6
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B244735
                                                                            (Super. Ct. No. 2012020660)
     Plaintiff and Respondent,                                                   (Ventura County)

v.

MATTHEW REY SCOTT,

     Defendant and Appellant.


                   Matthew Rey Scott appeals a judgment following his conviction of
possession of a controlled substance - methamphetamine (Health & Saf. Code,
§ 11377), with a finding that he had a prior strike - a 2008 first degree burglary
conviction. In response to a police officer's question during a parole search, Scott
admitted that the substance in a bag in his pocket was methamphetamine. Scott moved
to exclude that statement because he was not given a Miranda warning. (Miranda v.
Arizona (1966) 384 U.S. 436.) The trial court denied his motion. We conclude the
court erred. But the error is harmless given the overwhelming evidence supporting the
judgment. We also conclude that an earlier statement Scott made before any police
questioning was voluntary and admissible. We affirm.
                                          FACTS
               On June 5, 2012, police officer Timothy Wedemeyer conducted a parole
search at Scott's residence. He asked Scott to "step outside" so he could conduct a
search of "his person." Scott complied.
               In searching Scott's right pants pocket, Wedemeyer "felt a baggie
consistent with narcotics." As Wedemeyer started to pull it "out of the pocket," Scott
said, "Man this is fucked up. Why are you guys here? Now I'm really fucked."
               Wedemeyer asked Scott, "[W]hat's in the bag?" Scott responded, "You
know what it is. It's meth. Now I'm really fucked."
               In a pretrial motion, Scott moved to exclude all the statements he made
during the parole search. The trial court denied the motion.
                                      DISCUSSION
                 Admissibility of Scott's Initial Statements to the Police
               Scott contends the trial court erred by admitting the first statements he
made during the parole search - "Man this is fucked up. Why are you guys here? Now
I'm really fucked." (Italics added.) He claims they are inadmissible under Miranda v.
Arizona, supra, 384 U.S. 436 because he did not receive a Miranda warning prior to
making them.
               The People contend these remarks to Officer Wedemeyer were
admissible because they were voluntary and he made them before any police
questioning. We agree.
               In reviewing claims that the trial court should have excluded or
suppressed statements "based upon a Miranda violation, '"we accept the trial court's
resolution of disputed facts and inferences . . . if supported by substantial evidence."'"
(People v. Bejasa (2012) 205 Cal.App.4th 26, 35.) "'"We independently determine
from the undisputed facts and the facts properly found by the trial court whether the
challenged statement was illegally obtained."'" (Ibid.)



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              "Defendants who are in custody must be given Miranda warnings before
police officers may interrogate them." (People v. Huggins (2006) 38 Cal.4th 175,
198.) Where a custodial interrogation occurs without a Miranda warning, the
incriminating statements by the defendant in response to police questioning may be
suppressed or excluded by the trial court. (People v. Bejasa, supra, 205 Cal.App.4th at
p. 40.)
              But as the Supreme Court stated in Miranda, "Volunteered statements of
any kind are not barred by the Fifth Amendment and their admissibility is not affected
by our holding today." (Miranda v. Arizona, supra, 384 U.S. at p. 478.)
              Scott made these remarks before he was questioned by the police. The
trial court found they were "spontaneous." It rejected Scott's claim that he made them
involuntarily. It said, "I do not find it to be involuntary under all of the factors I'm
required to consider. And I don't find it to be a violation of Miranda." These findings
are supported by the record. "'[T]he special procedural safeguards outlined in Miranda
are required not where a suspect is simply taken into custody, but rather where a
suspect in custody is subjected to interrogation.'" (People v. Buskirk (2009) 175
Cal.App.4th 1436, 1449.) Here there was no interrogation before he made these
remarks. There was no error.
            Admissibility of Scott's Answer to the Police Officer's Question
              Scott contends the officer's question, "[W]hat's in the bag?" constituted
an interrogation while he was in custody. Scott answered, "You know what it is. It's
meth. Now I'm really fucked." (Italics added.) He claims his answer should have been
excluded.
              The People contend his remarks were admissible because Scott was not
in custody. We disagree.
              Scott's statements were made in response to a police officer's question
before he received Miranda warnings. He made them during a parole search. "It is
settled in this state that custodial interrogation appears not only when a person is in


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fact deprived of his freedom in any significant way, but also when as a reasonable
person he is led to believe that his freedom of movement has been restricted by the
pressures of official authority." (People v. Farris (1981) 120 Cal.App.3d 51, 56.)
              Here the trial court made findings that Scott was detained and his
freedom of movement was restricted. The court said, "[T]here's been an investigative
detention here. There's no doubt about that. He's detained. He's not free to go. No
reasonable person in his position is going to think he's free to go." (Italics added.)
Those findings about Scott being in a custodial environment during the parole search
are supported by the record.
              Scott was not free to walk away from a parole search. As stated in
People v. Farris, supra, 120 Cal.App.3d at page 56, a defendant subject to parole
conditions was "not free to leave while his bedroom was being searched."
Consequently, he "was obviously deprived of his freedom in a significant way."
(Ibid.) In People v. Bejasa, supra, 205 Cal.App.4th at page 37, the court said, "A
reasonable person in defendant's position would know that possession of
methamphetamine . . . is a parole violation and a crime, and that arrest would likely
follow." "[T]he fact that [police] advised defendant he was being 'detained for a
possible parole violation' also weighs in favor of custody." (Ibid.)
              The People claim Miranda does not apply because the question
Wedemeyer asked Scott did not constitute an interrogation. We disagree. Under
Miranda, an interrogation occurs where "the police should know" their questions are
"likely to evoke an incriminating response." (Rhode Island v. Innis (1980) 446 U.S.
291, 301.) This is such a case. Here the police officer had possession of the evidence
of a crime before he asked Scott the incriminating question while Scott was detained.
At the pretrial hearing to exclude Scott's statements, Wedemeyer testified that he knew
Scott was in possession of narcotics before he asked "what's in the bag?"
              Because Wedemeyer knew what the bag contained, he consequently
knew or should have known his question was likely to evoke an incriminating


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response. (Rhode Island v. Innis, supra, 446 U.S. at p. 301; People v. Ceccone (1968)
260 Cal.App.2d 886, 893-894 [in a roadside car search, police officer knew a bag
contained marijuana, consequently asking the defendant what the bag contained
without a prior Miranda warning required exclusion of defendant's answer]; see also
State v. O'Neal (N.J. 2007) 921 A.2d 1079, 1082, 1088 [police who were searching
defendant after seeing him use a sock in a street drug transaction could not ask him
"what was in his sock" without first giving a Miranda advisement].)
              In a case similar to this one, the Ninth Circuit in United States v.
Hernandez (9th Cir. 2007) 476 F.3d 791, 796, said, "Officer Carlas testified that when
he removed the opaque package from Hernandez's pants pocket he believed it
contained drugs. When officer Carlas then asked, 'what is this?', not only was this
direct questioning, but based on officer Carlas's belief that he was holding drugs in his
hand, he knew or should have known his question could reasonably lead to an
incriminating response from Hernandez." (Italics added.)
              The question Wedemeyer asked was not necessary to complete a parole
search or for routine booking information. A truthful answer to the question
constituted an admission of the crime the police knew he had committed.
Consequently, Scott should have received a Miranda warning before he gave his
incriminating response. The trial court should have excluded his answer to the
question.
              But any error is harmless because even without his admission that the
bag contained methamphetamine, there is overwhelming evidence of Scott's guilt.
(Chapman v. California (1967) 386 U.S. 18, 24.) The police found the narcotics on
his person. It was in the pocket of his pants. Scott volunteered the admissible
statement, "Now I'm really fucked," which showed his consciousness of guilt.
Wedemeyer testified he "had a pretty decent opinion it was methamphetamine" as he
pulled the bag out. He conducted a "NIK" test on the substance in the bag. It "tested
positive for methamphetamine." Maria Perez, a sheriff's department forensic scientist,


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testified the tested evidence sample "contained methamphetamine." This evidence was
uncontradicted. Scott did not testify and he called no witnesses.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




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                              Matthew P. Guasco, Judge

                           Superior Court County of Ventura

                        ______________________________


             Pamela J. Voich, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney
General, for Plaintiff and Respondent.




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