Filed 3/25/15 P. v. Richey 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,

                   Plaintiff and Respondent,                                                 C075008

         v.                                                                      (Super. Ct. No. 12F05450)

ANTHONY GIOVONNI RICHEY,

                   Defendant and Appellant.




         A jury convicted defendant Anthony Giovonni Richey of carrying a concealed
firearm (Pen. Code, § 25400, subds. (a)(2) & (c)(6) -- count 1)1 and carrying a loaded
firearm in public (§ 25850, subds. (a) & (c)(6) -- count 2), along with a misdemeanor
violation for being under the influence of methamphetamine (Health & Saf. Code,
§ 11550, subd. (a) -- count 3).
         Defendant now contends the trial court erred in denying his motion to suppress
illegally seized evidence. (§ 1538.5.) Finding no error, we will affirm the judgment.



1   Undesignated statutory references are to the Penal Code.

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                                      BACKGROUND
       Defendant moved to suppress the evidence against him pursuant to section 1538.5.
At the hearing on the motion to suppress, Detective David Gutierrez of the Citrus Heights
Police Department testified that he was driving through a high crime neighborhood with
his partners, Detectives Joe Davis and Daniel Hefner, at approximately 3:30 p.m. on the
afternoon of August 8, 2012. The three detectives were wearing plain clothes and driving
an unmarked van. Detective Gutierrez was riding in the front passenger seat.
       As they turned onto the residential street known as Treeleaf Way, Detective
Gutierrez observed defendant riding his bicycle down the street in the opposite direction.
Detective Gutierrez noticed that defendant appeared to be staring at them. At the hearing,
the parties stipulated that Detective Hefner, who was driving the van, had pulled his shirt
up over his nose.2
       After passing defendant on the street, Detective Gutierrez turned around and
watched as defendant, still keeping an eye on the unmarked van, nearly crashed his
bicycle in the middle of the street. The detectives did not stop, but continued driving in
the direction of their destination, a suspected drug house in the area.
       A short time later, Detective Gutierrez spotted defendant a second time, riding his
bicycle down a nearby street. Once again, defendant was riding towards the detectives,
who were driving down the street in the opposite direction. Based on his familiarity with
the neighborhood, Detective Gutierrez believed that defendant was “looping back around
towards the same area that he just came from.” Detective Gutierrez found this behavior
noteworthy because, based on his training and experience, “people that are looking to
commit crimes will often drive the neighborhood to see if anybody is paying attention or
if there is anybody out and about.”



2 During the subsequent jury trial, Detective Hefner testified that he pulled his shirt over
his nose in response to a foul odor in the van.

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        The detectives decided to make contact with defendant. According to Detective
Gutierrez, “We pulled forward. He was driving -- he was riding his bicycle on the right-
hand portion of the roadway headed towards us. Detective Hefner began to move
because I said, hey, let’s get on top of this guy, so we moved forward. We were on the
right side of the roadway. Detective Hefner parked on the right side of the roadway.”
        Detectives Davis and Gutierrez donned police tactical vests with the word
“Police” inscribed on the front and stepped out of the van. Detective Hefner, wearing
a police t-shirt, joined them moments later. The detectives did not activate their siren
or emergency lights.
        Using a normal, conversational tone of voice, Detective Gutierrez “identified
[himself] as a police officer and [he] asked [defendant] if he would mind stopping and
talking with [them].” None of the detectives raised their voices, drew their weapons,
or touched defendant.
        Defendant, on his own initiative, stopped riding his bicycle and dismounted.
The detectives, standing approximately 10 feet away, engaged defendant in conversation.
At no point during the conversation did any of the detectives tell defendant that he was
under arrest, detained, or otherwise not free to leave.
        During their conversation, Detective Gutierrez observed that defendant exhibited
objective signs of being under the influence of a controlled substance, including tremors
and constricted pupils. Detectives Davis and Gutierrez performed field sobriety tests on
defendant and formed the opinion that he was under the influence of a central nervous
system stimulant.
        Defendant was arrested for being under the influence of a controlled substance.
After receiving Miranda3 warnings, defendant told Detective Gutierrez that he smoked




3   Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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methamphetamine every day and that he had smoked methamphetamine a few hours
before making contact with the detectives. Detective Gutierrez conducted a search
incident to arrest and discovered a .25-caliber handgun in defendant’s pocket. Defendant
was not the registered owner of the gun.
       On cross-examination, Detective Gutierrez testified that “Detective Hefner was
driving on the right-hand side of the roadway,” but stopped “[n]ear the middle” of the
street. According to Detective Gutierrez, “We were actually behind [defendant] because
he had actually ridden past a little bit, so we were behind him. At no time did we ever
block his path.” Detective Gutierrez denied that he contacted defendant because he was
riding his bicycle in an erratic manner.
       On redirect, Detective Gutierrez clarified that the van, though parked near the
middle of the street (as measured from sidewalk to sidewalk), did not obstruct
defendant’s lane of travel. Defendant did not testify at the suppression hearing.
       Following oral argument, the trial court said: “I believe this had all the inner
marks of, really, a consensual encounter. I mean, the very fact that the officers didn’t
turn around, pull up to the defendant after the initial encounter, suggests to me they
weren’t going out just to harass this guy. It was only after they had proceeded on their
way, and all of a sudden they see this same bicyclist headed back toward their way. I
think that’s sufficiently curious that if I were an officer, I might get out of my van and
ask, hey, what’s going on. That’s, I think, what they did. I take the officers at their word
that they didn’t block his way, that they asked politely.” The trial court went on to say,
“And in this case I think that initial encounter did not constitute a detention, based on all
the evidence that I have seen. It was a consensual encounter, and I think the officer’s
testimony was they eventually -- immediately saw what he thought were the signs of
intoxication. And [defendant is] not contesting what went on from there.” The trial court
denied defendant’s suppression motion.



                                              4
       The matter proceeded to trial and the jury found defendant guilty as charged on all
three counts and found certain special allegations true. The trial court suspended
imposition of sentence and placed defendant on probation for three years. The trial court
also ordered defendant to serve 30 days in county jail.
                                        DISCUSSION
       Defendant claims the trial court erred in denying his motion to suppress evidence.
He contends he was illegally detained without reasonable suspicion, in violation of the
Fourth Amendment. We disagree.
       “Whether a seizure occurred within the meaning of the Fourth Amendment is a
mixed question of law and fact qualifying for independent review. [Citations.]
Accordingly, ‘we review the trial court’s findings of historical fact under the deferential
substantial evidence standard, but decide the ultimate constitutional question
independently. [Citations.]’ [Citation.] We must accept factual inferences in favor of
the trial court’s ruling. [Citation.] If there is conflicting testimony, we must accept the
trial court’s resolution of disputed facts and inferences, its evaluations of credibility, and
the version of events most favorable to the People, to the extent the record supports them.
[Citations.]” (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
       “For purposes of Fourth Amendment analysis, there are basically three different
categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from
the least to the most intrusive. First, there are . . . ‘consensual encounters’ [citation],
which are those police-individual interactions which result in no restraint of an
individual’s liberty whatsoever -- i.e., no ‘seizure,’ however minimal -- and which may
properly be initiated by police officers even if they lack any ‘objective justification.’
[Citation.] Second, there are . . . ‘detentions,’ seizures of an individual which are strictly
limited in duration, scope and purpose, and which may be undertaken by the police
‘if there is an articulable suspicion that a person has committed or is about to commit
a crime.’ [Citation.] Third, and finally, there are those seizures of an individual which

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exceed the permissible limits of a detention, . . . which are constitutionally permissible
only if the police have probable cause to arrest the individual for a crime. [Citation.]”
(Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
       Consensual encounters do not trigger Fourth Amendment scrutiny. (Florida v.
Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398] (Bostick).) Unlike detentions,
they require no articulable suspicion that the person has committed or is about to commit
a crime. (Wilson, supra, 34 Cal.3d at p. 784.) The United States Supreme Court has
made it “clear that a seizure does not occur simply because a police officer approaches an
individual and asks a few questions.” (Bostick, at p. 434.) So 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.
(Ibid.) Only when the officer, by means of physical force or show of authority, has in
some manner restrained an individual’s liberty does a seizure occur. (Ibid.; Wilson, at
pp. 789-790.)
       “ ‘[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.’ [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.] The officer’s uncommunicated state of mind and the
individual citizen’s subjective belief are irrelevant in assessing whether a seizure
triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re Manuel G.
(1997) 16 Cal.4th 805, 821.)

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       Here, there is nothing in the record that suggests the detectives “ ‘by means
of physical force or show of authority, . . . in some way restrained [defendant’s]
liberty . . . .’ ’’ (Bostick, supra, 501 U.S. at p. 434 [115 L.Ed.2d at p. 398], Wilson,
supra, 34 Cal.3d at pp. 789-790.) There is no evidence that they drove towards defendant
at a high rate of speed, screeched to a halt, or activated their emergency lights or siren.
Nor is there any evidence that the detectives approached defendant in a coercive or
confrontational manner, by drawing their weapons, raising their voices, or commanding
defendant to stop. Instead, the detectives pulled over, identified themselves as police
officers, and asked “if [defendant] would mind stopping and talking with [them].”
Defendant responded by voluntarily stopping and dismounting his bicycle.
       Relying on People v. Jones (1991) 228 Cal.App.3d 519 (Jones), defendant
contends that a reasonable person would have believed that he was being detained from
the manner in which the detectives parked their van. Defendant’s reliance on Jones is
misplaced.
       In Jones, an officer spotted the defendant standing on the sidewalk with two other
men. The officer “suddenly” pulled his patrol car “to the wrong side of the road,” parked
it “diagonally against the traffic,” got out, and told the defendant, who was walking away,
to stop. (Jones, supra, 228 Cal.App.3d at pp. 522-523.) When the defendant reached
towards a pocket, the officer “ ‘grabbed his left forearm.’ ” (Id. at p. 522.) As the officer
withdrew the defendant’s hand from the pocket, he saw a clear plastic bag containing
what he suspected was cocaine. (Ibid.) The trial court granted the defendant’s motion to
suppress and the Court of Appeal affirmed because “[a] reasonable man does not believe
he is free to leave when directed to stop by a police officer who has arrived suddenly and
parked his car in such a way as to obstruct traffic.” (Id. at p. 523.)
       Here, in contrast to Jones, there is no evidence that the detectives “arrived
suddenly” or “parked [their] car in such a way as to obstruct traffic.” (Jones, supra,
228 Cal.App.3d at p. 523.) Although the detectives parked “near the middle” of the road,

                                              7
there is nothing in the record to suggest that they parked against traffic on the wrong side
of the road. Here, in contrast to Jones, the detectives did not use the van to assert their
authority or block defendant’s route. To the contrary, the record reflects that the
detectives parked behind defendant, thereby giving him the option to continue on his
way. (See People v. Franklin (1987) 192 Cal.App.3d 935, 940 [“Certainly, an officer’s
parking behind an ordinary pedestrian reasonably would not be construed as a detention.
No attempt is made to block the way”].) Furthermore, unlike the officer in Jones, the
detectives did not direct defendant to stop or touch him. Thus, we conclude that Jones
is distinguishable.
       Defendant also claims to find support for his contention that he was detained
in United States v. Washington (9th Cir. 2007) 490 F.3d 765, 772 (Washington).
Washington is also distinguishable.
       In Washington, the defendant, Washington, was seated in his lawfully parked
car on a dark street shortly before midnight. (Washington, supra, 490 F.3d at p. 767.)
He was approached by a uniformed police officer, Shaw. (Id. at p. 768.) Shaw politely
requested and received Washington’s consent to search his person. (Ibid.) However,
the tone of the encounter changed when, “instead of searching Washington in front of,
or nearby his car, Shaw directed Washington to move away from his car, and continued
directing Washington where to walk until the two reached Shaw’s squad car, a full car
length away from [Washington’s car].” (Id. at p. 772.) In the meantime, another officer
arrived at the scene and positioned himself between Washington and his car, thereby
interfering with Washington’s ability to end the encounter and drive away. (Id. at
p. 773.) During the search, Washington’s hands were placed on top of Shaw’s squad car
and Washington was instructed to “keep his head forward.” (Id. at p. 772.)
       After searching Washington’s person, the officers requested and received
Washington’s consent to search his car, where they found a firearm. (Washington, supra,
490 F.3d at p. 768.) Washington was arrested for being a felon in possession of a firearm

                                              8
and moved to suppress. (Id. at p. 769.) The district court denied the motion and the
Ninth Circuit reversed, finding that even though Washington consented to the search
of his person, the encounter escalated into an impermissible seizure, and Washington’s
consent to search the car was not voluntary. (Id. at p. 767.)
       In reaching this result, the Ninth Circuit considered a number of factors, including
the fact that Washington was approached at night on a dark street, that he was
outnumbered two-to-one, and that he was not informed of his right to terminate the
encounter. (Washington, supra, 490 F.3d at p. 772.) However, there is nothing in
Washington to suggest that the Ninth Circuit considered any of these factors dispositive.
To the contrary, the Ninth Circuit’s conclusion was based on the totality of the
circumstances. (Id. at p. 773; see also Manuel G., supra, 16 Cal.4th at p. 821 [the court
“ ‘must consider all the circumstances surrounding the encounter.’ [Citation.] . . . [and]
assess[] the coercive effect of police conduct as a whole, rather than emphasizing
particular details of that conduct in isolation”].) “Perhaps most important,” the Ninth
Circuit explained, “the manner in which Shaw searched Washington’s person was
authoritative and implied that Washington ‘was not free to decline his requests.’
[Citation.]” (Washington, supra, 490 F.3d at p. 772.) In this case, by contrast, there is no
evidence that any of the detectives adopted an authoritative tone or otherwise implied that
defendant was not free to decline their requests.
       Furthermore, though defendant was approached by three detectives, the presence
of several officers does not, without more, transform an encounter into a detention.
(See United States v. Drayton (2002) 536 U.S. 194, 205 [153 L.Ed.2d 242, 254]
(Drayton) [a second officer’s presence during an encounter on a bus did not turn an
encounter into a seizure]; INS v. Delgado (1984) 466 U.S. 210, 219 [80 L.Ed.2d 247,
257] [presence of several agents by exits posed “no reasonable threat of detention”].)
Here, unlike the officers in Washington, the detectives did not engage in any coercive



                                             9
conduct that would make a reasonable person feel that he or she was not free to leave.
(Manuel G., supra, 16 Cal.4th at p. 821.)
       Nor can the encounter be deemed a detention because the detectives did not
inform defendant that he was free to leave. Indeed, the record suggests Detective
Gutierrez would have had no opportunity to tell defendant he was free to leave, since
he immediately noticed objective signs that defendant was under the influence of a
controlled substance. In any event, the U.S. Supreme Court has “rejected in specific
terms the suggestion that police officers must always inform citizens of their right to
refuse when seeking permission to conduct a warrantless consent search. [Citations.]
. . . . Instead, the Court has repeated that the totality of the circumstances must control,
without giving extra weight to the absence of this type of warning. [Citations.]”
(Drayton, supra, 536 U.S. at pp. 206-207 [153 L.Ed.2d at pp. 254-255].) Here, as we
have explained, a reasonable person in defendant’s position, under the totality of the
circumstances, would have believed that he was free to continue on his way.
       Relying on Drayton, supra, 536 U.S. 194 [153 L.Ed.2d 242], defendant argues the
encounter was coercive because two of the three detectives were wearing bulletproof
vests and all were carrying holstered weapons. However, Drayton teaches that the
presence or lack of a uniform and holstered firearm should “have little weight in the
analysis” for determining whether a seizure occurred. (Drayton, supra, 536 U.S. at
p. 204 [153 L.Ed.2d at p. 254) Here, the detectives did not draw their weapons or
otherwise engage in coercive conduct. On this record, the fact that two of the detectives
were wearing bulletproof vests and all were carrying holstered weapons does not
constitute coercive action. (Id. at p. 202.)
       Finally, defendant argues the encounter was coercive because it took place on a
quiet residential street. However, the encounter took place on a public street in broad
daylight. There is nothing in the record to suggest that the encounter took place at night,



                                               10
in an isolated area, or out of the public’s view. Thus, we reject defendant’s contention
that the encounter was coercive by reason of its location.
       Under the totality of the circumstances discussed ante, we conclude defendant’s
initial encounter with the detectives was consensual. During that time, Detective
Gutierrez observed that defendant was under the influence of a controlled substance,
thereby giving Detective Gutierrez a reasonable suspicion on which to base the
subsequent detention. Accordingly, since defendant’s detention took place only after
Detective Gutierrez had reasonable suspicion to detain him, the detention, which led to
the arrest and the search incident to the arrest, was proper. (People v. Souza (1994)
9 Cal.4th 224, 231 [a detention is initially justified “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”].) The trial court properly denied defendant’s motion to suppress.
                                       DISPOSITION
       The judgment is affirmed.


                                                          MAURO                  , J.


We concur:


      HULL                   , Acting P. J.


      ROBIE                  , J.




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