THE PEOPLE v. DEVON BENNETT (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Devon A. Bennett appeals the judgment entered following his conviction by jury on one count of transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)).  Appellant challenges the trial court's denial of his pretrial motion to suppress evidence.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 27, 2006, police sergeant George Jamgotchian was on a drug intervention assignment, conducting undercover surveillance in the shared parking lot of a Mail Plus postal center and a United States post office.   Police previously had apprehended people using that location to transport drugs.   Appellant drove into the parking lot and parked his car.   Marybeth James was a passenger in appellant's car.

Jamgotchian saw appellant get out of his car and carry a box through the post office into the Mail Plus. Jamgotchian watched appellant pay the Mail Plus clerk, give the box to the clerk, and then exit the business without the box.   Appellant then walked back through the post office to his car in the parking lot.

After appellant returned to his car, Jamgotchian approached appellant, identified himself as a police officer, and told appellant he was investigating narcotics transactions.   Jamgotchian explained that he had watched appellant conduct business in the Mail Plus and wanted to determine if he was transporting drugs.   Jamgotchian was accompanied by detectives Anderson, Gary Seymour, and Michael Martinez.

Jamgotchian testified that appellant admitted he had shipped a cardboard box containing two pounds of marijuana for which he had paid $400.   Seymour retrieved the box from Mail Plus. The shipping label on the box was addressed to someone in Philadelphia named Dasman Richard, but Jamgotchian never found a person by that name.   The return address on the label indicated only the Mail Plus location and employee.

After appellant told Jamgotchian what was in the box, Jamgotchian had appellant sign a consent form to search the box, appellant's car, and his person.   Jamgotchian opened the box and found marijuana wrapped in plastic wrap and a plastic box, as well as some dryer sheets, which masked the smell of the marijuana.   Jamgotchian asked appellant if he had packaged the box, and appellant replied that he had wrapped it and put the contents in the box.   After Jamgotchian finished speaking with appellant, he spoke with James, but James did not claim any responsibility for the box.

Jamgotchian kept the box, but he did not arrest appellant because he wanted to conduct further investigation, in particular to locate the addressee on the shipping label.   Jamgotchian later sent the box to a laboratory for analysis and learned that it contained approximately 1,100 grams of marijuana.   Appellant was arrested in 2009.

Appellant was charged by information in count 1 with possession of marijuana for sale (Health & Saf.Code, § 11359), and in count 2 with transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)).  Appellant entered not guilty pleas to both counts.

In June 2009, appellant filed a motion to dismiss for lack of a speedy trial because the offense allegedly occurred on September 27, 2006, the complaint was filed on December 8, 2006, and notice of the pending charges was not sent until 26 months later, on February 19, 2009.   Appellant believed that James, “the only non-law enforcement witness to this incident,” had moved out of the country.   Appellant explained that at the time of the incident, James claimed the package belonged to her, and she showed police a receipt for mailing the package, but these statements were not recorded by the police.   Appellant contended that his inability to locate this “material defense witness” prejudiced his defense, and that the People had offered no justification for the 26-month delay.   The trial court denied the motion to dismiss, reasoning that the basis for the motion was too speculative.

Appellant also filed a motion to suppress evidence pursuant to Penal Code section 1538.5.   The parties stipulated that there was no search warrant.   Jamgotchian testified to the events as set forth above.

The court denied the motion to suppress.   The court acknowledged that carrying a package near a post office and a private postal center was not sufficient to create reasonable suspicion.   The court also acknowledged that, if appellant had refused to speak with the officer, Jamgotchian would have been required to stop speaking with appellant.   The court reasoned, however, that the officer was not prevented from having a consensual encounter with appellant and found that the testimony did not provide any basis to suppress the evidence.

The case proceeded to a jury trial.   In contrast to Jamgotchian's testimony, appellant testified that his friend, James, got out of the car and went into the post office with the package while he drove around to find a place to park.   He joined her in the post office and walked back to the car with her.   James had a flat box containing a purse that she was shipping to a friend.

Appellant further testified that Jamgotchian did not tell him he was investigating narcotics, but instead Jamgotchian asked if appellant was on parole, and appellant told him he was not.   Jamgotchian also commented on the fact that appellant and James had used Mail Plus rather than the post office, but appellant told Jamgotchian to speak with James about that.   Another officer told Jamgotchian that James had a receipt for the box, and the officers then allowed appellant and James to leave.   Appellant testified that he did not take a box of marijuana into the Mail Plus, and he never told Jamgotchian that he mailed a box of marijuana.   He said that the officers never opened a box of marijuana in front of him, and he never consented to the search of any box.

The court declared a mistrial as to count 1, possession of marijuana for sale (Health & Saf.Code, § 11359), after the jury deadlocked on this count.   The jury found appellant guilty of count 2, transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)).  The court denied probation and sentenced appellant to the midterm of three years, citing its concern that appellant had lied on the stand, the sophistication of the crime, and appellant's two prior convictions for narcotics offenses.   Appellant filed a notice of appeal.

DISCUSSION

“When considering a trial court's denial of a suppression motion, ‘we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence.’   [Citations.]”  (People v. Davis (2005) 36 Cal.4th 510, 528-529.)  “We exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment.  [Citations.]”  (People v. Strider (2009) 177 Cal.App.4th 1393, 1398.)

“To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity.  [Citations.]”  (People v. Conway (1994) 25 Cal.App.4th 385, 388.)   However, consensual encounters with the police “do not trigger Fourth Amendment scrutiny.  [Citation.]  Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.  [Citation.]”  (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)

“[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.]”  (Manuel G., supra, 16 Cal.4th at p. 821.)

The trial court's finding that the encounter with appellant was consensual is supported by substantial evidence.   Jamgotchian testified that he told appellant he had watched him conduct business in Mail Plus and wanted to determine if appellant was transporting drugs.   According to Jamgotchian, appellant then volunteered that he had shipped a box containing $400 worth of marijuana.   Jamgotchian also testified that appellant consented to the search of the box.   Jamgotchian did not handcuff appellant or have a weapon drawn.   Detective Anderson was about six or seven feet away, Seymour was about 15 feet away, and Martinez was down the street.   Thus, appellant's liberty was not restrained by any physical force or show of authority.   Viewing the evidence in the light most favorable to the court's ruling, as we must, substantial evidence supports the court's finding that the encounter was consensual.

Because the encounter was consensual, no reasonable suspicion was required on the officer's part.  (Manuel G., supra, 16 Cal.4th at p. 821.)   The trial court did not err in denying appellant's motion to suppress.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

EPSTEIN, P.J. SUZUKAWA, J.