THE PEOPLE v. OMAR JAIME (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The Los Angeles County District Attorney filed an information that charged defendant Omar Jamie with possession of cocaine, a violation of Health and Safety Code section 11350, subdivision (a).   Omar filed a motion to suppress evidence under Penal Code section 1538.5.   The trial court denied the motion after hearing testimony from the arresting officers and Omar and Christian Jamie.   Omar entered a plea of nolo contendere, and the court placed him on probation for one year pursuant to Proposition 36.   Omar filed a timely notice of appeal from the judgment.   We affirm.

FACTUAL AND PROCEDURAL HISTORY

I. PROSECUTION CASE

On November 19, 2009, Los Angeles Police Officers Brad Michael and Luis Gasca of the Newton Narcotics Enforcement Detail were monitoring a house on 22nd Street in Los Angeles.   At approximately 8:15 p.m., Omar arrived on the scene, got out of a red truck, and walked onto the property.   After a couple of minutes, Omar left, got into the truck, and drove away.

Officers Michael and Gasca followed Omar in an unmarked car, and Officer Gasca radioed dispatch that they were following the truck.   Without any prompting from the officers, Omar turned into a cul-de-sac on 30th Street, made a U-turn, and parked the truck.   Then, Omar and his brother Christian got out of the truck and began walking along the sidewalk.   During this time, Officer Michael turned onto the same street and stopped his car on the wrong side of the street so that he was double-parked and approximately two-car lengths away from Omar's car.   While Officer Michael was securing the vehicle, Officer Gasca exited the car and approached Omar. At this point, Omar was walking approximately 15 to 25 feet behind the officer's car.

Officer Gasca, who was dressed in plain clothes except for a visible police vest with his badge sewn onto it, walked up to the two men from behind, and asked if he could speak with both of them for a minute.   Officer Gasca did not display his weapon and did not have his hand on his weapon.   Omar asked Officer Gasca what was going on, and Officer Gasca identified himself as a narcotics officer.   Officer Gasca asked Omar where he was coming from, and Omar replied that he had come from his home.   Officer Gasca asked if Omar was sure that he was coming from his home.   When Omar answered “ ‘yes,’ ” Officer Gasca asked him where that was.   Omar told Officer Gasca that he lived “ ‘a couple blocks away,’ ” and Officer Gasca replied that he had been following Omar from “22nd Street, South Central.”   Officer Gasca then asked Omar if he was on probation or parole.   Omar replied that he was on probation for “ ‘domestic.’ ”

Officer Michael, who had been parking the car, joined in the conversation.   Officer Michael was dressed in plain clothes but had his badge hanging from his neck.   Officer Gasca asked Omar if he had anything on him that Officer Gasca should know about.   Omar replied that he had narcotics.   Officer Gasca then asked where, and Omar pointed to his right front pocket.   Officer Gasca then asked to see what Omar had, and Omar took out two clear baggies containing a white powder that resembled powder cocaine.

Sometime during the investigation, a motorcycle police officer arrived at the scene in response to the radio call made by Officer Gasca while the officers were following Omar. Shortly after the motorcycle police officer got there, a “black and white” also showed up.   The motorcycle officer was not present when Officer Gasca got out of the car and approached Omar, but arrived at some point during Officer Gasca's investigation.   The motorcycle officer stood in the street near his motorcycle and left before Officers Gasca and Michael finished their investigation.

II. DEFENSE CASE

Omar and Christian were going to a video rental store.   As soon as they got out of the truck, a motorcycle officer stopped in the middle of the street, about 13 to 20 feet away.   The motorcycle officer did not approach, but ordered Omar and Christian to stop.   They complied.   Christian testified that a few seconds later, the motorcycle officer who told Omar and Christian to stop, drove away, to allow Officers Michael and Gasca to pull over.   The motorcycle officer drove away, and Omar and Christian resumed walking.   Omar testified that the motorcycle officer stopped in the middle of the street and told Omar and Christian to stop.   Shortly after, Officers Michael and Gasca pulled up and parked behind the motorcycle officer.

Then, Officers Michael and Gasca got out of their car.   The officers approached Omar and Christian and told them to turn around, face the wall, and then handcuffed them.   Neither identified themselves as police officers.   The officers asked Omar whether he was on probation and where he was coming from and then searched Omar and Christian.   As a result of this search, one of the officers found the baggies of cocaine in Omar's pocket.

III. THE TRIAL COURT'S DETERMINATION

Omar filed a motion, pursuant to Penal Code section 1538.5, to suppress the two baggies of cocaine found in his possession on the basis that they were the products of an illegal search and seizure.   At the suppression hearing, both sides were given the opportunity to present their version of the facts.   The trial court denied the motion because it found the testimony of the officers to be credible.   As a result, the court held that it had sufficient evidence to hold that the encounter was consensual and “the acknowledgement that the defendant was on probation, certainly justified the search.”

The court cited two specific points to support its finding that the officers were credible.   First, the court held that it did not find “both police officers were lying about the role of the motorcycle officer.”   Because “if the motorcycle officer had been stopped in front of them and had caused the two pedestrians to stop, there would have been a—there would have been a meeting going on among the three of them that the two undercover officers would not have missed.”

Second, the court held that both Omar and Christian were walking when the officers approached them.   The officers' testimony was completely inconsistent with Omar's testimony.   However, the officers' testimony was not inconsistent with Christian's testimony who stated “that even if they had been stopped by the motor officer, that he then abandoned them and they went on their way.”

On appeal, Omar submits that the “court's factual findings with respect to the motorcycle officer were not supported by the evidence.”   Additionally, Omar contends that the exchange was not a consensual encounter but an unlawful detention.

DISCUSSION

I. STANDARD OF REVIEW

The standard of review for the denial of a motion to suppress is well-settled.   The appellate court reviews de novo the trial court's determination of the relevant law, and the application of that law to the facts, in deciding whether a Fourth Amendment violation has occurred.  (People v. Ayala (2000) 23 Cal.4th 225, 255.)   However, the appellate court applies a sufficiency of the evidence standard, where a reviewing court defers to the lower court's express or implied factual findings if the findings are supported by substantial evidence after viewing the record in the light most favorable to the ruling.  (Ibid.;  People v. Glasser (1995) 11 Cal.4th 354, 362.)   This standard applies whether direct or circumstantial evidence is involved.   (People v. Vasco (2005) 131 Cal.App.4th 137, 160–161.)

The trial court based its decision on substantial evidence that the motorcycle officer did not command Omar or Christian to stop before Officers Michael and Gasca arrived.   Substantial evidence is evidence that is “reasonable, credible, and of solid value—from which a reasonable jury could find the accused guilty beyond a reasonable doubt.”  (People v. Hovarter (2008) 44 Cal.4th 983, 996–997.)   In other words, the relevant inquiry of the sufficiency of the evidence on appeal is whether any rational trier of fact could have been so persuaded.   (Id. at p. 997.)

In the present case, both of the officers testified that the motorcycle officer was not present when they arrived onto the scene.   And, therefore, the motorcycle officer could not possibly have ordered Omar and Christian to stop.   The trial court examined the officers' testimony and found it credible.   The court even went so far as to point out specific deficiencies with the defense's version of the facts.   Therefore, the court had reasonable, credible, and solid evidence on which to base its decision.   Moreover, the officers' silence on whether they had heard a motorcycle officer give a command to Omar and Christian does not require this court to believe the defense's version of the facts.  (People v. Flores (1956) 147 Cal.App.2d 243, 246.)

II. SEARCH AND SEIZURE

The trial court's determination that the two baggies of cocaine was the product of the officers consensual encounter with Omar should be affirmed.   First, the officers' versions of the facts constitute substantial evidence.   Additionally, the “ ‘question of the voluntariness of the consent is to be determined in the first instance by the trier of fact;  and in that stage of the process, “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.” ’ ”  (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558–1559.)

The trial court specifically held that the encounter was “consensual and that what came after it, the acknowledgement that the defendant was on probation, certainly justified the search in the case.”   The defense has not provided any substantial evidence to the contrary, and in fact, the trial court specifically pointed out the deficiencies and contradictions of Omar's and Christian's testimony.   As a result, the trial court did not find the defense's version was credible.

However, even an evaluation of the encounter leads to the conclusion that Omar's consent was voluntary.   Under the Fourth Amendment, a person is detained only if, under all of the circumstances surrounding the incident, a reasonable person would believe he was not free to “ ‘disregard the police and go about his business.’ ”  (Florida v. Bostick (1991) 501 U.S. 429, 434.)   The California Supreme Court elaborated in In re Manuel G. (1997) 16 Cal.4th 805, 820 that “[o]nly when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur.”   The court further elaborated that circumstances establishing the coercive effect of police conduct as a whole might include:  “the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or a tone of voice indicating that compliance with the officer's request might be compelled.”  (Ibid.)

Under this standard, Omar was not seized because his compliance was not required.   For example, in People v. Daugherty (1996) 50 Cal.App.4th 275, 280, the defendant was approached by a narcotics officer who identified himself as such and told her that he had some questions.   The officer told the defendant that she was not arrested but also that he and his partner only interviewed people whom they suspected of transporting narcotics.  (Ibid.) The appellate court held that the officer's statement did not create a detention since there was “no direct accusation” that the defendant was a suspect, there was no display of a weapon, no physical touching of the defendant, and there was no use of language or tone indicating that compliance was required.  (Id. at p. 285.)   Therefore, the officer's “statement would fall short of a detention because there was nothing indicating [the defendant's] compliance was required.”  (Ibid.)

In the present case, Officer Gasca approached Omar and Christian to ask them if he could speak with them for a minute.   Omar consented to the encounter.   This request set the tone of the encounter so that it was evident from the outset that Omar's compliance was not required.   Officer Gasca then asked him where he was coming from.   As in Daugherty, Officer Gasca's follow-up statement that he had been following Omar since “22nd Street, South Central” might, at worst, have been borderline accusatory because he only suspected wrongdoing.   However, unlike in Daugherty, there was not an immediate logical connection between the two statements that Officer Gasca suspected wrongdoing because Omar's statement of a “couple blocks” was not necessarily contradictory with Officer Gasca's statement.

Additionally, in light of the entire encounter, including the initial request for permission to ask questions, Officer Gasca's question about Omar's probation status was merely inquisitive.   It was not a matter of accusation, but rather a matter of implementing a general, nondiscriminatory method for purposes of eliminating several possibilities during an investigatory process.   Importantly, it is less accusatory than the statement in Daughtery because the probation question is not preceded with a condition precedent, e.g., an officer who asks people about their probation status only when he suspects they are carrying narcotics.

Conversely, a detention may occur if the officers' actions would be very intimidating to a reasonable person.  (People v. Garry (2007) 156 Cal.App.4th 1100, 1109.)   For example, in Garry, the officer shined his patrol car's spotlight at defendant, got out of his police car, and “briskly” walked 35 feet in two and one-half or three seconds directly to the defendant.  (Id. at p. 1111.)   Instead of engaging in conversation with defendant, the officer immediately asked him whether he was on parole and disregarded his claim that he lived a few feet away.  (Ibid.) The court held that the totality of the officer's actions was “very intimidating” so as to set an “unmistakable” tone that the defendant was required to comply with the requests.  (Italics added.)  (Id. at pp. 1111–1112.)

In the present case, unlike in Garry, the initial tone of the encounter was not intimidating, let alone very intimidating.   Officer Gasca did not initiate the encounter with any display of force, e.g., using his spotlight on Omar, rushing towards Omar, touching Omar, displaying his weapon, or immediately bombarding Omar with questions about his probation status.   Additionally, the presence of the motorcycle officer and additional police car in public indicates a precaution for officer safety and was not a show of force sufficient to create a seizure, especially since the additional officers merely observed the encounter from the street, and the motorcycle officer left prior to the conclusion of the encounter.

Finally, Officer Gasca's request that Omar hand over the cocaine does not turn the encounter into a seizure.   First, because the Fourth Amendment does not preclude an officer from asking for permission to search a defendant during a consensual encounter.  (Florida v. Bostick, supra, 501 U.S. at p. 431.)   Second, in California, “[w]arrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation.”  (People v. Robles (2000) 23 Cal.4th 789, 795.)   Therefore, Officer Gasca's request was valid because appellant had already admitted that he was on probation.

DISPOSITION

The judgment is affirmed.

We concur:

ZELON, J. JACKSON, J.