People v. Botts

         NOT TO BE PUBLISHED

         Super. Ct. No. MF030410A

          SCOTLAND, P.J.

         After the trial court denied his motion to suppress evidence, defendant Michael Edward Botts pled no contest to possession of methamphetamine for sale. On appeal, he contends the trial court erred in denying his suppression motion. We disagree and shall affirm the judgment.

         FACTS

         While looking for a person suspected of committing a burglary, Manteca Police Department Sergeant Rick Adams, working undercover, saw Rudolfo Ramirez, who matched the description of the suspect. Ramirez seemed to be waiting for someone because he kept looking up and down the street, and pacing back and forth in front of a Quik Stop market. At one point, Ramirez retrieved a sweatshirt from a Ford Taurus and continued pacing. There appeared to be three people in the Taurus.

         Sergeant Adams left the area and came back soon thereafter with the burglary witness to see whether she could identify Ramirez as the burglar. When the witness indicated Ramirez was not the culprit, Adams drove her home. He then returned to the market because of Ramirez’s suspicious behavior. Ramirez was still in front of the market “looking up and down the street.”

         Soon thereafter, a Cadillac pulled into the market parking lot. Ramirez immediately walked up to the Cadillac and started to pump gas into it, while the driver of the Cadillac, later identified as Nathan Rodriguez, went over to the Taurus. Sergeant Adams’s view was obstructed by traffic for a few seconds; when the traffic cleared, he saw defendant and Rodriguez looking into the trunk of the Taurus. Rodriguez and Ramirez then got into Rodriguez’s car, and defendant got into the driver’s seat of the Taurus.

         Defendant and Rodriguez drove their cars to an apartment complex and parked side by side, facing in opposite directions. While Sergeant Adams followed the men, he ran the license plate of the Taurus and learned it was a rental car from Oregon. Adams called Officer Armen Avakian, told him what Adams observed, and asked for help because Adams believed that a drug transaction was in progress.

         After Officer Avakian arrived, Sergeant Adams drove his unmarked car past defendant and Rodriguez while they were talking beside their vehicles. Defendant stared at Adams and “mouthed something” to the driver of the Cadillac. The two men then hurriedly got into their vehicles and began driving away. Believing that defendant “must have recognized [him] as law enforcement,” Adams blocked the exit from the east, while Avakian blocked it from the west, preventing defendant and Rodriguez from leaving the apartment complex.

         When asked for his driver’s license, defendant responded that he did not have one or any other identification. When asked whether there were drugs or anything illegal in the car, defendant said no. When Officer Avakian asked defendant for permission to search the car, defendant replied that it was “okay” with him but that the passenger, Mandi Humphrey, had rented the car. Humphrey refused Avakian’s request to search the vehicle and requested a lawyer.

         At that point, Officer Avakian arrested defendant for driving without a license. He then began preparations to have the vehicle towed. In accordance with a written police department policy, Avakian performed an inventory search of the car prior to towing and impounding it. During the search, he found several bags of methamphetamine in the car.

         Defense counsel moved to suppress the evidence, arguing that defendant’s consent to search the car was the fruit of an unlawful detention. In counsel’s view, Sergeant Adams did not have reasonable cause to detain defendant and did “nothing more than play[] a hunch.” Counsel also asserted that defendant’s consent was not voluntary; defendant simply acquiesced to the officer’s show of authority. In addition, counsel claimed the inventory search was not justified.

         The trial court denied the motion, finding Sergeant Adams lawfully detained defendant based on a reasonable suspicion that a drug transaction was occurring, defendant thereafter validly consented to the search of the vehicle, and the inventory search was valid.

         DISCUSSION

         Defendant contends that he was illegally detained without a reasonable suspicion of criminal activity and that the unlawful detention invalidated his subsequent consent to search the vehicle. As we will explain, Sergeant Adams lawfully detained defendant, who voluntarily consented to a search of the vehicle. Therefore, we need not address defendant’s argument that the search cannot be justified as a lawful inventory search because it was a pretext to investigate suspected criminal wrongdoing.

         In order to lawfully detain a person, a peace officer need not have probable cause to arrest the person; all that is required is a reasonable suspicion that criminal activity is afoot. (People v. Souza (1994) 9 Cal.4th 224, 230-231.) Thus, “[a] detention is reasonable under the Fourth Amendment 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.” (Id. at p. 231.) “Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C. (1978) 21 Cal.3d 888, 893.)

         In reviewing the denial of a motion to suppress evidence, we defer to the trial court’s factual findings where supported by substantial evidence, but exercise our independent judgment to determine whether, under those facts, a search or seizure was reasonable under the Fourth Amendment. (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)

         Here, viewed in the light most favorable to the suppression order (People v. Weaver (2001) 26 Cal.4th 876, 924), the evidence amply supports the trial court’s determination that defendant was lawfully detained.

         Sergeant Adams, who had 15 years of experience and extensive training as a narcotics officer, testified that drug transactions often occur in two phases. Initially, the buyer and seller will meet in a public location, such as a parking lot, to protect themselves from being robbed by one another and because it is easier to detect the presence of law enforcement. The seller will show the buyer the contraband, then the buyer will show the seller the money. If “both parties are satisfied that each have their half of the bargain” and “are comfortable with one another,” they will travel to another location where the actual exchange will occur.

         Opining that defendant and his associates engaged in conduct consistent with a drug transaction, Sergeant Adams testified that Ramirez was most likely acting as a facilitator between defendant and Rodriguez. Ramirez paced back and forth at the Quik Stop market, as if he was waiting for someone. When Rodriguez arrived, Ramirez approached him immediately. Rodriguez went to the Taurus, and he and defendant looked into the trunk. Thereafter, Ramirez, who was originally associated with the Taurus as shown by his retrieval of a sweatshirt from the car, got into the Cadillac with Rodriguez and drove away with him while defendant followed in the Taurus. When Adams drove by defendant and Rodriguez after they arrived at the apartment complex, defendant stared at Adams, mouthed something to Rodriguez, hurried to his car, and attempted to leave the complex. It appeared to Adams that defendant had identified him as a law enforcement officer.

         Based on what Sergeant Adams saw, he thought it “very likely” that he had been watching a drug transaction. This was so because defendant’s behavior was “specifically the same activity” of someone involved in a narcotics transaction, and Adams had witnessed the very same activity on many occasions while working undercover. His suspicions were heightened when he ran the license plate of the Taurus and learned that it was a rental from Oregon. In his experience, a lot of narcotics go through the central valley up to Oregon, and narcotics traffickers often use rental vehicles when transporting drugs.

         Thus, Sergeant Adams articulated specific facts that, when considered in light of the totality of the circumstances, provided some objective manifestation that defendant might be involved in criminal activity. Consequently, the detention was lawful. (People v. Souza, supra, 9 Cal.4th 224 at pp. 230-231; In re Tony C., supra, 21 Cal.3d at p. 893.)

         In defendant’s view, officers lacked a reasonable suspicion to detain him because his conduct was equally consistent with noncriminal behavior. The contention fails because “if the circumstances are ‘consistent with criminal activity,’ they permit--even demand--an investigation: the public rightfully expects a police officer to inquire into such circumstances ‘in the proper discharge of the officer’s duties.’ [Citation.] No reason appears for a contrary result simply because the circumstances are also ‘consistent with lawful activity,’ as may often be the case. The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal--to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ [Citation.]” (In re Tony C., supra, 21 Cal.3d at p. 894.)

         Because the detention was not unlawful, defendant’s claim that his consent to search the Taurus was the fruit of an unlawful detention necessarily fails.

         We observe, however, that buried within his appellate argument, defendant intimates his consent to search the car was involuntary because he was not advised of his right to refuse to consent. But there is no rule that officers must always inform persons of their right to refuse when seeking permission to conduct a warrantless consent search. “‘While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.’ [Citation.]” (United States v. Drayton (2002) 536 U.S. 194, 206-207 [153 L.Ed.2d 242, 255]; see also People v. Monterroso (2004) 34 Cal.4th 743, 758.) The voluntariness of consent depends on the totality of the circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 232-233 [36 L.Ed.2d 854, 865-866].) Because defendant does not challenge the voluntariness of his consent by presenting, under an appropriate argument heading in his brief, a cogent analysis of the relevant factors applicable to the issue, this contention requires no further discussion. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)

         Nevertheless, to forestall a future claim of ineffective assistance of counsel, we conclude there was no evidence that the consent was involuntary. Factors relevant to this inquiry include (1) whether the consenting person was in custody and whether Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) were given; (2) whether the officer or officers had drawn weapons; (3) whether the officer informed the person of the right to refuse consent; (4) whether the person was told a search warrant could be obtained; (5) whether consent was obtained while the person was confronted by many officers; (6) whether the consenting person experienced a significant interruption of his or her liberty; (7) whether the officer used deceptive practices to obtain consent; and (8) whether the person has previous experience with the criminal justice system. (People v. Ledesma (1987) 43 Cal.3d 171, 233-235; see also U.S. v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1112; People v. Avalos (1996) 47 Cal.App.4th 1569, 1578; People v. Monterroso, supra, 34 Cal.4th at pp. 758-759.) “[N]o single factor is dispositive of this factually intensive inquiry.” (People v. Avalos, supra, 47 Cal.App.4th at p. 1578.)

         Here, defendant was not in custody when he consented to the search, so Miranda warnings were unnecessary. He was not confronted by numerous officers, only Officer Avakian, since Sergeant Adams was busy contacting Rodriguez. The detention was brief. Avakian did not have his weapon drawn and did not engage in any deceptive behavior. Indeed, Avakian asked defendant for permission to search the car, thus indicating that defendant could refuse to allow the search. In sum, there is no evidence of coercive behavior, and the totality of the circumstances shows that defendant’s consent was voluntary.

         For the reasons stated above, the trial court did not err in denying the motion to suppress evidence.

         DISPOSITON

         The judgment is affirmed.

          We concur: SIMS, J., HULL, J.