People v. Attard, No. D054692 (Cal. App. 4/27/2010)

• Decision Date: 27 April 2010
• Docket Number: No. D054692.,D054692.
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS ATTARD, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS ATTARD, Defendant and Appellant.

No. D054692.

Court of Appeals of California, Fourth District, Division One.

Filed April 27, 2010.

Appeal from a judgment of the Superior Court of San Diego County, No. SCD216061, Roger W. Krauel, Frederick Maguire, Judges. Affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HALLER, Acting P.J.

Nicholas Attard appeals from his conviction of possession of cocaine base pursuant to a guilty plea. He asserts the trial court erred in denying his motion to suppress the cocaine found by the police in his possession. We reject this contention and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Attard was arrested and charged with possession of cocaine base. He moved to suppress the cocaine seized by the police from his person. At the hearing on the suppression motion, Officer Nicole Campbell described the encounter with Attard that led to the seizure of the cocaine.

Campbell testified that at about 9:50 p.m. on September 11, 2008, she and Officer Anthony Reese were driving in an area of San Diego County known for illegal narcotics activity. They were in uniform and driving a marked patrol car. As they were patrolling the area, they saw Attard walking from an alley in the direction of their vehicle.

The officers stopped their vehicle about 15 feet away from Attard. Officer Campbell rolled down the passenger window and asked Attard his name. Attard gave them his name. The officers asked if he lived in the area, and Attard responded that he did, stating that he lived on the next block in a sober living facility. The officers asked if he was on probation or parole, and Attard responded "No."

The officers then asked Attard "if he minded talking to [them]," and he said he did not mind. After Attard agreed to talk to the officers, he continued walking towards the police vehicle and the officers exited the vehicle. It was dark outside, but streetlights in the alley provided lighting. Also, the police spotlight was shining in the alley in the direction of Attard. When Attard was about five feet from the officers, Campbell noticed that his eyes were red and dilated. Attard stopped walking when he reached the officers.

In response to the officers' questions, Attard provided his name, date of birth and Social Security number. During this interaction, Campbell observed that Attard was "talking to [her] with accelerated speech, and he was fidgeting." Campbell testified that she had training in the use of narcotics and their effects, and she had made about 50 arrests of persons who were confirmed to be under the influence of a controlled substance. Based on her training and experience, Campbell believed Attard was under the influence of a controlled substance.

While Officer Reese went to the patrol car to run a background check, Officer Campbell asked Attard if he would mind if she searched him. Attard responded that she could not search him. After declining to give consent to a search, Attard began "fidgeting a little more and started motioning his mouth, similar to chewing. Like, he was rapidly chewing something and tried to swallow multiple times." Prior to this point Attard had not been making a chewing motion with his mouth. Campbell believed that Attard was "trying to get rid of something in his mouth." Accordingly, she approached him and, using her hand, pushed his head down towards his chin, which is a movement designed to stop the person from swallowing. Campbell explained that narcotics users frequently conceal rock cocaine in their mouth, and they will often swallow it to destroy the evidence and avoid getting caught.

The officers repeatedly told Attard to "spit out the item that was in his mouth." Attard "tried to swallow a few more times" and Campbell "told him to spit it out a few more times." Attard eventually spit out a white crystalline substance that Campbell believed was rock cocaine. The officers then arrested Attard. Testing results revealed that the substance in Attard's mouth was .22 grams of cocaine base.

The prosecutor argued that the search of Attard's mouth was a permissible search incident to an arrest, or was justified by the exigency of preventing him from destroying contraband. To support this, the prosecutor asserted the initial encounter with Attard was consensual. The prosecutor contended that during this consensual encounter the police acquired probable cause to arrest Attard for being under the influence of a controlled substance, based on such factors as his dilated pupils, accelerated speech, fidgeting, mouth motions suggesting an attempt to swallow drugs, and location in an area of high illegal narcotics activity. Additionally, the police had probable cause to believe Attard had a controlled substance in his mouth, and were permitted to search his mouth in response to the perceived exigency that he was trying to swallow the contraband.

To support the suppression motion, defense counsel argued the initial encounter ceased to be consensual and became a detention because the police shined their vehicle spotlight on Attard, rushed out of their vehicle, and started asking interrogation questions. Further, there was no probable cause to arrest because the symptoms displayed by Attard could be explained by such innocent factors as dilated pupils from nighttime, being a normally fast-talker, being cold, and being nervous upon confrontation by the police. Defense counsel noted that the police did not conduct any field sobriety tests to verify that Attard was under the influence. Additionally, there was no probable cause that Attard had contraband in his mouth because chewing was a normal motion and the officers never saw Attard put anything in his mouth, nor did they see anything in Attard's mouth.

The trial court found the initial contact between the officers and Attard was consensual. The court concluded that during the consensual encounter, the police acquired probable cause to arrest based on the observation of physical symptoms of being under the influence (dilated eyes, accelerated speech, and fidgeting behavior), plus the location in a high illegal narcotics area and the time of day. The court ruled that because there was probable cause to arrest at the time of the search, the police engaged in a permissible search incident to an arrest. Accordingly, the court denied the suppression motion.¹

Thereafter, Attard pleaded guilty to possession of cocaine base and was granted probation. On appeal, he challenges the denial of his suppression motion.

DISCUSSION

In reviewing a trial court's ruling on a suppression motion, we "defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Woods (1999) 21 Cal.4th 668, 673-674.)

Attard acknowledges that his encounter with the police was initially consensual, but he asserts that it developed into an unlawful detention requiring exclusion of the cocaine subsequently found by the police. Alternatively, he argues that even if the encounter remained consensual, there was no probable cause to arrest him and no justification for the search of his mouth. For reasons we shall explain, we hold the encounter was consensual, and the search of his mouth was permissible based on probable cause to arrest for being under the influence.

No Detention

The police do not violate the Fourth Amendment by merely approaching an individual on the street and asking questions if the person is willing to listen. (People v. Hughes (2002) 27 Cal.4th 287, 328.) If the encounter with the police remains consensual, there is no reason to subject the police conduct to Fourth Amendment scrutiny. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

However, the person is not required to stay and listen or answer the questions posed by the police, and the police may not detain the person without reasonable, objective grounds for doing so. (People v. Hughes, supra, 27 Cal.4th at p. 328.) A detention, which triggers Fourth Amendment scrutiny, occurs "whenever a police officer `by means of physical force or show of authority' restrains the liberty of a person to walk away." (People v. Souza (1994) 9 Cal.4th 224, 229; In re Manuel G., supra, 16 Cal.4th at p. 821.) The court evaluates "`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.'" (In re Manuel G., supra, 16 Cal.4th at p. 821.) "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." (Ibid.) "There is no bright line rule indicating the point at which police conduct becomes a seizure. The degree of intrusion will vary with each set of facts involving police conduct and the actions of the suspect." (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.)

To justify a detention, the police must have a reasonable suspicion, based on particularized objective facts, that the person detained may be involved in criminal activity. (People v. Souza, supra, 9 Cal.4th at pp. 230-231.) If the defendant was unlawfully detained by the police, and absent sufficient attenuating circumstances, the defendant is entitled to suppression of evidence seized by the police as a result of the detention. (People v. Boyer (2006) 38 Cal.4th 412, 448.) On the other hand, if during a consensual encounter the police...