People v. Daugherty

• Decision Date: 25 October 1996
• Docket Number: No. B095820,B095820
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7866, 96 Daily Journal D.A.R. 13,006 The PEOPLE, Plaintiff and Respondent, v. Lenda DAUGHERTY, Defendant and Appellant.

Page 666

57 Cal.Rptr.2d 666

50 Cal.App.4th 275, 96 Cal. Daily Op. Serv. 7866,

96 Daily Journal D.A.R. 13,006

The PEOPLE, Plaintiff and Respondent, v. Lenda DAUGHERTY, Defendant and Appellant.

No. B095820.

Court of Appeal, Second District, Division 7, California.

Oct. 25, 1996.

[50 Cal.App.4th 278] Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Raymund F. Robles, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, Associate Justice.

Defendant, Lenda Daugherty (Daugherty) appeals from a denial of a motion to suppress evidence pursuant to Penal Code section 1538.5. Upon denial of the motion to suppress, Daugherty pleaded nolo contendre to one count of the sale/transportation/offer to sell a controlled substance in violation of Health and Safety Code section 11352, and reserved her right to appeal the denial of the motion to suppress. On appeal, Daugherty contends the evidence was the fruit of an unlawful detention. We conclude Daugherty was not detained at the time police encountered her at the airport, and alternatively, if she was detained, the detention was lawful. We therefore affirm the judgment.

FACTS AND PROCEEDINGS BELOW

On May 3, 1995, Detective James Gillespie (Gillespie), a Los Angeles Police Department Narcotics Unit Investigator, was patrolling the Burbank Airport for possible drug couriers. At approximately 1:20 p.m. that day, Gillespie noticed Daugherty exiting a vehicle at the front of the terminal. The investigator was approximately 20 feet away from her.

Gillespie decided to observe Daugherty because he thought it unusual she did not exchange good-byes or remarks with the vehicle's occupants. Daugherty was carrying three bags: two new floral suitcases with locks and a dark fold over carry-on bag. None of the bags had identification tags.

Daugherty approached the skycap area where she proceeded to have her luggage checked. Gillespie heard Daugherty tell the skycap her name was Linda Washington and when asked to place identification tags on the bags, she said, "no." At this point, Gillespie was standing three feet behind Daugherty at the skycap area. Daugherty appeared startled by the skycap's request to place identification on her bags. She subsequently wrote only the initials "T.C." on both tags. The skycap asked Daugherty to place more information on the tags and, after hesitating for a moment, Daugherty placed the name "Linda Washington" on the tags and nothing else. The skycap then checked the two locked floral suitcases. Gillespie also noticed Daugherty was traveling to Detroit, a city known to receive illegal narcotics supplies from Los Angeles.

Daugherty walked inside the terminal, but had to return to the skycap area to get the dark fold-over bag she apparently had forgotten. After retrieving her bag, Daugherty went to the women's restroom. At this point, Gillespie notified his partners he suspected Daugherty of transporting narcotics through the airport.

Gillespie approached Daugherty as she left the restroom. At this point, they were standing at the main entrance way located in the middle of the airport. Gillespie identified himself as a police officer, showed Daugherty his police identification card, and asked to speak with her for a moment. Daugherty looked at the identification card and spoke to Gillespie. At this point, Gillespie advised Daugherty she was not under arrest, she was free to go at any time, and she did not have to speak with him. Gillespie stated he had some questions for her if she did not mind.

Gillespie then asked Daugherty for identification, which she did not have. He asked her name and she replied, "Linda Washington." Upon request, Daugherty handed Gillespie her airline ticket, which was a one-way ticket to Detroit purchased a day earlier at the Fox Hills Travel Agency, an agency located near Los Angeles International Airport. After looking at the airline ticket, Gillespie handed it back to Daugherty.

After returning the ticket to Daugherty, Gillespie advised he and his partner both worked in the narcotics unit at the Burbank Airport and they only interviewed people whom they suspected of transporting narcotics through the airport. He asked her if she was carrying any drugs in her carry-on bag, and Daugherty replied "no." Daugherty then asked Gillespie if he wanted to look at her carry-on bag. A subsequent search revealed nothing. Gillespie then requested permission to search the two floral bags Daugherty had just checked. Daugherty appeared nervous at this time and avoided any further eye contact with Gillespie by looking at the ground. When asked a second time for consent to search the other bags, Daugherty refused.

After Daugherty refused consent to search the other two bags, Gillespie informed her he suspected her of transporting narcotics. He advised her she was going to be detained until a narcotics dog could sniff her bags. It was approximately 1:40 p.m. at the time Gillespie advised Daugherty of the detention. This was twenty minutes after Daugherty arrived, but ten minutes of this time she was in the restroom. Gillespie escorted Daugherty to the police office, which was 60 yards from where they were standing. One of Gillespie's partners brought Daugherty's checked bags to the police office. Gillespie's partner also brought a dog to the office. The dog sniffed Daugherty's bags and alerted the officers to the presence of narcotics in both bags. Gillespie then arrested Daugherty.

A search of the bags pursuant to a warrant revealed 3.0022 kilograms of cocaine.

After the trial court denied her motion to suppress evidence of the cocaine pursuant to Penal Code section 1538.5, Daugherty pleaded nolo contendre to a violation of Health and Safety Code section 11352. The trial court sentenced Daugherty to the low term of three years.

DISCUSSION

I. STANDARD OF REVIEW OF SUPPRESSION MOTIONS UNDER PENAL CODE SECTION 1538.5.

There is a dual standard of review on appeal: The trial court's factual findings as to how the challenged detention occurred will be upheld if they are supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.) However, an appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision whether or not a detention is reasonable. Instead, the appellate court's responsibility is to independently measure the facts against the constitutional standard of reasonableness. (People v. Leyba, supra, 29 Cal.3d at p. 597, 174 Cal.Rptr. 867, 629 P.2d 961.) Under Proposition 8, we apply federal law but utilize state law where there is no conflict. (In re Lance W. (1985) 37 Cal.3d 873, 886-888, 210 Cal.Rptr. 631, 694 P.2d 744.)

II. THE TRIAL COURT PROPERLY DENIED DAUGHERTY'S PENAL CODE SECTION 1538.5 MOTION.

Daugherty argues she was unlawfully detained when Gillespie confronted her as she exited the restroom, and therefore, the trial court erred in denying her motion to suppress pursuant to Penal Code section 1538.5. We disagree. ¹

As an initial matter, we note there were three distinct stages in Daugherty's interaction with the police. The first involved the initial contact between Gillespie and Daugherty which we address immediately below. The second stage occurred when Gillespie advised Daugherty he and his partner were narcotics officers who only interviewed people they suspected of transporting narcotics. Finally, there was the formal detention

when Gillespie detained Daugherty and took her to the police office. We discuss each stage in turn.

A. The Initial Contact Between Daugherty and Gillespie Was Not a Detention Requiring Any Objective Level of Justification.

The California Supreme Court in In re James D. (1987) 43 Cal.3d 903, 911-912, 239 Cal.Rptr. 663, 741 P.2d 161, quoting at length from the high court's decision in Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229, delineated the different types of police contacts ranging from the least to the most intrusive. "First, there are ... 'consensual encounters' (id., U.S. at p. [506, 103 S.Ct. at p. 1329] ), which are those police-individual interactions which result in no restraint of an individual's liberty whatsoever ... and which may properly be initiated by police officers even if they lack any 'objective justification.' (Id., [Florida v. Royer, supra,] U.S. at p. [497, 103 S.Ct. at pp. 1323-1324].) Second, there are what are commonly termed 'detentions,' seizures of an individual 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.' (Id., U.S. at p. [498, 103 S.Ct. at p. 1324].) Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention.... (Id., U.S. at p. [499, 103 S.Ct. at pp. 1324-1325].) (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal.Rptr. 671, 670 P.2d 325].)" (In re James D., supra, 43 Cal.3d at pp. 911-912, 239 Cal.Rptr. 663, 741 P.2d 161.)

In Wilson v. Superior Court (1983) 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325 Justice Kaus, writing for a unanimous court, adopted the holding and rationale of the United Stated Supreme Court's decision in Florida v. Royer, supra, 460 U.S. 491, 103 S.Ct. 1319 in determining when the line has been crossed between a consensual encounter and a detention. Royer involved the detention and arrest of a person who matched a law enforcement "drug courier profile." The high court's lead opinion in Royer noted: "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual ... in [a] public place, by asking him if he is...