People v. Lottice
| Decision Date | 03 February 2021 |
| Docket Number | A157601 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSHUA WAYNE LOTTICE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR7226971)
In a negotiated disposition following the denial of his motion to suppress evidence (Pen. Code, § 1538.5),1 defendant Joshua Lottice pleaded no contest to carrying a concealed dirk or dagger (§ 21310) and admitted he suffered a prior strike conviction (§§ 211, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to 32 months in prison. On appeal, Lottice challenges the denial of his motion to suppress, contending the evidence against him was the fruit of an unlawful detention. We disagree and affirm.
An information charged Lottice with carrying a concealed dirk or dagger (§ 21310). The information also alleged Lottice had suffered a prior conviction for robbery (§ 211) qualifying as a strike offense within themeaning of the "Three Strikes" law (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)) and had served three prior prison sentences qualifying for a sentence enhancement (§ 667.5, former subd. (b)).
Santa Rosa Police Officer David McCready testified at the preliminary hearing as to the following facts.2 On December 8, 2018, around 9:21 p.m., McCready was on patrol, driving on Sebastopol Road, when he spotted Lottice walking in the opposite direction. McCready made eye contact with Lottice, who "quickly looked away . . . ." McCready "thought it was odd that [Lottice] . . . tried to avoid eye contact . . . ." McCready then turned his vehicle around, stopped, and contacted Lottice.
McCready asked Lottice for his name and identification. Lottice identified himself and stated he was on parole. When McCready asked Lottice if he had any weapons or contraband, Lottice stated he had a knife and a needle in his pocket. McCready searched Lottice and located a three-inch, fixed-blade knife and a needle.
Lottice filed a motion to suppress evidence of the knife under section 1538.5, asserting it was obtained from an unlawful detention. The People opposed the motion, arguing that the initial encounter between Lottice and McCready up to the time Lottice volunteered his parole status was consensual, and not a detention. The trial court conducted a motion to suppress hearing, where McCready again testified. The court admitted into evidence and reviewed a video recording of the encounter captured on McCready's body camera.3
The recording first depicts without audio the point of view of McCready driving his patrol vehicle into the parking lot of a convenience store. McCready then parks in front of the store and exits the vehicle. As he steps out of the vehicle, the video shows McCready lifting his right arm, followed by his hands appearing to adjust his body camera. While doing so, McCready walks toward Lottice, who appears in the top right-hand part of the screen on a sidewalk, turning around and walking toward McCready.
When asked at the hearing what he was "doing with [his] hand as [he] got out of the patrol vehicle," McCready testified he was reaching for his lapel light which was directly above his body camera. McCready testified he then "called out to [Lottice] and asked if [he] could speak with him."
The recording next depicts Lottice and McCready approaching each other near the front of the store. The audio of the recording is powered on. McCready tells Lottice, "You just looked nervous," and asks him, "Can you keep your hand out of your pocket?" McCready then asks Lottice for his name and identification. Lottice provides his name and informs McCready that he is on parole for armed robbery. Shortly afterward, another officer arrives.
McCready then asks Lottice if he has any weapons, to which Lottice replies he has a knife in his pocket. Lottice also discloses he has a hypodermic needle. McCready searches Lottice and retrieves the knife and needle.
After taking the matter under submission, the court denied the suppression motion, finding "that it was a consensual encounter, not a detention and thereafter it developed into a PC [probable cause]."
Lottice pleaded no contest to carrying a concealed dirk or dagger (§ 21310) and admitted the prior strike conviction, in exchange for an agreedterm of 32 months in prison, consisting of the low term of 16 months (§§ 21310, 1170, subd. (h)(1)) doubled based on the prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court approved the plea and imposed the agreed term. (§ 1192.5.) Lottice timely appealed.
Lottice contends the trial court erred by refusing to suppress the knife found in his pocket on the night in question because it was the fruit of an unlawful detention. We disagree.
(People v. Souza (1994) 9 Cal.4th 224, 229.)
(In re Manuel G. (1997) 16 Cal.4th 805, 821.) This case concerns the distinction between consensual encounters and detentions. Unlike detentions, "[c]onsensual encounters do not trigger Fourth Amendment scrutiny" and thus (Ibid.)
No bright-line distinction exists between a consensual encounter and a detention; we look to the totality of the circumstances of a particular encounter to make the determination. (In re Manuel G., supra, 16 Cal.4th at p. 821.) (Ibid.)
When a police contact rises to the level of a detention, the detention is "reasonable under the Fourth Amendment [if] 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." (People v. Souza, supra, 9 Cal.4th at p. 231.) "Section 1538.5 affords criminal defendants a procedure by which they may seek suppression of illegally seized evidence." (People v. Romeo (2015) 240 Cal.App.4th 931, 940.)
(Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.) (People v. Zamudio (2008) 43 Cal.4th 327, 342.) While, however, we defer to the court's factual findings, " '[w]e exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.' " (Robey v. Superior Court, supra, 56 Cal.4th at p. 1223.)
We focus on the events between the time Officer McCready first spotted Lottice walking on the street and when Lottice disclosed he was on parole.4 Applying the principles above, we find that Lottice was not detained at that point in the initial encounter. As the People note, the evidence shows that McCready pulled his patrol vehicle behind Lottice without blocking his path. McCready did not flash a spotlight on Lottice or activate the sirens of his vehicle. McCready, who was unaccompanied by other officers, simply walked up to Lottice, called out to him, and asked if he could speak with him. There is also no indication that McCready made any commands or touched or drew his weapon; indeed, his tone sounded neutral in the recording. In view of all of these circumstances, the trial court properly determined that the encounter prior to Lottice's volunteering he was a parolee was consensual and correctly denied the suppression motion.5
Despite these circumstances, Lottice contends McCready detained him when he first approached him, because a reasonable person in his positionwould not have felt free to leave. The allegedly intimidating circumstances were that McCready pulled his vehicle "behind [Lottice] as he was walking...
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