P. v. George

Filed 7/19/05 P. v. George CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIE JAMES GEORGE,
Defendant and Appellant.
H027709
(Santa Clara County
Super. Ct. No. CC311259)
In the court below, defendant Willie James George unsuccessfully moved to
suppress evidence. He thereafter pleaded guilty to attempting to use a counterfeit access
card, second degree burglary, possession of a forged driver’s license, and forgery of
access-card-account information. On appeal, he contends that the trial court erred by
denying his suppression motion. He principally argues that the evidence implicating him
was the product of an unlawful detention or involuntary consent. We affirm the
judgment.
SCOPE OF REVIEW
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is
governed by well-settled principles. [Citation.] [¶] In ruling on such a motion, the trial
court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies
the latter to the former to determine whether the rule of law as applied to the established
facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these
inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s

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resolution of the first inquiry, which involves questions of fact, is reviewed under the
deferential substantial-evidence standard. [Citations.] Its decision on the second, which
is a pure question of law, is scrutinized under the standard of independent review.
[Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is
however predominantly one of law, . . . is also subject to independent review.” ’
[Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
BACKGROUND
Defendant initially moved to suppress before the magistrate at the preliminary
hearing. He thereafter renewed the motion in the trial court and based the motion on the
preliminary-hearing transcript, which outlines the following.
Santa Clara Police Officer Robert Solito saw a car on El Camino Real with only
one functioning brake light. He activated his patrol-car lights and observed the car’s
driver converse with the front seat passenger while their heads and shoulders moved. He
saw a back-seat passenger move as well and thought that the occupants had passed
something among themselves. The car did not pull over immediately, so Officer Solito
activated his siren and radioed for assistance. After the car stopped, Officer Solito
contacted the driver, Gregory Jones, and obtained Jones’s driver’s license and automobile
registration. Back-up officers then arrived. Officer Solito transmitted Jones’s
information to the dispatcher and, after six or seven minutes, learned that Jones was on
parole and subject to a search condition. He then elected to perform a parole search to
discover what the three were doing in the car just before the stop. He asked Jones for
permission to search the car and his person, and Jones consented. Officer Solito then
directed Jones, defendant, and the back-seat passenger to exit the car and stand in
separate places. He searched Jones and found no weapons or contraband. He searched
the car’s interior and found a receipt from Kragen’s for a transaction that occurred a few
minutes earlier. He searched the car’s trunk and found merchandise matching the
Kragen’s receipt and merchandise from Macy’s. By this time, one of the back-up officers

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had arrested the back-seat passenger for being under the influence of drugs and defendant
had identified himself to another officer by means of his driver’s license. Officer Solito
approached defendant and asked for permission to search his person. According to
Officer Solito, defendant was “cooperative,” gave “permission,” gave “consent,” and
offered that he possessed no drugs. Another officer performed a pat-down search on
defendant, but Officer Solito was dissatisfied with it. Officer Solito then asked defendant
whether he possessed anything, including a wallet. Defendant replied negatively.
Officer Solito then pat-searched defendant and, meeting some resistance to the search,
retrieved a wallet. Defendant exclaimed, “it’s not mine.” The wallet contained credit
cards and a driver’s license under the name Johnathan Newberry. Jones’s picture was on
the license. The officers then found on defendant another driver’s license and credit card
under the name Christopher Wallace. Defendant’s picture was on the license. The
licenses were counterfeit. The credit-card accounts belonged to individuals. After the
officers arrested Jones and defendant, defendant explained that Jones had persuaded him
to take the wallet while they were being stopped by Officer Solito because of Jones’s
parolee status; and he admitted buying some of the Kragen merchandise, for which Jones
paid with one of the credit cards.
UNLAWFUL DETENTION
Defendant concedes that the initial detention for the traffic infraction was justified.
He contends, however, that the detention was unreasonably prolonged beyond the time
required to investigate the infraction. In particular, he urges that “police may not detain
him for further criminal investigation pending parole search of Jones and the vehicle
without independent reasonable suspicion that he is engaged in criminal activity.” He
cites People v. McGaughran (1979) 25 Cal.3d 577, for the proposition that a detention
based on a traffic infraction may last only as long as it is reasonably necessary under the
particular circumstances for the officer to perform duties related to the stop. And he

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implicitly argues that the parole search was not related to the stop. From this, he
concludes that his consent to the searches was a product of the unlawful detention.
Though we would venture that a parole search is necessarily related to a traffic
stop if police officers make a valid traffic stop and, during the course of the investigation,
learn that they are entitled to perform a parole search, we need not analyze this issue.
“Passengers are not seized within the meaning of the Fourth Amendment simply
because they occupy a seat in a vehicle which a police officer stops for a violation of the
Vehicle Code.” (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1369 (Cartwright).)
We recognized this principle in People v. Fisher (1995) 38 Cal.App.4th 338, wherein we
held that a passenger is not detained when officers stop a vehicle because a passenger’s
privacy rights are not implicated in a traffic stop. We stated: “[I]n constitutional terms a
passenger is not ‘lawfully stopped’ [citation], seized, or detained [citation] merely
because the vehicle in which he or she is riding is stopped for a traffic violation.” (Id. at
p. 344.)
We acknowledge a split of authority on this issue. (See People v. Bell (1996) 43
Cal.App.4th 754.) But Cartwright analyzed both Fisher and Bell under the standard
expressed by the United States Supreme Court in Maryland v. Wilson (1997) 519 U.S.
408, 410 (holding that the rule of Pennsylvania v. Mimms (1977) 434 U.S. 106, “that a
police officer may as a matter of course order the driver of a lawfully stopped car to exit
his vehicle, extends to passengers as well”), and agreed with Fisher. (Cartwright, supra,
72 Cal.App.4th at p. 1369; see also People v. Gonzalez (1992) 7 Cal.App.4th 381; People
v. Castellon (1999) 76 Cal.App.4th 1369, 1374.) We will follow Fisher and Cartwright.
Since defendant was not detained by the traffic stop and direction to exit the
vehicle, his claim of unlawful detention fails.

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INVOLUNTARY CONSENT
Apart from challenging his consent as being a product of an unlawful detention,
defendant claims that the People did not prove the scope of his consent because “[t]he
testimony here was contradictory.” There is no merit to this claim.
Since the search of defendant was conducted without a warrant, the prosecution
bears the burden of showing by a preponderance of the evidence that defendant’s consent
to search was voluntary. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222; People
v. James (1977) 19 Cal.3d 99, 106, fn. 4 (James).) In every case, whether consent to
search is voluntary is a factual question to be decided in light of all the circumstances.
(Ohio v. Robinette (1996) 519 U.S. 33, 40; James, supra, at p. 106.) The trial court’s
findings on that question, whether express or implied, must be upheld if supported by
substantial evidence. (James, supra, at p. 107.)
Similarly, it is the prosecution’s burden to prove that a warrantless search was
within the scope of the consent given. (People v. Harwood (1977) 74 Cal.App.3d 460,
466.) “ ‘The authority to search pursuant to a consent must be limited to the scope of the
consent.’ ” (Ibid.) “Limitations may exist due to the specifications of the warrant
[citation] or by constitutional mandate [citation], or, in the case of consensual search, by
the mutual understanding and reasonable expectations of the parties.” (Id. at pp. 466-
467.)
“The standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness--what would the typical reasonable
person have understood by the exchange between the officer and the suspect?
[Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno); People v. Crenshaw
(1992) 9 Cal.App.4th 1403, 1408.) “A suspect may of course delimit as he [or she]
chooses the scope of the search to which he [or she] consents. But if his [or her] consent
would reasonably be understood to extend to a particular container, the Fourth

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Amendment provides no grounds for requiring a more explicit authorization.” (Jimeno,
supra, at p. 252.)
Defendant is less than clear, but he seems to imply that he limited his consent to a
pat-search for weapons. But, again, he grounds his claim on contradictions in the
evidence. And he fails to point to any affirmative evidence suggesting that he gave a
limited consent. He overlooks that Officer Solito testified that he was cooperative, gave
permission, and gave consent. From this, the trial court was entitled to accept that
defendant did not limit his consent.
Though it is true that defendant tried to move around while being searched in an
apparent attempt to prevent the search, he did so after he consented. “Efforts to mislead
the police . . . do not necessarily vitiate consent freely given.” (People v. Ibarra (1980)
114 Cal.App.3d 60, 65; James, supra, 19 Cal.3d at p. 108.) “It is true that a voluntary
consent to search may be withdrawn at any time before the search is completed.
[Citation.] Actions inconsistent with consent may act as a withdrawal if those actions are
positive in nature. [Citation.]” (People v. Gurtenstein (1977) 69 Cal.App.3d 441, 451;
see also People v. Botos (1972) 27 Cal.App.3d 774, 779.) Here, the trial court was
entitled to conclude that defendant’s physical resistance amounted to less than a positive
withdrawal of consent.
Defendant secondarily argues that the consent “could not have been a voluntary
consent based on the circumstances.” He claims that the circumstances were “inherently
coercive.” Again, however, defendant relies on inferences from the record favorable to
him and overlooks inferences in support of the trial court’s ruling. The voluntariness of
the consent is in every case “a question of fact to be determined in the light of all the
circumstances” (People v. Michael (1955) 45 Cal.2d 751, 753), and the trial court’s
resolution of that question “must be upheld if supported by substantial evidence.”
(People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410.) Taken together, the
circumstances present in this case adequately support a finding of voluntariness. For

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example, “the arresting officer neither held defendant at gunpoint, nor unduly detained or
interrogated him; the officer did not claim the right to search without permission, nor act
as if he intended to [search] regardless of defendant’s answer.” (James, supra, 19 Cal.3d
at p. 113.) The fact that Officer Solito asked defendant for permission to search also
suggests a lack of coercion. “ ‘The mere asking of permission to enter and make a search
carries with it the implication that the person can withhold permission for such an entry
or search.’ ” (Id. at p. 116.) And although Officer Solito did not advise defendant of his
right to withhold consent, “a warning of the right to refuse permission to search is not a
precondition to a valid consent.” (Id. at p. 115, accord, Ohio v. Robinette, supra, 519
U.S. at pp. 39-40.) Failure to advise of a right to refuse consent is only one factor for the
trial court’s consideration. (James, supra, at p. 118.) Considering the totality of the
circumstances present in this case, there is sufficient evidence to support a finding that
defendant voluntarily consented to a search of his person.
In short, the trial court was entitled to conclude from Officer Solito’s testimony
that defendant’s consent was voluntary.
To the extent that defendant contends that he was unlawfully detained after the
parole search and before his consent (when Officer Solito began to question him),
making his consent a product of an unlawful detention, we disagree.
Not every encounter between a law enforcement officer and a citizen constitutes a
detention for Fourth Amendment purposes. (Wilson v. Superior Court (1983) 34 Cal.3d
777, 784; United States v. Mendenhall (1980) 446 U.S. 544.) “[S]eizure does not occur
simply because a police officer approaches an individual and asks a few questions.”
(Florida v. Bostick (1991) 501 U.S. 429, 434.) Rather, “a person is ‘seized’ only when,
by means of physical force or a show of authority, his freedom of movement is
restrained.” (United States v. Mendenhall, supra, at p. 553; Terry v. Ohio (1968) 392
U.S. 1, 19, fn. 16.) “[T]o determine whether a particular encounter constitutes a seizure,
a court must consider all the circumstances surrounding the encounter to determine

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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.” (Florida v. Bostick, supra, at p. 439; accord, People v. Valenzuela (1994) 28
Cal.App.4th 817, 823.)
Here, there is no suggestion in the record that Officer Solito coerced defendant to
submit to questioning “by means of physical force or a show of authority.” (United
States v. Mendenhall, supra, 446 U.S. at p. 553.) In that respect, the facts before us are
strikingly similar to those in People v. Galindo (1991) 229 Cal.App.3d 1529. In Galindo,
defendant was a passenger in a speeding car. A highway patrol officer pulled the car
over and cited the driver for exceeding the speed limit. After issuing the citation, and
while the driver was walking back to the vehicle, the officer asked him whether there
were guns or drugs in the car. The driver answered in the negative. The driver and the
defendant then consented in writing to a search of the car, which contained drugs. The
defendant sought to suppress evidence of the drugs on the ground that the officer’s
conduct after issuing the citation constituted an unlawful detention. The court rejected
the defendant’s contention, observing that neither the defendant nor his passenger had
“any objective reason to believe that they were not free to end the discussion and proceed
on their way.” (Id. at p. 1536; see also, People v. Bouser (1994) 26 Cal.App.4th 1280,
1287-1288; People v. Lopez (1989) 212 Cal.App.3d 289, 292.) “The events took place in
public. [Citation.] [The officer] did not display a weapon [citation] nor use language or
tone of voice indicating that compliance was compelled.” (People v. Galindo, supra, at
p. 1535.) The same is true here. In this case, then, as in Galindo, “there was no ‘seizure’
of defendant.” (Ibid.)
Defendant finally argues that “There was no evidence suggesting that [he]
consented to the search of his wallet.” But this point is simply a variant of the scope-of-
consent point. Again, the trial court was entitled to accept that defendant’s consent was
unlimited. Moreover, that defendant denied ownership of the wallet, negates that he

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expected privacy as to the wallet’s contents and accordingly supports a conclusion that he
did not exclude the contents from the scope of his consent. (See People v. Dees (1990)
221 Cal.App.3d 588, 594-595.)
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his trial counsel was ineffective for failing to assert all
possible grounds in the motion to suppress. In particular, he contends that counsel should
not have conceded “that police were entitled to order [him] from the car and conduct a
pat-down search” and should have challenged “as unlawful the detention prior to the pat-
down search.”
We have, however, addressed and rejected that defendant was detained at any time
during the traffic-stop investigation. We therefore decline to address defendant’s
argument and the People’s preliminary argument that defendant is precluded from
arguing on appeal unraised search issues under the guise of ineffective assistance of
counsel because he failed to obtain a certificate of probable cause to appeal following a
guilty plea. (Pen. Code, § 1237.5.)
DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.

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