People v. Patterson CA4/1 ( 2021 )

Filed 9/23/21 P. v. Patterson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077938
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD277112)
KIRK ANTHONY PATTERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Charles G. Rogers and Michael S. Groch, Judges. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Collette C. Cavalier and Elizabeth M. Kuchar, Deputy Attorneys
General, for Plaintiff and Respondent.
Based largely on evidence derived from a police search of a cell phone
found in the possession of a 16-year-old prostitute (Precious), defendant Kirk
Patterson was charged with commercial sex trafficking of a minor (Pen. Code,
§ 236.1, subd. (c)(1)),1 pimping (§ 266h, subd. (a)), pandering (§ 266i, subd.
(a)(2)), using a minor to pose for sex acts (§ 311.4, subd. (c)), oral copulation of
a minor (§ 288a, subd. (b)(1)), and possessing child pornography (§ 311.11,
subd. (a)). Patterson moved to suppress all evidence derived from the cell
phone, arguing Precious lacked authority to consent to the search, and, in
any event, that her consent was not voluntary. The court denied the
suppression motion at the preliminary hearing, and Patterson’s trial counsel
did not renew the motion at trial. The jury convicted Patterson of all charges
pertaining to Precious,2 and the trial court sentenced him to 10 years in
prison.
On appeal, Patterson indirectly attacks the suppression ruling by
asserting his trial counsel rendered ineffective assistance by failing to renew
the suppression motion at trial, as required to preserve the issue for
appellate review. Because the record shows that Precious had apparent
authority to consent to the search and voluntarily consented to it, the search
was legally valid and it would have been futile for Patterson’s trial counsel to
renew the suppression motion. Counsel did not render ineffective assistance,
and we affirm the judgment.
1 Further undesignated statutory references are to the Penal Code.
2 The jury acquitted Patterson of similar charges pertaining to another
alleged victim. Those charges are not at issue here, and we do not discuss
them.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
Because Patterson’s sole appellate challenge relates to the merits of his
pretrial suppression motion, which we conclude was properly denied, we
discuss only briefly the evidence presented at trial.
On May 9, 2018, San Diego Police Department vice detectives
conducting an undercover sting operation negotiated a prostitution
transaction with 16-year-old Precious. The detectives took her into custody
and, because of her young age, contacted detectives with the department’s
Human Trafficking Task Force (Task Force). Those detectives obtained
Precious’s consent to search her nearby hotel room, which yielded indicia of
prostitution and a Samsung cell phone. Detectives took Precious to a police
station for questioning.
At the station, Precious gave detectives permission to search the
Samsung cell phone and an additional cell phone—a black ZTE brand
phone—she had in her possession when taken into custody. Detectives
downloaded the contents of the ZTE phone and found numerous text
messages with a contact named “EL” that suggested a pimp/prostitute
relationship. The phone also contained a video of Precious orally copulating a
male.
Using information on the ZTE phone, detectives determined “EL” was
Patterson. Police took Patterson into custody during a traffic stop. In his
vehicle, police recovered two cell phones, one of which contained a video of
Precious exposing her vagina. After being advised of his Miranda3 rights,
Patterson admitted to police that he was the male being orally copulated in
the video downloaded from the ZTE phone.
3 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3
Patterson was charged with commercial sex trafficking of a minor
(§ 236.1, subd. (c)(1)), pimping (§ 266h, subd. (a)), pandering (§ 266i, subd.
(a)(2)), using a minor to pose for sex acts (§ 311.4, subd. (c)), oral copulation of
a minor (§ 288a, subd. (b)(1)), and possessing child pornography (§ 311.11,
subd. (a)).
Patterson moved to suppress all evidence obtained or derived from the
ZTE phone, arguing Precious lacked authority to consent to a search. The
court heard and denied Patterson’s motion at the preliminary hearing, and
held him to answer on all charges. Patterson’s trial counsel did not renew
the suppression motion at trial.
The jury found Patterson guilty on all counts pertaining to Precious,
and the trial court sentenced him to 10 years in prison.
II. DISCUSSION
Patterson contends his trial counsel rendered ineffective assistance by
failing to renew his suppression motion at trial, which was necessary to
preserve his evidentiary challenge for appellate review. We disagree.
A. Background
1. Patterson’s Motion
Before the preliminary hearing, Patterson moved to suppress all
evidence obtained or derived from the warrantless search of the ZTE phone.
He maintained the phone was his, and that Precious lacked authority to
consent to the search.
The prosecution opposed the motion, arguing Patterson lacked standing
because Precious possessed and was the primary user of the phone, and, in
any event, Precious consented to the search.
4
2. The Hearing
The trial court held a consolidated suppression and preliminary
hearing at which the prosecution called three witnesses: the vice detective
who detained Precious, and the two Task Force detectives who interviewed
her and searched the ZTE phone.
(a) Detective Zoller
Vice Detective Joshua Zoller testified that on May 9, 2018, he and
another male detective were conducting an undercover sting operation in an
area well-known for prostitution activity. Detective Zoller caught Precious’s
attention, and she agreed to perform specified sex acts with him in exchange
for money. When Precious got into the detectives’ unmarked vehicle to drive
to a nearby hotel room she had rented, the detectives identified themselves as
police officers and detained her.
The detectives called a female detective to search Precious. During this
search, the detectives confirmed Precious’s identity and learned she was only
16 years old. Because of the department’s policy to not arrest or charge
minors engaged in prostitution activity, the vice detectives summoned
detectives from the Task Force.
Detective Zoller testified he did not recall whether Precious had a cell
phone when he detained her.
(b) Detective Dierdorff
Task Force Detective Daniel Dierdorff testified that he and fellow Task
Force Detective Adam Wells traveled to the La Mesa Police Department to
interview Precious, who had been taken into protective custody “[t]o make
sure she wasn’t being pimped out.” Although she was not under arrest, the
detectives advised Precious of her Miranda rights, which she stated she
understood and waived.
5
Precious told the detectives she used methamphetamine and had been
up for 32 hours. But Detective Dierdorff, who has “been trained in how to
detect when someone is under the influence of methamphetamine,” testified
he did “not believe she was under the influence at the time [he] spoke with
her.”
Precious admitted she had been engaging in prostitution since she was
13, and claimed to be a “renegade” who “was her own pimp” and “works for
herself and nobody else.” However, Detective Dierdorff saw that she had two
sets of initials (“E.L.” and “V.B.”) tattooed on her body, which is a common
way that pimps “brand[ ]” or “mark” prostitutes as their property. When
asked about these tattoos, Precious claimed they represented her mother and
grandfather (although she could not recall her grandfather’s last name).
Detective Dierdorff testified it is very common for prostitutes to lie to protect
their pimps, who train their prostitutes to do this.
During the interview, Detective Dierdorff learned that Precious had
two cell phones—a white Samsung and a black ZTE. He testified about how
Detective Wells, who “was responsible for handling most of the . . . phone
evidence in this case,” obtained Precious’s consent to search the phones:
“[He] basically described to Precious the options she had, that she can give us
consent to look through the phones, that if consent wasn’t given we can also
get a search warrant for them and put it into evidence, but it was her choice
what she wanted to do.” Precious gave the detectives oral and written
consent to search both phones.
Detective Dierdorff testified that although Precious never expressly
stated the phones were hers, he believed they were and that “she was in
possession of and had the privacy rights to” both of them. Under cross-
examination, he acknowledged Precious “told [him] it wasn’t her phone,” but
6
he clarified on redirect that her comment was directed toward Detective
Wells, and Detective Dierdorff was not certain whether Precious made the
statement during the May 9 interview or during a subsequent call, or which
phone she was referring to.
Under further cross-examination, Detective Dierdorff acknowledged
that, in his experience, a 16-year-old cannot “contract for a cell phone.”
During this line of questioning, the trial court interjected that whether the
phone was “legally” Precious’s is “vague and a term of art. . . . If I give my
16-year-old daughter a cell phone it’s her phone.”
(c) Detective Wells
Task Force Detective Wells testified it was his understanding that the
ZTE phone was in Precious’s possession when she was taken into custody,
and that he took custody of it at the La Mesa Police Department. When he
asked Precious if he “could look in it,” she “gave consent but said ‘It’s dead.’ ”
Another detective found a charging cable, and they charged the phone while
the interview continued.
Detective Wells testified he obtained Precious’s consent to search the
cell phone by explaining they could go down one of “two paths”—“the consent
path” or “the search warrant process where we collect things as evidence.”
Precious consented orally and in writing.4
Detective Wells testified he did not recall questioning Precious about
who the ZTE phone belonged to, but there was “[n]o question in [his] mind
that that was her phone and she was in dominion and control” of it. He
explained, “My understanding was it was on her person at the time of the
4 The signed “Consent to Search Computer Equipment and Electronic
Data” form was admitted as an exhibit at the suppression hearing, but it is
not in the appellate record.
7
arrest. As we interacted between the two of us whether I could look into that
phone, charge it, and the general conversation, I had no question that that
was her phone and she was the one that could give me permission to look into
it.”
Detective Wells looked in the phone “and saw some text messages
making [him] believe she may be involved in prostitution.” During his initial
viewing, he “saw a lot of interaction with a contact labeled ‘El,’ back and forth
that made [him] think that there may be a trafficker involved.” Precious did
not mention Patterson’s name during the interview or indicate he was “El.”
The next day, Detective Wells downloaded the contents of the ZTE
phone. Based on his review of the phone’s contents, he concluded someone
other than Precious (later determined to be Patterson) had possessed the
phone until April 29 (11 days before the sting), and Precious possessed it
from that day forward.
Detective Wells testified in detail about many text messages he saw
between Precious and “El” and that “some of the content made [him] believe
there was a pimp/prostitute relationship.” He cross-referenced “El’s” phone
number against police contact records and determined the contact
corresponded to Patterson.
Detective Wells acknowledged on cross-examination that Precious
called him on May 23 (about two weeks after her interview) and said “she
took the [ZTE] phone from Patterson,” and that “he didn’t give it to her.” She
also “denied knowing El’s name.” On redirect, however, Detective Wells
explained that when he confronted Precious during this call with the fact “she
referred to [Patterson] as ‘El’ and ‘Kirk’ in text messages,” she “kind of
giggled” and said, “ ‘Ah, shit,’ as if [Detective Wells] caught her in a lie.”
8
(d) Arguments of Counsel
The prosecutor argued Patterson lacked standing to challenge the
phone search because he “no longer ha[d] a privacy interest” in the phone
since he “essentially gifted” it to Precious to keep track of her. The
prosecutor also argued the detectives reasonably relied on Precious’s
apparent authority to consent to the search because she “was in possession of
the” phone, “she was the primary user of [it] at that time,” and she provided
oral and written consent.
Defense counsel maintained Patterson had standing because the
Supreme Court held in Riley v. California (2014) 573 U.S. 373 (Riley) that
cell phone searches now require a warrant, which the detectives failed to
obtain despite “easily” having “enough facts at that point to” get one.
Counsel argued the detectives unreasonably relied on Precious’s consent
because she “never said that she owned the phone,” and the detectives “didn’t
ask detailed questions” regarding ownership. Counsel also argued Precious’s
consent was “not voluntary” because she was “a minor [B]lack female” being
interviewed by “two older white detectives” in a police station “interrogation
room.”
(e) Ruling
The court denied Patterson’s suppression motion with a detailed
explanation. First, the court found there was probable cause to arrest
Precious and, thus, the police “lawfully came into possession of [the ZTE]
phone.”
Second, although the court’s “sense” was that Patterson “d[id]n’t have
standing” to challenge the search, the court stated it would “assume that he
does for purposes of this analysis.”
9
Third, the court addressed two aspects of consent—whether it was (1)
“free and voluntary,” and (2) given “by one who was authorized or who
reasonably appeared to be authorized to give [it].”
Regarding voluntariness, the court “d[id]n’t see any indication of the
[detectives] overreaching and overbearing [Precious’s] free will.” To the
contrary, she “was totally responsive to their questions . . . in a pimp-
protecting way,” and had “no hesitation” objecting to the detectives’ theory
that she was working for a pimp.
Regarding apparent authority, the court found that Precious’s denial of
working with a pimp “was a pretty compelling argument that this was her
cell phone.” The court acknowledged the detectives “might speculate that it’s
a pimp who gave this phone to her, but it sure comes across as her phone,
and she’s denying to them that there was such a third person.” (Italics
added.) The court asked rhetorically, “What would any of us think? We’d
think that this was her cell phone.” The court thus concluded Precious “ha[d]
a sufficient possessory interest [in the phone], and . . . it [was] reasonable for
the officers to believe that she had authority to give consent.”
Accordingly, the court denied Patterson’s suppression motion and held
him to answer on all charges.
3. Post-Ruling Proceedings
A few months after the suppression/preliminary hearing, Patterson
substituted new counsel. It is undisputed that although his new counsel filed
additional suppression motions, none of them relitigated the search of the
ZTE phone that Patterson challenges here.
B. Legal Principles
A defendant whose suppression motion is denied at a preliminary
hearing ordinarily must renew the motion before the trial court to preserve
10
the challenge for appellate review. (People v. Lilienthal (1978) 22 Cal.3d 891,
896); People v. Hart (1999) 74 Cal.App.4th 479, 485 (Hart); People v. Hoffman
(2001) 88 Cal.App.4th 1, 3; People v. Witcraft (2011) 201 Cal.App.4th 659, 666
(Witcraft).)
However, if the defendant claims the failure to renew the suppression
motion was the result of ineffective assistance of counsel, the appellate court
must review the merits of the suppression motion to determine whether
counsel performed deficiently and, if so, whether that deficient performance
prejudiced the defendant. (Hart, supra, 74 Cal.App.4th at p. 486; see People
v. Caro (2019) 7 Cal.5th 463, 488 (Caro); People v. Sepulveda (2020) 47
Cal.App.5th 291, 301 [“To establish ineffective assistance of counsel [under
Strickland v. Washington (1984) 466 U.S. 668], a defendant must show that
counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms, and counsel’s deficient performance was
prejudicial, that is, there is a reasonable probability that, but for counsel’s
failings, the result would have been more favorable to the defendant.”].)
If the suppression issue has merit, “failing to preserve the issue
constitute[s] deficient performance when measured against the standard of a
reasonably competent attorney.” (Hart, supra, 74 Cal.App.4th at pp. 486-487;
see Witcraft, supra, 201 Cal.App.4th at p. 666.)
If, on the other hand, the suppression issue lacks merit, counsel did not
render ineffective assistance by failing to preserve it because “[a] decision not
to pursue futile or frivolous motions does not make an attorney ineffective.”
(People v. Bell (2019) 7 Cal.5th 70, 126; see Caro, supra, 7 Cal.5th at p. 488
[same].)
11
C. Analysis
Assuming without deciding that Patterson has standing to challenge
the warrantless search of the ZTE phone, we conclude his challenge lacks
merit, and thus his trial counsel was not ineffective.
Warrantless searches “ ‘ “are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-
delineated exceptions.” ’ ” (People v. Ovieda (2019) 7 Cal.5th 1034, 1041.)
“[An] established exception . . . is when consent is given by one authorized to
give it.” (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004,
1011, italics added; see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.)
Additionally, consent must be voluntary to be valid. (People v. Boyer (2006)
38 Cal.4th 412, 445 (Boyer).) We will address authority and voluntariness in
turn.
But first, we address Patterson’s intimation that, because the Supreme
Court recognized in Riley, supra, 573 U.S. 373 that “cell phones . . . implicate
privacy concerns far beyond those implicated by the search of” other types of
property (id. at p. 393), the consent exception to the warrant requirement no
longer applies to cell phones. We disagree. Riley held only that the search
incident to arrest exception does not apply to cell phones; it did not hold that
other well-established exceptions no longer apply. (Id. at pp. 401-402 [“even
though the search incident to arrest exception does not apply to cell phones,
other case-specific exceptions may still justify a warrantless search of a
particular phone”]; see United States v. Gardner (6th Cir. 2018) 887 F.3d 780,
783-784 [holding that even though “cell phones have become singular
instruments with singular importance to many people,” the “third-party
consent exception to the warrant requirement applies to cell phones all the
same”; thus, minor prostitute’s consent to search cell phone shared with pimp
12
was valid]; United States v. Truong Son Do (N.D.Okla. 2014) 62 F.Supp.3d
1236, 1248 [“[c]onsent is a recognized exception to the warrant requirement”
even after Riley]; Zuegel v. Mountain View Police Department (N.D.Cal. Apr.
19, 2018, No. 17-cv-03249-BLF) 2018 WL 1876948, at *7, fn. 9 [finding “Riley
inapposite” to search of cell phone based on owner’s consent].)
1. Precious Had Apparent Authority to Consent to the Search
Valid consent to search may be given by (1) the person whose property
or place is searched, (2) a third party who possesses common authority over
that property or place, or (3) “a person with apparent authority where the
officers conducting the search reasonably believe that the person is
empowered to give that consent.” (People v. Superior Court (Walker) (2006)
143 Cal.App.4th 1183, 1198-1199 (Walker); see Illinois v. Rodriguez (1990)
497 U.S. 177, 188 [the “determination of consent . . . must ‘be judged against
an objective standard: would the facts available to the officer at the
moment . . . “warrant a man of reasonable caution in the belief” ’ that the
consenting party had authority over the premises?”].) We will address only
apparent authority because that is the basis on which the trial court denied
Patterson’s motion.
Courts have applied different review standards to the determination of
whether an officer’s belief was reasonable. (Compare People v. Douglas
(2015) 240 Cal.App.4th 855, 869 [substantial evidence]; with People v.
Carreon (2016) 248 Cal.App.4th 866, 876 [de novo review as “a question of
law”].) Under any standard, we conclude it was reasonable for Detectives
Dierdorff and Wells to believe Precious had the authority to consent to a
search of the ZTE phone.
When the detectives began interviewing Precious, they were aware she
had the ZTE phone in her possession when she was taken into custody.
13
When Detective Wells asked if he “could look in” the phone, Precious’s
response was not “it’s not mine,” it was words to the effect of “yes, but it’s not
charged.” It appears from the record that she was aware the detectives found
a charging cable and were charging the phone while they continued to
interview her. The detectives then obtained Precious’s oral and written
consent before actually searching the phone. Both detectives testified they
believed the phone belonged to Precious.
Patterson suggests that based on the detectives’ experience
investigating human trafficking, observation of Precious’s tattoos, and
understanding that minors cannot enter into contracts for cell phones, they
should have inferred she was working for a pimp, and further inferred the cell
phone belonged to that pimp. We find this ultimate inference too speculative.
Precious repeatedly denied she worked for a pimp, she maintained her
tattoos were tributes to her mother and grandfather, and the detectives had
not yet seen the text messages that suggested a pimp/prostitute relationship.
Additionally, the trial court correctly observed that the legal question of
whether a minor can contract for a cell phone does not alter the practical
reality that many teenagers possess and control cell phones. (See, e.g.,
United States v. Matlock (1974) 415 U.S. 164, 171, fn. 7 [explaining, in the
related context of obtaining consent from a third party with “common
authority” over the property to be searched, that authority to consent is not
derived from “the law of property, with its attendant historical and legal
refinements”].)
Patterson also argues the detectives “conveniently glossed over”
Precious’s statement during the interview “that the phone wasn’t hers.” The
record is not so clear on this point. Although Detective Dierdorff initially
testified on cross-examination that Precious made such a statement, he
14
clarified on redirect that he was not certain she made the statement during
the interview or which phone she was referring to. He also clarified that
Precious’s statement was directed to Detective Wells, who was in charge of
the cell phone aspect of the investigation.
For his part, Detective Wells testified he did not recall Precious making
such a statement during the interview, but he recalled her making such a
claim a few weeks later. He also explained that he caught Precious in a lie
during this phone conversation.
This cold record does not support Patterson’s assertion that Precious
unequivocally stated during the interview that the cell phone was not hers.
Rather, the record as a whole suggests she was silent on the issue during the
interview, such that it was reasonable for the detectives to conclude from her
other statements and conduct that she had apparent authority to consent to
the search.
2. Precious’s Consent Was Voluntary
“The voluntariness of consent is a question of fact to be determined
from the totality of circumstances. [Citations.] If the validity of a consent is
challenged, the prosecution must prove it was freely and voluntarily given—
i.e., ‘that it was [not] coerced by threats or force, or granted only in
submission to a claim of lawful authority.’ ” (Boyer, supra, 38 Cal.4th at
pp. 445-446; see People v. Harris (2015) 234 Cal.App.4th 671, 689-690.)
Voluntariness “ ‘is to be determined in the first instance by the trier of fact;
and in that stage of the process, “[t]he power to judge credibility of witnesses,
resolve conflicts in testimony, weigh evidence and draw factual inferences, is
vested in the trial court. On appeal all presumptions favor proper exercise of
that power, and the trial court’s findings—whether express or implied—must
be upheld if supported by substantial evidence.” ’ ” (People v. Monterroso
15
(2004) 34 Cal.4th 743, 758 (Monterroso); see People v. Balov (2018) 23
Cal.App.5th 696, 701.) We conclude substantial evidence supports the trial
court’s factual finding that Precious’s consent was voluntary.
The detectives advised Precious of her Miranda rights before
questioning her, which “tend[s] to show that” her subsequent “consent was
voluntary.” (People v. Sloss (1973) 34 Cal.App.3d 74, 84 (Sloss); see People v.
Ratliff (1986) 41 Cal.3d 675, 686 (Ratliff) [“the failure to give Miranda
warnings does not render a consent to search involuntary”].)
Detective Wells also expressly requested Precious’s consent. “[S]uch a
request, by its nature, carries the implication that permission may be
withheld.” (People v. Ledesma (2006) 39 Cal.4th 641, 704; see People v.
James (1977) 19 Cal.3d 99, 116.) The fact Detective Wells told Precious he
would seek a search warrant if she refused to consent does not render her
consent involuntary. (Ratliff, supra, 41 Cal.3d at p. 687 [“The trial court
was . . . entitled to conclude that” officers’ “threat[ ] to secure a search
warrant . . . unless defendant consented to a search” was “merely . . . a
declaration of the officers’ legal remedies should defendant refuse to
cooperate”].)
Additionally, as the trial court observed, the detectives’ preliminary
hearing testimony showed Precious “was totally responsive to their
questions . . . in a pimp-protecting way,” and had “no hesitation” objecting to
the detectives’ theory that she was working with a pimp. This supports the
trial court’s findings that the detectives were not “overreaching” or
“overbearing [Precious’s] free will,” and that her consent was free and
voluntary.
None of Patterson’s contentions to the contrary are persuasive. For
example, although Precious told the detectives she was on methamphetamine
16
and had been up for 32 hours, Detective Dierdorff testified that, based on his
training and experience, he did “not believe she was under the influence at
the time [he] spoke with her.” The trial court was entitled to credit this
testimony. (Monterroso, supra, 34 Cal.4th at p. 758.) And, in any event, “the
mere fact that one has taken drugs, or is intoxicated, . . . does not render
consent involuntary.” (United States v. Rambo (8th Cir. 1986) 789 F.2d 1289,
1297; see United States v. George (9th Cir. 1993) 987 F.2d 1428, 1430-1431
[consent was voluntary even when the defendant was recovering in the
hospital from a drug overdose].)
Patterson also cites the fact that Precious was a young, Black female
being questioned alone at a police station by two adult, White, male
detectives. While potentially relevant, none of these factors compelled the
trial court to find her consent involuntary. (See, e.g., People v. Hoxter (1999)
75 Cal.App.4th 406, 413-414 [finding that police officers’ “belief that [a 16-
year-old] had apparent authority to provide them consent to enter her home
was made in good faith and was eminently reasonable under the
circumstances”]; Sloss, supra, 34 Cal.App.3d at p. 84 [“The fact that a
number of officers were present does not render the consent involuntary if
they engaged in no threatening or coercive conduct.”]; United States v.
Mendenhall (1980) 446 U.S. 544, 558 [“It is additionally suggested that the
[defendant, a 22-year-old Black female who never completed high school],
may have felt unusually threatened by the officers, who were [W]hite males.
While these factors were not irrelevant [to determining the voluntariness of
her consent], [citation], neither were they decisive”].)
17
D. Conclusion
In sum, because we conclude that the trial court properly denied
Patterson’s suppression motion, such that it would have been futile for his
trial counsel to have renewed it, the failure to renew the motion did not
constitute ineffective assistance.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
18