People v. Mays CA2/8 ( 2024 )

Filed 5/31/24 P. v. Mays CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B332772
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA507883)
v.
PHINA MAYS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Terry A. Bork, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Shezad H. Thakor,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Phina Mays pled no contest to one
misdemeanor count of having a concealed firearm in a vehicle and
was placed on probation. Defendant’s sole contention on appeal is
that the trial court erred in denying her motion to suppress
pursuant to Penal Code section 1538.5.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Officer Eric Hernandez of the Los Angeles Police Department
testified to the following facts regarding defendant’s detention and
the recovery of the firearm from the car in which she was a
passenger. Officer Hernandez was the only witness at the hearing
on defendant’s motion to suppress. Several minutes of his body
camera footage was admitted into evidence.
On August 19, 2021, around 10:30 p.m., Officer Hernandez
was working a gang enforcement detail with his partner in a
marked patrol car. They were “conducting extra patrol” in the area
of Hyde Park and West Boulevard “due to a high increase in
shootings, narcotics-related offenses” and “specifically sales” at that
particular intersection. That area and the general vicinity were
known territory of the Rolling 60’s gang—a stronghold where gang
members were known to congregate.
As they approached the intersection, Officer Hernandez
noticed two men standing in the parking lot of the convenience
store located on the corner, one of whom was wearing a black T-
shirt and the other a blue shirt and a hat. The men appeared to be
“loitering” and were approximately three to five feet from a Toyota
Corolla that had been reversed into a parking space with the
headlights still on.
Officer Hernandez pulled the patrol car into the center of the
parking lot and parked. The body camera footage shows the patrol
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car in the center of the lot, with no lights on other than the
headlights. It does not appear to be blocking the Toyota in any way.
The man in the black T-shirt looked startled and nervous
when he saw the patrol car. It was later determined he was the
driver of the Toyota. Officer Hernandez testified the man opened
his eyes wide and “immediately walked” away from them and into
the store, while continuing to “look back” at the patrol car. The
man in the blue shirt and hat stayed where he was, standing
between the Toyota and a Chevrolet Impala.
Officer Hernandez and his partner got out of their patrol car
to check whether any items had been discarded by the man in the
black T-shirt before he walked into the store. When asked to
clarify, Officer Hernandez said it was typical that when they
approached individuals they suspected of criminal activity, the
individuals would drop narcotics or other contraband.
The body camera footage shows Officer Hernandez approach
the Toyota while his partner walked around the Impala with a
flashlight.
When Officer Hernandez walked up to the driver’s side of the
Toyota, he saw defendant, seated in the front passenger seat, for
the first time. Officer Hernandez shined his flashlight into the
floorboard area of the driver’s seat. He then walked around the
back of the car to the passenger side. The body camera footage
supports Officer Hernandez’s testimony.
Officer Hernandez testified that upon flashing his light into
the floorboard area where defendant was seated, he immediately
saw the barrel of a handgun “protruding” from under her seat. He
said the barrel was in plain view. He explained that the gun was
not visible on the body camera footage because of the angle at which
the body camera was attached to him and also because defendant’s
legs partially concealed it.
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Upon seeing the gun, Officer Hernandez used a code word
(“Pete”) to let his partner know he had seen a weapon. The body
camera footage was silent up to that point but it included audio
thereafter. Officer Hernandez explained that the body camera does
not record audio until an officer personally turns the camera on.
There is always about two minutes of silent “buffer” footage that
precedes the audio portion.
When the audio begins, Officer Hernandez can be heard
saying “hey Pete” to his partner (still standing by the Impala) and
asking him to run a check on the man or something to that effect.
Officer Hernandez then asked defendant to step out of the car.
Defendant unfastened her seat belt, appeared to lean over and turn
off the keys in the ignition, and then got out of the car without
incident. Officer Hernandez asked defendant to step over to the
wall of the store and placed her in handcuffs. Defendant
cooperated. The body camera footage shows Officer Hernandez’s
partner simultaneously placing handcuffs on the man in the black
T-shirt who had come out of the store at that point. Officer
Hernandez then secured the handgun.
On cross-examination, Officer Hernandez confirmed they had
not received any call or report of criminal activity and were just
patrolling the area. He said he did not see a firearm as he
approached the Toyota and did not see behavior consistent with a
“hand-to-hand exchange” for a narcotics sale. He said reasonable
suspicion was raised by the manner in which the man in the black
T-shirt sought to avoid them, saying he acted in a manner “not
common for most civilians.” The man in the blue shirt and hat was
not detained because he did not give them a startled look, act in a
furtive manner or seek to avoid them like the man in the black T-
shirt.
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After entertaining argument from counsel, the court denied
defendant’s motion. The court found credible Officer Hernandez’s
testimony that he saw, in plain view, the barrel of the handgun
protruding from under defendant’s seat when he looked into the car
with his flashlight. The court found that defendant was not
detained until Officer Hernandez asked her to step out of the car
and placed her in handcuffs in front of the store.
Defendant pled no contest to one misdemeanor count of
having a concealed firearm in a vehicle. (Pen. Code, § 25400,
subd. (a)(1).) Defendant was sentenced to three days in jail (with
credit for time served) and one year of summary probation.
This appeal followed. We granted defendant’s request to
submit supplemental briefing on the Supreme Court’s decision in
People v. Flores (May 2, 2024, S267522) ___ Cal.5th ___ [2024 Cal.
Lexis 2293] (Flores) which was issued after briefing in this matter
was complete. Both parties filed supplemental letter briefs.
DISCUSSION
Our standard for reviewing the trial court’s ruling on the
motion to suppress is well established. “ ‘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.
Redd (2010) 48 Cal.4th 691, 719.) “Thus, while we ultimately
exercise our independent judgment to determine the constitutional
propriety of a search or seizure, we do so within the context of
historical facts determined by the trial court.” (People v. Tully
(2012) 54 Cal.4th 952, 979.) And, as the Supreme Court recently
reaffirmed, in undertaking this review, we do not review each fact
related to the search or seizure in isolation, but rather, “ ‘we must
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consider “the totality of the circumstances—the whole picture.” ’ ”
(Flores, supra, ___ Cal.5th ___ [2024 Cal. Lexis 2293 at p. *11].)
Defendant contends her detention was unconstitutional
because she was detained the moment the officers parked and
exited their patrol car, without any lawful basis. She argues that
no minority would have felt free to leave from that point on.
The record belies defendant’s argument. The testimony of
Officer Hernandez, corroborated by his body camera footage,
established that he parked the patrol car in the center of the
parking lot with no lights flashing and no use of a siren. He did not
maneuver the car towards or otherwise block the Toyota in which
defendant was seated. Upon getting out of their car, the officers did
not display weapons, did not issue commands, and did not act in an
aggressive manner. Officer Hernandez and his partner merely
walked toward the parked cars and began using their flashlights to
investigate whether there was any discarded contraband.
It is settled that an officer may approach and interact with an
individual in a public place and ask if they are willing to answer
questions. (People v. Tacardon (2022) 14 Cal.5th 235, 241
(Tacardon); Florida v. Bostick (1991) 501 U.S. 429, 434; People v.
Brown (2015) 61 Cal.4th 968, 974.) “ ‘Such consensual encounters
present no constitutional concerns and do not require
justification.’ ” (Tacardon, at p. 241.) A consensual encounter
becomes a seizure or detention that must be justified under the
Fourth Amendment only when the officer “ ‘ “by means of physical
force or show of authority, has in some way restrained the liberty of
a citizen.” ’ ” (Ibid.; Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.)
Flores framed it this way. “To be clear, officers may observe
what people do in public places. They may consider what they see
in plain view and determine whether what they observe merits
further observation, inquiry, or intervention. They may approach
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people in public, engage them in consensual conversation, and take
note of their appearance and behavior. Nervous behavior and
attempts to conceal oneself may provide relevant context. But
before officers may detain someone they must be able to articulate a
legally cognizable reason to infringe on that person’s liberty.”
(Flores, supra, ___ Cal.5th ___ [2024 Cal. Lexis 2293 at p. *28].)
Factors that may be relevant in determining when a
consensual encounter becomes a seizure for Fourth Amendment
purposes include “the presence of multiple officers, an officer’s
display of a weapon, the use of siren or overhead emergency lights,
physically touching the person, the use of a patrol car to block
movement, or the use of language or of a tone of voice indicating
that compliance with the officer’s request is compelled.” (Tacardon,
supra, 14 Cal.5th at pp. 241-242.) Unlike this case, in Flores there
was no dispute the defendant was detained before any
incriminating evidence was observed.
Defendant urges us not to “apply only an ‘objective’ standard”
that ignores race as a factor. Defendant says the Supreme Court in
Flores reaffirmed that the establishment of reasonable suspicion is
always “contextual,” and cites recent cases for the proposition that
“a community’s or group’s experience with law enforcement is a
significant factor of which officers must be mindful and courts
should consider in evaluating the objective reasonableness of any
asserted suspicion of criminality.” (Flores, supra, ___ Cal.5th ___
[2024 Cal. Lexis 2293 at p. *24].)
But Flores did not adopt a new subjective standard. Flores
reaffirmed the importance of the objective standard in assessing the
totality of circumstances, calling it “the touchstone of Fourth
Amendment scrutiny” and underscoring that “it is imperative that
the circumstances confronting both the officer and the citizen be
judged against an objective standard.” (Flores, supra, ___ Cal.5th
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___ [2024 Cal. Lexis 2293 at p. *24], italics added.) Even the
concurrence in Flores did not propose the adoption of a new
subjective test. Rather, the concurrence acknowledged that the test
remains an objective one and that “future litigants” may be able to
formulate “arguments about how racial disparities in policing might
inform one’s decision to avoid contact with the police.” (Id. at p. *36
(conc. opn. of Evans, J.).)
Citing her status as a middle-aged black woman, defendant
wants us to find that she was detained the moment the police
“pull[ed] up in a manner as to convey to everyone present that they
were not free to leave.” We decline to adopt that broad a definition
of detention for it is entirely based on what the “detainee”
subjectively “felt” without regard to the totality of the
circumstances. Here, the totality of the circumstances included the
fact that the police parked their car in the parking lot of a
convenience store without blocking the car in which defendant was
seated and without telling her or anyone else in any way that they
were not free to leave. Defendant’s alleged subjective belief as a
black woman that the “manner” in which the police car pulled up
and parked communicated to her that she was being detained is
insufficient under these facts to create a detention under the Fourth
Amendment. This contention goes too far under these facts.
Unlike Flores, this case has nothing to do with defendant’s
right to decline interaction with the officers or the officers’ authority
to compel her to interact with them before Officer Hernandez saw
the gun barrel. The record demonstrates that defendant was not
detained within the meaning of the Fourth Amendment until
Officer Hernandez saw, in plain view, the barrel of a handgun
protruding from under her seat and asked her to step out of the car.
Defendant does not suggest that a police officer observing a
partially concealed firearm lacks a reasonable basis to effectuate a
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detention to facilitate further investigation, and we would reject
such an argument if it were made. The motion to suppress was
properly denied.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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