Pierce v. Pierce Personal Probation Officer et al

Filing 9

REPORT AND RECOMMENDATION Of United States Magistrate Judge RE: Denying 1 Petition for Writ of Habeas Corpus. It is recommended that the Court issue an Order (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition. Objections to R&R due by 10/30/2017. Replies due by 11/6/2017. Signed by Magistrate Judge Jill L. Burkhardt on 10/16/2017.(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VERONICA PIERCE,

Case No. 17cv0807-LAB (JLB)
Petitioner,

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REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE RE: DENYING PETITION
FOR A WRIT OF HABEAS CORPUS

v.
SCOTT KERNAN, Secretary, et al.,
Respondents.

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Veronica Pierce (hereinafter “Petitioner”) is a state probationer proceeding by and

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through counsel with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

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(ECF No. 1.) Petitioner was convicted in the San Diego Superior Court of transportation

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of marijuana and possession of marijuana for sale, and sentenced to 120 days in jail and

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three years formal probation. (Pet. at 1-2.) She claims here, as she did in state court, that

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she received ineffective assistance of counsel because her trial counsel failed to renew at

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trial a motion brought at the preliminary hearing to suppress the marijuana based on an

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illegal search and seizure, which resulted in forfeiture of that claim on appeal (claim one),

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and that her statement to the police that the parcel she was in the process of shipping when

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arrested contained “a little bit of weed” was obtained in violation of Miranda v. Arizona,

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384 U.S. 436 (1966), and should have been suppressed (claim two). (Id. at 12-20.)
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Respondent has filed an Answer and lodged the state court record. (ECF Nos. 7-8.)

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Respondent contends claim one is unexhausted because the superior court is the only state

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court to which it has been presented. (Memo. of P&A in Supp. of Answer [“Ans. Mem.”]

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at 5.) Respondent argues claim one should be denied notwithstanding the failure to exhaust

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because the superior court’s rejection of the claim is neither contrary to, nor involves an

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unreasonable application of, clearly established federal law. (Id. at 6-9.) Respondent

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contends claim two does not provide a basis for relief because the state court determination

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that Petitioner was not in custody when she made the statement and therefore her Miranda

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rights were not violated, is neither contrary to, nor involves an unreasonable application

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of, clearly established federal law. (Id. at 10-14.) Petitioner has not filed a Traverse.

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For the following reasons, the Court finds that although Petitioner failed to present

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claim one to the state supreme court, the exhaustion requirement is technically satisfied

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because state court remedies no longer remain available as to that claim, and, alternately,

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that the Court has discretion to deny the claim notwithstanding a failure to exhaust. The

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Court finds that habeas relief is unavailable because the state court adjudication of both

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claims is neither contrary to, nor involves an unreasonable application of, clearly

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established federal law, and is not based on an unreasonable determination of the facts in

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light of the evidence presented in the state court proceedings. The Court also finds that

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any alleged error in the admission of Petitioner’s statement is harmless. The Court

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therefore recommends the Petition be denied.

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I.

PROCEDURAL BACKGROUND

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In a two-count Complaint filed in the San Diego County Superior Court on October

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10, 2014, deemed to be an Information on January 26, 2015, Petitioner and her co-

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defendant Tyrone White were charged with transportation of more than 28.5 grams of

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marijuana in violation of California Health and Safety Code § 11360(a) (count one), and

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possession for sale of a usable amount of marijuana in violation of California Health and

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Safety Code § 11359 (count two). (Lodgment No. 1, Clerk’s Transcript [“CT”] at 1-3.)

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17cv0807-LAB (JLB)

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Prior to the preliminary hearing, Petitioner’s counsel, who represented her at the

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preliminary hearing and at trial, filed a motion to suppress the marijuana on the basis that

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because the search and seizure occurred without a warrant it presumptively violated the

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Fourth Amendment. (CT 4-10.) An evidentiary hearing, at which the arresting officers

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testified, was held prior to the preliminary hearing. (Lodgment No. 1, Preliminary Hearing

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Tr. at 5-97.) The motion was denied on the basis that Petitioner was lawfully detained at

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the time she was asked by an officer if he could open the parcel in her possession which

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was eventually found to contain marijuana, but was not under arrest, and voluntarily gave

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consent to open the parcel. (Id. at 97-101.) Defense counsel did not renew that motion at

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trial, but filed a motion in limine to suppress Petitioner’s statement to the arresting officer

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that there was “a little bit of weed” in the parcel, which she made in response to the officer’s

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comment that he had been watching her and based on his thirty years of experience there

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was either marijuana or cocaine in the parcel, claiming it was obtained as a result of

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custodial interrogation without Miranda warnings. (Lodgment No. 2, Reporter’s Tr.

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[“RT”] at 18.) The trial judge conducted a pre-trial evidentiary hearing at which the

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arresting officers again testified, and denied the motion on the basis that Petitioner’s

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statement was not made in response to custodial interrogation because she was not in

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custody at the time, and because she volunteered the statement in response to the officer’s

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observation, not as a result of questioning. (RT 25-39.) On April 16, 2015, a jury found

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her guilty on both counts. (CT 175-76.) On May 15, 2015, she was sentenced to 120 days

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in custody and three years formal probation. (CT 178.)

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Petitioner appealed, challenging the denial of her motions to suppress the marijuana

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and to suppress her statement. (Lodgment Nos. 3-5.) The appellate court affirmed, finding

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that Petitioner had forfeited a challenge to the motion to suppress the marijuana by failing

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to re-raise it at trial, and that the trial court had properly denied the motion to suppress her

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statement because she was not in custody when she made the statement. (Lodgment No.

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6, People v. Pierce, No. D068218, slip op. (Cal.App.Ct. May 10, 2016).) She raised the

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same claims in a petition for review in the state supreme court. (Lodgment No. 7.) That
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court denied the petition in an order which stated, “The petition for review is denied.”

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(Lodgment No. 8, People v. Pierce, No. S235161, order at 1 (July 20, 2016).)

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On August 10, 2016, Petitioner filed a habeas petition in the state superior court in

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which she raised claim one here, arguing that she received ineffective assistance of trial

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counsel due to counsel’s failure to re-raise the preliminary hearing marijuana suppression

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motion at trial, which resulted in forfeiture of the challenge to the denial of that motion on

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appeal. (Lodgment No. 8.) The superior court denied the petition on September 23, 2016,

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finding that Petitioner had not received ineffective assistance of counsel because had trial

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counsel renewed the motion to suppress in the trial court it would have been denied for the

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same reason it was denied at the preliminary hearing. (Lodgment No. 9, In re Pierce, No.

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HC22587, order (Cal.Sup.Ct. Sept. 28, 2016).)

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II.

TRIAL PROCEEDINGS

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Don Clark, a Chula Vista Police Detective, testified that he is assigned to the Parcel

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Interdiction Team of the Regional Narcotics Task Force for the United States Drug

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Enforcement Administration, whose primary responsibility is to investigate people who

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ship narcotics across the country in parcels through carriers such as UPS, FedEx, DHL and

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the United States Post Office. (RT 67-69.) He testified that narcotics are shipped from

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San Diego to other parts of the country every day, and that the value increases

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proportionately to the distance from San Diego, so that a pound of marijuana worth about

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$400 in San Diego is worth about $1200 in New York. (RT 69-71.)

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On October 8, 2014, Detective Clark was conducting surveillance at the Postal

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Annex in Lemon Grove, California, which his team calls the “fishing hole” because the

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shipping of narcotics is so prevalent there. (RT 72-74.) Detective Clark’s attention was

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drawn to a man, later identified as Petitioner’s co-defendant Tyrone White, leaving the

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Postal Annex with flattened cardboard boxes and packing peanuts, which he placed in the

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truck of his car while Petitioner stood outside the passenger side of the car. (RT 74-75,

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80.) Detective Clark’s team decided to follow the car, which drove to a United States Post

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Office where White was seen leaving with a flattened cardboard box. (RT 77-79.) White
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then drove to his residence, arriving about 2:50 p.m., and the team set up surveillance

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parked on a street across a canyon from the house.1 (RT 79-82.)

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White parked in his garage, which is detached from his house, and during the ensuing

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two hours made five to ten trips between his home and the garage, including carrying a

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large ball of cellophane. (RT 79-85, 107.) Petitioner never entered the garage, but stayed

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inside the house until, about 4:40 p.m., White drove them both to a FedEx store on 47th

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Street. (RT 86, 117-18.) Detective Clark explained that cellophane is used to wrap

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narcotics to prevent the smell from escaping, and that the 47th Street FedEx store is a

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shipping hub which sends its parcels directly to the airport in the late afternoon. (RT 86-

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87.) He said that narcotics traffickers typically wait to bring parcels to the shipping center

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near the time of the last shipment so the parcels do not sit in the store all day, because the

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smell of narcotics can eventually permeate the packaging. (Id.)

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When Petitioner and White arrived at the 47th Street FedEx store, Petitioner exited

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the passenger side of the vehicle carrying a parcel, with White following her at a short

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distance carrying his own parcel. (RT 88-89.) White appeared to become suspicious and

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looked at the officers, so Detective Clark approached him, identified himself as a police

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officer, said he was a member of the Parcel Interdiction Team, and asked if he would mind

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talking about the package he was about to ship. (RT 90.) While Detective Clark was

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speaking to White, he observed other officers from his team exit the store with Petitioner

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and open her parcel, which contained 11.3 pounds of marijuana. (RT 91-92.) Petitioner’s

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purse contained $13,500 in cash and a stub from an airline ticket from New York to San

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Diego the previous day. (RT 95-97.) The value of the marijuana in her parcel was about

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$4000 in San Diego and about $12,000 in New York. (RT 97-98.) Detective Clark said

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the team went to White’s house where he gave consent to search his house and his parcel.

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(RT 98.) They found 11.7 pounds of marijuana in his parcel, and 13.7 pounds of marijuana

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At the preliminary hearing motion to suppress, Detective Clark testified that he was parked about 100
yards from White’s house using binoculars and a long-lens camera to watch the house, although he was
able see it with his naked eye. (Lodgment No. 1, Preliminary Hearing Tr. at 31.)
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in his garage, along with materials used in packaging narcotics for mailing. (RT 99-102.)

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The total marijuana recovered, 36.7 pounds, is worth about $12,845 in San Diego, very

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close to the amount of cash recovered from Petitioner, and worth about $36,700 in New

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York. (RT 99-101.) Petitioner consented to a search of her hotel room, but no evidence

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was found. (RT 111-13.)

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John McGill, a San Diego Police Narcotics Detective, testified that he is a member

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of the Commercial Interdiction Team of the Drug Enforcement Administration assigned to

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identify individuals who ship narcotics through the mail or postal services. (RT 121.) On

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October 8, 2014, about 2:30 p.m., he was on duty at the Postal Annex in Lemon Grove

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where he observed Petitioner and her co-defendant White standing next to White’s car.

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(RT 122-24, 127.) His team followed them to a residence, and then to a FedEx store on

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47th Street. (RT 125-26.) It appeared to Detective McGill that as White was walking into

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the FedEx store he become aware of the police presence, so the team decided to make

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contact with White and Petitioner. (RT 127.)

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Detective McGill went inside the store where he observed Petitioner at the counter

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“appear[ing] to be filling out a shipping label.” (RT 127-28.) He identified himself as a

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police officer, showed her his badge but not his gun, said, “Let’s go outside and talk to

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your friend,” and took the parcel and walked outside. (RT 128, 137-38.) Petitioner

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followed him outside where he asked what her relationship to White was, and she replied

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they were friends, but when asked his name, “she couldn’t provide the name.” (RT 128-

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29.) Detective McGill said she looked extremely nervous, much more so than an average

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person approached by the police, and that she kept looking at White and was vague with

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her answers when asked what she had been doing that day. (RT 129, 143.) After Petitioner

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produced a New York identification card, Detective McGill told her he had years of

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experience, that he had been watching her, and that he suspected her parcel contained

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marijuana. (RT 130.) Petitioner “really didn’t say anything. She kind of shook her head

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in the ‘no’ fashion.” (Id.) Detective McGill then said to her, “Well, whatever is in here, if

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it’s not marijuana, then it’s cocaine.” (Id.) Petitioner replied, “No. It’s a little bit of weed.”
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(Id.) He asked for her consent to open the parcel, which she gave, and he opened it and

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found two or three heat-sealed packages containing 10 or 11 pounds of marijuana. (RT

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130-31, 133.) He then arrested Petitioner and searched her person and personal belongings.

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(RT 131.) In her purse he found an airline ticket stub from the previous day from New

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York to San Diego, an envelope containing $13,500 in brand new crisp $100 bills, and a

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key from a hotel in San Ysidro. (RT 131-32.) A forensic chemist with the Drug

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Enforcement Administration testified that the material in the parcels was marijuana. (RT

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144-53.) The People rested. (RT 156.)

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Petitioner testified that she is a registered nurse and a former real estate agent who

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owns and lives in a multi-unit residence in the Bronx, New York. (RT 158.) She has six

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tenants in her building who pay her their rent in cash, about $4000 per month total, and a

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rental house in Florida which generates $950 per month by check. (RT 159.) She also

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receives a paycheck from her nursing job, which she cashes rather than deposits in a bank,

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and carries her money around with her in cash rather than putting it in a bank, because her

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parents never had a bank account and “that’s just how I was brought up.” (RT 160-61.)

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Petitioner testified that she came to San Diego on a one-way ticket on October 7,

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2015, hoping to relocate here to avoid the cold winters in New York. (RT 163.) She met

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her co-defendant White in Georgia a couple of years earlier, and although they had

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remained friends she did not “know the intricate details of his life.” (RT 164-65.) She got

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in touch with him hoping he would show her around San Diego and help her find an

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apartment. (RT 165.) White picked her up at her hotel about noon on October 8, and said

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he had some errands to run before he could show her around. (RT 165-66.) He drove to a

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Postal Annex store and then to a post office before driving to his house, and she stayed in

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the car each time he went inside the stores. (RT 166-68.) When they arrived at his house,

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he went into the garage and she went directly into the house, where she sat in the living

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room watching television while he remained in the garage. (RT 168-69.) The garage is

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separate from the house, and although he came and went occasionally she did not know

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what he was doing and did not smell anything. (RT 169-70.)
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Eventually, he told her he had one more errand to run and they left in his car. (RT

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170.) White then drove them to a FedEx store where he gave her a parcel which “he said

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had books or something that he was going to ship to some friend,” and asked her, “Can you

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please help me bring this inside.” (RT 171, 174.) She was standing inside the store with

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the parcel waiting for White, and was not filling out a shipping label, when a police officer

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approached her and lifted his shirt revealing his gun and badge. (RT 171-73.) She did not

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know what was going on, and when the officer asked her what was in the box, she said, “I

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don’t know.” (Id.) She was frightened because she had never been in such a situation

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before, and denied telling the officer that the box contained a little bit of weed. (RT 173-

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74.) She said Detective McGill told her, “I’ve been doing this my whole life, and if it’s

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not weed in there, it’s cocaine,” and asked if he could open the box. (RT 174.) She told

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him, “Sure. It’s your job.” (Id.)

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Petitioner testified that she brought the $13,000 in cash with her from New York,

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which she intended to use to pay the $2200 mortgage on her New York building, the $850

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mortgage on her Florida house, purchase an airline ticket to visit her grandchildren in

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Nevada or return to New York, and to possibly put a down payment on an apartment in

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San Diego and buy furniture. (RT 176-77, 180.) She said she has been working two jobs

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most of her life and makes a fairly good income as a nurse, that she is in the habit of

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carrying her money on her rather than keeping it in a bank, that she changes her cash into

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new $100 bills whenever she has a chance, and that she did not come to San Diego for the

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purpose of shipping marijuana back to New York. (RT 178-80.) The defense rested and

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there was no rebuttal evidence offered. (RT 189-90.)

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After deliberating about a day and a half, during which Petitioner’s testimony was

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read back, the jury found her guilty of transporting more than 28.5 grams of marijuana, and

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guilty of possession for sale of a usable amount of marijuana. (RT 171-76.) Petitioner was

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sentenced to 120 days in custody and three years formal probation. (RT 276.)

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III.

DISCUSSION

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Petitioner claims that her federal constitutional rights were violated because she

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received ineffective assistance of counsel when her trial counsel failed to renew at trial the

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preliminary hearing motion to suppress the marijuana, which resulted in forfeiture of a

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challenge to the denial of that motion on appeal (claim one), and that her statement to the

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police that her parcel contained “a little bit of weed” was erroneously admitted at trial

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because it was obtained as a result of custodial interrogation without Miranda warnings

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(claim two). (Pet. at 12-20.)

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Respondent contends that claim one is unexhausted because it was presented only to

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the superior court in a habeas petition, never to the state supreme court, but argues it should

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be denied notwithstanding the failure to exhaust because the superior court’s rejection of

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the claim is neither contrary to, nor involves an unreasonable application of, clearly

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established federal law. (Ans. Mem. at 6-9.) Respondent argues that the state court

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determination that Petitioner was not in custody when she made her statement and therefore

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her Miranda rights were not violated, is neither contrary to, nor involves an unreasonable

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application of, clearly established federal law. (Id. at 10-14.)

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A. Standard of Review

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In order to obtain federal habeas relief with respect to a claim which was adjudicated

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on the merits in state court, a federal habeas petitioner must demonstrate that the state court

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding.”

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28 U.S.C.A. § 2254(d) (West 2006). Even if § 2254(d) is satisfied, a petitioner must show

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a federal constitutional violation occurred in order to obtain relief. Fry v. Pliler, 551 U.S.

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112, 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).

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A state court’s decision may be “contrary to” clearly established Supreme Court

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precedent (1) “if the state court applies a rule that contradicts the governing law set forth
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in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially

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indistinguishable from a decision of [the] Court and nevertheless arrives at a result different

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from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state

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court decision may involve an “unreasonable application” of clearly established federal

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law, “if the state court identifies the correct governing legal rule from this Court’s cases

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but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407.

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Relief under the “unreasonable application” clause of § 2254(d) is available “if, and only

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if, it is so obvious that a clearly established rule applies to a given set of facts that there

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could be no ‘fairminded disagreement’ on the question.” White v. Woodall, 572 U.S. ___,

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134 S.Ct. 1697, 1706-07 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011).

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In order to satisfy § 2254(d)(2), the petitioner must show that the factual findings upon

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which the state court’s adjudication of his claims rest are objectively unreasonable. Miller-

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El v. Cockrell, 537 U.S. 322, 340 (2003).

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B.

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Petitioner first claims that she received ineffective assistance of counsel when her

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trial counsel (Petitioner was represented by the same attorney at the preliminary hearing

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and at trial), failed to renew at trial the preliminary hearing motion to suppress the

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marijuana. (Pet. at 12-15.) Petitioner claims here, as she did at the preliminary hearing

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motion, that the actions of the officers in watching her with binoculars and a long-lens

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camera violated her Fourth Amendment rights because the use of such optical enhancement

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techniques was unreasonable, and therefore did not support the finding of reasonable

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suspicion needed for a lawful detention. (Id.) The only state court to which this claim was

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presented is the state superior court, in a habeas petition. (Lodgment No. 9.) The superior

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court denied the petition, stating:

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Claim One

Petitioner claims her trial counsel was ineffective for failing to preserve
the legality of the detention as an issue on appeal by not raising the issue
concerning the surveillance with the trial court. “When a defendant claims
ineffective assistance of counsel based on his counsel’s failure to bring a
motion to suppress evidence on Fourth Amendment grounds, the defendant is

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required to show that the Fourth Amendment claim had merit.” (People v.
Frye (1989) 18 Cal.4th 894, 989, disapproved on other grounds by People v.
Doolin (2009) 45 Cal. 4th 390.) “Counsel does not render ineffective
assistance by failing to make motions or objections that counsel reasonably
determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 287.)
Additionally, “(t)he Sixth Amendment does not require counsel ‘to waste the
court’s time with futile or frivolous motions.’ (Citation.)” (People v. Memro
(1996) 11 Cal.4th 786, 834, internal quotations omitted.) Although the Court
of Appeal concluded that petitioner failed to preserve the issue of legality of
her detention for appeal, “(l)ike pouring alkali on acid, raising the issue of
ineffective assistance of counsel neutralizes Lilienthal waiver” and requires a
review of the lawfulness of the search or detention. (Hart, supra, 74
Cal.App.4th at 486.) That being the case, this court reviewed the legality of
the detention based on petitioner’s argument that the surveillance conducted
by Officer Clark was unlawful thereby rendering the detention illegal.

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Petitioner argues that her detention was unlawful because the
surveillance conducted by Officer Clark, which formed the reasonable
suspicion to detain her, violated her reasonable expectation of privacy. She
takes issue with Officer Clark’s use of binoculars and a long-lens camera
when he was conducting surveillance of petitioner prior to the detention.
Petitioner claims that Officer Clark’s “use of enhanced techniques” to observe
her violated her right to be free from unreasonable search, “because her
movements were not readily visible to the naked eye of the observer.” (See
Petition at 17:9-18.) Petitioner admits that although she “did not seek to hide
herself from public view when she traveled on public highways and entered
buildings open to the public, she did not relinquish her right to be free from
unreasonable search and seizure simply because she was visible to the public.”
(See Petition at 16:20-24.) Thus, she claims Officer Clark’s use of binoculars
and a camera while conducting his surveillance violated her Fourth
Amendment right because it was beyond the scope of permissible and
reasonable surveillance and cannot be used to form the reasonable suspicion
needed to lawfully detain her.

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Petitioner’s argument is without merit and a motion to suppress or a
renewed suppression motion would have been denied in the trial court. “[T]he
Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not subject of Fourth
Amendment protection.” (Katz v. United States (1967) 389 U.S. 347, 351.)
“But what he seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.” (Ibid.) The test to determine the
validity of surveillance depends on “whether that which is perceived or heard
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is that which is conducted with a reasonable expectation of privacy and not
upon the means used to view it or hear it.” (People v. Arno (1979) 90
Cal.App.3d 505, 511.) “So long as that which is viewed or heard is perceptible
to the naked eye or unaided ear, the person seen or heard has no reasonable
expectation of privacy in what occurs. Because he has no reasonable
expectation of privacy, governmental authority may use technological aids to
visual or aural enhancement of whatever type available.” (Ibid.) Furthermore,
it has long been established that “if the purpose of the optically aided view is
to permit clandestine police surveillance of that which could be seen from a
more obvious vantage point without the optical aid, there is no
unconstitutional intrusion.” (Burkholder v. Superior Court (1979) 96 Cal.
App.3d 421, 426.)

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The observations of petitioner and her co-defendant which Officer
Clark testified to at the preliminary hearing were made while the two were in
public and were visible to the naked eye. Initially, Officer Clark and his team
were conducting surveillance at the Postal Annex located at 7107 Broadway
in Lemon Grove, which is a known location for narcotic shipments. Prior to
petitioner and her co-defendant’s arrival at the subject Postal Annex, Officer
Clark had been conducting surveillance at that location for approximately an
hour. He was parked in the strip mall across the street from the Postal Annex,
which he testified was approximately 150 away. Officer Clark testified that
he believed he took a photograph of petitioner as she was standing outside the
passenger side of co-defendant’s vehicle in the Postal Annex parking lot.
According to Officer Clark, it was co-defendant’s action of leaving this
particular Postal Annex with shipping equipment which caught his attention
and which caused him to decide to follow the two to their next location.

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Consistent with Officer Clark’s experience with narcotic shipments,
petitioner and co-defendant were observed traveling to another postal service
location; the U.S. Post Office at 5505 Stevens Way. There, Officer Clark
parked in the same parking lot as petitioner and co-defendant. Office Clark
testified that he took photographs of the co-defendant as he went inside the
post office, when the co-defendant exited the post office with additional
packaging material, and when the co-defendant loaded the packaging material
into his car. Officer Clark testified that he parked one block over, on 69th
Street in San Diego, where he was elevated above co-defendant’s residence
and had an unobstructed view of the house. He estimated he was parked
approximately 100 feet away from the residence. He conducted surveillance
at the residence for over an hour and a half and observed, with the aid of his
binoculars and camera, co-defendant come in and out of the house and
opening and closing the garage door. He also observed the co-defendant come
12
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3
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8
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out of the residence or garage with cellophane, one of the most common items
used to wrap large commercial quantities of narcotics. Officer Clark testified
that petitioner was inside the house the entire time he conducted surveillance
of the co-defendant’s residence.
Then, around 4:30 p.m., Officer Clark observed petitioner and her codefendant leave the residence. He followed them to their next destination,
which was to the FedEx store on 47th Street in San Diego. There, Officer
Clark observed petitioner enter into the store while he was “out on the road.”
He then entered the FedEx parking lot and parked a couple of stalls away from
co-defendant’s car. Officer Clark testified that based on Officer Clark’s
extensive experience with narcotic shipments and his observations of codefendant and petitioner, he formed a reasonable suspicion that co-defendant
and petitioner were going to ship a narcotic parcel. Contact was made with
petitioner by Officer McGill inside the FedEx store while Officer Clark made
contact with co-defendant in the parking lot of the store.
Based on the evidence presented at the preliminary hearing, it was clear
that Officer Clark’s use of an optical aid by way of the binoculars and/or
camera did not violate petitioner’s reasonable expectation of privacy. This is
because, under the circumstances, no privacy rights could have reasonably
existed while petitioner was out in the public and viewable to the naked eye.
Additionally, there was no evidence that the binoculars and/or camera were
used to see what petitioner or her co-defendant were doing inside his house.
Officer Clark did not provide any testimony regarding any actions petitioner
may or may not have done while in co-defendant’s residence. Without any
evidence that officer Clark used the binoculars and/or camera to see
Petitioner’s movements and actions while inside co-defendant’s home,
petitioner has merely asserted an assumption that the devices were used to
infringe on her privacy rights, which is unsupported by the evidence. Nor was
there any evidence that Officer Clark used the binoculars and/or the camera
to see what petitioner or her co-defendant were doing while inside codefendant’s car. Thus, to the extent petitioner had a reasonable expectation
of privacy while inside co-defendant’s house or in his car, there was no
evidence of any Fourth Amendment violation through Officer Clark’s use of
the binoculars and/or camera.

25
26
27
28

Instead, the evidence established that the binoculars and camera were
used to simply aid what Officer Clark was already witnessing with his naked
eye while petitioner and her co-defendant were in the public. Based on
evidence at the preliminary hearing, it appeared that at most, Officer Clark
was only 150 feet away from petitioner when he used the optical aids to assist
13
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2
3
4
5
6
7
8
9
10
11

his surveillance. Other times he was either 100 feet away, in the same parking
lot, or parked in a few parking stalls away from petitioner. The fact that
Officer Clark’s observations were aided by the use of binoculars or a camera
at certain points during the surveillance does not in and of itself equate to a
Fourth Amendment violation as petitioner suggests. The activity that Officer
Clark testified he observed through the binoculars and camera were
observable to people not using an optical aid.
Thus, a motion to suppress or renewed motion based on petitioner’s
argument, had one been brought before the trial court, would have lacked
merit and would have been denied. Because petitioner would not have
prevailed on a motion to suppress or a renewed suppression motion, she has
not established that her counsel was ineffective and that she was deprived of
her Sixth Amendment right to effective assistance of counsel.
(Lodgment No. 10, In re Pierce, No. HC22587, order at 4-8.)

12

Claim one was not presented to any other state court. Petitioner raised a claim in the

13

appellate and supreme courts on direct appeal arguing that the motion to suppress the

14

marijuana was erroneously denied because the use of binoculars and a long-lens camera

15

constituted an illegal search. (Lodgment Nos. 5, 7.) The state supreme court summarily

16

denied the claim, and the appellate court found it had been forfeited due to trial counsel’s

17

failure to re-raise it at trial, explaining that an order denying a preliminary hearing

18

suppression motion is not appealable unless it is renewed at trial because a magistrate

19

conducting a preliminary hearing does not sit as a superior court judge. (Lodgment No. 6,

20

People v. Pierce, No. D068218, slip op. at 5-7.)

21

In order to exhaust state judicial remedies, a California state prisoner must present

22

the California Supreme Court with a fair opportunity to rule on the merits of every issue

23

raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry v. Greer,

24

481 U.S. 129, 133-34 (1987). The petitioner must have raised the very same federal claims

25

brought in the federal petition before the state supreme court. See Duncan v. Henry, 513

26

U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971) (in order to

27

exhaust state judicial remedies, a claim must be “fairly presented” to the highest state court,

28

that is, in a manner which allows that court to have “the first opportunity to hear the claim
14
17cv0807-LAB (JLB)

1

sought to be vindicated in a federal habeas proceeding.”) Accordingly, Petitioner did not

2

satisfy the exhaustion requirement by presenting his ineffective assistance of counsel claim

3

only to the state superior court.

4

Nevertheless, the exhaustion requirement is satisfied “if it is clear that (the habeas

5

petitioner’s) claims are now procedurally barred under (state) law.” Gray v. Netherland,

6

518 U.S. 152, 161 (1996); Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (“the

7

district court correctly concluded that [the] claims were nonetheless exhausted because a

8

return to state court for exhaustion would be futile.”) Petitioner filed her habeas petition

9

in the state superior court on August 10, 2016, over a year ago, and has never presented

10

her claim to the state supreme court. California law required her to present the claim to the

11

state supreme court without substantial delay. See Walker v. Martin, 562 U.S. 307, 312-

12

21 (2011) (holding that California’s timeliness rule requiring that a petitioner must seek

13

relief without “substantial delay” as “measured from the time the petitioner or counsel

14

knew, or should reasonably have known, of the information offered in support of the claim

15

and the legal basis for the claim,” is clearly established and consistently applied); Evans v.

16

Chavis, 546 U.S. 189 (2006) (noting that substantial delay under California law does not

17

differ significantly from the rule in other states which use 30 to 60 day rules, and that a six-

18

month unexplained delay was presumptively unreasonable); In re Clark, 5 Cal.4th 750,

19

797-98 (1993) (“the general rule is still that, absent justification for the failure to present

20

all known claims in a single, timely petition for writ of habeas corpus, successive and/or

21

untimely petitions will be summarily denied.”)

22

Because it is clear that Petitioner no longer has state court remedies available to her,

23

the claim is considered to be technically exhausted. Cassett v. Stewart, 406 F.3d 614, 621

24

n.5 (9th Cir. 2005) (“A habeas petitioner who has defaulted his federal claims in state court

25

meets the technical requirements for exhaustion; there are no state remedies any longer

26

‘available’ to him.”), quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991); Phillips,

27

267 F.3d at 974 (“the district court correctly concluded that [the] claims were nonetheless

28

exhausted because ‘a return to state court for exhaustion would be futile.’”) Such a
15
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1

technically exhausted claim is procedurally defaulted in this Court. Coleman, 501 U.S. at

2

735 n.1 (holding that “there is a procedural default for purposes of federal habeas” when

3

“the court to which the petitioner would be required to present his claims in order to meet

4

the exhaustion requirement would now find the claims procedurally barred.”); see id. at

5

729-30 (holding that a procedural default arises from a violation of a state procedural rule

6

which is independent of federal law and is clearly established and consistently applied.)

7

The Supreme Court has held that California’s timeliness rule is clearly established and

8

consistently applied. Walker, 562 U.S. at 312-21. It is also independent of federal law.

9

See Bennett, 322 F.3d at 581 (“We conclude that because the California untimeliness rule

10

is not interwoven with federal law, it is an independent state procedural ground.”)

11

The Court may reach the merits of a procedurally defaulted claim if Petitioner can

12

demonstrate cause for her failure to satisfy the state timeliness rule and prejudice arising

13

from the default, or that a fundamental miscarriage of justice would result from the Court

14

not reaching the merits of the defaulted claim. Coleman, 501 U.S. at 750. Petitioner has

15

not attempted to meet those requirements, and has not addressed Respondent’s contention

16

that claim one is unexhausted. Nevertheless, the Court need not address whether Petitioner

17

could make a showing sufficient to excuse the default because claim one is clearly without

18

merit. The Ninth Circuit has indicated that “[p]rocedural bar issues are not infrequently

19

more complex than the merits issues presented by the appeal, so it may well make sense in

20

some instances to proceed to the merits if the result will be the same.” Franklin v. Johnson,

21

290 F.3d 1223, 1232 (9th Cir. 2002), citing Lambrix v. Singletary, 520 U.S. 518, 525

22

(1997) (“We do not mean to suggest that the procedural-bar issue must invariably be

23

resolved first; only that it ordinarily should be.”) Because claim one clearly fails on the

24

merits, the Court finds that the interests of judicial economy support denying claim one on

25

the merits without addressing whether Petitioner can overcome the procedural default.

26

Alternately, even assuming state court remedies remain available to Petitioner

27

regarding claim, in which case Petitioner’s claims would be unexhausted, the Court has

28

discretion to deny the claim notwithstanding any failure to exhaust. See 28 U.S.C.
16
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1

§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

2

notwithstanding the failure of the applicant to exhaust the remedies available in the courts

3

of the State.”)

4

whether the claim is unexhausted or technically exhausted.

Because claim one clearly fails on the merits, the outcome is the same

5

The clearly established United States Supreme Court law governing ineffective

6

assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984).

7

For ineffective assistance of counsel to provide relief, Petitioner must show that counsel’s

8

performance was deficient. Id. at 687. “This requires showing that counsel made errors

9

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

10

the Sixth Amendment.” Id. She must also show that counsel’s deficient performance

11

prejudiced the defense, which requires showing that “counsel’s errors were so serious as

12

to deprive [Petitioner] of a fair trial, a trial whose result is reliable.” Id. To show prejudice,

13

Petitioner need only demonstrate a reasonable probability that the result of the proceeding

14

would have been different absent the error. Id. at 694. A reasonable probability is “a

15

probability sufficient to undermine confidence in the outcome.” Id. Petitioner must

16

establish both deficient performance and prejudice in order to establish ineffective

17

assistance of counsel. Id. at 687. “Surmounting Strickland’s high bar is never an easy

18

task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “The standards created by Strickland

19

and section 2254(d) are both highly deferential and when the two apply in tandem, review

20

is ‘doubly’ so.” Richter, 562 U.S. at 105. These standards are “difficult to meet” and

21

“demands that state court decisions be given the benefit of the doubt.” Cullen v. Pinholster,

22

563 U.S. 170, 181 (2011).

23

Prior to the preliminary hearing, defense counsel filed a motion to suppress the

24

marijuana, which was joined by Petitioner’s co-defendant, arguing that the seizure of

25

Petitioner and the search of her parcel were presumptively unreasonable because they

26

occurred without a warrant, and that the burden was on the prosecution to justify the search

27

and seizure. (CT 4-10.) A hearing was held at which Detectives McGill and Clark testified

28

consistently with their trial testimony. (Lodgment No. 1, Preliminary Hearing Tr. at 217
17cv0807-LAB (JLB)

1

101.) Defense counsel argued that a reasonable person would not have felt free to leave

2

after Detective McGill identified himself as an officer, told Petitioner he had been watching

3

her and that based on his experience he thought there was cocaine in her parcel, and said,

4

“Let’s go outside.” (Id. at 86-89.) The preliminary hearing judge stated:

5
6
7
8
9
10
11
12
13
14
15

With regard to Ms. Pierce, Officer McGill’s testimony that his contact
with Pierce was inside the FedEx and he said, “let’s go outside,” I’m giving
the defendant the benefit of the doubt. As I indicated, that sounds more like
a command than a question, and so I believe she was detained at that point.
She placed the box on the ground, she appeared nervous, and, of course, police
are allowed to consider nervousness and vague responses to answers. He told
her he’d been observing her, believed she was shipping drugs, asked if he
could open the box two times, and she said yes two times.
So she was asked a question at a time where I believe she was lawfully
detained based on all the activity that occurred earlier in the day, and,
therefore, I believe the consent was voluntarily given and that there was no
violation of either defendants’ Fourth Amendment rights, so the motions are
respectfully denied at this time.
(Id. at 101.)

16

In order to show that defense counsel was deficient in failing to renew that motion

17

at trial, Petitioner must show the error was “so serious that counsel was not functioning as

18

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at

19

687. Defense counsel, who represented Petitioner at the preliminary hearing and at trial,

20

filed an in limine motion to suppress her statement in the trial court but did not renew the

21

motion to suppress the marijuana. (CT 28-30.) Petitioner is required to overcome a strong

22

presumption that counsel’s failure to seek suppression of the marijuana in her trial court

23

motion to suppress the statement was a reasonable tactical decision. See Yarborough v.

24

Gentry, 540 U.S. 1, 5 (2003) (recognizing a strong presumption that counsel took actions

25

“for tactical reasons rather than through sheer neglect.”), citing Strickland, 466 U.S. at 690

26

(holding that counsel is “strongly presumed” to make decisions in the exercise of

27

professional judgment); and Massaro v. United States, 538 U.S. 500, 505 (2003) (noting

28
18
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1

that the presumption of competence has particular force where a claim is based solely on

2

the trial record).

3

observed in her written motion papers: “The defense is entitled to await a justification(s)

4

put forth by the prosecution [for not procuring a warrant] . . . [and] is then entitled to submit

5

a response, either orally, in writing, or both, detailing why that justification may be

6

inadequate.” (CT 8.) The motion to suppress the marijuana was then litigated at the

7

preliminary hearing, where both detectives testified and were cross-examined by defense

8

counsel. As discussed below, that testimony established that the surveillance by the

9

officers occurred in public areas without intrusion into any area where Petitioner might be

10

considered to have had a reasonable expectation of privacy, and that her consent to search

11

her parcel, as with her statement that it contained “a little bit of weed,” were given

12

voluntarily and not in response to custodial interrogation. Thus, the motion to suppress the

13

marijuana, although perhaps of uncertain merit prior to the preliminary hearing and the

14

testimony of the officers due to a presumption that a warrantless search and seizure violates

15

the Fourth Amendment, turned out to be unavailing. However, Petitioner has failed to

16

overcome the presumption that once counsel litigated the motion to suppress the marijuana

17

at the preliminary hearing, which included cross-examination of the officers, counsel made

18

a reasoned professional judgment not to renew it at trial. As discussed below, that

19

presumption is buttressed by the finding that there is no reasonable probability that counsel

20

would have prevailed on a renewed motion in the trial court. Accordingly, the state court

21

finding that Petitioner failed to show deficient performance is not based on an unreasonable

22

determination of the facts, and is neither contrary to, nor does it involve an unreasonable

23

application of, Strickland. In addition, assuming Petitioner could demonstrate defense

24

counsel was deficient in failing to preserve the claim for appeal, the Court also finds that

25

it was objectively reasonable for the state court to find she did not establish prejudice. See

26

Strickland, 466 U.S. at 687 (a petitioner must establish both deficient performance and

27

prejudice in order to establish constitutionally ineffective assistance of counsel). As the

28

state superior court noted, Detective Clark’s observations, although aided by the use of

Petitioner has not overcome that presumption. As defense counsel

19
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1

binoculars and a long-lens camera, could have been made without the use of optical aids,

2

and therefore did not intrude on any area in which Petitioner had a reasonable expectation

3

11

of privacy. The Supreme Court has observed: The Fourth Amendment provides in relevant
part that the “right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.” The Amendment
establishes a simple baseline, one that for much of our history formed the exclusive basis
for its protections: When “the Government obtains information by physically intruding”
on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth
Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. 400, 406 n.3
(2012). By reason of our decision in Katz v. United States, 389 U.S. 347 (1967), property
rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County,
506 U.S. 56, 64 (1992) – but though Katz may add to the baseline, it does not subtract
anything from the Amendment’s protections “when the Government does engage in (a)
physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S.
276, 286 (1983) (Brenan, J., concurring in the judgment). Florida v. Jardins, 569 U.S. 1,

12

___, 133 S.Ct. 1409, 1414 (2013); Katz, 389 U.S. at 351 (“What a person knowingly

13

exposes to the public, even in his own home or office, is not a subject of Fourth Amendment

14

protection. But what he seeks to preserve as private, even in an area accessible to the

15

public, may be constitutionally protected.”) (citations omitted). The uncontroverted

16

evidence showed that the officers were parked across the street from the Postal Annex

17

when they first observed Petitioner standing next to White’s car in the Postal Annex

18

parking lot, that they followed White’s car to a post office and then to his house along

19

public roads, they parked on a public street 100 yards away, waited and watched as White

20

came and went between his house and garage while Petitioner was out of sight inside the

21

house, and then followed them to the FedEx store and observed Petitioner enter the store

22

carrying a parcel. Petitioner has failed to demonstrate that the police officers intruded into

23

any area in which she might have had a reasonable expectation of privacy. See California

24

v. Ciraolo, 476 U.S. 207, 211 (1986) (“The touchstone of Fourth Amendment analysis is

25

whether a person has a ‘constitutionally protected reasonable expectation of privacy.’”),

26

quoting Katz, 389 U.S. at 360. “Private commercial property is not one of the enumerated

27

items that the Fourth Amendment protects.” Patel v. City of Montclair, 798 F.3d 895, 898

28

(9th Cir. 2015) (holding that no search within the meaning of the Fourth Amendment

4
5
6
7
8
9
10

20
17cv0807-LAB (JLB)

1

occurs when police officers enter commercial areas open to the public). Thus, it was

2

objectively reasonable for the state court to find that Petitioner had failed to show how the

3

officers’ observations of her movements out in public intruded upon a reasonable

4

expectation of privacy. See Katz, 389 U.S. at 351 (“What a person knowingly exposes to

5

the public, even in his own home or office, is not a subject of Fourth Amendment

6

protection.”)

7

why Petitioner’s statement was not obtained as a result of custodial interrogation, the Court

8

finds that even assuming Petitioner could demonstrate deficient performance from trial

9

counsel’s failure to preserve the issue for appeal, she has not shown “a probability

10

sufficient to undermine confidence in the outcome,” and has therefore failed to satisfy the

11

prejudice prong. Strickland, 466 U.S. at 694. It was therefore objectively reasonable for

12

the state superior court to deny Petitioner’s ineffective assistance of counsel claim on the

13

basis that: “Because petitioner would not have prevailed on a motion to suppress or a

14

renewed suppression motion, she has not established that her counsel was ineffective and

15

that she was deprived of her Sixth Amendment right to effective assistance of counsel.”

16

(Lodgment No. 10, In re Pierce, No. HC22587, order at 7-8.)

For those reasons, and for the reasons discussed below in claim two

17

In sum, the Court finds that the state court adjudication of claim one is neither

18

contrary to, nor involves an unreasonable application of, clearly established federal law,

19

and is not based on an unreasonable determination of the facts in light of the evidence

20

presented in the state court proceedings. The Court recommends denying habeas relief as

21

to claim one on that basis because the interests of judicial economy counsel in favor of

22

reaching the merits of the claim irrespective of whether the claim is unexhausted or is

23

technically exhausted and procedurally defaulted.

24

D.

25

Petitioner contends in claim two that her statement to the police that the box she

26

carried into the FedEx store contained “a little bit of weed” was obtained in violation of

27

Miranda, and was therefore erroneously admitted at trial. (Pet. at 15-20.) Respondent

28

answers that the determination by the state court that Petitioner’s Miranda rights were not

Claim Two

21
17cv0807-LAB (JLB)

1

violated because she was not in custody when she made her statement, is neither contrary

2

to, nor involves an unreasonable application of, clearly established federal law. (Ans.

3

Mem. at 10-14.)

4

There is a presumption that “[w]here there has been one reasoned state judgment

5

rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the

6

same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991)

7

(emphasis added). The Court will look through the silent denial of Petitioner’s petition for

8

review by the state supreme court to the last reasoned decision regarding this claim, the

9

state appellate court opinion on direct appeal, which stated:

10
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12
13
14
15
16
17
18
19
20
21
22
23

The principal issue on appeal is whether Pierce was “in custody” at the
time of her incriminating statement regarding the weed. If so, then McGill’s
failure to have given Pierce Miranda warnings requires a reversal of the order
denying the motion to suppress; if not, then the trial court properly denied the
motion.
1.

Law

In Miranda, supra, 384 U.S. 436, 444, the United States Supreme Court
imposed constitutional limitations—which the Court described as “procedural
safeguards effective to secure the privilege against self-incrimination”—on
police authority to conduct a custodial interrogation of a suspect. Our state
high court summarized these safeguards as follows: “‘“(B)efore being
subjected to ‘custodial interrogation,’ a suspect ‘must be warned he has a right
to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either
retained or appointed.’”’” (People v. Kopatz (2015) 61 Cal.4th 62, 80
(Kopatz), quoting from Miranda, at p. 444.) Evidence obtained in violation
of these safeguards is “constitutionally inadmissible.” (Miranda, at p. 440.)
Stated differently, “(a)bsent ‘custodial interrogation,’ Miranda simply does
not come into play.” (People v. Mickey (1991) 54 Cal.3d 612, 648.)

24
25
26
27
28

To determine whether Pierce was “in custody” at the time of her
incriminating statement, the test is “whether a reasonable person would have
felt he or she was at liberty to leave (either the FedEx store or the parking lot)
or to decline (McGill’s) request( ) to go (outside) and be interviewed there.”
(Kopatz, supra, 61 Cal.4th at p. 80; see Yarborough v. Alvarado (2004) 541
U.S. 652, 663 (“‘would a reasonable person have felt he or she was not at
22
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1
2
3
4
5
6
7
8
9
10
11
12
13
14

liberty to terminate the interrogation and leave’”).) If a reasonable person in
Pierce’s position would not have felt she was at liberty to leave, then the
evidence from Pierce’s interview in the parking lot is inadmissible, because it
was obtained from a person who was unlawfully “seized in violation of the
Fourth Amendment”—i.e., in custody without the benefit of the safeguards
that result from not being told her rights against self-incrimination under
Miranda. (Kopatz, at p. 80.)
In ruling on a defendant’s motion to suppress evidence based on a
Fourth Amendment claim, the trial court finds the historical facts, selects the
appropriate law and applies it to the facts to determine whether there has been
a violation of law. (Kopatz, supra, 61 Cal.4th at p. 79.) On appeal, we review
the factual findings for substantial evidence and the application of the law to
those facts de novo. [Footnote: Without authority, Pierce contends that the
standard of review is abuse of discretion. The People do not suggest a
standard of review.] (Ibid.) Under the substantial evidence test, we review
the whole record in a light most favorable to the order denying suppression
(Jenkins, supra, 22 Cal.4th at p. 969) to determine whether it discloses
“evidence ‘“reasonable in nature, credible, and of solid value; it must actually
be ‘substantial’ proof of the essentials which the law requires in a particular
case”’” (People v. Samuel (1981) 29 Cal.3d 489, 505).

15
16
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18
19
20
21
22
23
24
25
26
27
28

2.

Analysis

The trial court found that up to and including the time at which Pierce
made the statement in the parking lot regarding weed she was merely detained,
not in custody. That finding is supported by substantial evidence: McGill was
not in uniform; McGill did not display a weapon or handcuffs; the events took
place in a public commercial establishment; McGill was the only officer who
approached Pierce [Footnote: Although we recognize that the evidence on this
point is conflicting, in our review of the record we consider only the
substantiality of the evidence in support of the ruling actually made, not
whether other evidence in the record “‘might also be reasonably reconciled
with a contrary finding.’” (People v. Snead (1991) 1 Cal.App.4th 380, 384
(sufficiency of evidence in support of ruling on motion to suppress).)]; Pierce
was not placed under arrest; and the entire event from McGill’s initial contact
inside the FedEx store to Pierce’s incriminating statement in the parking lot
took less than five minutes.
Citing People v. Manis (1969) 268 Cal.App.2d 653, Pierce suggests that
once McGill “accused (Pierce) of trafficking in cocaine,” the stop “went from
mere detention to custody.” We disagree. We do not consider McGill’s
23
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1
2
3
4
5
6
7
8
9
10
11
12
13

question “‘If (the box) doesn’t have marijuana, is there cocaine in it?’” to be
accusing Pierce of trafficking in cocaine. Indeed, the authority on which
Pierce relies, Manis, fully supports our conclusion: “Only when suspicion
focuses sharply enough to provide reasonable cause for arrest or charge does
the relationship between the police and the person detained become that of
accuser and accused.” (Id. at p. 667, italics added.) Here, when Pierce and
McGill were in the parking lot, there is nothing to suggest that McGill had
reasonable cause to arrest Pierce at the time of his question; thus, there is
nothing to suggest that McGill’s question was an accusation sufficient for a
reasonable person in Pierce’s situation to believe she was then in custody.
Indeed, as Manis reaffirms, the requirement to provide Miranda warnings
does not affect “‘(g)eneral on-the-scene questioning as to facts surrounding a
crime.’” (Id. at p. 669, quoting from Miranda, supra, 384 U.S. at p. 477.)
The trial court’s findings are supported by substantial evidence, and our
independent review does not disclose any error in the court’s application of
the appropriate law to the facts.
(Lodgment No. 6, People v. Pierce, No. D068218, slip op. at 7-10.)

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The Fifth Amendment provides that “no person . . . shall be compelled in any

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criminal case to be a witness against himself.” U.S. CONST. amend. V. It has been clearly

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established for over 50 years that the “Fifth Amendment privilege is available outside of

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criminal court proceedings and serves to protect persons in all settings in which their
freedom of action is curtailed in any significant way from being compelled to incriminate
themselves.” Miranda, 384 U.S. at 467; Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding

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that “the Fifth Amendment’s exception from compulsory self-incrimination is also

21

protected by the Fourteenth Amendment against abridgment by the States.”)

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The “privilege against self-incrimination prohibits admitting statements given by a

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suspect during ‘custodial interrogation’ without a prior warning.” Illinois v. Perkins, 496

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U.S. 292, 295 (1990). “Custodial interrogation means ‘questioning initiated by law

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enforcement officers after a person has been taken into custody . . . .’” Id., quoting

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Miranda, 384 U.S. at 444. Custodial interrogation occurs when “there is a ‘formal arrest

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or restraint on freedom of movement’ of the degree associated with a formal arrest.”

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California v. Beheler, 463 U.S. 1121, 1125 (1983), quoting Oregon v. Mathiason, 429 U.S.
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492, 495 (1977). “Absent such interrogation, there [is] no infringement of the right . . . and

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there [is] no occasion to determine whether there ha[s] been a valid waiver.” Edwards v.

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Arizona, 451 U.S. 477, 486 (1981).

4

Detective McGill testified that he told Petitioner that he had been watching her and

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that based on his many years of experience he suspected her parcel contained marijuana.

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(RT 130.) He said that Petitioner “really didn’t say anything. She kind of shook her head

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in the ‘no’ fashion.” (Id.) Detective McGill then said to her, “Well, whatever is in here, if

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it’s not marijuana, then it’s cocaine.” (Id.) Petitioner replied, “No. It’s a little bit of weed.”

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(Id.) Petitioner testified that Detective McGill told her, “I’ve been doing this my whole

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life, and if it’s not weed in there, it’s cocaine,” but denied making any statement other than

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giving consent to open the parcel. (RT 174.) As quoted above, the appellate court found

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“there is nothing to suggest that McGill’s question was an accusation sufficient for a

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reasonable person in Pierce’s situation to believe she was then in custody.” (Lodgment

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No. 6, People v. Pierce, No. D068218, slip op. at 10.) Although Petitioner denied she said

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there was “a little bit of weed” in the parcel, and disagreed with Detective McGill whether

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he displayed his firearm, there is no material dispute regarding what Detective McGill

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said.2

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“Interrogation” includes not only direct custodial questioning by law enforcement

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officers, but its “functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01

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(1980). “A functional equivalent of questioning is any statement or conduct which the

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police should know is ‘reasonably likely to elicit an [inculpatory or exculpatory] response

22

from the suspect.’” Shedelbower v Estelle, 885 F.2d 570, 573 (9th Cir. 1989), citing Innis,

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446 U.S. at 301 & n. 5. “This is not to say, however, that all statements obtained by the

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2

Detective McGill testified at the preliminary hearing motion that it was not a question but a statement:
“Well, then if it’s not marijuana, it’s cocaine.” (Lodgment No. 1, Preliminary Hearing Tr. at 69.) But at
the pre-trial motion in limine hearing he testified, “I said, ‘if it doesn’t have marijuana, is there cocaine in
it?’” (RT 30.) He and Petitioner both testified at trial that it was a statement and not a question. (RT 130,
184.) Any dispute regarding whether it was a statement or a question is immaterial because, as discussed
below, the reference to cocaine, although somewhat accusatory, did not convert the conversation into a
custodial interrogation.
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police after a person has been taken into custody are to be considered the product of

2

interrogation.” Innis, 446 U.S. at 299. “Volunteered statements of any kind are not barred

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by the Fifth Amendment and their admissibility is not affected by [the holding of

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Miranda].” Miranda, 384 U.S. at 478 (“The fundamental import of the privilege while an

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individual is in custody is not whether he is allowed to talk to the police without the benefit

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of warnings and counsel, but whether he can be interrogated.”)

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Even assuming Detective McGill’s statement is the “functional equivalent” of

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interrogation because it is the type of statement that he should have known was reasonably

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likely to elicit an inculpatory or exculpatory response from Petitioner, the state appellate

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court reasonably found Petitioner was not in custody at the time. Custodial interrogation

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occurs when “there is a ‘formal arrest or restraint on freedom of movement’ of the degree

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associated with a formal arrest.” Beheler, 463 U.S. at 1125, quoting Mathiason, 429 U.S.

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at 495. The Supreme Court in Mathiason stated:

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Such a noncustodial situation [where there was no indication the
questioning took place in a context where the defendant’s freedom to depart
was restricted in any way] is not converted to one in which Miranda applies
simply because a reviewing court concludes that, even in the absence of any
formal arrest or restraint on freedom of movement, the questioning took place
in a ‘coercive environment.’ Any interview of one suspected of a crime by a
police officer will have coercive aspects to it, simply by virtue of the fact that
the police officer is part of a law enforcement system which may ultimately
cause the suspect to be charged with a crime. But police officers are not
required to administer Miranda warnings to everyone whom they question.

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Mathiason, 429 U.S. at 495.

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///

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The evidence showed that Petitioner followed Detective McGill outside the FedEx

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store after McGill identified himself as a police officer and said to Petitioner, “Let’s go

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outside and talk to your friend,” took the parcel and walked outside. (RT 128.) Although

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Detective McGill said Petitioner never saw his gun (RT 138), Petitioner testified that he

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displayed his gun when he lifted his shirt to show her his badge. (RT 171.) Outside the

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store Detective McGill told her he had thirty years of experience, that he had been watching
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her, and he had reason to believe that her parcel contained marijuana. (RT 130.) Petitioner

2

“really didn’t say anything. She kind of shook her head in the ‘no’ fashion,” and Detective

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McGill told her, “Well, whatever is in here, if it’s not marijuana, then it’s cocaine,” to

4

which Petitioner replied, “No. It’s a little bit of weed.” (Id.) Detective McGill testified

5

that he asked for her consent to open the parcel, which she gave. (RT 130-31.) He opened

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the package, found marijuana and arrested her, and the entire encounter took less than five

7

minutes. (Id.) Thus, the only factual disputes were whether Detective McGill displayed

8

his firearm, whether his statement about cocaine was in the form of a statement or a

9

question, and whether Petitioner made her statement. However, the state court correctly

10

found, and it is undisputed, that there were no formal restraints of Petitioner’s freedom of

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movement of any kind, much less to the degree associated with a formal arrest, and that

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the entire encounter was brief. Further, as the state court also correctly found, to the extent

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the officer’s reference to cocaine had an accusatory message, the officer’s suspicion had

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not ripened into probable cause, the relationship had not become that of accuser and

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accused, and “thus, there is nothing to suggest that McGill’s question [regarding cocaine]

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was an accusation sufficient for a reasonable person in Pierce’s situation to believe she was

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then in custody.” In sum, it was objectively reasonable for the state court to find that “a

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reasonable person in Pierce’s situation [would not] believe she was then in custody.”

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(Lodgment No. 6, People v. Pierce, No. D068218, slip op. at 10.)

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Accordingly, the Court finds that Petitioner has failed to satisfy the provisions of 28

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U.S.C. § 2254(d)(1) because she has failed to demonstrate that the state court adjudication

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of claim two is contrary to, or involves an unreasonable application of, clearly established

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federal law. The Court also finds that Petitioner has failed to satisfy the provisions of 28

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U.S.C. § 2254(d)(2) because she has not shown that the factual findings upon which the

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state court’s adjudication of her claim rests are objectively unreasonable. Miller-El, 537

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U.S. at 340.

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Finally, even if Petitioner could demonstrate an error in admitting her statement, and

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assuming she could satisfy the provisions of 28 U.S.C. § 2254(d)(1) or (2), habeas relief is
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not available if the error is harmless. Arizona v. Fulminante, 499 U.S. 279, 310 (1991)

2

(holding that Miranda errors are subject to harmless error review). Under that standard,

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habeas relief is not available “unless the error resulted in ‘substantial and injurious effect

4

or influence in determining the jury’s verdict,’ . . . or unless the judge ‘is in grave doubt’

5

about the harmlessness of the error.” Medina v. Hornung, 386 F.3d 872, 877 (9th Cir.

6

2004), quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) and O’Neal v. McAninch,

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513 U.S. 432, 436 (1995). “There must be more than a ‘reasonable possibility’ that the

8

error was harmful.” Davis v. Ayala, 576 U.S. ___, 135 S.Ct 2187, 2198 (2015), quoting

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Brecht, 507 U.S. at 637.

10

Although Petitioner’s statement presented direct evidence that she was aware her

11

parcel contained marijuana, the other evidence against her, even without that statement,

12

was strong. She flew to San Diego from New York the previous day carrying about

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$13,000 in crisp new $100 bills, approximately the same amount as the value of the

14

marijuana in San Diego. Her explanation regarding why she was carrying so much cash

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was implausible and was apparently rejected by the jury. In addition, her actions when

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confronted by the police showed a consciousness of guilt. She appeared very nervous and

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kept glancing at White, and even though she testified she and White were friends and she

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contacted him in order to have him show her around San Diego and help her find an

19

apartment, she was unable to tell the officer his name. She told the officer she did not

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know what was in her parcel, despite testifying at trial that White had told her it contained

21

books. The Court is not left with a “grave doubt” that, assuming the statement was obtained

22

in violation of Miranda, its introduction at trial resulted in a “substantial and injurious effect

23

or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637; O’Neal, 513 U.S.

24

at 436; see also Ayala, 135 S.Ct at 2198 (“There must be more than a ‘reasonable

25

possibility’ that the error was harmful.”), quoting Brecht, 507 U.S. at 637.

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The Court finds that the state court adjudication of claim two is neither contrary to,
nor involves an unreasonable application of, clearly established federal law, and is not

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based on an unreasonable determination of the facts, and that any error is harmless.

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Accordingly, the Court recommends denying habeas relief as to claim two. IV.

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CONCLUSION

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For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court

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issue an Order (1) approving and adopting this Report and Recommendation, and

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(2) directing that Judgment be entered denying the Petition.

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IT IS ORDERED that no later than October 30, 2017, any party to this action may

8

file written objections with the Court and serve a copy on all parties. The document should

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be captioned “Objections to Report and Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objections shall be filed with

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the Court and served on all parties no later than November 6, 2017. The parties are advised

12

that failure to file objections with the specified time may waive the right to raise those

13

objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

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Dated: October 16, 2017

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