P. v. Lu
Filed 3/26/13 P. v. Lu CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KEVIN LU,
Defendant and
Appellant.
H037846
(Santa Clara
County
Super. Ct.
No. C1113650)
After the
court denied his Penal Code section 1538.5 motion to suppress evidence, Kevin
Lu (appellant) entered no contest pleas to one felony count of
(Health & Saf. Code, § 11377, subd. (a), count one) and one count of
& Saf. Code, § 11364, count two).
On January 13, 2012, the court suspended
imposition of sentence and admitted appellant to probation pursuant to
Proposition 36 (Pen. Code, § 1210 et seq.).
The court imposed various fines and fees. Relevant to this appeal, the court did not
calculate or award appellant any presentence
Appellant
filed a timely notice of appeal. On appeal, appellant challenges the denial of
his suppression motion and contends that the court erred in failing to
calculate his presentence custody credits.
For reasons that follow we reverse the judgment.
Discussion
Motion to Suppress
Appellant contends that he was
deprived of his rights under the Fourth and Fourteenth
Amendments when he was subjected to an illegal search and seizure.
A defendant
may move to suppress evidence obtained as the result of an unreasonable
search. (Pen. Code, § 1538.5, subd.
(a)(1).) Challenges to the admissibility
of a search or seizure must be evaluated solely under the Fourth
Amendment. (People
v. Carter (2005) 36 Cal.4th 1114, 1141.)
"Police
contacts with individuals may be placed into three broad categories ranging
from the least to the most intrusive: consensual encounters
that result in no restraint of liberty whatsoever; detentions,
which are seizures of an individual that are strictly limited in duration,
scope, and purpose; and formal arrests or comparable restraints on an
individual's liberty.
[Citations.]" (In re
Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
In
reviewing the trial court's denial of a suppression motion, we defer to the
trial court's factual findings if supported by substantial evidence, but
exercise our independent judgment to determine whether, on the facts found, the
search or seizure was reasonable under the
v. Camacho (2000) 23 Cal.4th 824, 830; People v. Glaser (1995) 11
Cal.4th 354, 362; People v. Weaver (2001) 26 Cal.4th 876, 924.)
The Fourth
seizures . . . .' " (United States. v. Mendenhall (1980)
446 U.S. 544, 550 (Mendenhall).)
A consensual encounter with a police officer is neither unreasonable nor
is it a seizure. (Id. at pp.
554–555.) As an example, a consensual
encounter occurs when an officer approaches a person in public and asks how he
or she is doing, or questions a person at a crime scene in a non-accusatory and
routine manner to determine whether he or she may have information about the
crime. (People v. Mendoza (2011)
52 Cal.4th 1056, 1081.) As opposed to a
consensual encounter, "a detention is a seizure within the meaning of the
Constitution; a seizure occurs when an officer restrains a person's liberty by
force or show of authority.
[Citation.]" (Ibid.)
"
'Although there is no "bright-line" distinction between a consensual
encounter and a detention . . . "the police can be said to have seized an
individual 'only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave.' " ' [Citations.] ' "The test is necessarily imprecise,
because it is designed to assess the coercive effect of police conduct, taken
as a whole, rather than to focus on particular details of that conduct in
isolation." '
[Citation.]" (Ford v.
Superior Court (2001) 91 Cal.App.4th 112, 124.) "Circumstances establishing a seizure
might include any of the following: the presence of several officers, an
officer's display of a weapon, some physical touching of the person, or the use
of language or of a tone of voice indicating that compliance with the officer's
request might be compelled. [Citations.]"
(Manuel G., supra, 16 Cal.4th at
p. 821.) "In the absence of some
such evidence, otherwise inoffensive contact between a member of the public and
the police cannot, as a matter of law, amount to a seizure of that
person." (Mendenhall, supra,
446 U.S. at p. 555.) Nevertheless, an
officer's "words and verbal tones are always considered," along with
how an officer physically approaches the subject, or if the officer attempts to
block the subject's path. (People v.
Garry (2007) 156 Cal.App.4th 1100, 1110–1112.) "The officer's uncommunicated state of
mind and the individual citizen's subjective belief are irrelevant in assessing
whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]" (Manuel G., supra, 16 Cal.4th at p.
821.)
To put it
another way," [a]s long as a reasonable person would feel free to
disregard the police and go about his or her business, the encounter is
consensual and no reasonable suspicion is required on the part of the
officer." (Manuel G., supra,
16 Cal.4th at p. 821.)
Although
both "detentions" and "arrests" are seizures under the
Fourth Amendment, distinctions are drawn between the two concepts since
"the constitutional standard for permissible detentions 'is of lesser
degree than that applicable to an arrest.' [Citation.]" (People v. Hester (2004) 119
Cal.App.4th 376, 386.) Thus, "[A]n
officer who lacks probable cause to arrest can conduct a brief investigative
detention when there is ' "some objective manifestation" that criminal
activity is afoot and that the person to be stopped is engaged in that
activity.' [Citations.] Because an investigative detention allows the
police to ascertain whether suspicious conduct is criminal activity, such a
detention 'must be temporary and last no longer than is necessary to effectuate
the purpose of the stop.'
[Citations.]" (People v.
Celis (2004) 33 Cal.4th 667, 674.)
Under such circumstances, in Terry v. Ohio (1968) 392 U.S. 1 (
created a limited exception that allows police officers to "stop and . . .
frisk for weapons" when they have an "articulable suspicion [the]
person has committed or is about to commit a crime." (Florida v. Royer (1983) 460 U.S. 491,
498.) It is well established that when
an officer has reason to believe that his suspect is armed and dangerous he may
conduct a superficial weapon search. (Adams
v. Williams (1972) 407 U.S. 143, 145.)
To justify
a detention, that is, to make it a lawful
detention, "the circumstances known or apparent to the officer must
include specific and articulable facts [which would cause the officer] to
suspect that (1) some activity relating to crime has taken place or is
occurring or about to occur, and (2) the person [the officer] intends to stop
or detain is involved in that activity."
(In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.), superseded on
Const., art. I, § 28.) Of course,
"[t]he corollary to this rule . . . is that an investigative stop or
detention predicated on mere curiosity, rumor, or hunch is unlawful, even
though the officer may be acting in complete good faith . . . ." (Ibid., citing Terry, supra, 392
U.S. at p. 22.)
In order to
address this issue, we set forth in detail the evidence adduced at the
suppression hearing and the trial court's factual findings.
San Jose
Police Officer Michael Panighetti testified that on the morning of
August 15, 2011, at approximately 4:45 in the morning, he was on patrol in
a marked police car; he was in full uniform, which included his standard
weapons—service weapon, taser, pepper spray and baton. As he was driving he saw two people walking
on the street; originally they had been standing in the shadow under a tree
between Nakomas Street and Ridgebrook when he first saw them. As the people walked on, Officer Panighetti
saw that one person was a man and the other a woman. The man was pushing a bicycle.
drew parallel with appellant and his companion, he asked them what they were
doing. Appellant's companion told the
officer that they were out for a walk; the officer asked if either of them was
on probation or parole. Appellant's
companion said she was on parole; at this time the officer was approximately 10
feet away from appellant and his companion talking out of the window of his
patrol car. Officer Panighetti's patrol
car was facing north in the southbound lane with the "nose" of the
car centered toward the curb; he was approximately two to three feet from the
curb and had the patrol car's headlights on.
After
appellant's companion stated that she was on parole, Officer Panighetti got out
of his patrol vehicle, shut the door but he left the patrol car headlights
on. Officer Panighetti testified that he
looked at appellant's female companion and motioned for her to come to him with
his right arm by pointing his right arm forward and cupping his right hand and
waving it back and forth; he said come here.
At this time, appellant and his companion were standing about four feet
apart with appellant slightly to the officer's right. According to Officer Panighetti he made eye
contact with only appellant's female companion, but he did have defendant in
his peripheral vision. Appellant's
female companion immediately took approximately two steps toward the officer;
at the same time appellant walked forward.
Appellant was still holding his bicycle and was coming toward the
officer at a quicker pace than his female companion. The female companion stopped and Officer
Panighetti told her to stay still; he asked appellant to put down his bicycle.
and continued to walk toward the officer.
Appellant walked right up to the officer. At the time, appellant was dressed in a
sweater and jeans; in court the officer described the clothing as not tight,
rather it was loose. Officer Panighetti
grabbed one of appellant's hands and asked him to turn around; the officer conducted
a pat search on appellant. In a pocket,
the officer felt what his experience taught him was a methamphetamine
pipe. After asking appellant twice if
the object that he was feeling was a pipe, appellant admitted it was. Officer Panighetti handcuffed appellant and
informed him he was being "detained" in relation to the
methamphetamine pipe. At this point
another officer arrived and took appellant to the rear of Officer Panighetti's
patrol car.
title="">[3]
In denying
the suppression motion the court made the following findings. "[T]here was not sufficient evidence in
the initial contact of [appellant] as well as with the woman that was on parole
to justify a detention at that time.
[¶] I [do] not think that that
initial contact was a detention. I think
it was a citizen contact and an officer doing exactly what would be expected of
them is to contact the person that's walking late at night and to see what
they're doing, so there was nothing inappropriate raising conduct by the
officer of a citizen con[tact] to a detention, nor was there any justification
for a detention . . . ." The court
determined that the detention occurred when "the officer directed
[appellant] to put the bike down. That
at that point there was specific commands in the direction and directed at
[appellant]." The court found that
Officer Panighetti was "credible that his questioning and motions were
directed specifically at the woman that was on parole" and so when
appellant "began to walk towards the officer -- even if [appellant]
innocently interpreted the motion and the statements to the woman that he was
with to include him, that doesn't change the officer's safety concerns that now
late at night alone in extremely close proximity certainly in proximity to use
a weapon . . . at four or five feet . . . .
[¶] I think at that time the
officer was justified in a brief pat-down search. Again two people there. One of them a parolee. There is no right to search a person with a
parolee, but I do think it is a fair assumption that when a parolee is present,
that causes a heightened sense of officer safety, and that as soon as he began
to approach -- even if he was misinterpreting the officer's directions to
the woman on parole, that that justified the officer in a brief detention to
pat down for weapons . . . ." The court concluded, "I don't think
there was reasonable articulable suspicion of criminal activity in the initial
contact really at any time, but there was a legitimate set of concerns once
[appellant] approached the officer in close proximity, and that was a valid basis
for the detention." Thus, as can be
seen, the court justified the detention on officer safety grounds.
Although we
believe that it is a very close case as to whether appellant was detained when
initially stopped by Officer Panighetti (see People v. Garry, supra, 156 Cal.App.4th at p. 1111 [after only five
to eight seconds of observing the defendant from his marked patrol car, the
officer bathed defendant in light, got out of his car and armed and in uniform
briskly walked 35 feet and directly questioned defendant about his legal
status]), we agree with the trial court that appellant was detained the moment
the officer told him to put down his bicycle and appellant complied. At that point in time, a reasonable person
would not have felt free to leave because to do so would have entailed leaving
behind his or her personal property.
Terry, supra, 392
U.S. 1, established the standards for search and seizure that we must follow
here. "At issue in [Terry]
was the constitutionality of a police procedure commonly known as a 'frisk' or
'pat-down' in which police officers conducting an investigation search a
suspect for concealed weapons.
Describing the procedure as 'a serious intrusion upon the sanctity of
the person,' the United States Supreme Court nevertheless concluded that it was
not 'unreasonable' if the police officer could 'point to specific and
articulable facts which, taken together with rational inferences from those
facts,' would warrant the intrusion. [Citation] Because the 'intrusion upon the sanctity of
the person' consists not only of the patdown itself but also of the temporary
an encounter, to make a forcible stop.'
[Citation.]" (People v.
Souza (1994) 9 Cal.4th 224, 229.)
To put it
another way, in order to lawfully detain an individual, even temporarily, an
officer must have a reasonable, articulable suspicion that the person has
committed or is about to commit a crime.
(Illinois v. Wardlow (2000) 528 U.S. 119, 123.) The temporary detention of a person for the
purpose of investigating possible criminal activity, because it is less
intrusive than an arrest, must be based on "some objective
manifestation" that criminal activity is afoot and that the person to be
stopped is engaged in that activity. (United
States v. Cortez (1981) 449 U.S. 411, 417 & fn. 2.) Inchoate concerns for officer
safety may justify certain minimal
intrusions. However, a reasonable,
articulable suspicion of criminal activity is still needed to justify
the initial detention.
(Terry, supra, 392 U.S. at p. 21; Tony C., supra, 21
Cal.3d at p. 893.) Conspicuous by its
absence in this case is any evidence that appellant was engaged in any criminal
activity at any time during his encounter with Officer Panighetti.
Respondent
contends that the companion of a person subject to search may, under certain
circumstances be detained while officers conduct a search of that person.
In
warrant to search an apartment and its two residents were told the two subjects
would be returning in a particular car.
(Id. at p. 1200.) When that car arrived outside the apartment,
the officers asked the defendant, who was driving, to get out so that the two
suspects could get out of the backseat; the officers pat searched him when he
did so. (Ibid.) The search was held
justified because the four police officers were dealing, at night, with five
occupants of a car, two of whom were subjects of a search warrant. The officers were " 'engaged
in an undertaking
fraught with the
potential for sudden
violence' " and it would be " 'utter
folly' to require
them to wait
is 'an overt
" (Id. at p. 1210.)
The
circumstances in Samples were significantly
different, and the reasoning of that case cannot be extended to authorize the
search here. As noted, in
probable cause to search two individuals suspected of possessing
methamphetamine for sale.
in which these suspects and three other individuals were riding.
1200, 1210.) Considering all of these
circumstances--the time of night, the fact that officers were dealing with five
people exiting from a car, and the apparent relationship of the car's other
occupants to the two passengers who were the subject of drug-related
warrants--the court concluded the police were justified in conducting pat
searches of the occupants to ensure officer safety. (Id. at pp.
1210-1212.) However, in this case appellant's
companion was not the subject of a warrant, and she was not suspected of being
a drug dealer or at the time when she was stopped being involved in criminal
activity of any kind. Nor were the other
officer safety concerns in Samples present
here. In Samples, the officers were dealing with suspected drug dealers.
defendant in Samples "was more
than just a casual, sidewalk companion of a person who was the subject of a
warrant . . . ." (
with a companion while pushing a bicycle in the early hours of the
morning. A time, 5 a.m., when it is
reasonable to believe they could have been walking to or home from work. As the trial court found, there were no suspicious
circumstances attached to their presence on the street at that time in the
morning. Further, Officer Panighetti did
not testify that he felt threatened at any time, even when appellant was
walking toward him.
validity of an officer's investigative or protective conduct under Terry,
the "touchstone of our analysis . . . is always 'the reasonableness in all
the circumstances of the particular governmental invasion of a citizen's
personal security.' " ' [Citation.]"
(People v. Thurman (1989) 209 Cal.App.3d 817, 824; see also People
v. Rivera (1992) 8 Cal.App.4th 1000, 1006.)
"Central to the Terry court's understanding of
reasonableness is the requirement of 'specificity in the information upon which
police action is predicated . . . .'
[Citation.] Thus, 'in justifying
the particular intrusion the police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.'
[Citation.]" (People v.
Glaser, supra, 11 Cal.4th at p. 363.)
An officer need not be certain that the individual is armed; the
fundamental test is "whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in
danger." (Terry, supra, 392
U.S. at p. 27; see also United States v. Garcia (9th Cir.1990) 909 F.2d
389, 391; People v. Castaneda (1995)
35 Cal.App.4th 1222, 1230; People v. Allen (1975) 50 Cal.App.3d
896, 902.)
" 'The
Terry case created an exception to the requirement of probable cause, an
exception whose "narrow scope" [the United States Supreme Court]
"has been careful to maintain."
Under that doctrine a law enforcement officer, for his own protection
and safety, may conduct a patdown to find weapons that he reasonably believes
or suspects are then in the possession of the person he has accosted. [Citation.]
Nothing in Terry can be understood to allow a generalized
"cursory search for weapons" or, indeed, any search whatever for anything
but weapons. The "narrow
scope" of the Terry exception does not permit a frisk for weapons
on less than reasonable belief or suspicion directed at the person to be
frisked . . . .' " (
thought appellant was armed and dangerous.
To the contrary, Officer Panighetti testified that he did not see any
bulges or anything in appellant's clothing before he pat searched him, which
would have given him a reasonable belief that appellant was armed. Rather, this was a generalized cursory search
for weapons, which under Ybarra v. Illinois (1979) 444 U.S. 85 (Ybarra) cannot be sanctioned.
In the
present case, the pat down search of appellant was unlawful under
justifying a pat down search under Terry and Ybarra is
that the officer must first have a reasonable belief or suspicion that the
suspect is engaged in criminal activity and also a reasonable belief or
suspicion that he is armed in order to conduct a pat search. Here, there was no evidence presented that
Officer Panighetti had any such reasonable belief or suspicion; in short his
testimony at the suppression hearing was bereft of any suggestion that he
reasonably believed appellant was engaged in criminal activity or that he
reasonably believed that appellant was in fact armed.
in this case, we are mindful that "[t]he judiciary should not lightly
second-guess a police officer's decision to perform a patdown search for
officer safety. The lives and safety of
police officers weigh heavily in the balance of competing
However, the Terry rule has been extant for over [forty years]
and is well known to the police.
[Citation.] It is alive and
well. [Citation.]" (People v. Dickey (1994) 21
Cal.App.4th 952, 957.)
We conclude
that the suppression motion was erroneously denied. The error is by its nature prejudicial where,
as here, appellant pleaded no contest after the erroneous
denial of a suppression
Ruggles (1985) 39 Cal.3d 1, 13.)
Accordingly, appellant must be allowed, if he so chooses, to withdraw
his no contest pleas. Since we must reverse
appellant's conviction, it is not necessary to address appellant's other issue
regarding the trial court's failure to calculate his presentence custody
credits.
Disposition
The order
granting probation is reversed. On
remand, the trial court shall enter an order granting appellant's motion to
suppress. The trial court is directed to
permit appellant to withdraw his guilty plea.
_________________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
name="_ftn1" title="">[1] In court, Officer Panighetti
identified appellant as the man with the bicycle.
name="_ftn2" title="">[2] Specifically, Officer Panighetti
testified "once she started coming towards me, she stopped, so I had her
stay there and I had him come to me since he was now walking towards me and he
was a little closer than she was."
Conspicuous by its absence is any testimony by the officer that at this
point in time he felt threatened by appellant's approach.
