Opinion
B185348
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. JOHN ALEX HO, Defendant and Appellant.
Fay Arfa for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of a motion to suppress evidence, John Alex Ho pleaded no contest and was found guilty of one count of possession of a controlled substance (methamphetamine) while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)) and one count of possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). On appeal Ho contends the handgun discovered during a pat search and the baggie containing methamphetamine found on the ground near where he was standing when detained were the fruit of an illegal detention and should have been suppressed. We affirm.
The trial court sentenced Ho to the low term of two years in state prison on count 1 (possession of methamphetamine while armed with a loaded, operable firearm) and to a concurrent term of eight months (one-third the middle term) on count 2 (possession of methamphetamine). The sentence imposed appears to have been part of Hos negotiated plea agreement and is not challenged on appeal by either Ho or the People. (See People v. Shelton (2006) 37 Cal.4th 759, 763; People v. Panizzon (1996) 13 Cal.4th 68, 79; Cal. Rules of Court, rule 4.412(b).)
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at the suppression hearing established that on the evening of September 19, 2004 Alhambra Police Officer James Hammond and his partner, Corporal Quesada, were on patrol in plain clothes and driving an unmarked vehicle, focusing on parking lots where criminal activity had recently been on the increase. At approximately 8:00 p.m. the officers entered a parking lot serving several stores and restaurants and saw Ho and three other people inside a car (an Acura) parked in the middle of the lot, with a number of empty parking rows between the car and the open fast-food restaurants. Hos car was close (approximately one-car space) to, and facing the same direction (north) as, a second parked car (a Honda) in the middle of the lot. The second car had only one occupant, a female.
There had been at least one recent report of a car burglary in the parking lot.
Ho left the Acura from the front passenger side door and went around the Honda and entered it on its front passenger side. Officer Hammond observed Ho sit down and speak to the individual inside the Honda for about 30 seconds before leaving the car.
Because the brief amount of time Ho had spent inside the Honda suggested to the officers he may have engaged in a drug transaction or committed a robbery, they decided to make contact with him. The officers drove to within 10 to 15 feet of the two cars, activating their police vehicles overhead lights for "less than a couple of seconds" and chirping its siren to identify themselves as police officers. As the officers approached in their vehicle, Ho walked away from the Honda, back toward the drivers side of the Acura without looking at the officers or otherwise acknowledging their presence as he passed in front of them.
Officer Hammond got out of the police vehicle and approached Ho, who had stopped by the rear door on the drivers side of the Acura with his back turned to Hammond. When Hammond was within 10 feet, he attempted to engage Ho in conversation by asking "Who are you?" and "What are you doing here?" in a soft tone of voice. Ho did not respond. Hammond repeated his questions, "try[ing] to get [Ho] to turn around." The officer feared Ho might be removing something from his pockets to use as a weapon because he could not see his hands. This time Ho turned around. Hammond then asked Ho to identify himself and to explain why he was in the parking lot. There was no substantive response.
Although Ho was wearing "extremely baggy" pants, Officer Hammond noticed bulges in the front pockets, particularly the left-front pants pocket. Hammond asked Ho to submit to a pat search; Ho refused. Hammond then inquired whether Ho been previously arrested, and Ho answered he had a prior arrest for possessing a knife. When Hammond asked if Ho had a knife with him, Ho indicated his right-front pants pocket contained a knife, but again refused to allow Hammond to conduct a pat search or to remove the knife.
Officer Hammond repeatedly asked about the contents of Hos left-front pants pocket, the one with the larger bulge. Rather than respond, however, Ho kept putting his hand in his right-front pocket, saying it contained the knife. Hammond, fearing for his safety, called for his partner, who had been interviewing the occupant of the Honda, to assist him. Corporal Quesada came over and, after being informed of the situation, conducted a pat search of Ho and recovered a handgun in Hos left-front pocket. Following Hos arrest, the officers found a baggie containing methamphetamine on the ground near the Acura several feet from the spot where Ho had stood with his back to Hammond.
The woman in the Honda told Corporal Quesada she had been waiting for her brother and did not know Ho. Quesada, who found the womans explanation implausible because Ho had appeared to enter the car through an unlocked door, did not report this information or his reaction to it to Officer Hammond until after the pat search.
At the conclusion of the hearing defense counsel moved to suppress the handgun and methamphetamine, arguing they were seized as the result of an unlawful detention. The trial court expressly found Officer Hammonds testimony credible. The court stated it was giving no weight to the suggestion Hos baggy pants and Pendleton shirt over a tank top constituted "gang attire" or to the areas supposed high crime rate. Nonetheless, the court denied the motion to suppress, concluding the initial contact was a permissible consensual encounter between Hammond and Ho and that, once Hammond knew Ho was armed with a knife, Hammond and Quesada were justified under all the circumstances in detaining Ho and conducting the pat search.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress evidence, the appellate court defers to the trial courts factual findings, express or implied, when supported by substantial evidence. (People v. Brendlin (2006) 38 Cal.4th 1107, 1113; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Brendlin, at p. 1113; People v. Ramos (2004) 34 Cal.4th 494, 505.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890; see People v. Brendlin, supra, 38 Cal.4th at p. 1113.)
2. Governing Fourth Amendment Principles
a. What is a detention?
Police contacts fall into "three broad categories: 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 individuals liberty." (In re Manuel G. (1997) 16 Cal.4th 805, 821; see People v. Hughes (2002) 27 Cal.4th 287, 327-328; People v. Daugherty (1996) 50 Cal.App.4th 275, 282-283.) A consensual encounter between a police officer and an individual does not trigger Fourth Amendment scrutiny and requires no articulable suspicion that the person has committed or is about to commit a crime. (In re Manuel G., at p. 821.)
An individual is detained for Fourth Amendment purposes when the suspect either submits to a show of authority or is physically restrained by a police officer. "Justice Stewarts opinion in United States v. Mendenhall (1980) 446 U.S. 544, 554 [100 S.Ct. 1870, 64 L.Ed.2d 497], which has been adopted by the court in subsequent cases [citation], states that `a person has been "seized" within the meaning of the Fourth Amendment 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.. . . The high court subsequently made clear that this test `states a necessary, but not a sufficient, condition for seizure. [Citation.] That is, there must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. [Citation.]" (People v. Brendlin, supra, 38 Cal.4th at p. 1115; accord, Wilson v. Superior Court (1983) 34 Cal.3d 777, 789.) "A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the persons liberty [citations]; the police conduct communicated to a reasonable innocent person that the person was not free to decline the officers request or otherwise terminate the encounter [citation]; and the person actually submitted to that authority [citation] for reasons not `independent of the official show of authority [citation]." (Brendlin, at p. 1118; see also California v. Hodari D. (1991) 499 U.S. 621, 628 [111 S.Ct. 1547, 113 L.Ed.2d 690] ["Mendenhall establishes that the test for existence of a `show of authority is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officers words and actions would have conveyed that to a reasonable person."].)
b. When may an individual be detained?
Although a police officer may approach an individual in a public place and ask questions if the person is willing to listen, the officer may detain the person only if the officer has a reasonable, articulable suspicion the detainee is or is about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889].) To satisfy this requirement, the police officer must "point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231; United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed.2d 1] ["if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot, even if the officer lacks probable cause. [¶] The officer, of course, must be able to articulate something more than an `inchoate and unparticularized suspicion or "hunch." [Citation.] The Fourth Amendment requires `some minimum level of objective justification for making the stop."].)
The officers suspicion must also be objectively reasonable; the facts must be such that any reasonable officer in the detaining officers position would suspect the same criminal activity and the same involvement by the person in question. (People v. Aldridge (1984) 35 Cal.3d 473, 478.) In evaluating whether that standard has been satisfied, we must examine the "totality of the circumstances" in each case to determine whether a "particularized and objective basis" supports the detention. (United States v. Cortez (1981) 449 U.S. 411, 417 [101 S.Ct. 690, 66 L.Ed.2d 621].) "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person. [Citations.] Although an officers reliance on a mere "`hunch" is insufficient to justify a stop, [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [citation]." (United States v. Arvizu (2002) 534 U.S. 266, 273-274 [122 S.Ct. 744, 151 L.Ed.2d 740].) If the officer has such an objectively reasonable suspicion, a defendants motion to suppress evidence seized in a search incident to the detention is properly denied. (People v. Daugherty, supra, 50 Cal.App.4th at pp. 288-289; People v. McDonald (2006) 137 Cal.App.4th 521, 530.)
3. No Detention Occurred Until Officer Hammond Summoned Assistance from His Partner
Ho was unquestionably detained when Officer Hammond summoned his partner, Corporal Quesada, to come to his aid and Quesada conducted the limited pat search that uncovered the handgun concealed in Hos left-front pants pocket. Hos contention he was detained at an earlier point — as soon as Hammond spoke to him in the parking lot — and his related argument the detention was unlawful because there was no objective basis for the officer to entertain a reasonable suspicion of criminal activity at that earlier point, viewed in light of all the circumstances, are unfounded.
Officer Hammonds initial contact with Ho — driving the patrol car to within 15 feet of him as he began to walk from the Honda back to the Acura and briefly activating its lights and siren to identify himself and his partner as police officers — did not implicate the Fourth Amendment. The officers unmarked vehicle did not block either Ho or the Acura in which he had been sitting (compare People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [no detention when officers parked patrol vehicle in manner that permitted defendants car to leave] with People v. Wilkins (1986) 186 Cal.App.3d 804, 808-809 [detention occurred when officer parked marked police car diagonally behind defendants vehicle so it could not leave a convenience store parking lot]); and the brief use of the emergency lights and siren when the patrol car was still some distance from Ho constituted a safe and practical way for the officers immediately to identify themselves to the people in the two cars, rather than engaging in a display of authority consonant with a detention. (Compare United States v. Mendenhall, supra, 446 U.S. at p. 555 [officers identification of himself as a police officer, without more, does not convert a consensual encounter into a seizure requiring some level of objective justification] with People v. Bailey (1985) 176 Cal.App.3d 402 [parking directly behind defendants vehicle and activating emergency lights constituted detention].)
Although Ho asserted in the trial court he was detained at this point, on appeal he has abandoned that position and argues instead he was first detained when Officer Hammond approached him on foot and began questioning him.
Similarly, Officer Hammonds decision to leave the patrol car, walk up to Ho and question him in a normal tone of voice did not constitute a detention under the Fourth Amendment. A police officer may approach and question an individual and ask for identification or permission to search on the street or in other public places if the individual reasonably feels free under the circumstances to decline the officers requests or otherwise to terminate the contact. (Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cty (2004) 542 U.S. 177, 185 [124 S.Ct. 2451, 159 L.Ed.2d 292]; INS v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758, 80 L.Ed.2d 247]; Wilson v. Superior Court, supra, 34 Cal.3d at p. 789 [no detention if officer approaches individual in public place and "put[s] questions to him if the person is willing to listen"]; People v. Daugherty, supra, 50 Cal.App.4th at p. 283.)
The nature of the encounter did not change in a constitutionally significant manner when Ho turned to face Officer Hammond, who proceeded to ask Ho once again to identify himself, requested permission to conduct a pat search (rather than demanding that Ho submit to such a search) and then inquired whether Ho had ever been arrested. (People v. Lopez (1989) 212 Cal.App.3d 289, 292-293 [no detention even though questions asked by police officer were somewhat accusatory]; see Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389] ["No seizure occurs when police ask questions of an individual, ask to examine the individuals identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required."].) Through this point in their interaction, there was no evidence Hammond threatened or used physical force, displayed a weapon, used abusive language, spoke in commanding tones, made any threatening gestures or touched Ho. (United States v. Mendenhall, supra, 446 U.S. at pp. 554-555 ["Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officers request might be compelled. [Citations.] 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."].)
For his part, Ho was not obligated to respond to Officer Hammonds questions or otherwise to cooperate during the contact. (Florida v. Royer (1983) 460 U.S. 491, 498 [103 S.Ct. 1319, 75 L.Ed.2d 229 (plur. opn.) [in a consensual encounter, "[t]he person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds."].) The record establishes not only that Hammonds initial questioning of Ho occurred in a consensual context — one without any constitutionally meaningful show of authority — but also that Ho clearly understood he was not obligated to cooperate with Hammond and behaved accordingly: Although Ho did not attempt to leave the parking lot or to terminate the encounter, he discouraged the police contact, first by not reacting to the brief use of the overhead lights and siren, and then by ignoring Hammonds inquiries. After finally acknowledging the officers presence by turning to face him, Ho denied him permission to perform a pat search and, after disclosing that he was carrying a knife, refused to take it out of his pocket and give it to the officer. (Cf. California v. Hodari D., supra, 499 U.S. at pp. 620-628 [fleeing suspect who did not comply with pursuing officers "show of authority" was not seized within meaning of Fourth Amendment until he was physically restrained].)
To this point, Officer Hammond never indicated, directly or indirectly, that Ho was not free to go; and Ho repeatedly demonstrated his understanding that any compliance with Hammonds requests remained voluntary. (See People v. Perez, supra, 211 Cal.App.3d at p. 1496 [although the officers actions "might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention."]; cf. California v. Hodari D., supra, 499 U.S. at pp. 620-628 [submission to show of authority required for seizure to occur].) However, after Ho declined to answer Hammonds questions about the contents of his left-front pants pocket — the one with the larger bulge — as well as Hammonds request to remove the knife from his right-front pants and for permission to conduct a pat search, Hammond called for his partner to provide assistance. At this point, when both officers were present and confronting Ho and their interaction shifted from requests to commands, Ho was detained. (See United States v. Mendenhall, supra, 446 U.S. at p. 554 ["threatening presence of several officers" one of factors pointing to detention].)
4. Officer Hammond Had an Objective Basis, Supported by Specific Articulable Facts, To Detain Ho
Officer Hammond initiated his direct contact with Ho because he believed Ho may have just participated in a drug transaction or perhaps committed a robbery involving the woman in the Honda. The officer drew this inference from his observations that: (1) the Acura and Honda were parked parallel to each other in the middle of the lot, away from the open fast-food restaurants; (2) Ho walked from the Acura, where he had been sitting in the passenger seat, to the Honda, but then spent only 30 seconds inside the Honda speaking to the female occupant before immediately returning to the Acura; (3) Ho failed to react to the officers brief activation of the patrol vehicles lights and siren; (4) Ho walked back to the drivers side rather than to the passenger side of the Acura from which he had emerged; and (5) Ho did not answer or face the officer during initial questioning (when Hammond asked, "Who are you?" and "What are you doing here?").
It is a close question whether this information alone would justify a detention, particularly in light of the trial courts findings the People had failed to establish either that the parking lot was located in a high-crime area or that there was anything inherently suspicious about the baggy clothing worn by Ho. However, in response to questions put to him during the initial consensual encounter, Ho revealed not only that he had a prior arrest that involved the possession of a knife but also that he had a knife in his pants at that moment. When that information is considered together with the officers observations of Hos conduct and the inferences reasonably drawn from them based on his training and experience, we are left with no doubt that Officer Hammond possessed a particularized and objective basis to conclude Ho had committed or was about to commit a crime. Moreover, Hos admission he was carrying a knife in his right-front pants pocket, together with Hammonds observation of the larger bulge in the left-front pocket, which Hammond testified had caused him to be concerned for his own safety, were plainly sufficient to support a reasonable belief that Hammond (and perhaps his partner) were in danger and therefore to justify the pat search conducted by Corporal Quesada after Hammond called for help. (Terry v. Ohio, supra, 392 U.S. at p. 27 [during lawful temporary detention, police officer may conduct limited, protective pat search for weapons if the officer has "reason to believe that he is dealing with an armed and dangerous individual . . . . The issue 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."]; People v. Avila (1997) 58 Cal.App.4th 1069, 1074.)
Had Officer Hammond actually witnessed activity inside the Honda that appeared to him to be a drug transaction, an investigatory detention would plainly be authorized. (See, e.g., People v. Limon (1993) 17 Cal.App.4th 524, 531-534 [defendant engaged in what appeared to be a hand-to-hand drug sale]; People v. Mims (1992) 9 Cal.App.4th 1244, 1248 [same].) However, Hammond testified only that "something occurred" in the Honda and acknowledged on cross-examination that he was unable to see what had happened inside the car.
In sum, at the point Ho was actually detained by Officer Hammond and Corporal Quesada, the detention was fully justified. Accordingly, the trial court properly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur:
WOODS, J.
ZELON, J.