Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS040801.
ELIA, J.
On February 17, 2004, the Monterey County District Attorney filed a complaint in which appellant was charged with felony possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count one) and misdemeanor falsely identifying himself to a police officer (Pen. Code, § 148.9, subd. (a), count two). Attached to the felony count were allegations that appellant had previously incurred one "strike" under the Three Strikes Law, and had previously served four separate prison terms (Pen. Code, §§ 1170.12, subd. (c)(2)), 667.5, subd. (b)). On or about February 20, 2004, the complaint was amended to add a second "strike" prior. Appellant waived his right to a preliminary examination and was held to answer on February 26, 2004. The parties stipulated that appellant would be certified to superior court on the amended complaint.
On April 21, 2004, appellant filed a motion to suppress evidence. (Pen. Code, § 1538.5.) Following a hearing on May 19, 2004, the trial court denied the motion. Subsequently, appellant was arraigned on the amended complaint, and he entered pleas of not guilty.
Thereafter, the District Attorney filed an information on July 21, 2004, charging appellant with the same substantive offenses as were charged in the amended complaint. However, the information increased the number of prior "strike" allegations to three. (Pen. Code, § 1170.12, subd. (c)(2).) In addition, the information included four prior separate prison term enhancement allegations. (Pen. Code, § 667.5, subd. (b).) Again, appellant pleaded not guilty.
Following a mistrial, a new jury was selected on January 23, 2006. The trial of the priors was bifurcated from the trial of the substantive charges.
The jury returned with verdicts on January 25, 2006, finding appellant guilty on both counts. After that, the priors were tried to the jury. The jury found true the three alleged "strikes" and the four prior prison term allegations. (Pen. Code, §§ 1170.12, subd. (c)(2)), 667.5, subd. (b).)
On May 2, 2006, appellant filed a Romero motion to strike two of the three "strike" findings. Subsequently, appellant filed a motion for a new trial. (Pen. Code, § 1181.) On May 23, 2006, the trial court denied the motion for new trial. At the same time, the trial court denied the motion to vacate the "strike" findings. The trial court sentenced appellant to 25-years-to-life in state prison for count one. For count two, the court ordered appellant to serve 30 days in county jail to be served concurrently with the indeterminate term imposed for count one. In furtherance of justice, the court struck the punishment for the four prior prison term allegations. (Pen. Code, § 1385.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On May 25, 2006, appellant filed a timely notice of appeal. On appeal, appellant raises three issues. First, he contends that the trial court erred in denying his motion to suppress evidence. Second, the trial court erred in excluding evidence. Finally, the evidence was insufficient to support the jury's finding that, previously, he had been convicted of assault with a deadly weapon. For reasons that follow, we agree with appellant's first contention. Accordingly, we reverse the judgment.
Facts
Prosecution Case
Around 1:35 a.m. on February 12, 2004, Seaside Police Officer Miguel D'Oliveira was driving his fully marked patrol car northbound on Fremont Street; he saw appellant walking diagonally across the intersection of Playa Avenue and East Frontage Road. No one else was with appellant. Officer D'Oliveira was alone. He pulled over to East Frontage Road, passed appellant, and parked his patrol car. When Officer D'Oliveira got out of his car, appellant was on the sidewalk, about 10 feet away from him.
At the time of trial, D'Oliveira was no longer a full time officer, but was a reserve officer with the City of Seaside.
Officer D'Oliveira testified that he "asked [appellant] if [he] could talk to him." Appellant "small talked, " saying he had just been in an argument with his girlfriend. At some point during the ensuing conversation, Officer D'Oliveira asked appellant to identify himself. Appellant did not have any identification, but he said his name was Jeffrey Chalmers.
When Officer D'Oliveira first made contact with appellant, appellant had his left hand open, but his right hand was clenched in a fist. Officer D'Oliveira asked to see appellant's hand. According to Officer D'Oliveira, appellant seemed "real nervous." Appellant refused to show his hands to the officer, but then he raised his arms. Officer D'Oliveira saw that appellant had his "pinky and index finger" extended, but his middle finger and ring finger were still clenched. Officer D'Oliveira thought appellant might have a weapon. Twice more, Officer D'Oliveira asked appellant to show him his hands. Again, appellant refused.
Subsequently, Seaside Police Sergeant Glen Hanano arrived on the scene as a backup officer. According to Officer D'Oliveira, he continued to question appellant. He asked appellant what he was doing there. Again, he asked appellant to open his hands, but appellant would not show Officer D'Oliveira what was in his right hand. Except for a very brief time when appellant did not have his hand drawn up into his sleeve, Sergeant Hanano could not see appellant's hand at all. Like Officer D'Oliveira, Sergeant Hanano became concerned that appellant might be armed.
Sergeant Hanano testified at trial that he was present when Officer D'Oliveira asked appellant for his name. Sergeant Hanano said that appellant did not identify himself as Charles Hutcherson or anything similar to that, but he could not remember the name appellant gave. Nevertheless, Sergeant Hanano testified that when appellant did identify himself, he knew that the name that appellant gave to Officer D'Oliveira was false, although he did not know what appellant's true name was at that moment.
Sergeant Hanano learned appellant's true name when appellant was booked.
Appellant continued to keep his right hand withdrawn in his sleeve, and refused to produce it. Officer D'Oliveira told appellant to put his hands on the top of his head. Officer D'Oliveira told appellant that he was going to pat-search appellant for weapons. Then, appellant stepped back, as if to avoid the officers. Appellant "object[ed] verbally." Officer D'Oliveira grabbed appellant's right hand at about the same time as Sergeant Hanano grabbed appellant's left arm and hand. At some point, appellant spun around. He tried to pull away and run, but the officers restrained him and a struggle ensued.
While at a nearby gas station, an off-duty Seaside Police Officer, Officer Frank Martin, saw the two officers struggling with appellant. He came to help them subdue appellant. The struggle lasted only a matter of seconds. With Officer Martin's help, Officer D'Oliveira and Sergeant Hanano managed to get appellant to the ground where they handcuffed him. Officer Martin was only on-scene for about a minute. He left after appellant was handcuffed but before appellant was removed from the scene.
Immediately after Officer D'Oliveira had grabbed appellant, a small rock wrapped in clear plastic fell onto the sidewalk. According to Officer D'Oliveira the rock came from the direction of appellant's right hand. Even as the struggle was continuing, Officer D'Oliveira told Sergeant Hanano that appellant had had drugs in his hand. Sergeant Hanano saw the rock for the first time after Officer D'Oliveira picked up the rock from the ground. The rock was the size of a pebble. The plastic bag that contained the rock was twisted tightly. Based on his experience, Officer D'Oliveira thought the bag contained base cocaine. He placed appellant under arrest.
Officer D'Oliveira and Sergeant Hanano searched appellant at the scene. Sergeant Hanano pulled a clear plastic bag from the front pocket of appellant's pants. The bag was similar to a sandwich bag. It was loose and open, but inside were 26 separate bags that Sergeant Hanano suspected contained crack cocaine. Each baggie contained a rock about the same size as the one that appellant had been holding in his hand. Each rock was individually wrapped in clear plastic, similar to the one that appellant had been holding in his hand. Appellant had a glass pipe with some "Brillo, " inside it. Based on his experience, Officer D'Oliveira recognized this pipe as the type of pipe that is used to smoke base cocaine. Officer D'Oliveira did not find any other paraphernalia on appellant that would commonly be employed in the use of base cocaine. However, appellant was carrying about $517 in cash. In addition appellant had a disposable camera and a bottle of vodka, which was one-third full.
"Brillo" is scouring pad material.
Officer D'Oliveira testified that appellant did not have any lighters on him.
The police had the film from the camera developed. The photographs were admitted at trial as People's Exhibit 7. There was no evidence of when the photographs were taken. In People's Exhibit 7A, appellant was depicted wearing a pair of white pants, similar to a nylon jumpsuit. In another photograph, People's Exhibit 7B, appellant was depicted wearing dark blue pants. It is unclear from the reporter's transcript whether another photograph, People's Exhibit 7C, depicts appellant in white pants or blue pants.
At random, three of the bags suspected to be cocaine were tested and determined to contain cocaine base. The total estimated net weight of the substance was 7.04 grams.
Officer D'Oliveira testified that appellant did not appear to be intoxicated when he approached him, nor did he smell any odor of alcohol about appellant. Officer D'Oliveira did not detect any signs that appellant was under the influence of narcotics.
Similarly, Sergeant Hanano testified that he did not detect the odor of alcohol about appellant. At trial, Sergeant Hanano stated that appellant did not appear to have been under the influence of alcohol. Aside from his having been excited, appellant exhibited no signs of having been under the influence of narcotics. However, Sergeant Hanano did not specifically assess appellant for other indicia of being under the influence of narcotics such as pupil size and reaction, the feel of his skin, respiration, speech pattern, and heart rate. Similar to the other two officers who were present when appellant was arrested, Officer Martin testified that he did not detect the odor of alcohol on appellant, nor did he see any indications of recent drug use by appellant while he was at the scene. Officer D'Oliveira, Sergeant Hanano, and Officer Martin testified that during their contact with appellant, they did not detect any odor of vomit coming from appellant. Officer D'Oliveira said he did not see any reason to believe that appellant was of "unsound mind."
Seaside Police Officer Barry Pasquerosa, the lead narcotic detective for the Seaside Police Department's Investigations Division at the time of appellant's arrest was designated an expert in the area of sales of cocaine base in and around the area of Seaside. He opined that, despite the fact that appellant was found in possession of a pipe, which could be used to ingest base cocaine, the cocaine recovered from appellant on February 12, 2004, was packaged for sale. He testified that the rock cocaine was packaged in quantities that would typically sell for about $20 each. In addition, he opinied that possession of the amount of rock cocaine that appellant had, about a quarter ounce, would be consistent with what a mid-level dealer might possess.
Moreover, Officer Pasquerosa testified that appellant's possession of $517 dollars, concurrently with his possession of the drugs, bolstered his opinion that the drugs were possessed for the purpose of sale.
Defense Case
Appellant introduced the testimony of Public Defender's Investigator Nelson Rodriguez, who identified a pair of pants, which the parties stipulated were booked into evidence as appellant's property at the time of appellant's arrest. Investigator Rodriguez testified that these pants were the only pants booked into evidence as appellant's property.
At trial, the pants were designated Defense Exhibit A.
Investigator Rodriguez testified that he interviewed an individual named Bennie Easley on June 5, 2005, at a residential drug rehabilitation program in Daly City. Investigator Rodriguez showed Mr. Easley the pants, a black pair of "Dickey's" and then had Mr. Easley hold the pants while Investigator Rodriguez took several photographs of Mr. Easley holding them. At trial, Investigator Rodriguez identified seven photographs of Mr. Easley holding the pants.
Investigator Rodriguez described Mr. Easley as a big man, over six feet tall. Investigator Rodriguez testified that appellant is not a particularly large man. Investigator Rodriguez said that Mr. Easley appeared to be larger than appellant.
It appears that Hutcherson is five feet five inches tall.
Investigator Rodriguez testified that the pants looked as if they would fit Mr. Easley, although he testified that, when he was interviewing Mr. Easley, Mr. Easley refused to try them on. After testifying that the pants were larger than those appellant would "normally" wear, Investigator Rodriguez conceded that he did not know what appellant normally wore. In a courtroom demonstration, appellant took off his coat, fastened the pants, and held them up for the jury to see.
Pretrial Proceedings
Appellant filed a pretrial motion alleging that Officer D'Oliveira illegally detained him. Appellant claimed that because his Fourth Amendment rights were violated any evidence derived from the stop, arrest and search incident to arrest must be suppressed.
At the suppression hearing Officer D'Oliveira and Sergeant Hanano testified to a version of events very similar to their trial testimony. Specifically, Officer D'Oliveira testified that after he made contact with appellant and asked his name he asked his dispatcher to check to see if there were any outstanding warrants associated with that name. He continued to ask appellant questions waiting for a back-up officer to arrive. During this time, he noticed that he could not see appellant's right hand. After he asked appellant for his name, Officer D'Oliveira noticed that appellant's right hand "remained clenched." Accordingly, he asked appellant to open both his hands. Appellant "went ahead and he raised both hands up, but he just opened his left hand and remained having his right hand closed, clenched."
Officer D'Oliveira testified that he asked appellant four times to show him what was in his right hand, by saying " 'Come on. Let me see your hands.' 'How come you're not showing me your hands?' 'Show me your hands.' " The only time appellant showed his hand, his "small finger and index finger extended, thumb and the two middle fingers clenched." Officer D'Oliveira explained that he was concerned that appellant might have a weapon, which is why he told appellant he would like to conduct a pat-search for weapons. Appellant refused and Officer D'Oliveira and Sergeant Hanano began struggling with appellant. Appellant was placed under arrest for "obstruction" and searched incident to that arrest.
Sergeant Hanano testified that when he arrived on the scene appellant was "fairly calm . . . meaning not any more nervous than the average citizen would be while talking with a police officer." Sergeant Hanano heard Officer D'Oliveira ask appellant to open his hand "at least three" times. Sergeant Hanano was concerned that appellant might have a weapon in his right hand. He heard Officer D'Oliveira "ask[] [appellant] to put his hands behind his back." Appellant responded by taking "two steps backwards." At that point, both officers "grabbed" appellant.
Appellant testified that about a year-and-a-half before the suppression hearing he had been struck by a car. As a result, his right hand was deformed. He said he was unable to make a fist with his right hand. His "pinkie" extended out from his palm at a 45-degree angle, and at the knuckle, it jutted out even further. He said he was unable to bend his "pinkie" and had only a limited ability to move his ring finger. Appellant said that on the night of the charged offenses he did not clench his right hand into a fist.
Appellant testified that he had just come from his motel room across the street when Officer D'Oliveira first pulled up. Appellant said that he was on the sidewalk when Officer D'Oliveira pulled up behind him. According to appellant, the officer got out of his vehicle, and ordered him to stop. Officer D'Oliveira never "asked" anything; everything was an "order." Appellant testified he was never given any choices.
Appellant stated that he had no conversation with Officer D'Oliveira other than to ask the officer why he was stopping and bothering him. Appellant denied giving any name to the officer. In addition, he denied telling the officer that he had been in an argument or that he was just out for a walk. According to appellant, the officer never asked appellant any questions. He simply ordered appellant to stop.
Appellant denied withdrawing his hand into his sleeve. He denied trying to hide something in his hand. He said nothing fell out of his hand. Further, appellant said he never heard Officer D'Oliveira ask to see his hand.
Appellant said that when he asked the officer why he was being stopped, Officer D'Oliveira's only response was, " 'Shut up, shit face.' " According to appellant, the only thing the officer ever said about appellant's hand was, " 'Put your hands up, shit face.' " Appellant said his hands were open throughout the incident; he never tried to conceal his hand from the police.
In rebuttal, Officer D'Oliveira denied having used bad language to refer to appellant.
Appellant said Officer D'Oliveira never told him that he was going to pat search him for weapons. Appellant denied that he ever struggled with Officer D'Oliveira. However, when the second officer arrived, "they both took him to the ground."
After hearing testimony from Officer D'Oliveira, Sergeant Hanano, Sandy Rocca, and appellant, Judge Moody ruled that he did not believe appellant's testimony that he was unable to make a fist with his right hand. Specifically, Judge Moody noted that he had a good opportunity to look at appellant's hand when he testified and although appellant's "pinkie finger" had been "badly broken at one point in the past and sticks out at a[n] unnatural angle from the hand no matter what is done with the other three fingers, " it appeared that appellant "could close the other three into a fist." Judge Moody went on to say that he did not believe appellant's version of events, which he described as "in stark contrast to the testimony of two different officers."
Defense witness Sandy Rocca testified that on an unspecified night in mid-February, between 1:00 and 1:30 a.m., she was coming from the Shadow Box Car Club in Seaside. At the time of the suppression hearing, Ms. Rocca could not recall what day of the week it was when she was leaving the club. She said that that was the only time that she had ever been to that club. It was dark when Ms. Rocca was leaving the club, but she saw a black male in the crosswalk, crossing the street ahead of her. Ms. Rocca was not with the man. She was about 20 feet behind him. The man was halfway into the crosswalk when Ms. Rocca started into the crosswalk behind him. Ms. Rocca did not talk to the man.
As to the reason for the contact, Judge Moody noted, "there doesn't have to be a reason for an initial contact. Police can contact someone. They can't do much more than that without some development of reasonable cause to believe that something of a criminal nature might be underfoot."
As to the reasonable cause to search appellant, Judge Moody noted that the two officers "independently were concerned about the possibility that [appellant] might have a weapon. And not one, but two testified that he was asked on a number of occasions to show that right hand, and he didn't comply with that. It would have been an easy enough thing to do. Just simply put both hands out so they can be looked at. Instead, for whatever reason, [appellant] perpetuated the suspicions of the officer by not clearing up the question, which he could have done."
Discussion
Appellant contends that the trial court erred in denying his motion to suppress the evidence found by Officer D'Oliveira because the initial stop was an unlawful detention in violation of the Fourth Amendment to the United States Constitution.
The standard of review for the denial of a motion to suppress is well settled. "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) Whether relevant evidence obtained by asserted 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.)
Appellant argues that he gave Officer D'Oliveira no reason for stopping him. All the evidence showed was that he walked across the street. Nothing about his actions suggested that he was engaged in illegal activity. Further, Officer D'Oliveira did not claim that he was acting suspiciously, or was in distress.
"Police contacts with individuals may be placed into three broad categories ranging from the least intrusive 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.) Initially, "[o]ur present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [¶] The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As 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. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citation.]" (Ibid; see also Wilson v. Superior Court (1983) 34 Cal.3d 777; Florida v. Bostick (1991) 501 U.S. 429 [111 S.Ct. 2382] (Bostick).)
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. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [88 S.Ct. 1868].) Justice Stewart's opinion in United States v. Mendenhall (1980) 446 U.S. 544 [100 S.Ct. 1870] (Mendenhall), 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." (Id. at p 554.) "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 officer's words and actions would have conveyed that to a reasonable person." (California v. Hodari D. (1991) 499 U.S. 621, 628 [111 S.Ct. 1547].)
Appellant concedes that " 'not all personal intercourse between policemen and citizens involves "seizures" of persons.' " However, appellant argues that given the lateness of the hour and the manner in which the stop occurred, this was a " 'show of authority' that would indicate to any reasonable person that he must submit to authority, i.e., that he was not free to walk away."
Viewed in light of all the circumstances, appellant's contention that he was detained as soon as Officer D'Oliveira spoke to him, 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, are unfounded. At this point in their interaction, there was no evidence Officer D'Oliveira threatened or used physical force, displayed a weapon, used abusive language, spoke in commanding tones, made any threatening gestures or touched appellant. (See, 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 officer's 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"].)
However, given the lateness of the hour, after appellant declined to open his right hand and Sergeant Hanano arrived on the scene and both officers were present and confronting appellant and Officer D'Oliveira continued to tell appellant to show him what he had in his right hand, appellant was detained, even though Officer D'Oliveira testified he never raised his voice and never displayed his weapon. (See Mendenhall, supra, 446 U.S. at p. 554 ["threatening presence of several officers" and "use of language . . . indicating that compliance with the officer's request might be compelled" are factors pointing to detention].)
Relying on In re Frank V. (1991) 233 Cal.App.3d 1232 (Frank. V.), respondent argues that "the lateness of the hour, the isolation, and appellant's efforts to hide what was in his right hand, justified Officer [D'Oliveira']s requests to see what was in appellant's hand. Such requests were minimally intrusive, and they were justified by a reasonable concern for officer safety. The requests, in and of themselves, did not convert the consensual encounter into a detention."
In Frank V., the court held that an order that a person remove his hands from his pockets did not transform a consensual encounter into a seizure. Frank V. is distinguishable on its facts because the intrusion, significantly less than is at issue here, constituted "[a] mere request that a citizen remove his hands from his pockets . . . ." (Frank V., supra, 233 Cal.App.3d at p. 1239 .) Under the Frank V. court's analysis, it was significant that citizens could follow "[a] police order for bystanders to keep their hands in sight" and depart from the scene "as long as they kept their hands in sight." (Ibid., italics added.) Thus, Frank V.'s holding that compliance with such an order is consensual and thus carries no Fourth Amendment implications is unpersuasive for three reasons. First, the opinion relies solely on the incomplete pre- Bostick "free to leave" definition of a seizure. Second, it relies on cases finding that a seizure did occur, but that the seizure was reasonable, for its conclusion that there was no seizure at all. Third, explicitly, it disagrees with an earlier case, People v. Franklin (1987) 192 Cal.App.3d 935, 941 which ruled that an order that a person remove his hands from his pockets constitutes a seizure under the Fourth Amendment. (Frank V., supra, 233 Cal.App.3d at p. 1239.) Thus, even if Frank V. presented an analogous factual situation, which it does not, we would decline to follow it because we find the reasoning unpersuasive. (Cf. U.S. v. Enslin (9th Cir.2003) 327 F.3d 788, 795, [police officer's order that defendant take his hands out from under a blanket constituted a seizure under the Fourth Amendment]; U.S. v. Winsor (9th Cir.1988) 846 F.2d 1569, 1573, fn. 3 [" 'Compliance with a police "demand" is not consent' "].)
It is apparent from the record that Officer D'Oliveira was not concerned with seeing appellant's hands because he had seen them when appellant "raised both hands up . . . he just opened his left hand and remained having his right hand closed, clenched." What he wanted to see was what was in appellant's right hand.
The test devised by Justice Stewart in Mendenhall, supra, 446 U.S. at page 554 that a seizure occurs "if in view of all the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave" was modified in Bostick, supra, 501 U.S. at pages 435-436, to add that when a person "has no desire to leave" for reasons unrelated to the police presence, the coercive effects of the encounter can be measured better by asking "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter."
Frank V., supra, 233 Cal.App.3d 1232, 1238-1239, relies on three cases, all of which, unlike Frank V., recognize that a Fourth Amendment seizure had occurred, and consequently balance the interest invaded against the justification for that invasion to determine whether the seizure was "reasonable." (See Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, 109 [98 S.Ct. 330] [holding that a request that a driver step out of a vehicle after a lawful traffic stop "when balanced against legitimate concerns for the officer's safety" was "reasonable and thus permissible under the Fourth Amendment"]; People v. Beal (1974) 44 Cal.App.3d 216, 221, 220 [holding that a request that a passenger get out of a vehicle after a traffic stop "was perfectly reasonable and proper" given officer's testimony that the request was made because the officer "feared for his own safety"]; People v. Stafford (1972) 28 Cal.App.3d 405, 410 [holding that trial court "did not err" in determining that a police officer "had a reasonable belief, based on specific facts, that defendant presented a potential danger to his partner's safety and that [the officer] chose a means of neutralizing that danger [requesting defendant to take her hands out of her pockets] which involved a minimum intrusion"].) In fact, the Frank V. court itself engages in similar Fourth Amendment balancing, emphasizing "the delicate balance between Fourth Amendment rights and a police officer's safety" in reaching its conclusion, which belies an implicit acknowledgement that the encounter was not, in fact, consensual. (Frank V., at p. 1238; see Manuel G., supra, 16 Cal.4th at p. 821 [a "consensual encounter[ ]" results "in no restraint of liberty whatsoever" and consequently does "not trigger Fourth Amendment scrutiny"]; Bostick, supra, 501 U.S. at p. 435 ["no basis" required for consensual encounters].)
If this had been a consensual encounter and Officer D'Oliveira had only asked appellant if he could perform the pat search, appellant would have been justified in refusing. A pat search for officer safety reasons, based on specific and articulable facts that suggest a person is armed and presently dangerous, is constitutionally permissible when conducted incident to an investigative detention. (Terry v. Ohio, supra, 392 at pp. 22-24, 30.) However, law enforcement officers engaged in a consensual encounter can seek consent to search, but cannot induce cooperation by coercive means. (See e.g. U.S. v. Drayton (2002) 536 U.S. 194 [122 S.Ct. 2105].) Here, however, appellant's reluctance to be pat-searched resulted in the officers physically reaching toward appellant, struggling with him and then arresting him for "obstruction."
"[T]he temporary detention of a person for the purpose of investigating possible criminal activity may . . . be based on 'some objective manifestation' that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]" (People v. Souza (1994) 9 Cal.4th 224, 230.) "A detention is reasonable under the Fourth Amendment when the detaining officer can 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." (Id. at p. 231.)
Although circumstances short of probable cause to arrest may justify an officer's investigative detention, a detention may not be premised on mere curiosity, rumor, or hunch that the detainee is involved in criminal activity. (Terry v. Ohio, supra, 392 U.S. at pp. 21-22.) Instead, an investigative detention must be justified by specific and articulable facts, measured by facts known to the officer at the time he or she detains the suspect (People v. Bowers (2004) 117 Cal.App.4th 1261, 1268-1271), that make it objectively reasonable for an officer in a like position, drawing on training and experience, to suspect (1) a crime has occurred or is occurring and (2) the detainee is involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.)
Given all of the circumstances presented, there were no articulable facts justifying Officer D'Oliveira's suspicion that criminal activity, involving appellant, had occurred or was about to occur, which would have justifed appellant's detention. Officer D'Oliveira testified that appellant did not appear to be intoxicated when he approached him, nor did he smell any odor of alcohol about appellant. Officer D'Oliveira did not detect any signs that appellant was under the influence of narcotics.
Respondent argues that appellant's evasive conduct, coupled with the officers' training and experience satisfied the requirements for specific and articulable facts that criminal activity was afoot and that appellant was armed and dangerous. We disagree. During a lawful temporary detention, where an officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime" an officer may conduct a pat-search for weapons. (Terry v. Ohio, supra, 392 U.S. at p. 27.) "The officer need not be absolutely certain that the individual is armed; 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. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch, ' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation.]" (Ibid.)
Here, however, there was no lawful temporary detention. The only reason given for wanting appellant to open his right hand was that the officers thought appellant might have a weapon. However, according to Officer D'Oliveira's own testimony at the suppression hearing, he had seen appellant's right hand clenched in a fist involving only two fingers and a thumb. We find it unreasonable that Officer D'Oliveira could suspect that the appellant could conceal a weapon of any sort in a fist consisting of only two fingers and a thumb. At one point during the suppression hearing, the court asked Officer D'Oliveira what sort of weapon he suspected appellant was concealing in light of the fact that he had seen appellant's hands "in various configurations." Officer D'Oliveira testified that he thought appellant might have a razor blade or knife concealed "up the sleeve of his jacket." We see no relationship between appellant's refusal to show Officer D'Oliveira what was in his hand and the officer's conclusion that appellant could have had a razor blade or some type of knife hidden up his sleeve. Officer D'Oliveira had seen appellant's hands when "he raised both hands up." Accordingly, he was aware that there was nothing in appellant's hand that could resemble a weapon. Thus, he needed specific and articulable facts that suggested appellant was armed and presently dangerous. We find nothing in the record upon which to base such a suspicion. Officer D'Oliveira did not testify that he saw a bulge in appellant's sleeve, or that appellant kept his hand in his pocket covering a bulge, or that he admitted to possessing a weapon.
Where a consensual encounter has been found, an officer may request that the person consent to a search or remove his hands from his pockets. (People v. Franklin, supra, 192 Cal.App.3d 935, 941.) "However, if the manner in which the request was made constituted a show of authority such that appellant reasonably might believe he had to comply, then the encounter was transformed into a detention." (Ibid.)
Even if we were to assume that Officer D'Oliveira thought that appellant might have a razor concealed in his hand, this too is an unsupportable conclusion. Officer D'Oliveira testified that appellant's hand "remained clenched." We fail to see how a person could conceal a razor blade in a clenched fist without causing the fist to bleed.
As Justice Harlan pointed out in his concurring opinion in Terry: "[T]he officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. . . . [O]rdinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection." (Terry v. Ohio, supra, 392 U.S. at pp. 32-33, Harlan, J. concurring, italics added.) "Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security. . . ." (Id. at pp. 24-25.) A Terry frisk "is a serious intrusion upon the sanctity of the person . . . and it is not to be undertaken lightly." (Id. at p. 17, fn. omitted.) "[D]espite the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety, the Court in Terry did not adopt a bright-line rule authorizing frisks for weapons in all confrontational encounters." (Maryland v. Buie (1990) 494 U.S. 325, 334, fn. 2 [110 S.Ct. 1093].)
Officer D'Oliveira violated the Fourth Amendment because it was an unreasonable seizure under the circumstances. When an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. (Florida v. Royer (1983)460 U.S. 491, 498 [103 S.Ct. 1319].) Further, any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." (Bostick, supra, 501 U.S. at p. 437.)
Finally, respondent contends that even if Officer D'Oliveira's contact with appellant could be deemed a detention it was justified because Officer D'Oliveira had observed appellant walking across the middle of the roadway at Playa and East Frontage Road. Thus, respondent asserts that to the extent that the record would support a finding that there was probable cause to believe that appellant committed a criminal infraction by unlawfully crossing the street outside the crosswalk, then, as a matter of federal constitutional law, appellant was subject to warrantless arrest. We find two problems with this argument. First, Officer D'Oliveira did not stop appellant for jaywalking. Officer D'Oliveira testified that he "asked if [he] could speak to [appellant] and asked if he was okay." Furthermore, Officer D'Oliveira testified that he "never" indicated that appellant was not free to leave. If Officer D'Oliveira had stopped appellant for jaywalking, appellant would not have been free to leave until Officer D'Oliveira had issued a citation. Even though the prosecutor argued that Officer D'Oliveira had seen appellant jaywalking, the prosecutor did not argue that Officer D'Oliveira stopped appellant in order to cite him for jaywalking. In fact the prosecutor argued that the stop was "supported by, quite frankly, nothing. [¶] Officers are allowed to talk to people." Moreover, as noted, the court found that this was a consensual encounter. It is settled that no new theory can be raised for the first time on appeal. (People v. Smith (1983) 34 Cal.3d 251, 270-271.) Second, there was no evidence presented that appellant was subject to Vehicle Code section 21955, which provides that pedestrians shall cross "adjacent intersections controlled by traffic control signal devices or by police officers" only "in a crosswalk." (Italics added.) In which case, appellant was required to comply with Vehicle Code section 21954, which provides that "[e]very pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard." Since there was no evidence presented that appellant did not do this, there was no reason for Officer D'Oliveira to stop him.
In sum, at the point that appellant was actually detained by Officer D'Oliveira and Sergeant Hanano there was no justification for the detention, or for the attempted pat-search. Appellant's arrest was based on his refusal to comply with Officer D'Oliveira's demand that he put his hands behind his back. Since appellant was illegally detained, the evidence found during the search incident to arrest should have been suppressed. (Wong Sun v. United States (1963) 371 U.S. 471 [83 S.Ct. 407].)
Since this case must be reversed it is not necessary to address appellant's remaining contentions.
Disposition
The judgment is reversed.
WE CONCUR: RUSHING, P. J., PREMO, J.
At the suppression hearing, trial counsel asked Ms. Rocca if she had ever seen appellant before, and Ms. Rocca said, "I think so." However, Ms. Rocca testified that she never saw the face of the man who was walking across the street. She said that after the man crossed the street, he went one way, and she went the other. Ms. Rocca said that, as she proceeded on her separate way, she turned back and saw that the police had stopped the man. There was one officer with him. Ms. Rocca looked at the man and the officer for only a couple seconds. Then, she turned around and kept going the other way.
When the prosecutor moved to have Ms. Rocca's testimony struck from the record as irrelevant, Judge Moody did not strike it, but did state what appears to be a factual finding that "[Ms. Rocca's] testimony has not been connected to our event, and, even if it were, it doesn't seem to have any bearing." Defense counsel responded, "The relevance is that he [appellant] was in the crosswalk." Judge Moody replied: "She just hasn't hooked what she saw up to our event, at least at this point." On redirect, Ms. Rocca was only able to say that her observations took place sometime between February 10 and Valentine's Day.
"The basic premise behind 'consensual encounters' is that a citizen may consent voluntarily to official intrusions upon interests protected by the Constitution. If the citizen acts in reasonable submission to a show of authority, then his actions are not voluntary or consensual. Where consensual, consent may be withdrawn at any time. [Citation.] The citizen participant in a consensual encounter may leave, refuse to answer questions or decline to act in the manner requested by the authorities." (People v. Franklin, supra, 192 Cal.App.3d at p. 941.)