Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050811588
Haerle, J.
I. INTRODUCTION
Manual Mills was arrested for loitering with the intent to engage in drug-related activity. (Health & Saf. Code, § 11532.) Subsequently, police conducted a search of Mills’s person, pursuant to which they found 12 individually wrapped pieces of cocaine base with a combined weight of 2.17 grams. Mills filed a motion to suppress evidence which was denied. Thereafter, Mills pleaded no contest to a charge of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) in exchange for a suspended sentence and probation.
Mills appeals the judgment on the ground that his suppression motion was erroneously denied. We agree with this contention and hence reverse the judgment.
II. STATEMENT OF FACTS
A. The Incident
Testimony presented at the hearing on the motion to suppress established the following facts about the events of March 17, 2008:
Richmond Police Officers Walton Nelson and Jesse Ney were on patrol. Nelson, who had been an officer for two months, was “under the watch of” Ney, who was his field training officer. At 12:00 noon, the officers spotted Mills standing on the corner of Cutting Boulevard and South 21st Street. When Mills noticed the police car, he waved to the officers. At 2:00 p.m., the officers saw Mills again, standing near the intersection of Cutting Boulevard and South 22nd Street. When Mills saw the police car, he turned and walked the other direction. At 4:26 p.m., the officers saw Mills on South 22nd Street, within a one-block radius of the two other locations where they had previously noticed him. Mills, standing mid-block on the sidewalk, was “blatantly” counting money until he noticed the police car, at which time he put the money in his pocket and began to walk away.
Ney, who was driving the patrol car, pulled over and stopped the car at a 45-degree angle to the sidewalk where Mills was standing. Both officers exited their vehicle, and Nelson reached Mills within a few seconds. Nelson placed handcuffs on Mills and the officers asked him questions about what he was doing in that neighborhood and where he lived. Ney told Mills that he could be arrested for loitering and then said: “you know people who hang out in this area and things like that, I know from my training and experience, they conceal drugs and things in their buttocks and crotch area and things.” Mills became extremely nervous and appeared to be sweating. Nelson said that he suspected Mills was engaged in narcotics activity. Ney then said something to the effect that “if you come clean, it will be much easier on you.” Mills responded that he would be up front with the officers and admitted that he was “dirty,” which Nelson understood to mean that Mills had been selling drugs. The officers then arrested Mills for loitering in a drug area and transported him to the police station for booking.
At the suppression hearing, Nelson testified that, after they spotted Mills for the third time on March 17, Ney told him that they were patrolling a high crime area where Ney had previously made approximately 15 drug related arrests. At that point, the officers made the decision to detain Mills based on their suspicion that he was loitering in a known drug area in violation of Health and Safety Code section 11532.
Ney testified at the hearing that the officers detained Mills because of the “totality of [his] actions,” including counting the money “blatantly out in front of him” and then “when he saw the police car, [he] immediately placed it into his pants pocket and began to walk away.” From Ney’s viewpoint, it appeared that, for “a four-hour period, [Mills was] loitering in the immediate area with no lawful business.” Ney also confirmed that he had made 15 prior arrests for sales of cocaine base in that area.
During the hearing, both officers were asked to describe what happened when they first contacted Mills. Nelson gave the following response: “A, placed him in handcuffs and the defendant and Officer Ney began to, I guess Officer Ney began to question him on whether or not he had been doing anything wrong.” Ney testified that Nelson made the initial contact with Mills and then summarized the conversation between the officers and Mills, but did not ever mention the fact that Nelson handcuffed Mills.
At the preliminary hearing, Nelson never disclosed the fact that he handcuffed Mills when he made initial contact with him. Ney did not testify at the preliminary hearing.
B. The Trial Court’s Ruling
After the testimony concluded, while the trial court entertained argument, the court directed the following comment to the prosecutor: “... you can speak to anything you choose, but one thing that strikes me is a little over the top here. And let’s assume that the officers had a basis for approaching Mr. Mills with the suspicion of loitering and possibly sales. Why did they handcuff him right away?”
The prosecutor responded as follows: “There—there is case law that indicates where there are guns there are drugs and in an area where it is high crime they are suspecting the defendant to be loitering with intent to engage in narcotics-related activity, I think for officer safety reasons, it is common to detain a suspect in that manner.”
Shortly thereafter, the court made the following ruling from the bench:
“I’m going to deny the motion. [¶] This is closer than I wish it were. I think the officers clearly had a basis for entertaining suspicions as to what Mr. Mills was doing there, and I do not fault them for an initial detention to at least ask him questions. As I’ve already suggested, I’m not convinced it was appropriate for them to handcuff him as opposed to a Terry stop, but that is the level of operational detail where I’m not going to second guess the officers in the field. [¶] Given that they were confronting him and asking him questions, he had a nervous reaction and although [defense counsel] objected to it the second time, there is evidence in the hearing that the defendant said ‘I’ll be up front with you, I’m dirty.’ At that point—even if the handcuffing had not been justified at that point, it clearly became a matter of probable cause at that point to serve the defendant.”
III. DISCUSSION
In reviewing a ruling on a motion to suppress, “we defer to the trial court’s express and implied factual findings that are supported by substantial evidence. We then independently apply constitutional principles to the trial court’s factual findings to determine the legality of the search or seizure. [Citations.]” (People v. Stier (2008) 168 Cal.App.4th 21, 26 (Stier).)
A. Guiding Principles
“The federal Constitution’s Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. [Citation.] ‘A seizure occurs whenever a police officer “by means of physical force or show of authority” restrains the liberty of a person to walk away.’ [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).)
A seizure of a person which amounts to an arrest must be supported by an arrest warrant or by probable cause. “Probable cause exists when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (Celis, supra, 33 Cal.4th at p. 673.) There must be a “ ‘ “reasonable ground for belief of guilt” ’ ” and that belief must be “ ‘particularized with respect to the person to be... seized.’ [Citation.]” (Ibid.)
However, not all seizures constitute arrests. “[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.]” (Celis, supra, 33 Cal.4th at p. 674.)
“When a police officer has an objective, reasonable, articulable suspicion a person has committed a crime or is about to commit a crime, the officer may briefly detain the person to investigate. The detention must be temporary, last no longer than necessary for the officer to confirm or dispel the officer’s suspicion, and be accomplished using the least intrusive means available under the circumstances. [Citations.] A detention that does not comply with these requirements is a de facto arrest requiring probable cause. [Citations.]” (Stier, supra, 168 Cal.App.4th at pp. 26-27.)
“ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicion quickly, using the least intrusive means reasonably available under the circumstances.’ ” (Celis, supra, 33 Cal.4th at pp. 674-675.)
B. The Use of Handcuffs Converted the Intended Detention into a De Facto Arrest
In the present case, undisputed evidence establishes that the first thing Nelson did when he approached Mills was to place him in handcuffs.
“Handcuffing substantially increases the intrusiveness of a detention and is not part of a typical detention.” (Stier, supra, 168 Cal.App.4th at p. 27.) However, because police officers may take precautions to ensure their own safety, handcuffing a suspect does not necessarily transform the detention into a de facto arrest. (Celis, supra, 33 Cal.4th at p. 675.) Rather, the “issue is whether the use of handcuffs during a detention was reasonably necessary under all of the circumstances of the detention. [Citations.] We look to ‘the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.’ [Citation.]” (In re Antonio B. (2008) 166 Cal.App.4th 435, 442 (Antonio B.), quoting Celis, supra, 33 Cal.4th at pp. 675-676.)
“Generally, handcuffing a suspect during a detention has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee. [Citation.] The more specific the information an officer has about a suspect’s identity, dangerousness, and flight risk, the more reasonable a decision to detain the suspect in handcuffs will be. [Citation.] Circumstances in which handcuffing has been determined to be reasonably necessary for the detention include when (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect’s description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers. [Citation.]” (Stier, supra, 168 Cal.App.4th at pp. 27-28.)
In the present case, neither officer testified that he believed it was reasonably necessary to handcuff Mills, either because he posed a threat of physical danger, might flee or for any other reason. Nor did the prosecution present any evidence at the hearing which could support a finding that any of the factual circumstances listed above might have justified the use of handcuffs. Rather, it appears that Nelson, a rookie police officer, automatically handcuffed Mills without any thought as to whether such an intrusive measure was necessary.
The trial court was rightly concerned by the fact that Mills was handcuffed when Nelson first approached him but concluded that the handcuffing was a “level of operational detail where I’m not going to second guess the officers in the field.” This conclusion was error. Because there was no evidence the handcuffing was reasonably necessary to detain Mills, the seizure of Mills’s person when Nelson first initiated contact with him constituted a de facto arrest requiring probable cause.
Authority discussed by both parties reinforces our conclusion. In Antonio B., supra, 166 Cal.App.4th 435, two teenagers were walking down the street in the middle of the afternoon when they were approached by police officers. One teenager, who threw a marijuana cigarette on the ground, was arrested. The other teenager, Antonio, was handcuffed and then asked to consent to a search. Antonio did consent, and an officer found illegal drugs. The trial court denied Antonio’s motion to suppress evidence but the Antonio B. court reversed.
Because neither party squarely addressed the impact of the handcuffing in their appellate briefs, we obtained supplemental letter briefs on this issue.
The Antonio B. court found that handcuffing appellant transformed what would have been a valid detention into an arrest because there was no evidence that the officers had any basis to believe that appellant posed a danger or that handcuffing was “necessary to effectuate the purpose of the stop, i.e., to determine whether appellant had been smoking marijuana.” (Antonio B., supra, 166 Cal.App.4th at p. 442.) The court noted, among other things, that “[t]he officers outnumbered the suspects, one of whom was in handcuffs incident to his valid arrest, there was no one else in the vicinity, and appellant did not attempt to flee.” (Ibid.)
Like the Antonio B. court, we are presented with a record void of any evidence which might justify the use of handcuffs to detain Mills. The officer in Antonio B. testified that he handcuffed appellant as a matter of “policy,” (166 Cal.App.4th at p. 439) and that appears to be what happened here as well. In any event, neither Nelson nor Ney testified that they had any concern about their physical safety or that they believed Mills might try to flee.
In Stier, supra, 168 Cal.App.4th 21, police followed appellant’s truck after receiving a report that it may have been involved in a narcotics transaction. They stopped the truck for a “mud flap violation” and a “possible seatbelt violation.” (Id. at p. 25.) A passenger exited and began to walk away but was detained and admitted she was in possession of narcotics. Then an officer approached appellant, who was sitting in the driver’s seat, and noticed a minor in the back of the truck. Concerned about the welfare of the minor and by the narcotics find, the officer asked appellant to exit his vehicle. The officer later admitted that appellant was very cooperative, easygoing and polite and did not appear to be nervous. Nevertheless, the officer handcuffed appellant because he was “uncomfortable” that appellant was significantly taller than him and because he knew that narcotics users and dealers sometimes carry weapons. The officer did not, however, have any “specific articulable facts suggesting [appellant] was armed.” (Id. at p. 25.) After the appellant was handcuffed, he consented to a search of his person which resulted in the discovery of additional narcotics.
The Stier court reversed a trial court ruling denying appellant’s motion to suppress evidence and held that “the evidence should have been suppressed because the prosecution did not establish the handcuffing of the driver was reasonably necessary to the detention and, consequently, did not establish the driver’s subsequent consent to be searched was voluntary.” (Stier, supra, 168 Cal.App.4th at p. 23.) The court reasoned that the officer’s discomfort with appellant’s size did not justify the increased intrusiveness of handcuffs in light of the admission that the appellant was very cooperative. Further, the expressed concern that narcotics users and dealers carry guns was also inadequate since the officer had no “specific, articulable facts suggesting [appellant] was armed.” (Id. at p. 28.)
In contrast to Stier, the officers in this case did not even testify that they had a generalized concern that the suspect could be armed because narcotics were involved. However, the prosecutor offered that theory and the trial court was mistakenly persuaded by it. Using handcuffs during a detention is permissible only when it is the least intrusive means of effectuating the purpose of the stop and requires a showing that handcuffing that particular person was reasonably necessary. (Stier, supra, 168 Cal.App.4th at pp. 26-27, 28.) No such showing was made in this case. (Compare People v. Osborne (2009) 175 Cal.App.4th 1052, 1062 [officer testified that during pat search suspect became “real nervous” and tense as if attempting to remove his hands from officer’s grasp, which caused officer to fear a potential assault and justified use of handcuffs].)
The People insist that, under “the totality of the circumstances,” this court can find that the officers “had a reasonable basis for believing appellant posed a present physical threat or a flight risk....” First, neither officer ever claimed to have such a belief. Second, the People do not identify any evidence that was presented at that suppression hearing to support their proposed finding. They do emphasize that Mills became “extremely nervous” when the officers told him they were aware that people who hung out in that area often concealed drugs on their person. However, Mills was already in handcuffs when that circumstance arose.
The People also contend that Mills “‘had a distinct five foot, six inch, and three-hundred pound stature” and that “[t]wo of the three times that officers saw the defendant, he acted evasively.’” Mills’s size was not the subject of any testimony at the suppression hearing. In any event, the People’s description of Mills reinforces a conclusion that it was very unlikely he would or could flee. As for the “evasive” conduct, evidence that Mills turned away from the officers does not manifest an intent to flee, particularly under the totality of the circumstances, including the suspect’s body type and the fact that neither officer testified that they were ever concerned that Mills might run away from them.
We hold that the prosecution failed to established that the use of handcuffs was reasonably necessary to detain Mills. Therefore, the initial seizure of Mills by Nelson constituted a de facto arrest, requiring probable cause. As noted above, the trial court found that there was probable cause to arrest Mills. However, that conclusion was based on the erroneous premise that the arrest occurred after the officers engaged Mills in conversation, observed his nervous reaction and heard his admission that he was “dirty.” Because Mills was placed under arrest when Nelson made the initial contact and placed him in handcuffs, the salient question is whether the officers had probable cause to arrest Mills when they first stopped him on the afternoon of March 17, 2008.
C. The Arrest Was Not Supported by Probable Cause
As reflected in the principles summarized at the outset of our discussion, probable cause is a more demanding standard than reasonable suspicion. It requires a particularized showing that the officers had a reasonable ground for believing that Mills had committed a crime when they first contacted him. (Celis, supra, 33 Cal.4th at p. 673.)
The People argue that the officers’ observations of Mills during the four hour period prior to their initial contact with him gave them probable cause to make an arrest for violating Health and Safety Code section 11532, which prohibits loitering in a public place with the intent to engage in drug-related activity. The People attach significance to these facts: (1) Mills was spotted three times in a high crime area; (2) Mills was “blatantly counting money;” and (3) he twice turned away when he noticed the police car.
The fact that Mills was observed in a high crime area may be relevant but, standing alone, this factor does not even satisfy the reasonable suspicion standard applicable to detentions. (People v. Souza (1994) 9 Cal.4th 224, 240–241; see also In re H.H. (2009) 174 Cal.App.4th 653, 660 [“the time and location of the encounter, though relevant, “ ‘are insufficient by themselves to cast reasonable suspicion on an individual’ ”]; People v. Medina (2003) 110 Cal.App.4th 171, 177 [pat search of driver for officer safety following traffic stop for broken taillight unlawful when based solely on the driver's presence in a high crime area late at night].)
The added weight of the fact that Mills openly counted his money while he stood in a high crime area does not establish probable cause that a crime was actually committed. There is simply nothing inherently sinister about counting money. Furthermore, “[t]he spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, [the state Supreme Court] has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual. [Citations.]” (People v. Bower (1979) 24 Cal.3d 638, 645.)
Finally, evidence that Mills twice turned away from the officers is not as significant as the People suppose. The officers testified that Mills turned away from them when he saw their car the second and third times. However, they did not testify that Mills’s reactions were responses to any effort by them to contact him. The first time Mills turned away, the officers never even stopped their car, and the second time, Nelson was able to make contact within seconds. Thus, while we do not reject the People’s characterization of Mills’s conduct as “furtive,” we acknowledge that this conduct was also consistent with a lawful purpose of protecting individual privacy or electing to forego voluntary contact with law enforcement.
In People v. Souza, supra, the court held that officers were justified in conducting a brief investigative detention based on the following circumstances: defendant was observed at 3 a.m. in a high crime area leaning over talking to occupants of a car and, when officers directed the patrol car spot light at the group, the occupants were evasive and the defendant attempted to flee. (9 Cal.4th at p. 242.) The present case shares only a few of these circumstances, the high crime area and arguably “furtive” conduct. Nevertheless, if the question was whether the officers had reasonable suspicion to detain Mills, we might be persuaded by the People’s contentions. However, as a probable cause analysis, the People’s argument is factually weak and not supported by even a single relevant case citation.
We find that the undisputed facts known to officers prior to their initial contact with Mills did not give them probable cause to arrest Mills for violating Health and Safety Code section 11532. Arguably, there was sufficient evidence to warrant a brief investigative detention, to ask the very questions these officers asked of Mills. However, before the officers observed Mills’s behavior during their discourse with him and heard his admission that he was “dirty,” they did not have probable cause to arrest him for loitering with the intent to engage in drug-related activity.
IV. DISPOSITION
The judgment and order denying the motion to suppress evidence are reversed. This case is remanded to the trial court with directions to provide appellant with the opportunity to withdraw his plea and to conduct further proceedings consistent with our decision.
We concur: Kline, P.J., Richman, J.