Opinion
A121770
4-23-2009
THE PEOPLE, Plaintiff and Appellant, v. KEVIN TYRONE BUFORD, Defendant and Respondent.
Not to be Published in Official Reports
This is an appeal from the trial courts decision to deny the Peoples motion to reinstate the complaint filed against defendant and respondent Kevin Tyrone Buford (defendant). (Pen. Code, § 871.5.) The trial courts decision not to reinstate the complaint followed a magistrates decision to grant of defendants motion to suppress evidence. (§ 1538.5.) On appeal, the People contend the magistrates decision was erroneous because the suppressed evidence was obtained following a consensual encounter between defendant and two police officers, during which one of the officers became reasonably suspicious that defendant might pose a danger to his personal safety. We agree the suppressed evidence was obtained pursuant to a lawful search, and thus reverse the trial courts decision.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2008, a complaint was filed charging defendant with one count of carrying a concealed firearm on his person. (§ 12025, subd. (a)(2).) The complaint stemmed from the following events.
On January 18, 2008, at around 10:00 p.m. in the City of Vallejo, Officer Theodore Postolaki and Officer Bower of the Vallejo Police Department were patrolling a largely residential area known for narcotics trafficking and other criminal activity. The officers were in uniform and riding in a marked patrol vehicle. Officer Postolaki saw defendant standing on a street corner near a liquor store that was posted with "No Trespassing" and "No Loitering" signs. A second man, standing about 15 feet from defendant, called out "Police" and "Lets go" as the police vehicle approached. Defendant turned, looked at the officers in the vehicle, and began walking in the opposite direction.
As Officer Postolaki followed slowly in the police vehicle, defendant walked toward the passenger side of a parked car and then, appearing to change his mind, turned back to the street to continue walking. After following defendant for about a quarter of a block at a slow speed, Officer Postolaki stopped the vehicle in the street and approached defendant on foot. Officer Bower also left the vehicle and approached defendant on foot, eventually stopping about 10 feet away from him.
While leaving the vehicle on the street and approaching defendant, the officers did not make a U-turn, activate any emergency or other lights, display any weapons or order defendant to stop. Rather, Officer Postolaki greeted defendant and politely asked him to identify himself and what he had been doing on the corner. Defendant responded in a nervous and stuttering voice that he was just going up the street to his home. At the same time, defendant placed his hand in the left pocket of his bulky coat. Officer Postolaki asked defendant to remove his hand from his pocket. Officer Postolaki also asked defendant whether he was on probation or parole or carrying anything illegal, and for permission to conduct a patsearch of his clothing. Officer Postolaki asked defendant to place his hands on his head, which defendant did. Then, during a patdown of the outside of defendants clothing, Officer Postolaki felt the handle of a gun in the front side of defendants waistband and yelled "Gun" to Officer Bower, who located and removed a loaded 9-millimeter semi-automatic gun from the waistband.
On March 4, 2008, a hearing was held on defendants motion to suppress evidence of the firearm found on his person. At the hearing, the magistrate heard testimony from both Officer Postolaki and defendant.
Defendant testified that on the night in question he left his home to purchase a cigar from the nearby liquor store. On his way home from the store, defendant noticed a police vehicle and continued walking, but stopped after hearing the vehicle stop and a door slam. One of two officers then approached and asked defendant what he was doing. Defendant explained that he had just bought cigars, while at the same time reaching into his left pocket to retrieve them to show them to the officers. Defendant was a little nervous, but denied that his voice was "quaking." The officer told defendant not to place his hands in his pocket for reasons of officer safety, and then asked whether defendant was on probation or parole, to which he replied "no," and whether he had identification, to which he responded "I dont think so, but Im not sure."
At this point, according to defendants cross-examination testimony, his encounter with the officer was "casual" and "simply . . . a conversation." Defendant later testified on redirect, however, that he "felt [he] had to stand there and answer [the officers questions]."
Defendant further testified that the officer, without asking his permission, ordered him to place his hands on his head and began to search him. While searching him, the officer asked whether defendant had anything illegal on him, to which he replied, "[a] gun." The officers then yelled "gun," and defendant was leg-swept to the ground.
Officer Postolaki, a corporal and a nearly 14-year veteran of the police force, disputed defendants claim that he was not asked for permission before being searched. Rather, Officer Postolaki testified that he requested and received defendants permission before searching him and finding the hidden firearm. Officer Postolaki explained that he requested the search based upon several factors, including his knowledge that the area was one of high crime and frequent drug dealing, the lateness of the hour, defendants nervousness and bulky clothing, and the placement of defendants hand in his pocket while he was speaking to the officer.
Officer Postolaki previously spent five and a half years assigned to the Special Operations Division engaged primarily in narcotics enforcement. Through that experience, Officer Postolaki had knowledge that the area in which he encountered defendant was a high-crime, high-narcotic trafficking area.
Following the hearing, the magistrate granted defendants motion to suppress evidence. On March 14, 2008, the People filed a motion to reinstate the complaint against defendant, which the trial court denied on May 6, 2008. This appeal followed.
DISCUSSION
On appeal, the People challenge the magistrates grant of defendants motion to suppress evidence on two grounds: (1) defendant was not initially detained, but rather had a consensual encounter with the police officers, and (2) during that consensual encounter, the police officers became reasonably suspicious that defendant might pose a danger to their personal safety, and thus engaged in a lawful search of defendants person, leading to discovery of the weapon. The relevant law is as follows.
"When reviewing the grant or denial of a motion to suppress, an appellate court must uphold the trial courts express or implied findings of fact if the facts are supported by substantial evidence." (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.) We must, however, use our independent judgment when deciding whether, under those facts, a search and seizure was legal. (People v. Ruiz (1990) 217 Cal.App.3d 574, 580; People v. Ayala (2000) 23 Cal.4th 225, 255.) The legality of a search or seizure is measured by "the facts, as found by the trier [of fact], against the constitutional standard of reasonableness. [Citations.] Thus, in determining whether the search or seizure was reasonable on the facts found by the [trier of fact], we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].)" (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Here, in finding that the search and seizure with respect to defendant was not legal, the magistrate reasoned as follows:
"[Defendant is] standing on a corner . . . perhaps talking to another male for how long? We dont know, but certainly not for any long period of time.
"The evidence seems to indicate that when these males noticed that the police officers were in the area, they decided to depart; nothing suspicious or wrong about that.
"Citizens dont particularly care to talk to police officers.
"Mr. Buford then appears, proceeded in a normal fashion to walk away from that encounter; so then to pull down the block, to come up next to him, to park the car, headlights on, to get out and to say that they then had a consensual encounter is somewhat disingenuous in the Courts opinion.
"That is merely sort of a catch-22 of someone who, I think, is fair on the evidence to say . . . did . . . not doing anything suspicious but upon seeing the police, decided he was going to go home.
"That would lead the Court to believe that he didnt want contact with the police, so to say that he had this consensual encounter later on in the street with these two officers, I dont find that this was consensual in the least bit.
"And the questions, again, the officer could not recall, but Mr. Buford recalled being asked whether hes on probation or parole, and what he was doing in the area.
"In the Courts opinion, this was a detention, albeit illegal detention, because theres no articulable facts to detain Mr. Buford."
The People claim the magistrates reasoning is flawed. Specifically, the People claim the magistrate erred by concluding, as a matter of law, that once a suspect walks away from an officer, the officer cannot engage him in conversation without there being a "de facto detention." While the magistrates decision need not be read as broadly as the People propose, we nonetheless agree that his decision was erroneous. We reason as follows.
A person is seized within the meaning of the federal Constitution "whenever a police officer `by means of physical force or show of authority restrains the liberty of a person to walk away." (People v. Souza (1994) 9 Cal.4th 224, 229, quoting Terry v. Ohio (1968) 392 U.S. 1, 19 & fn. 16 [Terry].) The test is objective, asking "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." (California v. Hodari D. (1991) 499 U.S. 621, 628.) Under this objective test, a seizure occurs when, for example, an officer engages in conduct that "communicate[s] to a reasonable person that he was not at liberty to ignore the police presence and go about his business." (Kaupp v. Texas (2003) 538 U.S. 626, 629.) However, a seizure does not occur when "a reasonable person would feel free to decline the police officers requests or otherwise terminate the encounter." (Brendlin v. California (2007) 551 U.S. 249 [127 S.Ct. 2400, 2405-2406]; Florida v. Bostick (1991) 501 U.S. 429, 434.)
"[S]tate and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. (In re Tyrell J. (1994) 8 Cal.4th 68, 76 [32 Cal.Rptr. 2d 33, 876 P.2d 519]; In re Lance W. (1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744].) `Our state Constitution [Cal. Const., art. I, § 13] thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution [U.S. Const., 4th Amm.] as interpreted by the United States Supreme Court. (In re Tyrell J., supra, at p. 76.)" (People v. Camacho (2000) 23 Cal.4th 824, 830.)
As our colleagues have explained, under Terry, "the judicial inquiry into the reasonableness of a detention is a dual one — whether the officers action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (People v. Brown (1998) 62 Cal.App.4th 493, 496.) With this standard in mind, we turn to the circumstances that triggered the decision by Officers Postolaki and Bower to approach, question and then, ultimately, to patsearch defendant in this case.
The magistrate found that defendants meeting with Officers Postolaki and Bower was a detention, rather than a consensual encounter, and that the detention was illegal. The magistrate reasoned that the officers approached, questioned and then searched defendant even though he was doing nothing suspicious, but rather was simply trying to return home after having purchased cigars. In so reasoning, the magistrate appears to have been persuaded by the following facts: (1) the officers conduct in following defendant after observing him on the street corner, (2) the nature of Officer Postolakis inquiry once they approached defendant; and (3) the close proximity of Officer Bower during the encounter.
As set forth above, we exercise our independent judgment on these facts relied upon by the lower court in determining whether the search and seizure in this case comports with the constitutional standard of reasonableness. (People v. Glaser, supra, 11 Cal.4th at p. 362; People v. McDonald, supra, 137 Cal.App.4th at p. 529.) Specifically, we must determine whether Officers Postolaki and Bower engaged in conduct with defendant that would have "communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business" (Kaupp v. Texas, supra, 538 U.S. at p. 629), or rather would have communicated to such person that he was "free to decline the officers requests or otherwise terminate the encounter." (Brendlin, supra, 127 S.Ct. at pp. 2405-2406; Florida v. Bostick, supra, 501 U.S. at p. 434.) In doing so, we keep in mind that because "the circumstances of each . . . detention are unique[,] . . . the reasonableness of each detention period must be judged on its particular circumstances." (People v. Brown, supra, 62 Cal.App.4th at pp. 497-498.)
With respect to the officers initial encounter with defendant, we note that it is "well settled that a police officer may approach a citizen, identify himself as a police officer and ask questions even without any objective justification." (People v. Rosales (1989) 211 Cal.App.3d 325, 330; see also People v. Vibanco (2007) 151 Cal.App.4th 1, 14.) "Detention, not questioning, is the evil at which Terrys second prong is aimed. [Citation.]" (People v. Brown, supra, 62 Cal.App.4th at p. 496.) "`[A]n officer has every right to talk to anyone he encounters while regularly performing his duties . . . . (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 .) [¶] . . . `[A]sking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292, 124 S.Ct. 2451] (Hiibel).)" (People v. Vibanco, supra, 151 Cal.App.4th at p. 13.) As such, Officers Postolaki and Bower had every right to approach defendant and to ask for his name and address and for an explanation of what he was doing.
With respect to Officer Postolakis subsequent questions regarding whether defendant was on parole or probation and whether he was carrying anything illegal, under both federal and state constitutional authority, "[p]olice may approach a person in a public place and ask potentially incriminating questions . . . without implicating the Fourth Amendment, so long as a reasonable person would understand he or she could refuse to cooperate." (People v. Brown, supra, 62 Cal.App.4th at p. 499, citing Florida v. Bostick, supra, 501 U.S. at pp. 435, 439-440.) "While the . . . detainee is under no obligation to answer . . . questions [unrelated to the original purpose for the stop], the Constitution does not prohibit law enforcement officers from asking. (U.S. v. Shabazz [(5th Cir. 1993) 993 F.2d 431] . . . 437; accord, People v. Bell [(1996)] 43 Cal.App.4th [754,] 768.)" (People v. Brown, supra, 62 Cal.App.4th at p. 499.) Moreover, "`[i]nvestigative activities beyond the original purpose of a [police] stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take. [Citations.] [Citation.]" (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.)
Here, Officer Postolaki asked defendant the potentially incriminating questions of whether he was on probation or parole and whether he was carrying anything illegal. Officer Postolaki also asked defendant to remove his hands from his pockets. These brief, rather basic police questions did not unreasonably prolong the brief encounter. (People v. Brown, supra, 62 Cal.App.4th at p. 500.) Moreover, Officer Postolaki had reason to ask these questions after observing defendants nervous conduct, observing defendant place his left hand inside the pocket of a bulky coat, and reflecting on his knowledge that the surrounding area was known for criminal activity, including frequent drug trafficking. In asking the questions, the officers made no show of authority that indicated defendant was required to answer them. In particular, at no time did Officer Postolaki or Officer Bower draw a weapon, order defendant to answer the questions, restrain defendant, or threaten or otherwise try to intimidate him. Indeed, defendant described his encounter with Officer Postolaki at this point as "simply . . . a conversation" and "casual." As such, we conclude that Officer Postolakis potentially incriminating questions and request for defendant to remove his hands from his pockets did not render the encounter nonconsensual. (United States v. Drayton (2002) 536 U.S. 194, 203-204 [no illegal search and seizure occurred where the police officer questioned defendant in "a polite, quiet voice" and "did not brandish a weapon or make any intimidating movements"]; In re Manuel G. (1997) 16 Cal.4th 805, 821 [noting that circumstances establishing a seizure might include "the presence of several officers, an officers 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 officers request might be compelled"; on the other hand, "[t]he officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred"].)
Having concluded that the magistrate erred, as a matter of law, in finding below that the officers encounter with defendant prior to the patsearch of his outer clothing was an illegal detention, we turn now to the issue of whether the patsearch was reasonably related in scope to the circumstances which justified the police interference in the first place. (People v. Brown, supra, 62 Cal.App.4th at p. 496.) "When an officer reasonably suspects that an individual whose suspicious behavior he or she is investigating is armed and dangerous to the officer or others, he or she may perform a patsearch for weapons. (Terry v. Ohio, supra, 392 U.S. at pp. 24, 30; Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320 ; People v. Dickey (1994) 21 Cal.App.4th 952, 955-956 ; People v. Garcia (2006) 145 Cal.App.4th 782, 786 .) The sole justification for the search is the protection of the officer and others nearby, and the search must therefore be confined in scope to an intrusion reasonably designed to discover weapons. (Terry v. Ohio, supra, at p. 29.)" (In re H.M. (2008) 167 Cal.App.4th 136, 143.)
The People appear to concede that, eventually, the consensual encounter between defendant and the officers became a detention, thereby triggering constitutional scrutiny. (In re Manuel G., supra, 16 Cal.4th at p. 821 [unlike consensual encounters, detentions require an articulable suspicion that the person has committed or is about to commit a crime].) The People argue that, nonetheless, such detention was justified because Officer Postolaki discovered specific, articulable facts that, considered in light of the surrounding circumstances, indicated defendant may pose a danger to the officers safety.
In considering this argument, we note as an initial matter that defendant testified he was never asked for and did not give permission for the patdown search that followed the officers initial questioning. Officer Postolaki, to the contrary, testified that he indeed asked for and received permission before searching defendant.
In his responding brief, defendant claimed the magistrate made an implied factual finding, which we must defer to, that he did not give permission for the search. In doing so, defendant relied upon the legal principal that " `"the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court." [Citation.] If factual findings are unclear, the appellate court must infer "a finding of fact favorable to the prevailing party on each ground or theory underlying the motion." [Citation.] (People v. Middleton (2005) 131 Cal.App.4th 732, 737-738 .)" (People v. Munoz (2008) 167 Cal.App.4th 126, 132-133.)
While we agree with this legal principle, we disagree that it applies here. Defendant in effect asked that we infer that the magistrate disbelieved Officer Postolakis testimony that defendant gave him permission to conduct the patsearch. We, however, find nothing in the record, directly or indirectly, to support such an inference. Rather, having reviewed the record, it appears the magistrate concluded as a matter of law that the encounter between the officers and defendant was at all times a detention rather than a consensual encounter, and that the officers had no articulable basis for detaining defendant. The magistrate thus never reached the issue of whether defendant consented to the subsequent patsearch, a point defendant appeared to concede at oral argument.
California courts have repeatedly held that a police officers patdown of a suspect for weapons may be a reasonable exercise of authority when considered in light of the totality of the circumstances, regardless of whether the suspect consented to the patsearch. "`[T]he law requires more than a mere "furtive gesture" to constitute probable cause to search or to arrest . . . . [Citations.] (People v. Superior Court (1970) 3 Cal.3d 807, 818 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]; see also People v. Superior Court [(1972)] 7 Cal.3d [186] 206; People v. Cassel (1972) 23 Cal.App.3d 715, 719 .) However, a patdown for weapons is less than a `full search and may be conducted in the absence of probable cause to arrest if the officer has reasonable grounds to believe the suspect is armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 26 [20 L.Ed.2d at pp. 908-909]; see also People v. Superior Court, supra, 3 Cal.3d at p. 829.) The patdown `must be tested by the Fourth Amendments general proscription against unreasonable searches and seizures. (Terry v. Ohio, supra, 392 U.S. at p. 20 .) In determining what more is required, `"`[t]here is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations] — and on the total atmosphere of the case . . . ." (People v. Superior Court, supra, 3 Cal.3d at p. 827.)" (In re Frank V. (1991) 233 Cal.App.3d 1232, 1240.)
Here, Officer Postolaki knew based on his nearly 14-years of law enforcement experience that defendant was in a high-crime neighborhood known for drug trafficking at a relatively late hour of night. While this knowledge alone would not have been sufficient to justify the officers decision to patsearch defendant for weapons, there were other factors present that together gave rise to a reasonable suspicion that defendant could be armed and dangerous, and thus a risk to officer safety. (In re H.M., supra, 167 Cal.App.4th at p. 145 ["the character of the locale where the stop occurs is a factor to be considered in a Fourth Amendment analysis"]; In re Frank V., supra, 233 Cal.App.3d at p. 1241.) For example, the officers observed defendant abruptly leave the street corner outside a liquor store after another man said "Police," and "Lets go." Defendant then walked toward the passenger side of a car but, appearing to rethink his destination, turned around and continued walking down the street. Then, after the officers approached defendant and asked him some basic questions, defendant replied in a nervous voice and placed his hand in the pocket of his bulky coat, causing Officer Postolaki to become concerned for his personal safety. It was at this point that Officer Postolaki decided the patdown search for weapons was justified. (See People v. Rosales, supra, 211 Cal.App.3d at p. 330 ["When defendant suddenly put his hand into the bulging pocket, [the officer] reasonably believed he was, or could be, reaching for a weapon. Certainly, at that point, the officer acquired sufficient grounds to justify a temporary detention to check for weapons"]. See also In re H.M., supra, 167 Cal.App.4th at p. 143 ["Reasonable suspicion must be based on `commonsense judgments and inferences about human behavior."].)
In pointing out these suspicious circumstances, we acknowledge defendants testimony that he was merely reaching into his pocket to retrieve cigars when Officer Postolaki decided to patsearch him. Defendant testified before the magistrate that he showed the officers the cigars in his pocket. Officer Postolaki, however, testified that he did not recall that occurring. Regardless of this conflict, the circumstances set forth above and considered as a whole, nonetheless provided a sufficient basis for the officers decision to patsearch defendant out of concern for his personal safety. As the California Supreme Court has noted: "The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. . . ." (In re Tony C. (1978) 21 Cal.3d 888, 894. See also People v. Superior Court, supra, 3 Cal.3d at p. 827 ["[c]ircumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience"].)
Moreover, as we have already explained, our task on appeal is to apply the facts as found by the magistrate against the constitutional standards. (People v. Glaser, supra, 11 Cal.4th at p. 362; People v. McDonald, supra, 137 Cal.App.4th at p. 529.) Having done so, we reject the magistrates legal conclusion that the officers lacked an articulable basis for detaining defendant. As has often been stated, California courts may not exclude evidence unless such exclusion is federally compelled. (In re Lance W. (1985) 37 Cal.3d 873, 886-887.) Here, the patdown of defendant was a lawful exercise of police authority, and thus no basis existed for the magistrates decision to suppress evidence of the loaded semi-automatic handgun found in defendants waistband. (Terry v. Ohio, supra, 392 U.S. at p. 30.)
DISPOSITION
The trial courts decision to deny the Peoples motion to reinstate the complaint is reversed, and the matter is remanded with directions to the trial court to deny defendants motion to suppress evidence and to reinstate the complaint.
We concur:
Pollak, Acting P. J.
Siggins, J.