Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE273637 Peter C. Deddeh and Herbert J. Exarhos, Judges.
HUFFMAN, Acting P. J.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), Lawrence Steven Daly entered guilty pleas to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court placed Daly on formal probation for three years and ordered him to serve 240 days in jail.
Daly contends the trial court erred by denying his motion to suppress because he was illegally detained and the police officer lacked justification to conduct a pat-down search of his person. We agree in part and reverse the judgment.
FACTS
Since this appeal is from a guilty plea after the denial of a motion to suppress evidence under Penal Code section 1538.5, we will limit our discussion of facts to those presented at the suppression motion.
On August 11, 2007, El Cajon Police Officer Kai Mandeleh observed Daly drive his truck into the parking lot of a liquor store. Although Mandeleh was on patrol and in uniform, he was part of a narcotics investigation that had been going on for a month. Based on an informant's tip that he was selling narcotics from his home, Daly was a target of the investigation. Mandeleh had a description of Daly and his truck. After Mandeleh watched Daly walk into the liquor store, the officer walked over to Daly's truck and looked inside. Daly had left the engine of his truck running, and Mandeleh also observed a shaved key in the ignition as well as exposed wires near the ignition. Daly's 14-year-old daughter was sitting in the front passenger seat.
Mandeleh testified that he was concerned because the fact that the engine was running, coupled with the shaved key and exposed wires, indicated the vehicle might have been stolen. Mandeleh also said that given Daly's "violent criminal history and convictions for theft" and the running engine, he believed that Daly could be using the vehicle as a getaway car for a robbery of the liquor store. When Mandeleh asked Daly's daughter who was with her, she pointed to Daly, who had started walking out of the liquor store; Daly had been accompanied by the store owner, who walked him to the door of the store.
Daly's criminal history included a 1987 conviction for possession of methamphetamine, a 1993 conviction for misdemeanor assault, a 1994 conviction of taking a vehicle without the owner's consent, a 1997 conviction of battery (domestic violence) and resisting arrest and a 1997 conviction of petty theft with a prior.
During cross-examination, Mandeleh also testified he believed Daly was possibly selling narcotics at the liquor store even though the informant had told him that Daly sold methamphetamine from his residence.
Daly approached Mandeleh, who was still standing by the driver's door of his truck, and asked if he could help the officer with something. Mandeleh asked Daly if the truck belonged to him; Daly replied that it was his truck. The officer then asked Daly why there was a shaved key in the ignition. Daly gave an explanation.
During cross-examination, Mandeleh testified he did not check the Vehicle Identification Number because he did not "feel it was safe to do so while Mr. Daly was standing in front of me." Mandeleh referred to the fact that Daly was a much larger person than he was, and Daly's violent criminal history. Daly was six feet one-inch tall and weighed 300 pounds.
Mandeleh said that Daly turned his body away from him, put his left hand in his front left pocket, reached into the truck between the center console and the driver's seat and then put his left hand back into his front left pocket. Mandeleh could not see Daly's left hand and was unsure whether Daly had put something inside the truck or had taken
something out of the truck. Mandeleh asked Daly if he had any weapons in his possession; Daly replied that he did not. Daly became agitated and said the officer could not search him because he was no longer on parole. Mandeleh then requested a cover unit, which arrived within a few minutes.
Mandeleh told Daly he was going to conduct a weapons pat-down of his person for the officer's safety. During the pat-down, Mandeleh felt a cylindrical tube that had a ball shape on one end similar to the shape of a methamphetamine pipe in Daly's left cargo pocket. Mandeleh placed Daly under arrest for possession of drug paraphernalia. Officers found 10.39 grams of methamphetamine in the truck after conducting a search incident to the arrest.
DISCUSSION
Daly contends that he was illegally detained because Officer Mandeleh lacked a reasonable suspicion that Daly was engaged in criminal activity at the time of the detention. The contention has merit.
In evaluating a challenge to the trial court's ruling on a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its factual findings, whether express or implied, if they are supported by substantial evidence. We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
There are three categories of police contacts with individuals: consensual encounters; detentions; and arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) The first question is whether the contact between Daly and Mandeleh was a consensual encounter or a detention. Consensual encounters do not trigger Fourth Amendment scrutiny; detentions do. (Ibid.)
The distinction between a consensual encounter and a detention is that an individual is detained when " 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) A detention occurs when an officer restrains a person's liberty to walk away by force or show of authority. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16; People v. Souza (1994) 9 Cal.4th 224, 229.) If, under all the circumstances "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter" (Florida v. Bostick (1991) 501 U.S. 429, 439), a detention has taken place. On the other hand, a consensual encounter occurs if a reasonable person would have felt free to disregard the police and go about his or her business. (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Under the circumstances presented here, we conclude that Daly was detained by Officer Mandeleh; a reasonable man in Daly's position would not have believed that he was free to enter his vehicle and drive away. Upon leaving the liquor store, Daly saw a uniformed officer standing next to the driver's door of his truck. Daly and Mandeleh engaged in a conversation in which Daly explained the shaved key. This conversation should have eliminated the purported reason for the police officer's stop—to check out suspicious factors indicating the truck might have been stolen. It also was obvious to a reasonable person that the other ostensible reason for the encounter—that Daly was robbing the liquor store—had not occurred. The store owner had casually walked Daly to the door of the store. Nonetheless, Officer Mandeleh remained at Daly's truck and continued to ask questions. A reasonable person in Daly's position would not have believed that he or she was free to disregard Mandeleh and leave.
The Attorney General argues the encounter between Daly and Mandeleh was consensual and did not constitute a detention because Daly freely walked up to the officer and asked if he could help him. We are not persuaded. A uniformed officer was standing next to the driver's door of Daly's truck, and his 14-year-old daughter was sitting in the passenger seat. Under these circumstances, a reasonable person would feel he or she should address any concerns the officer had. Daly's initial question to Mandeleh did not make the encounter consensual.
Police officers may temporarily detain a person based on a reasonable suspicion that the person has committed or is about to commit a crime. (Alabama v. White (1990) 496 U.S. 325, 327-328; People v. Bennett (1998) 17 Cal.4th 373, 386-387.) A detention is reasonable under the Fourth Amendment when the detaining officer can articulate facts that "provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza, supra, 9 Cal.4th at p. 231.) To justify an investigatory detention, a police officer must be able to " 'point to specific and articulable facts which, taken together with rational inferences from those facts,' would warrant the intrusion." (Id. at p. 229, quoting Terry v. Ohio, supra, 392 U.S. at pp. 17, 20-21.) A police officer cannot lawfully predicate a detention upon circumstances when, viewed objectively, support a "mere curiosity, rumor, or hunch . . . even though the officer may be acting in complete good faith." (In re Tony C. (1978) 21 Cal.3d 888, 893; see also Terry, at p. 22.)
The prosecution had the burden of justifying the detention of Daly. (People v. Verin (1990) 220 Cal.App.3d 551, 557.)
On this record, we find Officer Mandeleh had no reasonable suspicion to justify the detention of Daly. The officer, who had been given a description of Daly and his truck, observed Daly get out of a truck that matched the description. Because Mandeleh knew the truck belonged to Daly, the shaved key and exposed wires were not articulable facts that validated a reasonable suspicion that Daly was driving a stolen vehicle. Further, any notion that the truck was being used as a getaway car for robbery of the liquor store was dispelled when the store owner accompanied Daly to the front door of the store. Moreover, there was no support for Mandeleh's suspicion that Daly might have been selling narcotics at the liquor store (see fn. 2, ante), particularly since the informant had told the officer that Daly sold methamphetamines from his residence. In short, the circumstances upon which Mandeleh relied were devoid of indicia that Daly was involved in criminal activity at the time of the detention.
Mandeleh was unable to articulate any facts that provided an objective basis for concluding Daly had committed a crime, was engaged in criminal activity or was about to commit a crime. (People v. Souza, supra, 9 Cal.4th at p. 231.) An officer's assumptions, beliefs, opinions and guesswork are not the objective facts and permissible inferences required by the Fourth Amendment. (In re Tony C., supra, 21 Cal.3d at pp. 893-894.) "[A]n individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." (Brown v. Texas (1979) 443 U.S. 47, 51.) The trial court erred when it failed to recognize "this fundamental prerequisite to a constitutionally permissible detention" and denied Daly's suppression motion. (People v. Hester (2004) 119 Cal.App.4th 376, 390.)
Having concluded that Daly's detention was illegal, we need not reach the issue of the legality of the pat-down search. (People v. Bower (1979) 24 Cal.3d 638, 649, fn. 11.)
DISPOSITION
The judgment is reversed.
WE CONCUR: O'ROURKE, J., IRION, J.