Opinion
H028901
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. SEAN HAMMOND, Defendant and Appellant.
Following denial of his motion to suppress pursuant to Penal Code section 1538.5, defendant entered a no contest plea to felony possession of cocaine base for sale and admitted a prior conviction. (Health & Saf. Code §§ 11351.5, 11370.2.) Probation was denied and defendant was sentenced to three years in state prison. On appeal, defendant renews the contentions that his detention was unlawful and that the officers threat to choke him if he did not spit out what he had in his mouth was unreasonable under both state and federal constitutions. He also contends, and the Attorney General concedes, that the abstract of judgment requires correction. We reverse the judgment.
Unless otherwise indicated, all statutory references are to the Penal Code.
STATEMENT OF FACTS
San Jose police officer Dean Ackerman was the sole witness called to testify at defendants motion to suppress on December 21, 2004. He is a 25-year veteran of various law enforcement agencies and was assigned for six years to narcotics units, as a result of which he talked to several thousand people who have either used or sold cocaine and has personally made approximately 50 arrests for sales of cocaine, including 15 arrests for sale of cocaine base specifically, and numerous other arrests for possession and use of cocaine. In his opinion, "the downtown core area of San Jose" between "1st and 10th, the Saint James Park area and the light rail station at 1st and 2nd Street[s] and Lightson Alley has the highest hand-to-hand sales of any area in the city, particularly crack cocaine, but also other drugs...." On a weekly basis he arrested people for drug sales and also for "loitering under circumstances suggesting intent to engage in drug-related activity" in violation of Health and Safety Code section 11532.
On September 14, 2004, at approximately 6:25 p.m., he was patrolling downtown San Jose between First and Tenth Streets, which was his normal beat at that time. He was in uniform and was driving a marked patrol car. He saw defendant "loitering about the area of the bus bench at Santa Clara and First Street." That is, numerous buses went by, but defendant did not board any of them. Defendant stopped perhaps three people in order to engage them in conversation.
Within 15 minutes, Ackerman next saw defendant sitting at the light rail and bus stop at Second Street and Lightson Alley, about 100 to 200 yards from the first bus stop. Again, light rails and buses went by, and defendant did not board them. He talked to people "with no legitimate business, lawful business." Within 10 or 15 minutes after that, he saw defendant at the bus stop on Fourth Street and Santa Clara, about 200 yards from the bus and light rail stops at Lightson Alley. This time, defendant was "sitting at the bus stop on the bus bench." Ackermann parked his patrol car "right next to the bus bench." At the time, it was Ackermanns opinion that defendant "was involved in narcotics activity due to [his] prior knowledge of that area and [defendants] activity," so he "intentionally parked next to Mr. Hammond to make him nervous."
Apparently, he succeeded, because the "effect ... it ha[d]" was to motivate defendant to board the next bus. From his past experience, Officer Ackermann "knew" defendant would probably get off at the next bus bench. Ackerman followed the bus, and defendant did indeed get off the bus four blocks from where he boarded it. He then looked around, walked in a big square south on First Street, east on San Fernando, back to Fourth Street then north on towards Santa Clara Street. Ackerman parked his car on the south side of Santa Clara between Third and Fourth Streets and when defendant rounded the corner, he saw Ackermann, made eye contact, averted his eyes and then quickly entered the Western Union store on Santa Clara Street.
All told, defendant had talked to "at least five people" in the time between Ackermans first observation of him and his entry into the Western Union store. Ackerman had not seen any hand-to-hand transactions between defendant and any of these people.
Ackerman got out of his car, walked into the Western Union store and stood in line behind defendant. At this point, he was closer to the door than defendant. Defendant appeared nervous, and looked over his shoulder at Ackerman several times. When he got to the front of the line, he asked for change for a dollar. When defendant was done with his transaction, and turned to leave, Ackerman said "Hi" and "talked to [defendant] about what he was doing today." At this point, the two men were "standing side-by-side and the door was an equal distance from both" of them. Ackerman did not ask defendant his name, but did ask him if he was on probation. Defendant replied that he was from Oakland, was on probation for prior narcotic sales and that he had taken the bus and BART from Oakland to San Jose that day.
Asked by the prosecutor if defendant was "free to go if he wanted to," Officer Ackerman replied: "During this brief conversation, I could see that Mr. Hammond had some items secreted in his mouth, and it was my intention to arrest him at that point." Ackerman could not see any "large bumps or anything sticking out of his lower lip or anything," but based on defendants "mouth movements and his actions" and also "from talking with other people and arresting other people on prior occasions that had items in their mouths" Ackerman concluded that defendant had narcotics in his mouth.
Ackerman arrested defendant "for possession for sales and loitering with narcotics intent" and handcuffed him. Ackermans entire encounter with defendant, from the time he "engaged [defendant] in conversation till the time [he] put handcuffs on [defendant], was less than 30 seconds." Ackerman did not put his hands on defendant until he was ready to arrest him, after defendant told him he was on probation for cocaine sales.
Within five to 10 seconds of handcuffing defendant, Ackerman "put one hand in a V shape on his carotid arteries." With his hand on defendants neck, Ackerman "explained to him if he tried to swallow what he had in his mouth, I would choke him."
He did not actually apply pressure to defendants carotid arteries. "[B]etween command presence, my size and having Mr. Hammond in a disadvantage, he decided common sense was the better part of valor at that point" and defendant "spit out, initially one [rock]. And then I ... had to prod him along, and he spit out two. And ... each time I said `That was all? until there was [sic] six rocks in my hand."
Ackermans reasons for grabbing defendants neck and threatening to choke him were "one ... to preserve evidence, and the other ... to preserve Mr. Hammonds life." Several drug dealers he arrested had swallowed drugs and later died. From his training and experience, he knew that when holding somebodys carotid arteries and applying pressure "[y]ou need to be very careful ... because if you do it wrong you can kill the person."
CONTENTIONS
Defendant contends that his encounter with Officer Ackerman inside the Western Union store constituted an unlawful detention because (1) he was not free to leave and (2) no specific and articulable facts supported a reasonable suspicion that he was engaged in illegal activity. Defendant also argues that Officer Ackermans threat to choke him violated his due process and Fourth Amendment rights and also compels reversal of the trial courts order denying his suppression motion. We conclude that defendants detention was unlawful and that defendants motion to suppress evidence should have been granted on that basis. We therefore need not and do not address defendants further claims that the threatened choke hold also offended due process and the Fourth Amendment, and that the abstract of judgment requires correction.
DISCUSSION
A. Standard of Review
"`"An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] `The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [¶] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review." " (People v. Ayala (2000) 23 Cal.4th 225, 255.)
B. Standard for Temporary Detention
"[N]ot all personal intercourse between policemen and citizens involves `seizures of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure has occurred." (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) Put differently, " `[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. " (Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, fn. omitted, quoting from United States v. Mendenhall (1980) 446 U.S. 544, 554.)
"[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." (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.)
C. Detention or Consensual Encounter?
Because the Attorney General disputes that defendant was detained at all, we must first decide whether defendants conversation with Officer Ackerman was merely a "consensual encounter" or constituted a full-fledged detention. (Florida v. Royer (1983) 460 U.S. 491, 507.) In our view, this was no consensual encounter. According to Officer Ackerman, defendant became aware that he had attracted Ackermans attention at least as of the time that Ackerman parked next to defendant in an effort to make him nervous. When defendant disembarked four blocks later and began to walk down Santa Clara Street, there was Ackerman again, making eye contact with him. When defendant ducked into the Western Union store, Ackerman stood in line behind him. By the time Ackerman engaged him in conversation, no reasonable person would have thought he was free to "decline to listen to the questions at all and ... go on his way." (Florida v. Royer at pp. 497-498.) The nature of the questions confirmed this: Ackerman did not ask defendant his name, but he did ask him if he was on probation. Then, within 30 seconds of commencing the questioning, defendant was handcuffed and under arrest. Defendant was detained.
D. Justification for the Detention
The Attorney General argues that Officer Ackerman was justified in detaining defendant because defendant "was in an area known for drug sales" and "engage[d] in behavior, failing to get on buses, and initiating short conversations with passersby which, in [Officer Ackermans] expert opinion, created a reasonable suspicion [defendant] was in violation" of Health and Safety Code section 11532.
Health and Safety Code section11532 provides: "(a) It is unlawful for any person to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit an offense specified in Chapter 6 (commencing with Section 11350) and Chapter 6.5 (commencing with Section 11400).
(b) Among circumstances that may be considered in determining whether a person has the requisite intent to engage in drug-related activity are that the person:
(1) Acts as a `look-out.
(2) Transfers small objects or packages for currency in a furtive fashion.
(3) Tries to conceal himself or herself or any object that reasonably could be involved in an unlawful drug-related activity.
(4) Uses signals or language indicative of summoning purchasers of illegal drugs.
(5) Repeatedly beckons to, stops, attempts to stop, or engages in conversations with passersby, whether on foot or in a motor vehicle, indicative of summoning purchasers of illegal drugs.
(6) Repeatedly passes to or receives from passersby, whether on foot or in a motor vehicle, money or small objects.
(7) Is under the influence of a controlled substance or possesses narcotic or drug paraphernalia. For the purposes of this paragraph, `narcotic or drug paraphernalia means any device, contrivance, instrument, or apparatus designed or marketed for the use of smoking, injecting, ingesting, or consuming marijuana, hashish, PCP, or any controlled substance, including, but not limited to, roach clips, cigarette papers, and rollers designed or marketed for use in smoking a controlled substance.
(8) Has been convicted in any court within this state, within five years prior to the arrest under this chapter, of any violation involving the use, possession, or sale of any of the substances referred to in Chapter 6 (commencing with Section 11350) or Chapter 6.5 (commencing with Section 11400), or has been convicted of any violation of those provisions or substantially similar laws of any political subdivision of this state or of any other state.
(9) Is currently subject to any order prohibiting his or her presence in any high drug activity geographic area.
(10) Has engaged, within six months prior to the date of arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (8), or in any other behavior indicative of illegal drug-related activity.
(c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for unlawful drug use and trafficking, or if they occur on or in premises that have been reported to law enforcement as a place suspected of unlawful drug activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case."
Prior to detaining defendant to investigate if he was "loitering with narcotics intent," in violation of section 11532, Officer Ackerman observed defendant sit, in the daylight during commute hours (it was 6:25 p.m., in September), on a bench at one bus stop in the San Jose downtown area, which is also a high crime area, and say something to three people. He did not board a bus. He then walked a few blocks to a different bench at a different bus stop and talked to a few more people. He did not board a bus. He then walked to a third bus stop a few blocks away, and then did board a bus. He got off the bus four blocks later, walked in the direction of his original location, and then went into a store on a main street.
Notably, Officer Ackerman did not see defendant engage in any hand-to-hand contact with any of the five or so people he talked to, nor did he report seeing any money change hands, or physical contact of any kind between defendant and the people he approached, or any unusual reaction on the part of those people to defendants approach. Officer Ackerman made no observations of any conduct or action that even remotely resembled the overture to a drug transaction.
In fact, all of the acts observed by Officer Ackerman were completely ordinary. Defendant could have been lost, and asking for directions. He could have been panhandling, and asking for money. He could have been mentally ill, and babbling nonsense to strangers. All of these scenarios are common place in 21st century American cities.
The Attorney General argues, and we acknowledge, that this type of activity, which might seem to the lay observer completely innocuous, and might in actual reality be so, could, to the trained eye of a seasoned law enforcement veteran, appear suspicious. We are also mindful that our Supreme Court has repeatedly emphasized, most recently in Souza, that "`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 [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.... " (People v. Souza, supra, 9 Cal.4th at p. 233, quoting from In re Tony C. (1978) 21 Cal.3d 888, 894, superseded by constitutional amendment on another point as stated in In re Christopher B. (1990) 219 Cal.App.3d. 455, 460, fn. 2.)
Although the Attorney General concedes that "a person may not be detained solely because he or she is in a high crime area," he nevertheless argues that, in combination with Officer Ackermans training and experience, the reputation of the area for hand-to-hand drug dealing rendered the officers suspicion a reasonable one that defendant was about to engage in such illegal activity. Our Supreme Court has cautioned against investing typical everyday conduct with suspicious meaning simply because it occurs in areas known for criminal activity. "The `high crime area factor is not an `activity of an individual. Many citizens of this state are forced to live in areas that have `high crime rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends. The spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, this court has appraised this factor with caution and has been reluctant to conclude that a locations crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual." (People v. Bower (1979) 24 Cal.3d 638, 645, superseded by constitutional amendment on another point as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 732.)
Moreover, if defendants acts here — failing to board a bus, talking to strangers — justify a detention simply because he performed them in a so-called high crime area, then, in effect, police could properly detain every person in such areas who lingers too long at bus stops chatting up transit riders, but not detain people for similar conduct in more reputable areas. Similarly, if police may properly detain everyone in so-called high-crime areas who happen to overstay their welcome in our public places, so many people would potentially become subject to detention that police might be tempted to select their detainees arbitrarily and solely on the basis of improper considerations that do not indicate criminal activity, such as race, ethnicity, age, or stereotypes; or on the basis of vague, unstated, and unofficial profiles, which unfairly cast suspicion on whole categories of people. (See United States v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1129 [condemning use of broad, generic profiles]; United States v. Rodriguez (9th Cir. 1992) 976 F.2d 592, 595-596 [same].)
The record reflects that defendant here is African American.
MIHARA, J., dissenting:
Up to the point when Ackemann noticed that defendant appeared to have narcotics in his mouth, nothing Ackemann had done would have given a reasonable person the belief that he was not free to leave. Consequently, no detention had yet occurred. Ackemanns observation of the apparent narcotics in defendants mouth provided probable cause for Ackemann to arrest defendant. Ackemanns conduct in placing his hand on defendants neck and threatening to choke him if he did not spit out the narcotics was neither unreasonable nor excessive under the circumstances. Consequently, I would find no error in the trial courts denial of defendants suppression motion.
We conclude that People v. Souza, supra, 9 Cal.4th 224 is distinguishable and does not compel us to validate this detention simply because the area was high crime and the officer was experienced, in the absence of any otherwise suspicious circumstances. In Souza an officer was on patrol at 3:00 a.m. in a residential area known for burglaries and drug activity. It was dark because the streetlights were not working. The officer saw a woman and the defendant standing near a parked car. The defendant appeared to be talking to someone in the car. The officer became suspicious and shined his spotlight into the parked car. The defendant immediately took off running, and two people inside the car quickly bent down toward the floorboard. The officer detained the defendant and frisked him for weapons, finding drugs, for which he was arrested. (Id. at p. 228.) On these facts, our Supreme Court concluded that the combination of the lateness of the hour, the almost total darkness, the areas reputation for criminal activity, and the sudden evasive conduct of the defendant and the people inside the car supported a reasonable suspicion of unlawful activity to justify a detention. (Id. at pp. 240-242.) This case lacks the critical confluence of such suspicious circumstances.
Our opinion in People v. Limon (1993) 17 Cal.App.4th 524, cited by the Attorney General for the proposition that "[a] police officers expertise can attach criminal import to otherwise innocent facts," (id. at p. 532) illustrates the limits of that bald proposition and is in fact instructive on the interplay between officer expertise, an areas reputation for high crime, and otherwise innocuous behavior. In Limon, two police officers saw the defendant and another man standing in the carport of an apartment complex located in an area known for gang activity, weapons, violence, and drugs. There had been reports of drug dealing from the carport, and one officer had witnessed drug transactions and made an arrest there. One officer saw the defendant walk to a truck, bend down near the right front wheel well, remove something, and walk back to the other man, where the two touched hands. The officers suspected a drug sale. The defendant then returned to the truck and put something back in the wheel well, and the other man left the area. The two officers walked over to investigate. The defendant was back in his original position, talking to a woman inside a car, whom the officers suspected was another customer. There was a syringe on the ground. Although the defendant was cooperative and not aggressive, the officers detained him. (Id. at pp. 529-531.) In upholding the detention, this court concluded that the reputation of the area and the carport for drug sales and the officers experience, coupled with the hand-to-hand exchange, and the apparent wheel-well hiding place, supported a reasonable suspicion that the defendant was selling drugs. (Id. at pp. 532-534.) While we do not suggest that Limon establishes the minimum circumstances needed to support a detention, it does underscore that something more than general expertise and a reputation for crime is required to justify a detention. Here, there is nothing comparable to the officers knowledge in Limon of drug dealing in the carport, their observation of a hand-to-hand transfer, and the syringe on the ground, in addition to the officers expertise and the crime-ridden neighborhood, that invested the common place scenario there with suspicious meaning.
Taken together Souza and Limon will not support a finding that that the circumstances here justified defendants detention. Although both cases teach that police may reasonably suspect conduct that can also have an innocent explanation, and that presence in a high crime area is an important factor in the mix, they also illustrate that justification of a detention depends on the totality of suspicious circumstances. Here, Officer Ackerman observed nothing more than common, everyday acts that people perform in a variety of situations, often without even thinking. We do not question Officer Ackermans expertise in identifying the subtle, tell-tale signs of drug dealing in the offing. Nor do we reject his testimony, or the inferences drawn from it, that drug dealers often secrete drugs in their mouths, sometimes find willing customers at bus stops and, when they do, discretely spit the drugs into the customers hands and equally discretely get paid, and, when they dont find such customers, move on to a different bus stop. However, at the time Officer Ackerman saw defendant at the first bus stop, it was broad daylight, at an hour when the other persons at the bus stop were more likely to be commuters going home after work than drug purchasers looking for a dealer; he was not investigating a report that someone was selling drugs from bus stops, or was annoying innocent transit riders with illegal solicitations. He did not see defendant spit anything out; he did not see any money change hands; he did not see any hand-to-hand contact at all; and he did not notice anything unusual about defendants mouth when he was talking to strangers. In short, without some additional suspicious circumstances, the activity Officer Ackerman observed was no more indicative of drug activity than sitting, standing, walking, or talking on the sidewalk or in a parking lot, all of which could also be considered consistent with selling drugs. (Cf. United States v. Davis (10th Cir. 1996) 94 F.3d 1465, 1468 [looking at officer and then looking away in area of drug house not sufficiently suspicious to justify detention]; United States v. Robert L. (9th Cir. 1989) 874 F.2d 701, 704 [observing cars traveling together for only one kilometer represents too brief an observation to be significant factor in establishing reasonable suspicion].)
In our view, Officer Ackermans testimony about his knowledge of and experience with drug users and dealers, and about the unsavory reputation of the neighborhood, did not transform the common acts of moving from one bus stop to another and talking to strangers "with no legitimate business, lawful business," during daylight hours, in the transit hub of the downtown area of a major metropolitan city — and where drug dealing is also common place — into nefarious behavior sufficiently suspicious to lead him "reasonably to conclude in light of his experience that criminal activity may be afoot...." (Terry v. Ohio, supra, 392 U. S. at p. 30.)
The dissent agrees that "[b]efore Ackerman saw defendant concealing objects in his mouth, defendants suspicious behavior may not have justified a detention." (Dis. opn. at p. 6.) But the dissent also concludes that, "by the time Ackerman asked defendant whether he was on probation," he was justified in arresting defendant, based on the suspicious behavior coupled with the concealment of objects in his mouth and Ackermans extensive experience with crack cocaine dealers. (Dis. opn. at p. 6.) But the narrow question here is whether the uniformed Officer Ackerman maneuvered himself and his marked patrol car in such a way that when he said " `Hi, what are you doing today " and "`are you on probation? " a reasonable person in defendants shoes would have felt he had any choice except to open his mouth and answer, thereby supplying the officer with probable cause to arrest. The dissent acknowledges that " `in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter " and must "assess[] the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation." (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Yet, in concluding that the encounter between Officer Ackerman and defendant inside the Western Union office was not coercive, the dissent treats the police conduct as discrete segments — a patrol car following someone, a police car parking near someone, a police officer making eye contact, a police officer standing in line behind someone in a store, a police officer saying "Hi, what are you doing today, are you on probation?" — and asks if each segment, standing alone, would make a reasonable person feel he was not free to leave. In our view, the question whether Officer Ackermans engagement of defendant in conversation must be viewed in the context of the Officer Ackermans conduct as a whole, including his prior pursuit of defendant which, the objective circumstances show, was not lost on defendant. So viewed, it is not reasonable to conclude that a person standing in defendants shoes inside the Western Union store would have believed himself free to ignore the officers questions and walk away.
Because we find that there was a detention, and that it was unreasonable under the circumstances, we need not decide whether Officer Ackermans threat to choke defendant if he did not spit out what was in his mouth likewise unreasonable.
CONCLUSION
Given the totality of the circumstances, defendants detention for "loitering with narcotics intent" was unreasonable and violated the Fourth Amendment. We therefore conclude that the trial court improperly denied defendants motion to suppress evidence.
DISPOSITION
The judgment is reversed.
I Concur:
Rushing, P.J.
I. Proceedings Below
Ackemann was the sole witness at the hearing on defendants suppression motion. He described his extensive experience talking to cocaine users and cocaine dealers and making arrests for cocaine possession and sales and loitering with intent to sell drugs.
Defendants written suppression motion did not identify the specific nature of his contentions and said nothing about excessive or unreasonable force.
Ackemann encountered defendant in an area of downtown San Jose that "has the highest hand-to-hand sales of any area in the city, particularly crack cocaine . . . ." Ackemann was driving around the area that evening in a marked patrol car and was wearing a full uniform. At first, Ackemann saw defendant "loitering" at a bus stop, engaging people in conversation but not boarding any of the numerous buses that arrived. About 15 minutes later, Ackemann saw defendant at a different bus stop about 150 to 200 yards away from the first bus stop. Again, defendant was talking to multiple people but was not boarding any of the multiple buses that arrived. Ackemann did not see defendant engage in any hand-to-hand transactions at either bus stop. Another 10 to 15 minutes after this second observation, Ackemann saw defendant sitting on a bench at a third bus stop about 200 yards away from the second bus stop.
Because Ackemann believed that defendant was "involved in narcotics activity," he pulled his patrol car up next to the bench and parked, hoping that the presence of his patrol car would "make him nervous." Ackemanns ploy worked. Defendant got on the very next bus. Ackemann followed the bus and saw defendant disembark after a journey of just four blocks. Defendant looked around and then made a big loop around several adjacent blocks ending up back near the first bus stop. Ackemann anticipated this maneuver, and he parked his patrol car near the first bus stop to await defendants return. When defendant came around the corner and saw Ackemann, defendant made eye contact with Ackemann, averted his eyes and quickly entered a Western Union office.
Ackemann got out of his car, walked into the Western Union office and got in line behind defendant. Defendant "appeared very nervous." He looked over his shoulder at Ackemann several times. When defendant arrived at the front of the line, he asked for change for a dollar. Defendant completed this transaction, turned around and was "kind of just standing there." Defendant and Ackemann were "standing side-by-side and the door was an equal distance to both of us." Ackemann said "Hi" and something to the effect of "I want to talk to you," and he asked defendant "about what he was doing today." Defendant told Ackemann that he was from Oakland and "had taken the bus and BART down from Oakland to San Jose that day." Ackemann asked defendant if he was "on probation," and defendant said he was "on probation for a prior narcotic sales."
Defendants "mouth movements" and "his actions" as he spoke to Ackemann led Ackemann to conclude that defendant "had some items secreted in his mouth." Ackemann knew from experience that crack cocaine dealers carry crack cocaine in their mouths "to defeat the police or to secrete their evidence." After he noticed that defendant had something hidden in his mouth, Ackemann decided to arrest defendant, placed defendant under arrest for possession of narcotics for sale and handcuffed him. Less than 30 seconds had elapsed since Ackemann had said "Hi."
Because Ackemann had "had several drug dealers swallow drugs during an arrest situation and several have died," Ackemann asked defendant to spit out the narcotics that he had in his mouth. Ackemann placed one hand on defendants neck "in a V shape on his carotid arteries," but he applied no pressure to defendants neck. Ackemann told defendant that he "would choke him" if he "tried to swallow what he had in his mouth." Defendant first spit out one rock, then two more and eventually three more for a total of six rocks of crack cocaine.
Defendants trial counsel argued that the detention occurred when Ackemann told defendant that he wanted to talk to him because a reasonable person would not have felt that he was free to leave at that point. He also asserted that Ackemanns threat to choke defendant was a due process violation that merited the suppression of the evidence.
The trial court found Ackemanns testimony credible. The court was not convinced that there had been a detention when Ackemann asked to talk to defendant. The court also concluded that, "[e]ven if it were a detention" at that point, Ackemann had probable cause to detain defendant for loitering with intent to sell narcotics. The court concluded that Ackemanns threat to choke defendant if he did not spit out the drugs was not improper.
II. Discussion
A. No Illegal Detention
"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 [or in a public place] 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 individuals liberty, does a seizure occur. [Citations.] `[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether 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. [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: 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. [Citations.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
My colleagues conclude that Ackemanns contact with defendant up to the point when Ackemann "engaged him in conversation" "was no consensual encounter." Yet the only actual interaction that they identify between the two men is the eye contact that defendant made with Ackemann just before defendant entered the Western Union office. While defendant might well have observed Ackemanns patrol car during the period of time that Ackemann was following defendant or parked nearby, Ackemann had not even exited his patrol car until after defendant made eye contact with him. A reasonable man who was walking along public streets or sitting or standing at a bus stop would not have felt constrained by the mere presence of a patrol car in the vicinity, even if the patrol car pulled up and parked near him. Nor would a reasonable man feel that he was not free to leave after simply making eye contact with the police officer in such a patrol car.
I disagree with my colleagues implied conclusion that a reasonable person would not have felt free to leave when the police officer who had been following him stood in line behind him or beside him in a business open to the public. Reasonable people are not coerced by the mere presence of a police officer; a detention occurs only when the police officer engages in some type of coercive conduct. Here, Ackemann observed defendant on the street, made eye contact with him, followed him into a public place and stood in line behind him. Ackemanns actions were not coercive.
While "questions of a sufficiently accusatory nature may by themselves be cause to view an encounter as a nonconsensual detention" (People v. Lopez (1989) 212 Cal.App.3d 289, 292), Ackemanns conversation with defendant did not consist of accusatory questions and lacked any coercive element. Ackemann said "Hi," asked to talk to defendant, inquired "what he was doing today" and queried whether defendant was "on probation." Ackemann did not accuse defendant of any crime, touch him, obstruct his path, display a weapon, summon additional officers or physically or verbally demand that defendant remain or respond to his questions. While a reasonable man could have concluded that he was the focus of Ackemanns attention, nothing in Ackemanns statements or conduct would have suggested to a reasonable man that he was precluded from declining to answer questions and leaving the Western Union office.
Furthermore, by the time Ackemann asked defendant whether he was on probation, which was the closest Ackemann got to an accusatory question, Ackemann was already observing that defendant had objects concealed in his mouth. This observation clearly provided probable cause for Ackemann to arrest defendant. "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. [P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts . . . . It is incapable of precise definition. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that belief must be particularized with respect to the person to be . . . seized." (People v. Thompson (2006) 38 Cal.4th 811, 818, internal citations and quotation marks omitted.)
Ackemann had seen defendant approach numerous people at several bus stops in an area known for its high level of crack cocaine sales. In apparent response to Ackemanns presence, defendant had boarded a bus, only to get off after a journey of just four blocks, and then taken a walk around several blocks that led him back to his original location. Upon making eye contact with Ackemann, defendant averted his eyes and immediately went into a business where he ultimately had no purpose. Defendant appeared nervous. Before Ackemann saw defendant concealing objects in his mouth, defendants suspicious behavior may not have justified a detention. However, when defendants suspicious behavior is coupled with his obvious concealment of objects in his mouth and Ackemanns extensive experience with crack cocaine dealers storing their drugs in their mouths, it is clear that Ackemann had reasonable grounds for believing that defendant was in possession of crack cocaine. Since probable cause existed at this point, Ackemanns arrest of defendant did not violate defendants Fourth Amendment rights.
B. Excessive or Unreasonable Force
Defendant also contends that Ackemann used excessive force when he placed his hand on defendants neck and threatened to choke him if he did not spit out the objects in his mouth.
Claims of excessive force in the course of a detention or arrest are analyzed under the Fourth Amendments "objective reasonableness" standard rather than under a substantive due process standard. (Graham v. Connor (1985) 490 U.S. 386, 395 (Graham).) "Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individuals Fourth Amendment interests against the countervailing governmental interests at stake." (Graham, at p. 396, internal quotations marks omitted.) Reasonableness "is determined by a general balancing test weighing the gravity of the governmental interest or public concern served and the degree to which the [challenged government conduct] advances that concern against the intrusiveness of the interference with individual liberty." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 29.) "A crucial factor in analyzing the magnitude of the intrusion . . . is the extent to which the [challenged police conduct] may threaten the safety or health of the individual." (Winston v. Lee (1985) 470 U.S. 753, 761.) "Another factor is the extent of intrusion upon the individuals dignitary interests in personal privacy and bodily integrity." (Winston, at p. 761.)
Here, the gravity of the governmental interest clearly outweighs the intrusion on defendants liberty posed by Ackemanns actions. Ackemanns actions were motivated by the imminent threat to defendants life if defendant swallowed the cocaine in his mouth. The government has a very grave interest in the preservation of human life. In contrast, Ackemanns conduct did not pose a threat to defendants safety or health. Ackemann did not place any pressure on defendants neck. He simply placed his hand on defendants neck and uttered a verbal threat to choke defendant if defendant tried to swallow the drugs in his mouth. While there is no doubt that this threat had some tendency to coerce defendant to comply and therefore did intrude on defendants privacy, this intrusion was easily outweighed by the need to safeguard defendants life against the imminent threat posed by his swallowing the narcotics in his mouth.
No case has found excessive force under such circumstances. In People v. Parham (1963) 60 Cal.2d 378 (Parham), the court held that actually "[c]hoking a man to extract evidence from his mouth" was an unreasonable use of excessive force. (Parham, at p. 384.) In People v. Sanders (1969) 268 Cal.App.2d 802 (Sanders), the court found excessive force where an officer choked a man until he spit out a balloon of heroin. (Sanders, at pp. 803-806.) In People v. Jones (1989) 209 Cal.App.3d 725 (Jones), the court held that choking a man to force him to spit out a balloon of heroin was excessive force. (Jones, at pp. 727-731.) While actual choking obviously poses a serious threat to a defendants safety or health, no actual choking occurred here. Ackemann applied no pressure at all to defendants neck. He merely placed his hand on defendants neck and threatened to choke him if he tried to swallow the drugs.
Ackemann employed less force that the officer in People v. Johnson (1991) 231 Cal.App.3d 1 (Johnson) who attempted to retrieve cocaine from the defendants mouth by grabbing and squeezing his jaw, and the court in Johnson found that the officers actions did not constitute excessive force. (Johnson, at pp. 15-17.) Ackemann also employed less force that the two officers in People v. Cappellia (1989) 208 Cal.App.3d 1331 (Cappellia) who put their hands on defendants neck and "held on `just strong enough so that [defendant] wasnt able to swallow" the drugs that he had in his mouth. (Cappellia, at p. 1335.) The defendant claimed that the drugs should have been suppressed because the officers used excessive force. (Cappellia, at pp. 1335-1336.) Because the officers had not actually "choked" the defendant, the Court of Appeal concluded that the force used was not unreasonable. (Cappellia, at pp. 1338-1339.)
Defendant places great reliance on People v. Allen (1978) 86 Cal.App.3d 948 (Allen). In Allen, the officer held a gun just a few inches from the defendants head and said "Spit it out or Ill blow your head off." (Allen, at p. 951.) Although the trial court found that the officers conduct was dangerous and unsafe, it denied the suppression motion. (Allen, at p. 951.) The majority opinion held that the officers conduct was not justified by the need to retrieve the evidence and found no evidence of any other justification. (Allen, at pp. 951-954.) It noted that there was no evidence that the defendant faced any danger from swallowing the rubber balloons of heroin that were in his mouth. (Allen, at p. 951, fn. 1.) The dissent, on the other hand, noting "the danger and distinct possibility that defendants life could be in jeopardy from an overdose by the balloons rupturing from stomach acids," maintained that the officers actions were justified under the circumstances. (Allen, at pp. 957-960.)
In this case, unlike Allen, there was substantial evidence that Ackemann justifiably believed that defendants life would be in serious jeopardy if he swallowed the crack cocaine in his mouth. Nor was the nature of Ackemanns threat and conduct similar to the nature of the threat and conduct in Allen. The officer in Allen threatened to "blow [the defendants] head off" and backed up his threat by aiming his firearm at the defendants head at point blank range. Ackemann threatened to choke defendant and placed his hand on defendants neck. In Allen, the threat was greatly disproportionate to the purported justification, and the officers conduct placed defendant at serious risk of harm from an accidental discharge of the firearm. Here, Ackemanns threat to choke defendant was narrowly aimed at preventing defendant from swallowing a potentially deadly substance, and Ackemanns placement of his hand on defendants neck without any pressure did not put defendant at the slightest risk of harm.
Ackemanns threat and conduct were not excessive or unreasonable and did not violate defendants Fourth Amendment rights.
III. Conclusion
Since Ackemann did not subject defendant to any type of seizure until he had probable cause to believe that defendant was concealing cocaine in his mouth and Ackemanns conduct and threat were neither unreasonable nor excessive, the trial court did not err in denying defendants suppression motion.