Opinion
A100824.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BRANDON JACO, Defendant and Appellant.
Appellant, Michael Brandon Jaco, appeals from the trial courts denial of his motion to suppress evidence. He contends that the trial court erred by determining that the search and subsequent seizure of the evidence was constitutionally permissible. We agree and reverse the judgment.
BACKGROUND
On January 14, 2002, at about 9:00 p.m., Santa Rosa Police Officer Richard Kohut was alone on patrol. While conducting a routine security check, he drove through the parking lot of a motel which had been the site of prior arrests for burglary, drug sales, and drug use. At the far end of the parking lot, Officer Kohut saw two people sitting in a parked car. Appellant was in the drivers seat and a woman sat beside him in the passenger seat. Officer Kohut parked his patrol car about 15 feet behind appellants car, illuminated it with a spotlight, and approached the drivers door to investigate. The parking lot was dimly lit and there was no light inside the car.
Officer Kohut asked the occupants of the vehicle if they had rented a room at the motel. Appellant and his companion told Officer Kohut that they were visiting friends at the motel; but they did not know the number of their friends room. Officer Kohut noticed that appellant was "moving around in the drivers seat kind of fidgety, nervous" and that "[I]t was dark in the car . . . so I couldnt tell exactly what they were doing in there." Officer Kohut asked for identification. Both appellant and his passenger provided identification, showing their names and dates of birth. Officer Kohut then asked them if they had ever been arrested. Appellant said he had once been arrested for possession of narcotics. During this exchange, Officer Kohut contacted his dispatcher on his portable radio and requested a criminal warrant check. Officer Kohut then asked appellant if he had ever been on probation. Appellant responded in the affirmative but added that he was no longer on probation.
Officer Kohut asked appellant to step out of the car. He later testified that he did so because appellant was acting nervous and "fidgety" inside the car, and because it was too dark to clearly see the occupants of the car. Officer Kohut stressed that he was working alone and testified that he felt that "it would be safer for me to have him step from the car while we talked." Approximately five minutes had elapsed from the time of the initial contact to the time appellant stepped out of the car. During this time, Officer Kohut requested backup.
As they stood near the car, Officer Kohut again asked appellant for the names of his friends staying at the motel. Officer Kohut testified that at this point he observed symptoms indicating that appellant was under the influence of a stimulant, i.e., he was talking very rapidly, he could not stand still, he was nervous, and he repeatedly ground and clenched his teeth. Out of concern for his own safety, Officer Kohut asked for appellants consent to be searched for weapons. Officer Kohut stated that appellant consented.
When Officer Kohut patted appellants right front pants pocket, appellant pulled away from him. Officer Kohut testified that he placed appellant in handcuffs before continuing the search because he feared that appellant might have a weapon in that pocket. The officer testified that when he went back to appellants pants pocket, appellant "again tensed up and I could tell was very rig[i]d." Officer Kohut testified that when he touched appellants right coin pocket, he felt a large bulge that made a sound like plastic crunching together and that he immediately recognized the object as a controlled substance. Officer Kohut removed the object from the coin pocket and saw that it was a "large golf ball size" package containing an off-white powdery substance, later identified as methamphetamine.
Based on the quantity of the substance found, along with the presence of packaging materials, a cellular phone and a pager, which were later found in the car, Officer Kohut concluded that the substance was possessed for the purpose of sale. From the time Officer Kohut first contacted appellant to the time he recognized the bulge in his coin pocket, no more than 10 minutes had elapsed. After the drugs were found, the dispatcher responded that appellant had no outstanding warrants. There was never any indication that appellant was on probation. The backup officer arrived at the scene after the drugs were found. Officer Kohut never unholstered his pistol.
The trial court found that requesting a license and running a warrant check would not cause a reasonable person under these circumstances to feel that he was restrained. Accordingly, the court concluded this encounter was not a detention and denied appellants motion to suppress the evidence obtained by the search. Appellant later entered a plea of no contest and was sentenced to the midterm of two years in state prison. Execution of sentence was suspended and appellant was placed on probation for a period of three years and ordered to serve one year in county jail as a condition of probation. Appellant filed this timely appeal.
DISCUSSION
The parties agree that our standard of review is governed by well-settled principles. In ruling on motions to suppress, trial courts must determine what the facts are, what law is applicable, and must apply the law to the facts. On appeal, all presumptions favor the trial courts findings of fact, whether express or implied, and such findings must be upheld if supported by substantial evidence. However, questions of law must be examined under the standard of independent review and appellate courts must measure the facts, as determined by the trial court, against the constitutional standard of reasonableness. (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Leyba (1981) 29 Cal.3d 591, 596-597; accord, People v. Glaser (1995) 11 Cal.4th 354, 362.)
Appellant argues that although the officers request for identification and warrant check were initially part of a consensual encounter, the encounter was transformed into a detention, because all of the circumstances surrounding the encounter indicate that a reasonable person would not have felt free to leave. Appellant relies upon the opinion in People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227, where the court found a detention had occurred because a reasonable person would not have felt free to leave once the defendant in that case had surrendered his identification to the police. Appellant contends that these circumstances were similar to the situation in Castaneda, and that a reasonable person in his position would not have felt free to leave. Finally, appellant argues that Officer Kohut did not have any reasonable suspicion to question him in the first place.
Relying on the opinion in INS v. Delgado (1984) 466 U.S. 210, 216, respondent counters that "`interrogation relating to ones identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure "because a reasonable person would feel free to terminate the encounter and go about his business. Respondent contends that Officer Kohuts request for identification and warrant check were not part of a detention because Officer Kohut neither raised his voice, displayed his weapon, nor exerted any physical restraint of appellant which would induce his compliance. (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367 [seizure occurs only when an officer intentionally applies hands-on, physical restraint to a suspect]; People v. Fierro (1991) 1 Cal.4th 173, 217 ["no evidence of any coercion . . . of police authority which might have vitiated the consent"].) Under the holding of People v. Bouser (1994) 26 Cal.App.4th 1280, 1283, respondent argues that the totality of the circumstances where identification is obtained by police and subsequent warrant checks are run, "do not strip the encounter of its consensual character" simply because the police conduct does not relate to specific and identifiable criminal activity.
The facts in this record demonstrate that this encounter was more similar to the type of constructive restraint described in People v. Castaneda, supra, 35 Cal.App.4th 1222, than it was to the consensual encounters discussed in respondents citations. While it is true that the examples of circumstances that might indicate a detention include the threatening presence of several officers, the display of the officers weapon, physical contact by the officer, or the officers use of language or tone of voice that might compel a person to comply with the requests (United States v. Mendenhall (1980) 446 U.S. 544), ultimately we must consider all the circumstances to determine whether the police conduct would have communicated to a reasonable person that he was not free to reject the officers requests or otherwise terminate the encounter. (Id. at p. 554; Florida v. Bostick (1991) 501 U.S. 429, 439.)
While it does not appear that a detention initially occurred here simply by reason of the officers request for identification, we conclude that all of the other facts pertaining to the encounter describe a situation where a reasonable person would have felt intimidated and restrained. The use of a spotlight and the request for backup certainly contributed to the restraint that any reasonable person in appellants situation would have felt. (See People v. Roth (1990) 219 Cal.App.3d 211, 215 [where the court found that shining a spotlight on a defendant was an additional factor leading to the conclusion that the defendant was detained].) Nothing in the record suggests that a reasonable person would have felt comfortable refusing Officer Kohuts request for identification even though the officer testified that he never raised his voice, never displayed his weapon, and did not initially use any physical force. Here, the context and nature of the questioning was intimidating: appellant was fixed by a bright searchlight in a secluded location by an officer who not only took and retained his identification papers, and called for more police to come, but who also rapidly escalated the intrusiveness of his investigation without any concomitant increase of evidence supporting any probable cause.
After taking appellants identification papers in hand, Officer Kohut immediately asked appellant if he had ever been arrested or on probation; and he repeated his request for the names of appellants friends after appellant left the car. Appellant answered these questions despite the fact that they had little relevance, if any, to any inquiry regarding appellants apparently lawful presence in the parking lot. There is nothing inherently suspicious in not knowing the number of a motel room occupied by friends or in being reluctant to disclose the names of friends to a police officer. Under all these circumstances, Officer Kohuts continued questioning about appellants friends and his additional questions about whether appellant had ever been arrested or was on probation, after appellant had already responded and before there was any other evidence to support any suspicion of criminal conduct, transformed the encounter into a detention. No legitimate suspicion was raised by appellants apparently truthful responses that he had previously been arrested but was no longer on probation. The repetition of such inquiries was itself intimidating under these circumstances. Such repetitive questioning, as well as the types of questions asked by the officer, if not the officers manner, would have been inherently intimidating to a reasonable person in this context.
Officer Kohuts continued retention of appellants identification, while perhaps not dispositive, did nothing to ameliorate the intimidating nature of the encounter. Officer Kohut did not promptly return the identification, and appellant could not have been expected to leave without it. Even assuming that he might have asked to have his identification returned at any time, the tenor of the questions asked by Officer Kohut, together with the spotlight, the request for backup, and finally the request to step out of the car, would have made it clear to any reasonable person that he was not free to go. At a point well prior to the search, these circumstances combined to cause the encounter to become a detention.
Admittedly, Officer Kohut needed to hold appellants license for a short time in order to run the warrant check, and appellant cooperated with that procedure. However, it is undisputed that no more than five minutes elapsed from the first contact until appellant was asked to step out of the car and the search took place within 10 minutes of the first contact. Although the length of the encounter is significant, it is the totality of the circumstances that must be considered to determine whether a detention has occurred. (See U.S. v. Cuevas-Ceja (D.Or. 1999) 58 F.Supp.2d 1175, 1183 [detention found in part because stop lasted one-half hour longer than usual].) In this case, the rapidity of the escalation from inquiry to search was not based upon the discovery of any new and suspicious facts. Under such circumstances, even a short time period can be a factor suggesting that a detention has occurred. (See People v. Glaser, supra, 11 Cal.4th 354.)
We recognize that officer safety may require certain precautions, such as calling for backup and providing additional light where needed. "`. . . We must allow those we hire to maintain our peace . . . to give appropriate consideration to their surroundings . . . ." (People v. Souza (1994) 9 Cal.4th 224, 241.) An officer may even be entitled to remove passengers from a vehicle for his own safety. (People v. Fisher (1995) 38 Cal.App.4th 338, 345.) However, appellant was asked to step out of the car and handcuffed almost immediately; and although the officer testified that appellant consented to a pat-down search, the sole justification for such a search is always the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (Terry v. Ohio (1968) 392 U.S. 1, 29-30.) To properly exceed the scope of a pat-down search the officer must be able to point to "specific and articulable facts reasonably supporting his suspicion" that the suspect is armed. (People v. Collins (1970) 1 Cal.3d 658, 662 (Collins).) The burden of establishing these facts rests with the prosecution (ibid., citing People v. Johnson (1968) 68 Cal.2d 629, 632). No evidence suggesting that appellant had a weapon appears in the record.
Rather, the prosecution appears to have relied upon a variation of the "plain view" rule in order to justify the extension of the search into appellants pocket based solely on Officer Kohuts claim that he instantly recognized the soft, "golf ball size," "crunchy" object in the pocket as contraband. (Compare People v. Block (1971) 6 Cal.3d 239 [contraband found in clear plastic vial during valid search of premises for additional suspects].) Neither appellant nor respondent has addressed the extension of the scope of the search based on the officers "immediately formed belief" that the object was a controlled substance. And the trial court seems to have ended its inquiry with the citation of two unpublished cases suggesting that requesting identification and running a warrant check was necessarily part of a consensual encounter. This conclusion does not end our inquiry, for it is well settled that "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." (Terry v. Ohio, supra, 392 U.S. at pp. 17-18.)
The issue for us is dual: "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." (Id. at p. 20.)
The Supreme Court addressed a similarly extended search in People v. Mosher (1969) 1 Cal.3d 379, 393, where a Terry-type pat-down of a burglary suspect revealed a "sharp object like a knife blade." On further investigation the object was found to be a watchband belonging to a murder victim. While it upheld the search in that instance, the court was careful to distinguish the "knife blade" there from "[a] box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers and many other small items . . . [which] do not ordinarily feel like weapons." (Id. at p. 394.) Later, in People v. Brisendine (1975) 13 Cal.3d 528, 544, the court remarked on the scope of such extended searches as follows: "If such ordinary objects are not to be intruded upon when felt, then a fortiori such intrusion is unjustified [even] when the commonplace is seen." Here Officer Kohut felt a bulge approximately the size of a golf ball, which made a crunching sound in appellants coin pocket. Perhaps if the object been large enough and bulky enough to have contained some sort of weapon we could be persuaded that it would have been reasonable to remove and open it; but no such evidence was offered here.
The prosecutions burden could not have been carried by the assertion that the lump in appellants pocket might possibly have contained an unusual or atypical weapon. The Supreme Court long ago rejected that approach. (Collins, supra, 1 Cal.3d 658, 664 [unusual weapon contention rejected as applied to a "little lump" felt during the course of a pat-down]; People v. Armenta (1968) 268 Cal.App.2d 248, 251 [rejecting as "fanciful" the contention that a soft object might have been a "rubber water pistol loaded with carbolic acid."].) Collins explicitly ruled that "an officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down." (Collins, supra, at p. 663.)
This case is more similar to Kaplan v. Superior Court (1971) 6 Cal.3d 150, 153 [where the searching officer was "`pretty sure. . . it was not a weapon, "but" `had an idea it was pills."] because the record is devoid of any articulation of facts upon which to base the conclusion immediately reached by Officer Kohut, other than his assertion that he had made "[h]undreds" of arrests "due to the place it was located . . . and how it was packaged." The discovery of the lump in appellants pocket during the pat-down search could not have justified further intrusion into the pocket for the purpose of self-protection, since Officer Kohut knew the soft object was not a weapon (Collins, supra, 1 Cal.3d at pp. 662-663;
People v. Mosher, supra, 1 Cal.3d at p. 394); and the officer testified that he did not arrest appellant based on the evidence of intoxication he had observed. The rule restricting such weapons searches cannot be evaded by the ultimate arrest of appellant based on the officers claim that he immediately knew the object was contraband, because the search preceded any evidence that the lump was contraband. The record is devoid of any facts to support the officers instant conclusion that the lump could only have been a drug, and it has long been settled that "[a]n arrest may not be used as a pretext to search for evidence." (United States v. Lefkowitz (1932) 285 U.S. 452, 467;
People v. Haven (1963) 59 Cal.2d 713, 719.) The lump in appellants pocket was never argued to be a weapon and could just as reasonably have turned out to be a bag of candy.
The evidence presented in the trial court was that appellant was sitting in a car in a motel parking lot and that he acted nervous and "fidgety" when approached by the officer. The trial court denied the motion to suppress on the sole ground that the encounter was "consensual" and thus never considered whether the officer could have entertained any reasonable belief that appellant was involved in any criminal activity prior to being asked to leave his car. We have concluded that there was a detention prior to appellants removal from the car because at that point there were insufficient facts to support any reasonable suspicion on the part of Officer Kohut. (People v. McGaughran (1979) 25 Cal.3d 577, 588.) And even if we allow the latitude provided for officer safety, the circumstances would not have permitted the search prior to an arrest. Indeed, the facts relating to the pat-down search for weapons suggest that it might have been merely a façade designed to provide justification for an exploratory search for narcotics. If such were the case, the search was illegal. (People v. Superior Court (1970) 3 Cal.3d 807, 830-831; Cunha v. Superior Court (1970) 2 Cal.3d 352, 358; People v. Cruz (1968) 264 Cal.App.2d 437, 441.)
Although reasonable suspicion can develop during an encounter (People v. Russell (2000) 81 Cal.App.4th 96, 102 ["[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention"]), this detention occurred too quickly to be justified by any later observed suspicious facts. Reasonable suspicion was not provided to escalate the officers initial curiosity either by appellants answers to the officers questions or by the mere observation of appellants nervousness, which is of "limited significance," as a basis for probable cause. (See U.S v. Chavez-Valenzuela (9th Cir. 2001) 268 F.3d 719; U.S. v. Fernandez (10th Cir. 1994) 18 F.3d 874, 879; U.S. v. Wood (10th Cir. 1997) 106 F.3d 942, 948; U.S. v. Beck (8th Cir. 1998) 140 F.3d 1129, 1139; U.S. v. Tapia (11th Cir. 1990) 912 F.2d 1367, 1371.) Appellant was detained well prior to the search, as the officers inquiry quickly escalated beyond any reasonably inferable consent by appellant, and initially without any facts to support a valid suspicion of criminal activity. The facts that ultimately led to appellants arrest were not even based on the officers observations of his symptoms of intoxication; rather, his arrest was based on the discovery of drugs found during a search that exceeded the limitation of its scope to a search for weapons. Therefore, the consent relied upon by the trial court in denying the motion to suppress was a chimera. Accordingly, because appellant was detained and arrested based on the fruits of an illegal search, the evidence found during the pat-search should have been suppressed.
DISPOSITION
The order denying the motion to suppress is reversed, and the case is remanded to the trial court in order to allow appellant an opportunity to withdraw his plea of "no contest."
We concur: Kline, P. J., Haerle, J. --------------- Notes: The two terms refer to the same behavior. (See American Heritage Dict. (3d ed. 1992) p. 677.)