Opinion
D058829 Super. Ct. No. SCD229057
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. VOJTECH KOSECEK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Howard H. Shore, Charles R. Gill, Judges. Reversed.
After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), Vojtech Kosecek pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). The court suspended imposition of sentence and granted Kosecek formal probation for three years.
Kosecek appeals, contending the trial court erroneously denied his motion to suppress evidence. According to Kosecek, the court should have granted the motion because his detention by police and the subsequent search that revealed contraband violated his Fourth Amendment rights. We agree and reverse the order.
I
FACTS
On August 7, 2010, San Diego Police Officers Zach Pfannenstiel and Scott Pickard patrolled the 4300 block of Boundary Street, a high-crime area known by the officers for illegal drug trafficking and prostitution and use as a staging area for robbers targeting a nearby gas station. At approximately 7:15 p.m., while it was still light, the officers drove past a car, legally parked at the curb, inside which Officer Pfannenstiel observed Kosecek and a front-seat passenger "digging underneath the seat." Officer Pfannenstiel alerted his partner and driver, Officer Pickard, who stopped their marked patrol car in the traffic lane about 20 feet in front of where Kosecek's car was parked.
Officer Pfannenstiel "quickly got out" of the passenger side of the patrol car and "walked up briskly" toward Kosecek's sedan. As Officer Pfannenstiel approached, Kosecek and his passenger were still "digging" under their seats, so Officer Pfannenstiel stated in a "medium" and "stern" tone of voice, "Let me see your hands. Show me your hands," and then told Kosecek to put his hands on the steering wheel. In response to the officer's second (or possibly third) command, Kosecek and his companion stopped "digging" under their seats and placed their hands in front of them; Kosecek placed his hands on the steering wheel, and his passenger placed his hands on the dashboard.
While Officer Pfannenstiel moved toward Kosecek's car, Officer Pickard moved the patrol car to "more of a tactical position" behind Kosecek's car and in the immediately adjacent traffic lane, "just as if it was a traffic stop." Officer Pickard approached the passenger side of the car while Officer Pfannenstiel spoke to the driver. Standing at the passenger's window, Officer Pickard saw a syringe and spoon resting on the front passenger-side floorboard and alerted Officer Pfannenstiel. Officer Pfannenstiel then asked for and received permission from Kosecek to search his person and car. After finding a cotton ball, two syringes and 18 morphine pills, Officer Pfannenstiel arrested Kosecek.
Kosecek moved to suppress all evidence gathered as a result of the encounter, on the ground the officers illegally seized him. The trial court denied the motion, and Kosecek pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). This appeal followed.
II
DISCUSSION
A. Standard of Review
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.) B. Kosecek's Encounter with the Police Was Not Consensual
The People contend we need not address the legality of the detention because we may affirm the trial court's order on the ground that the encounter between Kosecek and the police was consensual and thus not a seizure. According to the People, "the officers did not restrict [Kosecek's] movement, physically or by other coercive means, so as to prevent [him] from freely leaving the encounter," but merely approached Kosecek "in order to engage in a conversation and to ask questions." The trial court rejected this argument, and so do we.
The People have no right of direct appeal from an order denying or granting a motion to suppress (§ 1238; People v. Shubert (1970) 10 Cal.App.3d 810, 812), but have raised this issue in their brief. We address this issue because "[o]n an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General." (§ 1252.)
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." (U.S. Const., 4th Amend.) "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 878 (Brignoni-Ponce).) A detention or seizure triggering Fourth Amendment scrutiny occurs whenever the police use physical force or a show of authority to restrain a person's liberty. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 (Terry); In re Manuel G. (1997) 16 Cal.4th 805, 821.)
This guarantee has been incorporated into the Fourteenth Amendment, and is applicable to the states. (Mapp v. Ohio (1961) 367 U.S. 643, 655.) The state Constitution contains a similar guarantee against unreasonable government searches (Cal. Const., art. I, § 13); but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable searches are measured by the same standard. (People v. Racklin (2011) 195 Cal.App.4th 872, 877.)
"Consensual encounters," by contrast, "do not trigger Fourth Amendment scrutiny." (In re Manuel G., supra, 16 Cal.4th at p. 821.) In particular, a police officer's approaching and questioning a person on the street do not implicate the Fourth Amendment. (Florida v. Bostick (1991) 501 U.S. 429, 434; In re Manuel G., at p. 821.) "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." (United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall) [plurality opn. of Stewart, J.].) In other words, police questioning of an individual is not a seizure "as long as the police do not convey a message that compliance with their requests is required." (Bostick, at p. 435.) A person's encounter with the police triggers Fourth Amendment scrutiny as a seizure only when, under the circumstances, police conduct would have communicated to a reasonable person that he was not free to ignore the police, terminate the encounter, and go about his business. (Id. at p. 434; Mendenhall, at p. 554.)
Applying these principles in ruling on the suppression motion, the trial court identified several factors that, when considered together, made the police encounter with Kosecek nonconsensual and thus subject to Fourth Amendment scrutiny. First, Officer Pfannenstiel quickly got out of the police car, walked immediately toward Kosecek's car, stated "show me your hands," and directed Kosecek to put his hands on the steering wheel. The officer admitted he used a stern tone, like it was "a command." Second, Officer Pickard maneuvered the patrol car to a position "like a traffic stop." Finally, both armed, uniformed officers approached Kosecek's car; Officer Pfannenstiel addressed Kosecek, the driver, and Officer Pickard approached the passenger. As the trial court observed, the officers did not engage Kosecek in "casual banter." The encounter was "like a traffic stop" and "had the appearance of a detention, because under the circumstances, . . . a reasonable person would [not] have felt free to leave."
We conclude that on these facts the trial court properly ruled that the encounter between Kosecek and the police was a detention under the Fourth Amendment. Most significantly, the testimony that the encounter was "like a traffic stop," in and of itself, indicates the encounter was a detention. (See Whren v. United States (1996) 517 U.S. 806, 809 ["[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' under 4th Amend.]; United States v. Cortez (1981) 449 U.S. 411, 417 (Cortez) ["The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here."].) Also important is Officer Pfannenstiel's testimony that he issued commands in a stern tone of voice, and that Kosecek complied with them. (See, e.g., Mendenhall, supra, 446 U.S. at p. 554 ["use of language or tone of voice indicating that compliance with the officer's request might be compelled" is circumstance that might indicate seizure]; People v. Verin (1990) 220 Cal.App.3d 551, 556-557 [submission to "explicit[], unambiguous[] and authoritative[]" commands is detention]; People v. Roth (1990) 219 Cal.App.3d 211, 215 [detention occurred when officers standing outside patrol car issued commands for defendant to approach].) Finally, the fact that there were two armed, uniformed officers, one of whom quickly approached Kosecek, supports the conclusion that the encounter was a detention. (See, e.g., Mendenhall, at p. 544 ["threatening presence of several officers" and "display of a weapon by an officer" are circumstances that might indicate seizure]; People v. Garry (2007) 156 Cal.App.4th 1100, 1111-1112 [armed, uniformed officer quickly approaching while immediately making pointed inquiries about defendant's legal status constituted show of authority sufficient for detention]; Roth, at p. 215 [presence of multiple officers is factor in determining whether detention occurred].)
In short, we agree with the trial court that in a situation which the police themselves describe as "like a traffic stop" and in which two armed, uniformed officers quickly approach the occupants of a parked car and command them to show their hands, the occupants reasonably would believe they were not free to ignore the police and go about their business or otherwise terminate the encounter. Under these circumstances, a detention subject to Fourth Amendment scrutiny occurs. C. Kosecek's Detention Violated the Fourth Amendment
Kosecek contends his detention violated the Fourth Amendment because the officers lacked reasonable suspicion he was, or was about to be, involved in criminal activity. We agree.
1. General Legal Principles
The general legal principles that govern the permissibility of detentions are well established. Courts "must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" (Terry, supra, 392 U.S. at pp. 21-22, fn. omitted.) A detention or brief investigatory stop is a seizure permissible under the Fourth Amendment if the detaining officer can point to specific and articulable facts that, when considered together, provide an objective basis for concluding that the person detained has been, is, or is about to be engaged in criminal activity. (Cortez, supra, 449 U.S. at pp. 417-418 & fn. 2; Terry, at pp. 21-22.) In determining the reasonableness of a detention, "the totality of the circumstances—the whole picture—must be taken into account." (Cortez, at p. 417.) In developing reasonable suspicion, officers may use their experience and training "to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' " (United States v. Arvizu (2002) 534 U.S. 266, 273; see also Terry, at p. 23.) Mere hunches or unparticularized suspicions are insufficient to justify a detention, however. (Terry, at p. 27; People v. Perrusquia (2007) 150 Cal.App.4th 228, 234 (Perrusquia); People v. Pitts (2004) 117 Cal.App.4th 881, 889 (Pitts).)
2. Application to Facts Considered by the Trial Court
Applying the totality-of-the-circumstances approach described above, the trial court identified three factors that it considered sufficient to establish the reasonable suspicion necessary to detain Kosecek: (1) the officers knew the area as a site for illicit drug transactions and prostitution; (2) Kosecek and his passenger were "just sitting in a vehicle apparently with no place to go and engaging in furtive movements"; and (3) "another important observation here is that it wasn't very long before Officer Pickard observed the syringes in the vehicle." As we shall explain, these factors were insufficient to give rise to a reasonable suspicion that Kosecek was, or was about to be, engaged in criminal activity.
Initially, we note the trial court erred in considering the fact that Officer Pickard saw syringes inside Kosecek's car as an "important observation" supporting reasonable suspicion. Officer Pickard testified that he did not see the syringes until after Kosecek had submitted to the officers' show of authority by placing his hands on the steering wheel. But, in determining whether a police officer has reasonable suspicion to detain a person, so that the officer may do so without violating the Fourth Amendment, we may consider only those facts known to the officer "at the moment of the seizure" of the person. (Terry, supra, 392 U.S. at pp. 21-22, italics added.) We therefore disregard Officer Pickard's post-detention observation of syringes inside Kosecek's car.
The validity of Kosecek's detention thus turns on the remaining two factors — Kosecek and his passenger's presence in a high crime area and their so-called "furtive gestures." As we have held, "to give this set of circumstances adequate consideration, we must review each of these factors in turn, and then consider their relation to the whole." (Pitts, supra, 117 Cal.App.4th at p. 886.)
The fact that the officers knew the street on which they detained Kosecek was in a high crime area is, in and of itself, insufficient to support a reasonable suspicion that Kosecek was, or was about to be, involved in criminal activity. Officer Pfannenstiel testified Kosecek's car was legally parked on a street in front of a house in a residential neighborhood at approximately 7:15 p.m., when it was still light. "There is no indication in the record that it was unusual for people to be [parked on the street]. The fact that [Kosecek] was in a neighborhood frequented by [criminals], standing alone, is not a basis for concluding that [he] was engaged in criminal conduct. In short, [Kosecek's] activity was no different from the activity of other[s] in that neighborhood." (Brown v. Texas (1979) 443 U.S. 47, 52.)
We acknowledge, of course, that the reputation of an area for criminal activity is a factor that must be considered under a Terry reasonable suspicion analysis. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow) ["the fact that the stop occurred in a 'high crime area' [is] among the relevant contextual considerations in a Terry analysis"].) But, this factor carries limited weight in determining whether police have reasonable suspicion to detain a person. Our Supreme Court has held: "An 'officer's assertion that the location lay in a "high crime" area does not elevate . . . facts into a reasonable suspicion of criminality. 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.' " (People v. Loewen (1983) 35 Cal.3d 117, 124; accord, Pitts, supra, 117 Cal.App.4th at p. 887.) Nevertheless, because a high crime "setting is a factor that can lend meaning to [a] person's behavior" (People v. Limon (1993) 17 Cal.App.4th 524, 532; accord, Pitts, at p. 887), the fact that something happens in a high crime area is one of "the relevant contextual considerations in a Terry analysis" (Wardlow, at p. 124, italics added).
The only activities observed by the officers to which occurrence in a high crime area could lend any context were the "furtive movements" of Kosecek and his passenger on which the trial court relied. Furtive gestures or police avoidance behavior is relevant to a Terry reasonable suspicion analysis. (See, e.g., Wardlow, supra, 528 U.S. at p. 124 ["nervous, evasive behavior is a pertinent factor in determining reasonable suspicion"]; Brignoni-Ponce, supra, 422 U.S. at p. 885 ["obvious attempts to evade officers can support a reasonable suspicion"]; Sibron v. New York (1968) 392 U.S. 40, 66 ["deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea"].) Here, Officer Pfannenstiel testified that he saw Kosecek and his passenger "digging" under the front seat after spotting the police patrol car. In light of his knowledge of the reputation of the street for drug trafficking, prostitution, and use as a staging area for robberies of a nearby gas station, Officer Pfannenstiel inferred from this "digging" that Kosecek and his passenger could "be concealing narcotics, they could be getting a gun, [or] they could have just robbed the [gas] station."
The People try to make this "digging" seem more suspicious by asserting in their brief that "Officer Pfannenstiel noticed that [Kosecek] and the passenger ducked down toward the floorboard and started digging under the seats immediately after they saw the patrol vehicle." (Italics added.) This assertion mischaracterizes the record. Officer Pfannenstiel did not testify that Kosecek or his passenger "ducked down." To the contrary, he testified that they "lean[ed] forward" but that he could see their heads and shoulders. Thus, the record does not indicate that either Kosecek or his passenger was trying to avoid being seen by the police.
The record, however, does not support this inference. The "digging" under the front seat did not, in and of itself, indicate Kosecek or his passenger might have been engaged in criminal activity, so as to justify their detention. (See, e.g., People v. Teresinski (1982) 30 Cal.3d 822, 827, 830-831 (Teresinski) [defendant's and passenger's glancing at police from front seat of car and reaching down did not justify detention]; People v. McGaughran (1979) 25 Cal.3d 577, 590 [passenger's turning and reaching over front seat of car after seeing police did not justify detention of defendant driver]; Pitts, supra, 117 Cal.App.4th at p. 888 [looking at police officer and then looking and walking away do not furnish basis for Terry stop].) "[S]uch a gesture can be deemed suspicious only when there are additional facts known to the officer that reasonably give it a guilty connotation." (McGaughran, at p. 590.) There were no such additional facts here.
The officers were not responding to a report of a gas station robbery or any other crime, and did not come upon any crime in progress. They were performing "proactive enforcement" "before a radio call exist[ed]." The officers did not testify that they saw Kosecek or his passenger running away from the gas station towards the parked car; observed Kosecek or his passenger engage in a drug transaction or solicit a prostitute; recognized any known or suspected drug traffickers or prostitutes in the area; or heard a gunshot or observed anything else indicating Kosecek or his passenger might have had a gun.
Without such present, suspicious circumstances related to Kosecek, the officers' prior citations and arrests of other persons for drug trafficking and prostitution in the area, and their knowledge that previous robbers of the local gas station had parked on the street where Kosecek parked his car, do not support an inference that Kosecek was, or was about to be, engaged in any such criminal activities. (See Cortez, supra, 449 U.S. at pp. 417-418 ["detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity"]; Perrusquia, supra, 150 Cal.App.4th at p. 233 ["Reasonable suspicion . . . cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. [Citation.] Even recent, specific crimes, without additional factors specific to the defendant, are not sufficient."].) On this record, therefore, Officer Pfannenstiel's suspicion that by "digging" under the front seat of the car in a high crime area, Kosecek and his passenger could have just robbed the gas station, or could have been hiding narcotics or reaching for a gun, was nothing more than speculation or "inarticulate hunches," which are insufficient under the Fourth Amendment to justify a detention. (Terry, supra, 392 U.S. at p. 22.)
3. The People's Additional Arguments
The People attempt to bolster the facts relied on by the trial court as supporting reasonable suspicion of Kosecek's involvement in criminal activity by pointing to Officer Pfannenstiel's testimony that he was unfamiliar with Kosecek's car. That unfamiliarity, however, does not constitute a suspicious activity by Kosecek. Moreover, the record shows that Kosecek was legally parked on a city street in front of houses and apartments in a residential neighborhood. Because people change residences and receive visitors, it is hardly unusual, and certainly not suspicious, that a previously unseen car might appear from time to time in an urban residential neighborhood. In any event, courts have rejected unfamiliarity with a vehicle as a factor supporting reasonable suspicion of criminal activity by the occupants of the vehicle. (See, e.g., Teresinski, supra, 30 Cal.3d at pp. 827, 830-831 [police officer's observation in city business district of occupants of unfamiliar car reaching down after glancing at him was not objectively reasonable basis to suspect occupants of crime]; United States v. Williams (D.Del. 2005) 400 F.Supp.2d 673, 679, 680 [police officer who responded to report of "unfamiliar car" parked in city neighborhood and observed two men sitting in car did not have " 'reasonable, articulable suspicion that criminal activity [was] afoot' "]; State v. Emilo (1984) 144 Vt. 477, 481 [479 A.2d 169, 171] [police officer's suspicion that car "did not belong" in particular area "clearly falls outside of an 'articulable and reasonable' suspicion of some criminal wrongdoing"].)
Officer Pfannenstiel testified: "[W]e go to that street all the time and I know what vehicles are mostly parked there and stuff like this, and this was not a vehicle that I recognized."
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Nor do the cases on which the People primarily rely persuade us that the officers had reasonable suspicion to suspect Kosecek of criminal activity. In People v. Souza (1994) 9 Cal.4th 224, 227-228, our Supreme Court upheld the detention of a defendant who fled after a police officer, suspecting an auto burglary in progress in a high-crime area at 3:00 a.m., shined a spotlight on the defendant. Before fleeing, the defendant was speaking to occupants of a car parked where it was completely dark; when the defendant fled, the occupants bent down toward the floorboard. In People v. Osborne (2009) 175 Cal.App.4th 1052, 1058-1059, our colleagues in the First District held a police officer had reasonable suspicion to detain a defendant who was standing at the trunk of a partially disassembled car, because the officer had prior experience with car burglaries; observed the defendant slam the trunk and walk away after seeing the police car; saw other people standing nearby flee upon the officer's arrival; and saw burglary tools inside the partially disassembled car. Here, unlike in Souza or Osborne, no one fled in response to police presence or otherwise tried to avoid being seen by police; it was not dark; and nothing suggested a crime was in progress. Hence, neither Souza nor Osborne supports the legality of Kosecek's detention. (Cf. People v. Wilkins (1986) 186 Cal.App.3d 804, 811 (Wilkins) [detention illegal when "there are no objective factors in addition to the police avoidance behavior, the reputation of the area for crime, and time of night, sufficient to cause a reasonable suspicion of criminality"].)
4. Conclusion
In sum, we hold that the facts known to the officers here were too "thin and nonspecific" (Perrusquia, supra, 150 Cal.App.4th at p. 234) to "create a reasonable suspicion of criminality sufficient to justify a detention, whether those facts [are] considered separately or cumulatively" (Wilkins, supra, 186 Cal.App.3d at p. 810). "Rather than relying on specific and articulable facts, [the officers] merely reacted on a hunch that [Kosecek] was somehow connected to [criminal] activity. 'A hunch may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction. A hunch, however, is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.' " (Pitts, supra, 117 Cal.App.4th at p. 889; see also Perrusquia, at p. 234 [hunch that turns out to be right "cannot be used to retroactively justify a detention"].) D. The Evidence Against Kosecek Should Have Been Suppressed
Evidence obtained as a result of unlawful police conduct will be excluded unless the connection between the illegal conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. (United States v. Ceccolini (1978) 435 U.S. 268, 275; In re Richard G. (2009) 173 Cal.App.4th 1252, 1262.) Here, the officers discovered the evidence against Kosecek by searching his person and car immediately after they unlawfully detained him. The evidence against Kosecek, therefore, was a "direct product of exploitation of the unlawful investigative stop" and should have been surpressed. (In re Tony C. (1978) 21 Cal.3d 888, 899.) E. Kosecek Must Be Given an Opportunity to Withdraw His Guilty Plea
Kosecek's decision to plead guilty may well have resulted from the denial of his motion to suppress key evidence. Accordingly, he must be given an opportunity to move to withdraw his plea. (See People v. Ruggles (1985) 39 Cal.3d 1, 13 (Ruggles); People v. Miller (1983) 33 Cal.3d 545, 556; People v. Ramirez (2006) 140 Cal.App.4th 849, 854.)
DISPOSITION
The order granting probation is reversed. The matter is remanded to the trial court with directions to grant Kosecek's motion to suppress. Kosecek may make a motion to withdraw his guilty plea within 30 days of the date of issuance of the remittitur. If Kosecek elects not to withdraw his plea, the trial court shall reinstate the order. (Ruggles, supra, 39 Cal.3d at p. 13.)
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IRION, J.
WE CONCUR:
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MCCONNELL, P. J.
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NARES, J.