Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego CountySuper. Ct. No. SCS202702, Alvin E. Green and Robert J. Trentacosta, Judges. Reversed.
BENKE, Acting P. J.
Zeferino Ramirez pled guilty to possession of methamphetamine in violation of section 11377, subdivision (a) of the Health and Safety Code. He appeals the judgment denying his motion to suppress evidence, arguing that evidence was obtained as a result of an unlawful detention. We reverse the judgment.
FACTS
On June 4, 2006, at 11:25 p.m., two uniformed police officers in marked patrol cars responded to a radio call about a suspicious male in the 1000 block of Jefferson Avenue in Chula Vista. When the officers arrived, they saw appellant standing on the sidewalk in front of 1030 Jefferson Avenue. Appellant noticed the police car and began to walk away. When an officer asked if he could speak with appellant, appellant stopped and turned around. The officer explained that he was responding to a call about a suspicious person and asked appellant for his name and address. Appellant stated his name and said that he did not live on Jefferson Avenue. He told the officer that he did not know his address, because he recently moved in with his parents in Chula Vista. Appellant did not answer the officer's question regarding what business he had on Jefferson Avenue.
During the conversation, appellant placed his hands inside his pockets, and the officer asked him to remove them. Appellant once again placed his hands inside his pant's pockets and began to look to his left and right. The officer again asked appellant to remove his hands from his pockets. The officer then conducted a pat down search of appellant and felt something that resembled a bag or napkins in appellant's left front pocket.
The officer asked appellant if he had any weapons or anything illegal on him, and appellant said no. The officer then asked for permission to search appellant's pockets and appellant consented. In appellant's right front pocket, the officer found a small plastic bag wrapped in a brown paper bag, which contained white substance later determined to be 0.5 grams of methamphetamine. Appellant was arrested.
DISCUSSION
On appeal, appellant argues the trial court improperly denied his motion to suppress. He argues the police had no reasonable suspicion he was engaged in criminal activity, or that he was armed and dangerous. Thus, the police illegally detained him when they asked him to remove his hands from his pockets or, alternatively, when they patted him down. He argues the evidence obtained, therefore, should have been suppressed.
The trial court acts as a finder of fact during the hearing on the motion to suppress evidence under Penal Code section 1538.5. (People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Heard (1968) 266 Cal.App.2d 747, 749; People v. West (1970) 3 Cal.3d 595, 602.) It has the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences. (People v. Lawler, supra, 9 Cal.3d at p. 160.) On appeal, all presumptions favor the trial court's express or implied findings, and they must be upheld if supported by substantial evidence. (Ibid.) The trial court has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. We review the trial court's application of the law to the facts independently. (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
1. Appellant's Initial Encounter with Police
Police officers may approach individuals in a public place and seek their voluntary agreement to respond to questions and even their consent to a search despite the absence of any indication the individuals have engaged in wrongdoing. Such conduct falls into the category of "consensual encounters" that do not "trigger Fourth Amendment scrutiny." (In re Manuel G. (1997) 16 Cal.4th 805, 821; Florida v. Bostick (1991) 501 U.S. 429, 435 [111 S.Ct. 2382].) Unlike detentions, consensual encounters require no articulable suspicion the person has committed or is about to commit a crime. (In re Manuel G., supra, 16 Cal.4th at p. 821.)
The encounter is consensual if a reasonable person would feel free to disregard the police and go about his or her business. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. (Florida v. Bostick, supra, 501 U.S. at p. 434.)
The officer testified at the hearing that when he observed appellant walking away from him, he asked if "[he] could speak with [appellant]." Appellant then stopped, turned around and answered the officer's questions. The officer never ordered appellant to stop; furthermore, his testimony indicated he had no legal justification to stop appellant at that moment. Because appellant's initial encounter was consensual, no seizure occurred.
2. Order to Remove Hands from Pockets
Appellant argues he was detained when the officer told him to remove his hands from his pockets. The question before us is whether requiring an individual who is otherwise voluntarily present to "remove his hands from his pockets" transforms the consensual encounter into a seizure; and, if so, whether that seizure can be justified on the basis of officer safety concerns. We conclude that on the circumstances presented here requiring an individual to remove his hands from his pockets during an otherwise voluntary encounter does not constitute a seizure triggering Fourth Amendment scrutiny.
A seizure occurs when an officer by physical force or a show of authority has in some way restrained an individual's liberty. (Terry v. State of Ohio (1968) 393 U.S. 1, 20 [88 S.Ct. 1868].) A person is seized when, under all the circumstances, the conduct of an officer would communicate to a reasonable person that he was not free to go about his business. (Florida v. Bostick, supra, 501 U.S. at p. 437.)
A mere request or even an order to take one's hands out of one's pockets is not a detention. However, the manner of the request may cause a reasonable person to believe he was not free to leave. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1239.) Here, officer testified that both times he "asked" appellant to remove his hands from his pockets. This request did not turn the encounter into a detention. We conclude that appellant's compliance was consensual and did not amount to a seizure under the Fourth Amendment.
3. Pat Down Search
Appellant argues he was detained when the officer told him he would pat appellant down. He further argues no reasonable basis for patting him down for weapons existed. We agree and reverse.
A police officer can undertake a pat down search only where he has reason to believe the individual whose suspicious behavior he is investigating at close range is armed and dangerous to the officer or to others. The officer must be able to point to specific and articulable facts which reasonably support a suspicion the suspect is armed and dangerous. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [113 S.Ct. 2130]; Terry v. State of Ohio, supra, 392 U.S. at p. 27; People v. Garcia (2006) 145 Cal.App.4th 782, 786.) The United States Supreme Court in Terry v. State of Ohio upheld a pat down search where the officer saw suspects walk back and forth in a business area, causing him to believe they were checking businesses for a daylight robbery. In Terry v. State of Ohio the suspects presented a threat to the officer's safety while he was investigating their suspicious behavior. Thus, "[t]he sole justification of the search . . . is 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. State of Ohio, supra, 392 U.S. at p. 29.) In determining the reasonableness of a challenged search, the court looks to the totality of the circumstances. (Id. at p. 22.)
A pat down search is justified if the officer has both a reasonable belief the individual whose suspicious behavior he is investigating is armed and presently dangerous to the officer or to others and can point to specific and articulable facts which, together with rational inferences, reasonably support a suspicion the suspect is armed and dangerous. (Terry v. State of Ohio, supra, 392 U.S. at pp. 20-24.) A nonspecific suspicion the detainee potentially may have been armed cannot support an officer's pat down search. (People v. Dickey (1994) 21 Cal.App.4th 952, 956.)
The People rely on the holding of In re Frank V. to support their position the pat down following a request to remove hands from pockets is justified. In that case, officers were dispatched to investigate a report of reckless motorcycle driving on a street in an active gang area. (In re Frank V., supra, 233 Cal.App.3d at p. 1236.) When they arrived, they noticed a motorcycle pulling away from the curb in front of a house known for gang activity. (Ibid.) The defendant was a passenger on the motorcycle. (Ibid.) He was wearing a bulky jacket and had his hands in his pockets. The officers asked him to take his hands out of his pockets, patted him down and found a gun in the front pocket of the jacket. (Ibid.)
The court in In re Frank V. analyzed the totality of the circumstances involved in the encounter: the officers were investigating a reckless driving report, they were in a gang neighborhood at night and they confronted two individuals who left from the curb of a known gang house. The court viewed putting hands in pockets after the defendant was asked to remove them merely as an "additional factor" justifying a pat down search for weapons. (In re Frank V., supra, 233 Cal.App.3d at p. 1241.)
The facts of the present case are distinguishable. The police responded to a call about an individual standing in the street. Their encounter with appellant did not take place in a high crime neighborhood. The pat down search here was not lawful because there was no evidence in the record to show the officer reasonably believed he was dealing with an "armed and dangerous individual." Furthermore, the officer did not articulate any specific facts in his testimony before the court which reasonably supported a suspicion appellant was armed and dangerous.
The officers arrived on the scene after receiving an anonymous call about a loitering individual. The trial court properly found "[t]he fact that [appellant] was standing there was lawful." The officer testified nothing about appellant's behavior indicated a crime had occurred or was about to occur. The officer testified appellant was free to leave and he had no reasonable suspicion to detain appellant.
Appellant provided the officer his name and explained he did not know his address because he had recently moved. The officer never specified anything about appellant's physical appearance that caused him to be concerned for his safety. Furthermore, this conversation took place in the presence of two police officers. Absent any reasonable suspicion appellant was engaged in criminal activity, the sole justification for the pat down search, according to the officer's testimony, was the fact that appellant put his hands in his pockets.
The first time appellant put his hands in his pants pockets, the officer asked him to remove the hands "for [the officer's] safety." Appellant complied, and the officer continued to converse with him. When appellant put his hands in his pants pockets again, he also began looking "to his left and to his right," which prompted the officer to conclude based on his experience that appellant was looking for a way to flee. We find this conclusion unreasonable, if not inconsistent with the officer's earlier claim that at that point appellant was not detained, and the officer had no reason to detain him. Appellant could have simply walked away.
The officer testified he conducted a pat down search because (1) appellant "was having difficulty following [the officer's] requests" and (2) for the officer's safety. By the officer's own reasoning, appellant was not detained prior to the search. More importantly, however, the officer never provided any articulable explanation for his safety concern sufficient to allow a pat down search. We consider the totality of circumstances present here: appellant's difficulty in answering some of the questions; the fact that appellant kept putting hands in his pants pockets; that he glanced left and right; and that is was late in the evening. All these considered together do not give rise to reasonable suspicion. We are not convinced that a reasonably prudent individual would have been warranted in believing appellant was armed and thus presented a threat to the officer's safety.
Because the pat down search and detention resulting from it were not supported by objectively reasonable suspicion, the subsequent consent given by appellant to search his pockets was a product of an unlawful detention and is thus invalid. (People v. Valenzuela (1994) 28 Cal.App.4th 817, 833.) Evidence obtained during unlawful detention is not admissible notwithstanding appellant's consent to search during the detention. (Florida v. Royer (1983) 460 U.S. 491, 501, 507-508.) Because the evidence from appellant's pocket was obtained in violation of the Fourth Amendment, the trial court erred in denying appellant's motion to suppress.
DISPOSITION
The conviction of possession of methamphetamine in violation of section 11377, subdivision (a) of the Health and Safety Code is reversed and the matter remanded for the trial court to grant the motion to suppress.
WE CONCUR: HALLER, J., AARON, J.