People v. Holley

DONDERO, J.

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR167387)

After having his motion to suppress denied, appellant entered a no contest plea to simple possession of methamphetamine, a misdemeanor violation of Health and Safety Code section 11377, subdivision (a). He now challenges the denial of his motion to suppress. We have reviewed the record on this issue and conclude the denial was improper. We now overturn the trial court's decision to deny the motion to suppress.

An information was filed on September 26, 2013, charging appellant with felony possession of a controlled substance, a violation of Health and Safety Code section 11377, subdivision (a) (count 1), misdemeanor possession of a syringe, a violation of Health and Safety Code section 11364 (count 2), and misdemeanor discarding a syringe in a park, a violation of Business and Professions Code section 4147, subdivision (c) (count 3).

On August 8, 2014, appellant entered a plea of no contest to possession of a controlled substance, which had been reduced by the district attorney to a misdemeanor pursuant to Penal Code section 17, subdivision (b). The trial court then dismissed the remaining counts based on the negotiated disposition. The court sentenced appellant to three years' probation. Appellant filed a timely appeal.

On August 1, 2013, Sergeant Michael Hunter (Hunter) and Officer Chet Schneider (Schneider), both members of the Napa County Sheriff's Office and assigned to the drug task force, were engaged in routine patrol in the city of American Canyon. They drove in the area of a public park located near Coombville Road and Terrace Lane. It was approximately 6:00 to 6:30 p.m. As they drove by the park the officers noted a black four-door Lincoln with the trunk open. It was in a proper parking stall. The park was known to Hunter as a place where people liked to hang out. There was no evidence presented the park at the time of the observation was closed to the public.

Hunter did have information from an unidentified source who had recently observed drug dealing in the park. However, Hunter had not made an arrest at the site in the five or six months he was assigned to the task force, and he could not recall if he made any arrests during the three years he previously served with the drug task force.

As the officers drove up alongside the parked car, they saw nothing suggesting criminal behavior or drug usage. Schneider testified he was suspicious, but acknowledged he had not observed conduct that merited a detention of either person in the car.

As they drove up, appellant exited from the driver's side and made a motion characterized by Hunter as "funny," but one he could not see. To Hunter, it seemed appellant moved towards the open trunk. Schneider approached Holley and asked for permission to search him, which appellant refused. Schneider testified that during this time he did not believe appellant was free to leave the scene, because the officer suspected a drug deal was being consummated. He had this belief even though he had nothing to suspect and did not believe appellant was under the influence.

During his testimony, Schneider stated Hunter had advised him he saw appellant make a furtive gesture. However, the report Schneider made on the date of the arrest states Hunter told him the passenger made a suspicious motion and that appellant had made no gesture.

Schneider then proceeded to conduct a patsearch of appellant. He did not find any weapons on appellant, but did feel a cigarette pack in his pants pocket. He had no basis to suspect the item was a weapon. Schneider also related that over a period of five years, he had received information that appellant and the passenger, Fatherree, were drug users. However, Schneider had had no personal contacts with appellant regarding drug usage or dealing.

During the course of this investigation, Hunter noted Fatherree was placing an item under the seat of the car. However, when the car was searched, the item was identified as a cell phone. Hunter did order Fatherree out of the car and conducted a "full" search of the passenger, finding nothing of evidentiary value.

Hunter advised Schneider that Fatherree alone had a search condition as part of probation; this was not confirmed by dispatch. Still, Schneider conducted a full search of the car interior where the passenger would have access, even though it seems Fatherree was outside the car at the time. In the rear seat, Schneider found a hammer. After finding the tool, Schneider proceeded to handcuff Holley. However, no contraband was found in the car during the search.

After failing to find contraband within the car interior, Schneider testified he was certain appellant had drugs on his person. Schneider reached into appellant's pocket and removed the cigarette pack, but found no contraband. During the full search of the car by Schneider, appellant was cuffed.

During the search of the car by the officers, Hunter found a syringe under the car. It was visible as Hunter bent down and looked under the car with the door open. This discovery occurred towards the end of the investigation. Schneider advised Hunter to further search appellant while Schneider conducted the full search of the car. Eventually, Hunter found a bag in one of appellant's pockets, which he removed and opened. In it he found a packet of methamphetamine.

As an initial observation of the facts recited above, it should be noted we do not jump to the discovery of contraband when we assess police conduct under the Fourth Amendment. When a search takes place without a judicial warrant, as in our case, the search is reasonable only if it falls within a recognized exception to the warrant obligation. (Riley v. California (2014) ___U.S.___, 134 S.Ct. 2473, 2482.) Acting on a hunch is not an exception.

One recognized exception is a patsearch for weapons. However, a patsearch requires the officer to "observe[] unusual conduct which leads him reasonably to conclude . . . criminal activity may be afoot." (Terry v. Ohio (1968) 392 U.S. 1, 30.) Even a detention to conduct a patsearch for weapons requires some objective manifestation the person stopped is, or is about to be, engaged in criminal conduct. (United States v. Cortez (1981) 449 U.S. 411, 417.) A weapon patdown does require suspicion the suspect is armed and "presently dangerous" to the officer. (Terry, at p. 24.) It does not tolerate a check for any item, only weapons. (Ybarra v. Illinois (1979) 444 U.S. 85, 93-94.) Rather, a search for evidence beyond the Terry frisk requires reasonable cause to arrest. (People v. Garcia (2006) 145 Cal.App.4th 782, 788.)

As the trial court noted, the initial encounter between the sheriffs and appellant was consensual in nature. The essence of such an encounter is the appellant's ability further to engage with the officer and to end the encounter. (Florida v. Bostick (1991) 501 U.S. 429, 439.) In the consensual meeting with an officer, the citizen may opt to refuse to answer any inquiry and can proceed on his or her way. (Florida v. Royer (1983) 460 U.S. 491, 497-98.)

In our case, appellant refused the request by Schneider to search him during the encounter. Rather than acquiescing in the validity of this option, Schneider chose to restrain appellant's hands while the officer patsearched appellant without any suspicion or permission. Physical restraint when the officer grabs the hands of a person is a detention under the Fourth Amendment. (In re Manuel G. (1997) 16 Cal.4th 805, 821; California v. Hodari D. (1991) 499 U.S. 621, 626-629.) Even Schneider acknowledged in his testimony at the suppression hearing appellant was not free to leave at this instance.

At the moment of detention we find the officers lacked any valid legal basis under the Fourth Amendment to sustain this determination. Appellant was in a public park and it was daylight. The car was properly parked in a stall and the two men were simply seated in the front seats. They were doing nothing suggestive to the officers of illegal behavior. There was no reasoned suspicion of illegal behavior. While the officers had unidentified information the two men used narcotics, the age and character of the information is absent in this record. Officer Schneider indicated he had information that drug dealing had taken place in the park. Yet that source also was unidentified and the character of that information was missing. Importantly, neither officer had made an arrest at the park while active members of the drug task force. Nor could Hunter recall if he made any arrests in the park for drugs during the three years he previously served in the task force. It is a remarkable feature of this case that the record is so lacking in appropriate evidence suggesting probable cause for what the police chose to do here.

We also need to observe the discovery of the hammer in the back seat provides nothing here. First of all, the patdown searches and restraints on appellant and Fatherree had already taken place when the tool was found. Presumably, in addition to the hammer in the backseat, there was a tire iron in the open trunk. Neither item under these facts supports concern for police safety.

The discovery of the syringe is important, but it was found well after the police officers here had done sufficient damage to constitutional precepts that it is without relevance to our review here. Certainly its discovery, and the warrantless search that followed, does not indicate an alternative basis for upholding the police behavior in this case.

In summary, we find the police acted without reasonable suspicion to detain appellant under the facts and, indeed, the candid testimony provided by the officers ratifies this conclusion. The detention being unlawful, all evidence found must be suppressed.

The judgment is reversed.

/s/_________

DONDERO, J.
We concur: /s/_________
HUMES, P.J.
/s/_________
MARGULIES, J.