P. v. Mohammed

Filed 8/27/07 P. v. Mohammed CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After defendants motion to suppress was denied, he was found guilty by a jury of four counts of second degree robbery (Pen. Code,  212.5 subd. (c)), with associated enhancements for use of a weapon (Pen. Code,  12022, subd. (b)(1)) and infliction of great bodily injury on one of the robbery victims (Pen. Code,  12022.7, subd. (a)). In this appeal he renews his challenge to the warrantless search that resulted in the immediate seizure of a piece of concrete from his jacket pocket and the ultimate ascertainment of his identity. We find that defendants encounter with off-duty police officers was consensual, with the exception of a pat search that was based upon adequate cause. We therefore affirm the judgment.

STATEMENT OF FACTS[1]

On the afternoon of March 5, 2005, Mark Gamble, an inspector with the San Francisco Police Department, was working as an off-duty, uniformed security guard for the Embarcadero Complex in San Francisco. Just after 4:00 p.m., he observed defendant standing on Davis Street fairly close to an entrance of the Embarcadero number 3 garage. Inspector Gamble considered defendants presence near a loading dock a little unusual, as it was not an area you would find somebody standing. The inspector also observed that defendant was looking up and down the street, and appeared very nervous.

Inspector Gamble continued to walk on Davis Street toward Embarcadero number 3, then circled around to the back door of the loading dock. Defendant briefly disappeared from sight, so inspector Gamble walked northbound on Davis in the direction of Clay Street to continue to look for him. Ten to fifteen seconds later, as Inspector Gamble approached the garage ramps on Clay Street he noticed defendant standing near a pillar or cement support, partially concealed from view. Inspector Gamble thought defendant was hiding from him behind the pillar. They made eye contact, whereupon defendant immediately walked out from behind the pillar and very rapidly approached Inspector Gamble. The inspector was startled; he thought defendant was going to jump on him. The inspector told defendant to stop and stay away from him. Defendant was sweating, nervous, and extremely animated as he exhibited a lot of hand gestures. Defendant was also larger than Inspector Gamble, which given his behavior caused the inspector concern for his safety.

Inspector Gamble requested that defendant stay a couple of feet away, and asked him what he was doing. Defendant responded that he was waiting for somebody, but could not give a name of the person or the time they were meeting. Defendant was extremely nervous and obviously uncomfortable talking to Inspector Gamble. He pointed out to the inspector that he had blood on the inside of his jacket, and stated that he had been robbed the night before on 6th Street and somebody hit him with a pipe. Defendant continued to move closer to Inspector Gamble, but was asked to step a few feet away. Defendants conduct and nervous state made the inspector apprehensive. Inspector Gamble also asked defendant to remove his hands from his pockets to make sure he had no weapon. Defendant complied with the inspectors requests.

Due to defendants aggressive behavior and his size and demeanor, Inspector Gamble felt in danger. He contacted Officer Kevin Richins who was also an off-duty San Francisco police officer working at the complex. When Officer Richins arrived momentarily, Inspector Gamble told him that he thought defendant was hanging around to go in the garage to commit a[n] auto burglary. Officer Richins conducted a pat search of defendant, which resulted in discovery of a piece of broken concrete, approximately four inches by six or seven inches in size, in his jacket pocket.

When asked, defendant stated that he did not have any identification. He gave his name as Charles Anderson, and provided the officers with a birth date and social security number.[2] Inspector Gamble wrote the information in his notebook, along with a clothing description, the reference number 852, which is police code for breaking into an auto, and later a rap sheet number. Officer Richins ran a computer check of the name and date of birth given to him before defendant was sent on his way. Defendant had not committed any crimes.

About four hours later that same day, Inspector Gamble and Officer Richins were walking on Drumm Street near Embarcadero number 3 when they encountered Officer David On in his patrol car. Officer On mentioned that he was searching the area for a suspect in the robbery of an attendant at a nearby parking garage one of the offenses of which defendant was ultimately convicted. When Officer On gave a description of the suspect, Inspector Gamble immediately recognized it matched the description of defendant. He and Officer Richins shared their information on Charles Anderson with the patrol officer. Officer On relayed the information to Inspector Jim Garrity. About 11:25 that night, Inspector Garrity exhibited a photo spread to the robbery victim. The victim identified defendants photograph as the person who robbed him.

Defendant was arrested pursuant to a warrant shortly after midnight on March 11, 2005, while walking on Turk Street. A beanie and a jacket that were seized from defendants bunk were identified at trial by Inspector Gamble as similar in appearance to the clothing defendant was wearing on March 5th.

DISCUSSION

The sole contention presented by defendant in this appeal is that he was unlawfully detained, questioned and pat-searched by Inspector Gamble and officer Richins. He argues that Inspector Gamble did not have reasonable suspicion to detain him based upon the few observations made during their encounter at Embarcadero number 3. Defendant maintains that his behavior, while perhaps unusual, did not provide a reasonable suspicion to believe that he was engaged in, or about to engage in, criminal activity, as required to initiate a detention under Terry v. Ohio (1968) 392 U.S. 1, 9, 21. He asks that we therefore suppress the fruits of the detention, consisting of the information passed on by the officers, the identification of his clothing by Inspector Gamble, and the photo identification by the robbery victim, and reverse the convictions.

We review the trial courts finding that the officers initial contact with defendant was a consensual encounter rather than a detention by applying the substantial evidence test to the factual determinations made by the court, with all presumptions favoring the trial judges findings. (People v. Manderscheid (2002) 99 Cal.App.4th 355, 359.) The determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. (People v. Coulombe (2000) 86 Cal.App.4th 52, 56.)  We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so.  (People v. Lim (2000) 85 Cal.App.4th 1289, 1296, quoting from People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)

I. The Contact with Inspector Gamble.

The essential determination to be made here is the nature of defendants contact with inspector Gamble.  Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citations.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. . . .  (People v. Terrell (1999) 69 Cal.App.4th 1246, 1253, quoting from In re Manuel G. (1997) 16 Cal.4th 805, 821.)

 Although there is no bright-line distinction between a consensual encounter and a detention . . . the police can be said to have seized an individual only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.   [Citations.]  The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.  [Citation.] 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. [Citation.](Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) We must make a realistic assessment of appellants encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287; People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs. (People v. Ross (1990) 217 Cal.App.3d 879, 884.) 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. (In re Manuel G., supra, 16 Cal.4th 805, 821.)

Nothing in the initial contact between Inspector Gamble and defendant indicates to us that a detention occurred. They made eye contact as defendant stood behind a pillar, then he rushed toward the inspector. Nor did Inspector Gambles request for defendant to stop and step back a couple feet escalate the encounter to a seizure of any kind. The inspector did not place any restraint on defendants liberty or suggest that he was not free to leave. To the contrary, he merely wanted to prevent defendant from approaching him.

The remaining intrusion by Inspector Gamble took the form of brief questioning of defendant. The established rule is  that a detention does not occur when a police officer merely approaches an individual on the street 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.] [Citation.] The reasonable person test is objective and presupposes an innocent person. (People v. Colt (2004) 118 Cal.App.4th 1404, 1411, italics omitted.) [T]here must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. [Citation.] [The United States Supreme Court] has also cautioned against an undue focus on the fact that government action caused some restriction on an individuals freedom of movement:  a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individuals freedom of movement . . . , nor even whenever there is a governmentally caused and desired termination of an individuals freedom of movement . . . , but only when there is a governmental termination of freedom of movement through means intentionally applied.  [Citations.] (People v. Brendlin (2006) 38 Cal.4th 1107, 11151116.)

Here defendant was never physically impeded in his freedom to move away by Inspector Gamble. He did not block defendants path, exert any physical force, draw a weapon, display a badge, or otherwise signify that defendant was compelled to stay. (In re Manuel G., supra, 16 Cal.4th 805, 821822; People v. Terrell, supra, 69 Cal.App.4th 1246, 1254.) No show of authority was made.

The questioning that followed was very brief and not in the least accusatory in nature. (People v. Hughes (2002) 27 Cal.4th 287, 328.) Defendant was essentially asked who he was and what he was doing there. Upon consideration of the totality of the circumstances presented, we are persuaded that the inspectors inquiry did not constitute a detention. Contacting defendant in a public place and asking him questions were not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave. (In re Manuel G., supra, 16 Cal.4th 805, 822.) An officer has every right to talk to anyone he encounters while regularly performing his duties . . . . Until the officer asserts some restraint on the contacts freedom to move, no detention occurs. (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952, 954955.) As the United States Supreme Court explained in Florida v. Royer (1983) 460 U.S. 491 [497]: [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.]  (People v. Hughes, supra, at p. 328; see also People v. Souza (1994) 9 Cal.4th 224, 234; People v. Daugherty (1996) 50 Cal.App.4th 275, 283.)

We conclude that the police conduct, including the questioning, would not have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Before any assertion of authority or manifestation of restraint was exercised, defendant voluntarily acquiesced to the inspectors request to speak with him and cooperated by responding to the very general inquiries. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 790; People v. Bowers (2004) 117 Cal.App.4th 1261, 1272; People v. Bouser, supra, 26 Cal.App.4th 1280, 1282, 12871288.) The interaction between defendant and Inspector Gamble was a consensual encounter that did not result in an unlawful detention. (People v. Hughes, supra, 27 Cal.4th 287, 328.)

II. The Pat Search.

We turn to the pat search of defendant, which we point out did not yield any incriminating information.[3] In any event, the pat search was justified.

A police officer may patsearch an individual if he believes that criminal activity is afoot, that the individual is connected with it, and that the person is presently armed. (People v. Coulombe, supra, 86 Cal.App.4th 52, 56.)   The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence . . . [citation] . . . . [A] protective searchpermitted without a warrant and on the basis of reasonable suspicion less than probable causemust be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.  [Citation.] (People v. Limon (1993) 17 Cal.App.4th 524, 534.)

 In evaluating the validity of an officers investigative or protective conduct under Terry [v. Ohio, supra, 392 U.S. 1], the touchstone of our analysis . . . is always the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security.   (Pennsylvania v. Mimms [(1977)] 434 U.S. [106,] 108109 [54 L.Ed.2d [331,] 335].) (People v. Thurman (1989) 209 Cal.App.3d 817, 824; see also People v. Rivera (1992) 8 Cal.App.4th 1000, 1006.) Central to the Terry courts understanding of reasonableness is the requirement of specificity in the information upon which police action is predicated . . . . [Citation.] Thus, in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [Citation.] (People v. Glaser (1995) 11 Cal.4th 354, 363.) However, the officer need not be certain that the individual is armed; the fundamental test is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Terry v. Ohio, supra, at p. 27; see also United States v. Garcia (9th Cir. 1990) 909 F.2d 389, 391; People v. Castaneda, supra, 35 Cal.App.4th 1222, 1230; People v. Allen (1975) 50 Cal.App.3d 896, 902.)   When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.  [Citation.] (People v. Samples (1996) 48 Cal.App.4th 1197, 1209; see also People v. Souza, supra, 9 Cal.4th 224, 229; People v. Ritter (1997) 54 Cal.App.4th 274, 279.)

Defendants conduct furnished the officers with cause to believe their safety was in danger. Inspector Gamble testified that defendant hid behind a pillar, then quickly ran at him in a threatening manner that suggested he was going to jump on the officer. Although defendant acquiesced in the inspectors request to back away, he continued to act in a very nervous and aggressive manner. During questioning defendant persisted in his nervous behavior and efforts to get closer to the officer. Defendant said he was waiting for somebody, but could not give the inspector the name of the individual he was waiting for. Inspector Gamble testified that based on his experience as a police officer, he feared for his safety in light of defendants size, nervousness and aggressive behavior. Under the circumstances, we conclude that the pat search was based on adequate concern for officer safety.

Accordingly, the judgment is affirmed.

Swager, J.

We concur:

Stein, Acting P. J.

Margulies, J.

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[1] The facts pertinent to the search are taken from the reporters transcript of the hearing on the motion to suppress. Our recitation of the facts will be confined to the search and seizure issues presented for resolution in this appeal.

[2] Defendant is also known as Charles Anderson.

[3] In fact, the piece of concrete found in defendants pocket was discarded by the officers.