"The Right to be Free from Intimidating Searches & Seizures"

Facts.

Defendant, an hispanic male, was seated in his car, parked in a Motel 6 parking stall, waiting for his cousin who had rented a room inside. Officer Dickerson, who was patroling the lot in his vehicle, saw defendant and pulled in behind him. There had been no reports of any criminality and Dickerson had no specific reason to suspect defendant of anything. He was engaged in what might be called a pure "idle investigation."

According to Dickerson, he did not block defendant's car. The judge believed Dickerson's version of the events, and so it is to be assumed on appeal that defendant was physically unembarrassed from throwing his car into reverse and driving off.

According to Dickerson, he exited his patrol vehicle and walked over to the driver's side of defendant's car. The window was half down and Dickerson shone his flashlight into appellant's face. Dickerson asked what defendant was doing and defendant said his cousin was getting a room. Dickerson then asked if defendant was on probation or parole. When defendant replied that he was not, Dickerson asked for his driver's license.

According to Dickerson defendant "became very argumentative with me about why I was stopping him, why I'm talking to him." Dickerson then noticed that defendant had "fluttering eyelids" which indicated to him "as possibility he [was] under the influence of a stimulant." Dickerson ordered defendant out of the car and conducted further so-called "tests" on the basis of which he arrested defendant for being under the influence. A search of defendant's person, incident to arrest, uncovered a baggie of methamphetamine.

Issue:

Should the evidence of defendant's methamphatine usage be suppressed as the "poisoned fruit" of an unlawful search and seizure?

Argument

Yes. Defendant was unlawfully detained from the moment Dickerson asked if he was on parole and demanded to see his license. An ordinary and reasonable person would not feel free to refuse to answer a police officer's questions about his legal status. In addition, Vehicle Code § 12951 requires the driver of a motor vehicle to present his driver's license to a police officer on demand. Refusal to do so is a misdemeanor, and it is immaterial "whether the engine is on, or whether the vehicle is parked, stopped or in motion." (Adler v. Department of Motor Vehicles (1991) 228 Cal.App.3d 252, 258.) Therefore, defendant was required by law to comply with Dickerson's demands and was not free to go. Since he was not free to go, he was detained from and after the moment Dickerson made his "requests".

However, in court, Dickerson did not give any reasons for the detention. Without articulable facts giving rise to a reasonable suspicion of criminality, a detention is illegal and any observations made or evidence seized during that detention is the "fruit of the poisoned tree" and must be suppressed. (Wong Sun v. United States (1963) 371 U.S. 471.)

Background

As everyone knows, the Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." An arrest is a seizure of the person and, from time immemorial, has had to be supported by probable cause. Probable cause exists when the police have such substantial and reliable information of specific facts as would indicate to a reasonable person the probability that a crime was committed or that specific evidence of crime will be found in the place to be searched. (Nathanson v. United States (1933) 290 U.S. 41; Illinois v. Gates (1983) 462 U.S. 213, 238-239.)

However, in the 1960's -- the supposed heyday of judicial liberalism -- the Guardians of Liberty began to back-pedal on the probable cause requirement. In Terry v. Ohio (1968) 391 U.S. 1, the Supreme Court ruled that police could temporarily detain persons based on a reasonable suspicion of criminality. The Supreme Court made a big brouha over the fact that a "reasonable suspicion" was something more than a "mere hunch." But it was something pretty close. To be sure, as with probable cause, the police had to point to some concrete fact, some concrete information, as the basis for their decision to detain. But the critical change was that the focus shifted from "facts to believe that a crime has occurred" to "facts to suspect that some sort of criminality might be afoot." A suspicion is always less than a conclusion. In Terry the "reasonable suspicion" was that some young men were seen "loitering" and "possibly" caseing a gas station. The Fourth Amendment bar had been lowered

Under the Rhenquist Court -- the supposed protector of strict constitutionalism -- the bar was lowered still further. Even under Terry it was unquestioned that "[a] detention ... occurs whenever an officer accosts an individual on suspicion that the person 'may be personally involved in some criminal activity..." (In re Tony C. (1978) 21 Cal.3d 888, 895; Terry, at pg. 16, 19 ["when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.") However, in a series of cases beginning with United States v. Mendenhall, (1980) 446 U.S. 544, 554 and Michigan v. Chesternut (1988) 486 U.S. 567, 573 the court began to fashion the doctrine of the Consensual Encounter.

Under the Consensual Encounter doctrine a person is not detained "whenever" an officer "accosts" an individual and starts asking official questions. Oh no. The person so approached is free to leave. If he stays put and answers questions, it is entirely his free choice to do so and no detention had taken place. Of course, the cop is equally free to question, observe and suspect whatever he wants during this consensual chit chat between free and equal citizens of these United States. And should he, quite perchance mind you, observe somethings that triggers a reasonable suspicion in his ever-alert-for-crime mind, well.... he's hardly to be faulted for that, now is he? Oh no... an individual is detained only when he is physically restrained or submits to a "show of authority". The question is whether "reasonable person would have believed that he was not free to leave." (Mendenhall, supra, at 554.) This applies even when immigration agents board your bus and hover over you in your seat. After all, "leave" really means decline to cooperate, and although you can't really leave, you are entitled to cross your arms, stick your tongue out and tell the ICE man to go to hell. (Florida v Bostick (1991) 501 U.S. 429.) If, as it turns out you misjudged the degree of your non-consenting freedom and got the crap beat out of you, well you always had a case you could take to the Supreme Court. (Brown v. Texas, (1979) 443 U.S. 47.)

Like most of what passes for jurisprudence under the Rhenquist Court, the Consensual Encounter doctrine has a patina of reasonableness. But it is only a patina. Like most of the rules cobbled out by that Court, it is a trap for the unwary. The myriads of lesser justices that dot our fair land, are not unaware of this. One dissenting judge in a California Appellate court put it this way:

Yossarian fn. 1 would not be surprised. If an individual does not submit to a legally unprovoked show of police authority, the United States Supreme Court tells us there is no seizure until the person is physically brought to a halt. (California v. Hodari D. (1991) 499 U.S. 621) But if the individual does submit, there still is no seizure in most instances, according to the court. (INS v. Delgado (1984) 466 U.S. 210.) This paradox is explained by the court's continuing indulgence in the fiction that a citizen's submission to police questioning and demand for production of identification (or identifying information) does not amount to a seizure.

(Diss., Cosby, J, People v. Brouser (1994) 26 Cal.App.4th 1280)

In sum, although the historical starting point was whether the police had probable cause to effect a restraint ("seizure") on a person, the end-question now is whether a person would feel free to leave. The Fourth Amendment has simply been inverted inside out.

Nevertheless, even this shameless perverion of constitutionalism has its limits. The test for the existence of a consensual encounter remains whether a reasonable [person] would feel free to decline the officers' request or otherwise terminate the encounter.” (Florida v. Bostick, supra, 501 U.S., at 430) and, here, whether Officer Dickerson “communicated to [defendant] that he was not at liberty to ignore the police presence and go about his business." (Michigan v. Chesternut, supra, 486 U.S. at 569.)

Thus in this case, it was absolutely clear that, as a matter of law, defendant was not free to throw his car into reverse and leave Officer Dickerson standing on the curb in a cloud of exhaust. In fact, defendant was not even free to roll up his window and turn up the Salsa on his radio to ear splitting levels. He was not free to do any of that because, as the person seated in the driver's seat of a vehicle, he was obligated by California Law to submit to the "request" and produce his license.

Of course, the fact that Officer Dickerson flashed his light into defendant's face and persisted in asking official questions even when defendant indicated his desire "to end the encounter" only buttressed the conclusion that a reasonable person would not feel free to decline to cooperate. But the determinative fact in this case was that by law defendant was required to stay and compy with Dickerson's request.

Therefore, a detention took place, and since Dickerson testified to no reason or even suspicion for accosting defendant, the detention was illegal;' and anything observed or seized during an illegal detention is itself illegal.

Court of Appeal Opinion

"Consensual encounters do not trigger Fourth Amendment scrutiny. Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. The United States Supreme Court has made it clear that a detention does not occure when a police officer merely appraoches an individual on the street...and assks a few questions... Only when the officer by means of physical force or show of authoirty in some manner restrains the individual libert, does a seizure occur"

"Defendant seems to suggest that that any inquiries by a police officer that are ‘related to law enforcement purposes’ are necessarily intimidating. ... We are aware of no authority for the proposition that a police officer’s conversation during a consensual encounter may not be related to law enforcement. .. A reasonable person would not be intimidated by the simply fact that a police officer's inquiries during a consensual encounter were related to law enforcement” (Ibid)

Critique

The Court of Appeal opinion is a shameless piece crap. The court's own recitation of the general rule indicates that it knows perfectly well what the rule is. "Intimidation" is not the issue and nowhere did defendant's argument make any allusion to "intimidation". It did not make any such allusion because (as Justice Cosby explained in Brouser), although we all know that any confrontation with a cop is psychologically intimidating as a matter of reality and fact, it is settled that the Consensual Encounter issue does not depend on actual intimidation.

In addition to crap, the opinion also begs the question. The issue is not what cops can or cannot talk about during a consensual encounter but whether this encounter was consensual in the first place.

As bad as the Court's opinion itself is the fact that under state rules, it can "de-publish" the opinion so that it's hatchet job does not appear in the official reports and so that the general public does not know what garbage is flung about in secret in the name of "justice". This handy device of secrecy allows the courts to deny defendant his equal right of redress with impunity from even public scrutiny.

Once again, thus is law in the Later Empire.

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A Judicial DIME Bomb

Facts:

Using a ~sealed warrant,~ police searched defendant's home and seized small amounts of drugs. Upon being charged, defendant brought a motion in the magistrate's court to traverse and suppress the warrant. After the motion was denied, defendant pled guilty, reserving the right to appeal the denial of his suppression motion.

On appeal, the prosecution moved to dismiss the appeal on the ground that the motion to suppress had not been renewed in the superior court as (allegedly) required.

Issue:

When a defendant enters a conditional plea of guilty in magistrate's court, reserving the right to contest the seizure of evidence on appeal, is he required to renew his motion in the superior court and, if so, does his failure to do so deprive the appellate court of jurisdiction to hear the appeal?

Argument: No

1. Penal Code section 1538.5 subd. (m) explicitly provides "A defendant may seek further review of the validity of a search or seizure on appeal from a ...plea of guilty... provided that at some stage of the proceedings prior to conviction he or she has moved for ... the suppression of the evidence."

2. Subdivision (m) explicitly allows conditional pleas of guilty reserving the right to contest the lawfulness of a precursor search on appeal. The sole requirement is that the legality of the search be contested "at some stage" in the lower court proceedings. There is no requirement that the issue be contested more than once; nor is there any requirement that the issue be raised in superior court proceedings as opposed to proceedings in the magistrate's court. The section does not require any further action "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." (People v Snook (1997) 16 Cal.4th 1210, 1215)

3. The alleged "failure" to renew the motion in the inferior courts is not a jurisdictional defect in any event. It is well established that the timely filing of a notice of appeal is the sole and necessary step for vesting appellate jurisdiction in a court of appeal. (People v. Chavez (2003) 30 Cal.4th 643, 650). Appellant's notice here was timely filed and clearly indicated that it was taken from a guilty plea based on denial of his suppression motion. California Rules of Court provide that, in such cases, the notice of appeal is sufficient if it indicates that the appeal is taken from "the denial of a mtion to suppress evidence under Penal Code section 1538.5..." (Rule 8.304, subd. (b)(4).)

4. Under the plain and unambiguous language of the Penal Code and Rules of Court, the court of appeal had jurisdiction to hear the appellant's case and appellant had not forfeited his suppression issue by defaulting on any further procedural requirement.

Appellate Court Ruling:

Stay tuned.

Critique:

Checko, Excited Chickens and a Portuguese Gentleman

Facts

Alejandro R was stabbed during an after-hours melée outside Dominic's Bar. Alejandro testified that as the patrons emptied out of the bar, an unknown female approached him and accused him of damaging her car. During the shoving match that followed, the woman punched Alejandro in the nose and a man came over and hit him in the jaw. Alejandro tried to run away but "they" chased after him and threw him down. Several people were coming at him from all sides at which point he felt that he was stabbed on the left side of his torso. He never saw who stabbed him but, while lying on the ground, heard people saying "Checko did it."

Anna B. testified that she knew defendant by his nickname "Checko". She had been to Dominic's Bar that evening but was still inside when the stabbing occurred. When she came outside the incident was over but she heard unidentified people saying that "Checko did it".

Joyce L. was also present and testified that the fight had been started by a white female who had accused Alejandro R of having kicked her car. The woman began hitting Alejandro who then grabbed her arm and told her to stop. At that point a "bunch of people started fighting and stuff". According to Joyce, defendant wrestled Alejandro to the ground and "that's when they pulled out something and I seen him pull out something." Joyce could not say, however, which side Alejandro had been stabbed on.

At trial over defense objection, the prosecution was allowed to introduce the hearsay statements of the people who were heard to say that "Checko did it". The trial judge allowed the statements to come into evidence under the so-called "excited utterance" exception to the rule against permitting hearsay testimony.

Issue-1:

Was Anna B's hearsay testimony that she heard people saying "Checko did it" properly admitted as an "excited utterance"?

Issue -2:

Even if the testimony was properly admitted under the "excited utterance" exception to the hearsay rule, was defendant deprived of his consitutional right to confront witnesses by not being able to cross-examine the unkown people who had (allegedly) said that he had "done it"?

Argument-1.

Anna B's hearsay testimony was improperly admitted because there was no determining whether or not the statement "Check did it" was made in an excited state of mind and whether the statement reflected something that was actually perceived by the declarant.

Background: The Hearsay Rule prohibits testimony that repeats what somebody else said outside of court; i.e. any testimony that in effect says, "I heard him say...." The reason for the rule is that there is no way to "test" the truthfulness of the alleged statement without being able to cross-examine the person who actually made it. However, courts have allowed many exceptions to the Hearsay Rule. One of those exceptions involve excited utterances. In California, this exception is found in Evidence Code § 1240. That section allows hearsay testimony if the out-of-court statment (1) describes or explains an "event perceived by the declarant" and (2) was "made spontaneously while the declarant was under the stress of excitement..." The theory is that a person who is an excited state of mind does not have time to calculate or fabricate a lie and therefore any simple statements of perceived fact are sufficiently trustworthy to be accepted as true without further cross examination

In the present case, there were no facts showing that the persons or persons who made the statement actually saw "Checko do it". In addition, there were no facts showing that they were in an excited state of mind when they made the statements. Anna B's testimony that she heard people say "Checko did it" in no way even implied that these people actually saw what they alleged. It is quite possible that the people who made this statement were repeating something that someone else said. By the same token, it is impossible to say that the person or persons making this statement were in an excited state of mind. The picture that comes to mind is that they were running about excited like excited, speaking chickens, but that picture is no more than an unfounded assumption, given that Anna B never testified as what the apparent mental state of these people was and stated that when she came out of the bar and heard the alleged statements, the stabbing had already occurred. Without knowing details about how and when the statements were made it is impossible to make a determination as to their circumstances and reliability. Put another way -- it is impossible to admit hearsay statements of unknown declarants. That is the very evil the Hearsay Rule was designed to prevent.

Argument-2

Even supposing, hypothetically, that Anna's hearsay testimony qualified as an admissible "excited utterance" its admission violated defendant's Due Process rights under the Confrontation Clause as construed by Crawford v. Washington (2004) 541 U.S. 36.

Background: The Sixth Amendment guarantees the right of an accused in a crimianl case "to be confronted with the witnesses against him." (Delaware v. Van Arsdall (1986) 457 U.S. 673, 678). "The right of confrontation and cross-examination is an essential and fundamental requirement of the kind of fair trail which is this country's constitutional goal." (Pointer v. Texas (1965) 380 U.S. 400, 405.) Nevertheless, "fundamental" as it might have been, the Supreme Court allowed "the goal" to be achieved by other means without actual confrontation. In Ohio v Roberts (1980) 448 U.S. 56, the court affirmed that hearsay statements could be admitted without actual confrontation provided a judge screened them and determined that they had sufficient "indicia of reliability". Thus, for example, if a hearsay statement qualified as an excited utterance it would be sufficiently trustworthy to be admitted even if the person who made the statement could not be cross-examined. In this way, the "purpose" of the constitutional right would be assured.

However, in Crawford v. Washington, the Supreme Court reversed itself, stating that "where testimonial statements are at issue the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actual prescribes: confrontation." (Id, at pp 68-69.) Writing for the majority, Justice Scalia paraded a long roll of absurd and inconsistent "judicial reliability determinations". A procedure that produced such inconsistent results could hardly be deemed capable of producing something called "reliability." No -- the Constitution did not prescribe some pie-in-the sky "goal", it prescribed a specific procedure: actual confrontation. Ohio v Roberts was overruled.

But in the law, nothing is ever settled. There are many kinds of statements that are offered to prove different matters and not all of them are testimonial. Statements of two people in a fight threatening one another, or statements given to police or paramedics during an emergency, and statements made during contract negotiations are all examples of non-testimonial utterances which would not always trigger a right to confront the witness. What is "testimonial" for purpose of the Confrontation Clause is, as of now, a land without borders.

Although Crawford left open the precise limits of what qualified as "testimonial" statements, it did review the judicial history of the Confrontation Clause dating back to the early 17th century. Based on these historical precedents, Crawford held that certain types of statements were indisputably testimonial. These included:

1. statements given at formal prior judicial, legal hearings or affidavits;
   
2. statements given to police during criminal investigations or interrogations, and
3. statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Id. at pp. 51-52.)

The statements in this case clearly qualified as type (3) because they were essentially accusatory. Whoever made the statement was undeniably imputing a crime to "Checko". Whether that was an honest belief or whether it was a calculated attempt to shift blame, the very purpose of the statement was to incriminate defendant. No reasonable person would understand the statement to be anything other than "testimony against" Checko.

In addition, since Crawford was decided, the Supreme Court has amplified on what kind of statements qualified as "testimonial". In Davis v. Washington (2006) 547 U.S. __, the Supreme Court cautioned against concluding that "statements made in the absence of any interrogation are necessarily non-testimonial." (Id at slip pg. 7.) It cited Lord Cobham's letter to Lady Arabella, at Sir Walter Raleigh's Trial, in which Cobham implicated Sir Walter Raleigh in treason against the King.

Sir Walter Raleigh's Trial?

Background: In 1603, Sir Walter Raleigh was tried for treason on the grounds that he had plotted a Catholic overthrow of Kings James I. Found guilty on hearsay testimony, Sir Walter was imprisoned in the Tower and ultimately beheaded. Lord Cook, the prosecutor, later admitted that the case had been a disgrace to English Law and this travesty of justice became the seed for the Right to Confrontation in our Bill of Rights. The Crawford Case relied heavily on Raleigh's Case 2 (1603) How. St. Tr. 16 noting that "the justice of England has never been so degraded as by the condemnationof Sir Walter Raleigh" (Id., at pg. 44, citing (1 Jardines State Trials (1832) 418, here )

Analysis of Raleigh's Case shows that the statements at issue in this case would clearly have been considered "testimonial" for purposes of the Confrontation Clause. At that trial, Lord Cook produced a variety of statements given by witnesses to magistrates during secret closed interrogations. These type (1) statements included Lord Cobham's confession. But in addition to these declarations and to Lady Arabella's Letter, there was another item of evidence that was pure hearsay scuttlebutt, viz:

"The prosecution responded to Raleigh's complaints against being denied an opportunity to confront his accusers not by producing Cobham but by calling a boat pilot named Dyer, who testified that while in Lisbon a Portuguese gentleman told him, "Your king [James] shall never be crowned for Don Cobham and Don Raleigh will cut his throat before he come to be crowned." Raleigh protested this evidence on the ground that, "This is the saying of some wild Jesuit or beggarly priest; but what proofis it against me?" The prosecutor Lord Coke, responded , "It must perforce arise out some preceding intelligence and shews that your treason had wings." (1 Jardine op.cit at pp. 389, 436.)

The hearsay statements of the pilot Dyer are strictly analogous to Anna B's statements in this case. In both instances, the witness was repeating the accusation of some unknown declarant. The Supreme Court in Crawford and again in Davis relied heavily on Raleigh's Case as the basis for its ruling on what the Confrontation Clause requires. This ancient and seminal precedent of Anglo-American law, shows that defendant in this case has a constitutional right to confront his unknown accusers, and admission of the hearsay testimony that "Checko did it" was constitutional error.

Although Joyce L. did testify that defendant stabbed Alejandro, her testimony was vague and equivocal, with repeated reference to things done by "they" and "them". Where constitutional error is inovlved it must be shown beyond a reasonable doubt that the error did not contribute to the verdict. This cannot be shown in this case, since it is likely that given Joyce's vague testimony, the jury was fatally influenced by the seemingly "corroborating" hearsay statements that Checko did it.

Court of Appeal Opinion

The Court of Appeal ruled that Anna B's heasay qualified as an excited utterance under the rule of People v. Provencio (1989) 210 Cal.App.3d 290 which held that "the fact a declarant's identity is unknown does not preclude admission of a spontaneous statement." (Id, at p. 302.)

With respect to the Crawford Confrontation claim, the Court of Appeal held that the issue had been waived because defendant's attorney did not object to the hearsay statement under "Crawford" by name.

Critique

Reliance on Provencio, at this point, is very questionable jurisprudence. Even under the pre-Crawford rules, it is simply absurd to think that the circumstances of a statement's utterance can be examined for excitability, perception and trustworthiness where the people who made the statement are unknown.

Provencio is an example of hard cases making bad law. In that case an on the scene witness identified the defendant by sight as the person he saw fleeing a house that had been burglarized. In addition he was allowed to testify that he heard unidentified children yelling "there goes Angel" (the defendant's name). The Court allowed the hearsay statement on the ground that "modern" law only required that the statement at issue be "excited". That is wrong, Evidence Code § 1240 has at all times required a two pronged showing which is impossible without knowing who saw what.

In all events Provencio is distinguishable. In that case the unknown children were not accusing Angel of anything. They merely identified him by name, as a person known as "Angel". They did not identify him as the burglar. It is common sense that people normally do not go about mis-naming someone. A person known as "John" is not usually pointed out as "Sam". In this unique situation the childrens' statements did have "indicia" of reliability. But they were also irrelevant given that the witness at trial identified the defendant as the person he himself had seen that night. Here, the hearsay statement levelled an actual accusation of criminal conduct, which no one (except possible Joyce) had actually seen.

The Court's refusal to hear the Crawford issue is another deplorable case of letting the prosecution off on a technicality. It is true objections at trial are supposed to be specific in order to prevent game playing on appeal. But how specific depends on the state of the law. Where the law itself is unsettled (as in this case where there was no complete definition of "testimonial" statements) it is normally sufficient to make a general objection. This is particularly the case where, as here, the subject matter of the objection involves constitutional issues of great general importance.

But that's just my opinion.

©Justin Law, 2009.

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