"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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