PEOPLE v. TUFONO

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Seilusi L. TUFONO, Defendant and Appellant.

No. A075838.

Decided: September 30, 1997

Jo Lynn Lambert, San Francisco, for Appellant. Daniel Lungren, Attorney General, Ann K. Jensen, Deputy Attorney General, for Respondent.

Appellant Seilusi L. Tufono appeals from a judgment of conviction upon a plea of no contest to the charge of possession of cocaine base.  (Health & Saf.Code, § 11350.)   Appellant contends that the trial court erred in denying his motion to suppress evidence because (1) he was illegally detained and (2) the search exceeded the scope of his consent.   We conclude that the search was invalid and therefore reverse.

FACTS

On November 1, 1995, at approximately 10:46 p.m., Officer Vonmillanich of the San Pablo Police Department was in uniform and driving a marked patrol car on River Street near 19th Street in San Pablo.   He spotted appellant walking on River Street near 19th Street.   Appellant matched the physical description of a person that Officer Weaver had broadcast over the police radio earlier that evening as having run from the scene of an arrest he conducted about one mile from 19th and River Streets.   Vonmillanich stopped his patrol car across the street from appellant.   While seated in his car, he asked appellant if he was the one who had run from Officer Weaver earlier in the evening.   Vonmillanich could not hear appellant's response, so he pulled his patrol car closer to where appellant was standing on the sidewalk and got out of his patrol car.   Vonmillanich then asked appellant if he had any identification, and appellant responded that he did not but told the office his name.   Appellant became very nervous and stiffened up, and it appeared that appellant “was probably going to run.”   Vonmillanich then told appellant that it was okay, that it was “no big deal,” he just wanted to know if appellant was the one who had run from Officer Weaver.   Vonmillanich then said to appellant, “[h]ey, I'd like to shake you down real quick, if you don't mind.”   Appellant said “okay” and turned around and raised his arms.   Vonmillanich then pat-searched the outside of appellant's clothing and felt a round, hard, cylindrical object in appellant's left front pocket that he suspected was either a vial or a shotgun shell.   Upon removing the object from appellant's pocket, Vonmillanich discovered that the object was a clear vial containing what appeared to be rock cocaine.   Appellant was then arrested and transported to jail.   Vonmillanich conducted a booking search which revealed two baggies in appellant's left front pants pocket which contained what was later determined to be cocaine base.

Appellant moved to suppress the seized evidence.   The trial court denied the motion to suppress evidence based on the grounds that the initial involvement between Vonmillanich and appellant was a contact and not a detention and that appellant consented to the search of his pocket.

Appellant subsequently pled no contest to the charge of possession of cocaine base.  (Health & Saf.Code, § 11350.)   Appellant admitted two prior prison terms (Pen.Code, § 667.5, subd. (b)) and probation ineligibility (Pen.Code, § 1203, subd. (e)(4)).   Upon the People's motion, a strike enhancement was dismissed.  (Pen.Code, § 1170.12, subds.(b) & (c).)   The trial court sentenced appellant to a 28-month prison term.

From the order denying appellant's motion to suppress, appellant filed a timely notice of appeal.  (Pen.Code, § 1538.5, subd. (m).)

DISCUSSION

Appellant raises two theories on appeal in support of his contention that the trial court erred in denying his motion to suppress evidence.   Appellant's first contention is that he was detained, that the detention was illegal because the officer had no articulable suspicion that appellant had committed or was about to commit a crime, and that the evidence should have been suppressed as the fruit of the illegal detention.   Appellant's second contention is that the officer's search of his person exceeded the scope of his consent because he consented merely to a patdown.

 In ruling on a motion to suppress evidence, “the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.”  (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)   We, however, exercise our independent judgment in measuring the facts found by the trier of fact against the constitutional standard of reasonableness.  (Ibid.)

A. The Encounter Was Consensual and Not a Detention.

 For purposes of Fourth Amendment analysis, a distinction is made between a consensual encounter and a detention.   A consensual encounter is one which results in no restraints on an individual's liberty and which may be “initiated by police officers even if they lack any ‘objective justification.’ ”  (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, 195 Cal.Rptr. 671, 670 P.2d 325, quoting Florida v. Royer (1983) 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229.)   A detention, or seizure under the Fourth Amendment, is one where, in view of all the circumstances the individual would not believe that he or she is free to leave.  (United States v. Mendenhall (1980) 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497.)  “The line between a consensual encounter, which is marked by its voluntary nature, the citizen being under no compulsion to respond or remain, and a detention, which results in a restriction of freedom, is drawn on objective grounds.   If a reasonable person in appellant's position believes in view of all the surrounding circumstances that he is not free to leave, a detention has occurred and such detention must be supported by an articulable suspicion.”  (People v. Franklin (1987) 192 Cal.App.3d 935, 940, 237 Cal.Rptr. 840.)

 The trial court considered the evidence offered by appellant in support of his contention that the encounter with Vonmillanich was a detention.   The court ruled that the “initial involvement” between Vonmillanich and appellant was a “contact” and not a detention.   For the reasons discussed below, we agree with the trial court.

In support of appellant's contention that he was detained, he alleges that under the circumstances he did not feel free to leave because he was the focus of the officer's investigation and was never advised that he was free to leave.   Appellant focuses on the point in the encounter when the officer stated his desire to “shake down” appellant, arguing that a reasonable person hearing these words would not believe that he was free to leave.   The Mendenhall test, however, requires that we look at the totality of the circumstances in determining whether or not a detention occurred.  (United States v. Mendenhall, supra, 446 U.S. at p. 554, 100 S.Ct. at p. 1877.)

Appellant relies on Florida v. Royer, supra, 460 U.S. at p. 503, 103 S.Ct. at p. 1327, and Wilson v. Superior Court, supra, 34 Cal.3d at p. 791, 195 Cal.Rptr. 671, 670 P.2d 325, both cases holding that a detention had occurred prior to the suspect's consent to a baggage search.   Appellant urges that in applying the Mendenhall test both the Wilson and Royer courts considered it significant that the suspects were advised that they were the focus of narcotics investigations and were not advised that they were free to leave.   A careful reading of these cases, however, leads us to conclude that other factors in addition to those pointed out by appellant led to those courts' findings.   In Royer, the officers held the suspect's airline ticket, identification, and luggage, and he could not leave on his intended flight without them.  (Florida v. Royer, supra, 460 U.S. at p. 503, fn. 9, 103 S.Ct. at p. 1327, fn. 9.) The suspect was asked to accompany the officers to an interrogation room about 40 feet away and adjacent to the concourse, which he did.  (Id. at p. 494, 103 S.Ct. at p. 1322.)   In fact, the State conceded that the suspect would not have been free to leave the interrogation room even if he had asked to do so.  (Id. at p. 503, 103 S.Ct. at p. 1327.)   In Wilson, the suspect was advised that the officers were conducting a narcotics investigation and had received information that he would be arriving on that particular flight carrying a lot of drugs.   (Wilson v. Superior Court, supra, 34 Cal.3d at p. 790, 195 Cal.Rptr. 671, 670 P.2d 325.)   As the Wilson court concluded, at that point, the “entire complexion of the encounter changed.”  (Id. at p. 791, 195 Cal.Rptr. 671, 670 P.2d 325.)   Thus, in both Royer and Wilson, under the totality of the circumstances a reasonable person would not believe that he or she was free to leave.

Here, it is clear that the initial encounter between appellant and Vonmillanich was consensual and thus no seizure under the Fourth Amendment occurred.   Vonmillanich did not immediately get out of his patrol car and approach appellant.   It was only because Vonmillanich could not hear appellant's response to his question that he drove to appellant's side of the street and got out of his patrol car.   He never turned on his overhead lights or pulled out his weapon.   At no time did Vonmillanich order appellant to stop, put his hands on appellant, or tell appellant that he could not walk away.   As appellant testified at the hearing on the motion to suppress, when first contacted by Vonmillanich, the officer was not hostile but appeared to be curious, polite, and “friendly-like.”   When Vonmillanich noticed that appellant became nervous and might run, he reassured appellant that his questioning was “no big deal.”   Vonmillanich's statement, “it's okay.   It's no big deal, you know.   I just want to know if you are the one who ran,” reveals that this was not a serious criminal investigation but merely a brief contact about a seemingly minor incident.   At this point, appellant was free to refuse to answer Vonmillanich's questions and walk away.   As the United States Supreme Court stated in Royer, “law 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, [or] by putting questions to him if the person is willing to listen.”  (Florida v. Royer, supra, 460 U.S. at p. 497, 103 S.Ct. at p. 1324.)

Further, Vonmillanich's subsequent request to shake appellant “down real quick, if you don't mind,” did not turn the encounter from a consensual one into a detention.   Even though Vonmillanich was in uniform and carrying a gun, the words “if you don't mind” called for a discretionary response, not a mandatory one, and there was no show of authority to which appellant must submit.   Appellant was free to refuse to consent to the search.

Although the officer did not advise appellant that he was free to leave, in light of the totality of the circumstances we conclude that there was no restraint on appellant's liberty and that he was free to leave.   The trial court did not err in ruling that the encounter was consensual.

B. The Search Exceeded the Scope of Appellant's Consent.

Appellant next contends that he consented to the search but that his consent was limited to a patdown search.   He argues that when Vonmillanich reached into his pocket to retrieve an object he knew was not a weapon or contraband, he exceeded the scope of appellant's consent.1  We agree and reverse on this basis.

 Under the Fourth Amendment, consent to search is a recognized exception to the warrant requirement.   (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854;  People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.)   The scope of consent is judged against a standard of reasonableness, “what would the typical reasonable person have understood by the exchange between the officer and the suspect.”  (Florida v. Jimeno (1991) 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297;  People v. Bell (1996) 43 Cal.App.4th 754, 770, 51 Cal.Rptr.2d 115;  People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408, 12 Cal.Rptr.2d 172.)  “Reasonableness is determined by balancing ‘the intrusion’ on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' ”   (People v. Crenshaw, supra, at p. 1408, 12 Cal.Rptr.2d 172, quoting Maryland v. Buie (1990) 494 U.S. 325, 331, 110 S.Ct. 1093, 1096-97, 108 L.Ed.2d 276.)   A search may not legally exceed the scope of consent that supports it.  (Ibid.)  The People have the burden of showing that the search was within the scope of the consent.  (See People v. Superior Court (1970) 10 Cal.App.3d 122, 127-128, 89 Cal.Rptr. 316.)   Whether a search remains within the scope of consent is a question of fact to be determined from the totality of the circumstances, and, unless clearly erroneous, the trial court's determination will be upheld.  (People v. Crenshaw, supra, at p. 1408, 12 Cal.Rptr.2d 172.)

 Here, the People have not met their burden of showing that the search of appellant's pocket was within the scope of his consent because the record supports only that appellant consented to a patdown search.   While Vonmillanich asked appellant permission to “shake you down real quick”, he proceeded to pat search appellant and did not conduct a full body search.2  Neither Vonmillanich nor appellant testified as to his understanding of the term, “shakedown”.   Their actions, however, demonstrate that only a patdown search was intended.   As Vonmillanich testified, appellant “turned around allowing me to pat him down.”   When during the patdown search, Vonmillanich discovered and removed the vial from appellant's pocket, he did not search appellant's other pockets and simply terminated the search.   There is nothing in the record concerning the actions of either party that demonstrates that Vonmillanich intended to conduct a search other than a patdown one.   Further, Vonmillanich's request to conduct the shakedown “real quick” supports appellant's contention that only a patdown search was intended as a more extensive search would have required additional time.

It is well settled that a police officer may undertake a patdown search for officer safety if he believes the suspect is armed and dangerous.  (See Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.)   Vonmillanich's testimony infers that he intended to conduct only the protective patdown search permitted by Terry because of concern for his safety due to appellant's nervousness.   A Terry search, however, is limited and must 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.”  (Id. at p. 29, 88 S.Ct. at p. 1884.)   Absent unusual circumstances, a police officer may not search a suspect's pockets during a patdown search unless he feels some object that reasonably leads him to conclude it is a weapon.  (People v. Dickey (1994) 21 Cal.App.4th 952, 957, 27 Cal.Rptr.2d 44.)   And, an officer's continued exploration of a suspect's pocket after concluding that it contains no weapon is unlawful as it is “unrelated to ‘[t]he sole justification of the search [under Terry ] ․ the protection of the police officer and others nearby.’ ”  (Minnesota v. Dickerson (1993) 508 U.S. 366, 378, 113 S.Ct. 2130, 2139, 124 L.Ed.2d 334.)

Here, the People have proffered no unusual circumstances to justify the intrusion into appellant's pocket.   Vonmillanich felt a “round hard object” that he suspected was either a vial or a shotgun shell in appellant's left front pocket.   He did not determine it was contraband until he conducted a further search that was not authorized by Terry.   Under the totality of the circumstances, the search of appellant's pocket was unlawful;  the trial court therefore erred in denying the suppression motion.

The judgment is reversed.

I respectfully dissent.   I agree with the majority that the encounter here was not a detention, but I disagree with the majority that the search exceeded the scope of appellant's consent.   Therefore I would affirm the trial court in all particulars.

The majority finds that the People failed to prove that appellant consented to a search of his pocket because he only consented to a “pat-down.”   The majority reaches that conclusion because Officer Vonmillanich in fact conducted only a patdown-and did not complete a full body search.   That analysis is flawed.   Officer Vonmillanich's decision to suspend the search after finding the contraband does not, as the majority contends, “demonstrate that only a patdown was intended.”   Virtually all searches, regardless of their ultimate scope, begin with a patdown.   Once the patdown revealed an absence of weapons and the possession of contraband, there was no need for a further search.   Justification for arrest had been established;  the complete body search could be conducted at booking.

The majority focuses on the officers conduct after discovery of the contraband but not before.   However, before discovery the officer's conduct was consistent with his understanding he had consent to conduct a full body search, for he did not hesitate to search the pocket when he felt the vial.   Furthermore, the majority's reliance upon Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 is misplaced.   Terry did not consent to a shakedown or even a patdown.  Terry involved the presence of unusual circumstances which justified the officers in searching without obtaining prior consent or a warrant.   The question presented here is quite different, i.e., what is the scope of consent when an officer is given permission to “shakedown” a citizen.

As the majority candidly concedes, a “shakedown” is defined by Webster as a “thorough search.”  (Webster's New World Dict. (College ed.1964) p. 1338) That the appellant understood he gave his consent to a thorough search, which included a search of his pockets, is amply demonstrated by his conduct in cooperating with the search by turning around and raising his hands and raising no objections to or during the officer's conduct of the search.   That the officer initially commenced the shakedown by patting down the appellant does not indicate that the officer lacked consent to do more.   As the trial court correctly noted, it was within the power of the appellant to limit the search, and he did not do so-either at the beginning or just before the officer reached into his pocket.   Furthermore, the term “shakedown” need not be defined by resort to the conduct of the parties.   Reason dictates that it is something more-much more-than a mere patdown.   Webster defines “pat” as “a quick, gentle tap, touch or stroke with the hand” (id. p. 1071), while it defines “shake” as “to bring, force, throw, stir up, dislodge, etc. by or as by abrupt, brisk movements.”  (Id. at p. 1337.)   That there is a profound difference between “pat” and “shake” can not reasonably be subject to doubt.   I am convinced that Officer Vonmillanich conducted his search of appellant within the bounds of the consent given him, and I believe the trial court was correct in so finding.   I would affirm the judgment.

FOOTNOTES

1.   We initially note that appellant has abandoned his argument below that he did not consent.   At the hearing on the motion to suppress appellant testified that he did not consent to the search, but said “hell no.”   Appellant further testified that he complied only after the officer put his hand on his gun and ordered appellant to turn around and put his hands on his head.   The officer, on the other hand, testified that in response to his request to shake appellant down, appellant replied “okay,” turned around and put his hands in the air, did not object to the search, and was very cooperative.   The trial court, in assessing the credibility of the witnesses, resolved the conflict in testimony in favor of the officer.   Although appellant would appear to be changing his theory on the issue of consent on appeal, he did allege in the alternative below, that if the trial court found that he consented to a search, that the search exceeded the scope of his consent.   We will therefore consider that issue here.

2.   Our review of case law reveals that the term “shakedown” has no specific meaning within the Fourth Amendment.   We note, however, that shakedowns are routine searches of prisoner's cells to search for weapons, drugs, and other contraband.   A shakedown search includes the prisoner, cell, locker, and personal effects.  (See Hudson v. Palmer (1984) 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393.)   Webster's defines a shakedown as “a thorough search.”  (Webster's New Internat.   Dict. (3d ed.1967) p.2085.)   The term shakedown is also used in the context of extortion.  (See People v. Kohn (1968) 258 Cal.App.2d 368, 376, 65 Cal.Rptr. 867.)

HANLON, Associate Justice.

POCHÉ, Acting P.J., concurs.