PEOPLE v. SALGADO

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Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Ignacio Cambrax SALGADO, Defendant and Respondent.

No. G007557.

Decided: February 26, 1990

OPINION

Ignacio Cambrax Salgado's motion to suppress was granted by the superior court, and the district attorney appeals.   The court determined cocaine Salgado attempted to hide was recovered as a result of an illegal effort to detain him.   We have no basis to conclude otherwise and affirm accordingly.

I.

At about 8 to 8:30 p.m. on July 17, 1988, Deputy Sheriff John Anderson was conversing with another deputy, Max Chance, near their respective patrol cars in San Juan Capistrano.   He saw Salgado talking in an alleyway with another man, Eddie Summers, who was known to Anderson as a burglar and narcotics offender.   Anderson did not know Salgado or several other individuals who where also standing there.   The deputy had made some arrests for drug crimes in the same area.   He thought Summers and Salgado might be involved in such activity.

After less than a minute, Salgado walked between some condominiums out of Anderson's sight.   He emerged farther away, taking a route the deputy described as a “large circle [around] us.”   Anderson and his partner, Abel Hernandez, drove up to Salgado.   Hernandez testified, “I spoke to him in Spanish and told [sic ] him if I could talk to him for a minute.”  (The prosecutor immediately rephrased this to:  “So you said to him, ‘Can I talk to you for a minute?’  “The deputy agreed.)   The deputies then pulled into a driveway parallel to the sidewalk some 15 to 20 yards ahead of Salgado.   When they began to walk toward him, defendant started running toward nearby condominiums.   Anderson, who was Hernandez' training officer, asked what he intended to do.   Hernandez took the hint and gave chase, but he quickly lost sight of Salgado.

Meanwhile, Anderson used his radio to advise the other nearby deputies of the pursuit and describe Salgado. he then drove in the direction defendant had run.

Deputy Mitchell Hopp monitored the broadcast and soon spotted Salgado walking about a block from the site of his encounter with Hernandez and Anderson.   When defendant saw the deputy, he started running again.   Hopp saw him stop near an alley planter box, place something under a newspaper, and begin to run again.   Hopp intended to detain Salgado per the radio broadcast if he found him, but did not activate his red lights or call out to him.   After Salgado was captured, Hopp found four plastic bags of white powder under the newspaper.

Deputy Chance, Hopp's partner, joined in the hunt on foot when the radio call came out.   He quickly encountered Salgado running in an alley and handcuffed him.   He did not know why Anderson wished to stop him.

Anderson testified the chase lasted about one minute from beginning to end.   When he was asked, “At the time you saw Mr.Salgado start running did you suspect that he was involved in some sort of criminal activity?” he replied, “Yes, when he ran, I did.”   On cross-examination Anderson admitted he had not suspected Salgado of criminal activity before defendant ran.

II.

The district attorney argues the chase did not amount to a detention or attempted detention, but if it did, the deputies were justified by adequate probable cause.   He also claims discovery of the contraband was not the product of an illegal search and seizure.

There surely was an attempt to detain at the moment Deputy Hernandez began to chase Salgado.   Federal and California cases have held that giving chase “in a manner designed to overtake and detain or encourage the individual to give up his flight is a detention.”  (People v. Washington (1987) 192 Cal.App.3d 1120, 1126, 236 Cal.Rptr. 840;  People v. Menifee (1979) 100 Cal.App.3d 235, 239, 160 Cal.Rptr. 682 [police pursuit of suspects reasonably viewed as an intended detention];  United States v. Bowles (5th Cir.1980) 625 F.2d 526, 532 [detention occurred when officer ran past defendant, turned to face him, held out credentials, and blocked his path].)

The district attorney argues Michigan v. Chesternut (1988) 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 compels a different conclusion.   We are not persuaded.   The officers in Chesternut merely drove alongside a running suspect who jettisoned contraband in plain view.   In deciding that conduct did not amount to a detention, the court announced it would “leave to another day the determination of the circumstances in which police pursuit could amount to a seizure under the Fourth Amendment.” 1  (Id., at p.1980, fn. 9, 108 S.Ct. at p. 576, fn. 9.)

In Chesternut the Supreme Court held the police conduct “would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent's freedom of movement.”  Id., at p. ––––, fn. omitted, 108 S.Ct. at p.1980.)   Lights and sirens were not employed;  there was no command to halt;  and the officers did not attempt to block the suspect with the police car, “or otherwise control the direction or speed of his movement.”  (Ibid.) The court also noted that surveillance or an officer's approach is not a seizure.  (Id., at pp. _—_, 108 S.Ct. at pp.1980—1981.)   The opinion left open the question of when police pursuit would constitute a seizure.  (Id., at p. ––––, fn. 9, 108 S.Ct. at p.1980.)

Here, a deputy “told him if I could talk to him for a minute.”  (Emphasis added.)   Then, the patrol car parked parallel to and ahead of Salgado's path.   Although lights and sirens were not employed, the deputies began to walk toward the defendant.   Assuming there was no probable cause to detain him, he was within his rights to eschew a consensual encounter and take flight.  (People v. Washington, supra, 192 Cal.App.3d at pp. 1125–1126, 236 Cal.Rptr. 840;  see People v. Lopez (1989) 212 Cal.App.3d 289, 291, 260 Cal.Rptr. 641.)   When Hernandez pursued, how many people would believe they were not the object of an attempt to detain?   The answer is obvious:  No one.

III

We also reject the district attorney's claim of probable cause to detain here.   Other than guilt by association, previous narcotics arrests in the area, and defendant's apparent desire to avoid their company, the deputies had exactly no reason to detain Salgado.   Anderson admitted he did not suspect defendant was involved in criminal activity until he ran.   But flight by itself is not sufficient to justify a detention (People v. Aldridge (1984) 35 Cal.3d 473, 479, 198 Cal.Rptr. 538, 674 P.2d 240;  People v. Bower (1979) 24 Cal.3d 638, 649, 156 Cal.Rptr. 856, 597 P.2d 115), and the other factors were at best marginal.

Moreover, the hour was not late;  no exchange of suspected contraband was observed;  and the deputies had no previous knowledge of Salgado, much less that he was involved in narcotics trafficking.   A conversation with an individual who has been arrested before in an area where other crimes have been committed is not enough, even coupled with a suspect's evident disinterest in conversing with police, to support a detention of a person unknown to the officers.  (Cf. People v. McGriff (1990) 217 Cal.App.3d 1140, 266 Cal.Rptr. 429;  People v. Brown (1990) 216 Cal.App.3d 1442, 265 Cal.Rptr. 552.)   The totality of these circumstances, viewed objectively, was not sufficient to suspect Salgado was “engaged in, or poised to commit, a criminal act at that moment.”  (United States v. Sokolow (1989) 490 U.S. 1, ––––, 109 S.Ct. 1581, 1588, 104 L.Ed.2d 1 (dis. opn. of Marshall, J.);   see also Brown v. Texas (1979) 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357;  People v. Raybourn (1990) 218 Cal.App.3d 308, 266 Cal.Rptr. 884;  People v. Gonzales (1989) 216 Cal.App.3d 1185, 265 Cal.Rptr. 507.)

IV

Finally, we address the district attorney's contention that the finding of the contraband was not the product of an illegal search or seizure.   Here we must examine the following:  “The temporal proximity ․, the presence of intervening circumstances [citation], and particularly, the purpose and flagrancy of the official misconduct․”  (Brown v. Illinois (1975) 422 U.S. 590, 603–604, 95 S.Ct. 2254, 2261–2262, 45 L.Ed.2d 416.)   As to the first and third issues, there can be no question.   The only potential intervening circumstance was that Salgado had, at least momentarily, shaken his immediate pursuer when he encountered another deputy who, although passive, was part of the team attempting to apprehend him.   The time involved was very short;  and Salgado obviously reacted as though the threat to detain him remained very real indeed, as it in fact had.   One deputy was chasing him on foot and could not have been far away.   Others were surrounding his location when he dumped the goods.   When Hopp observed the hiding of the contraband, there had been no cooling off period sufficient to break the casual chain.  (See People v. Washington, supra, 192 Cal.App.3d at p. 1127, 236 Cal.Rptr. 840.)   In short, the evidence was obtained as a product of an unlawful attempt to detain the defendant.

People v. Holloway (1985) 176 Cal.App.3d 150, 221 Cal.Rptr. 394 does not suggest a different result, as the district attorney contends.   There, the officers merely yelled, “Hold it,” after defendant's four companions took flight at the approach of the police in a high narcotics area at 2;58 a.m. and he closed his hand into a fist and moved as if to throw something.   The court doubted those words alone amounted to a detention, but found there was good cause to detain in any event.   In other words, the police acted lawfully there.

People v. Patrick (1982) 135 Cal.App.3d 290, 185 Cal.Rptr. 325 does support the prosecution's position,but we disagree with it.  Patrick held a defendant faced with an illegal detention must also prove that he would have been illegally search as well.   Otherwise, his jettisoning of contraband would be considered an abandonment.   What Patrick and the cases it relies upon fail to discern is that a detention is itself a seizure.   The result in Chesternut would have been quite different, we are certain, had the Supreme Court determined the officers' conduct amounted to a detention.   That is obvious from a cursory reading of the opinion.   To require a defendant to anticipate—or later prove—the probable actions of officers who are already acting illegally, once they finally run him to ground, is to take fiction to a level approaching fantasy.

It is, after all, the prosecution's burden to demonstrate the reasonableness of a warrantless search and the abandonment exception.  (People v. Contreras (1989) 210 Cal.App.3d 450, 455 259 Cal.Rptr. 290.) the court in People v. Menifee, supra, 100 Cal.App.3d 235, 160 Cal.Rptr. 682 got it right:  Discarding contraband in the face of a threatened illegal detention is not abandonment;  it is evidence which “is the product of an illegal act in violation of constitutional guarantees and thus inadmissible.”  (Id., at p. 238, 160 Cal.Rptr. 682.)   An attempted illegal detention is sufficient;  the court is not required to speculate as to whether an illegal search would have followed had the defendant not tried to get rid of the contraband.  (Id., at p. 239, 160 Cal.Rptr. 682.)

Judgment affirmed.

CROSBY.

WALLIN, Acting P.J., and SONENSHINE, J., concur.