IN RE: HODARI D.

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Court of Appeal, First District, Division 1, California.

IN RE: HODARI D., a Person Coming Under the Juvenile Court Law. PEOPLE of the State of California, Plaintiff and Respondent, v. HODARI D., Defendant and Appellant.

No. A043060.

Decided: December 15, 1989

James L. Lozenski, Berkeley, for defendant and appellant, hodari D. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Blair W. Hoffman and Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent, The People.

Hodari D., a minor, appeals from the juvenile court's order finding that he was in possession of cocaine and that he violated the curfew restrictions of his probation.   We determine that the court erred in failing to suppress evidence obtained as a direct result of illegal police activity, and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On April 18, 1988, at approximately 10 p.m., Officers McColgin and Pertoso, assigned to a special duty drug task force, were on patrol in the area of Foothill Boulevard and 63rd Avenue in Oakland.   They drove an unmarked brown Dodge, and both officers wore blue jeans, tennis shoes, and blue jackets with the word “police” on the front and back.   As the officers turned south onto 63rd Avenue, they saw four or five young Black males standing around a small red compact car parked at the curb approximately 40 yards away.   Two members of the group looked at the Dodge and almost immediately started running west toward an apartment complex.   The red vehicle drove off quickly and the other two individuals ran south on 63rd Avenue toward an abandoned house next to the apartments.

The officers were familiar with the apartment complex as an area of high narcotic activity in which they had made several arrests.   There was no information as to whether any convictions had resulted from the arrests.   By the time the officers pulled up to where the red vehicle had been parked, all of the individuals were out of sight.   The officers did not see their faces, nor did they see any exchange of drugs, money, or any other furtive movements, but they believed there was “some type of illegal [narcotics-related] activity” taking place.

Officer Pertoso got out of his car and ran back up 63rd Avenue, turning west on Foothill to cut off the fleeing individuals to “find out who they were and what their purpose was for being there in the area.”   Officer McColgin drove around the block in the opposite direction, also attempting to stop the individuals.   As Pertoso ran westbound along Foothill, he saw appellant running towards him, looking back over his shoulder.   Pertoso and appellant continued to run until they were approximately 11 feet apart, when appellant turned forward, saw the officer, and looked startled.   Appellant then made a scooping motion with his hand, and discarded a single loose rock on the sidewalk.   Pertoso suspected the rock was cocaine.

Pertoso apprehended appellant, forced him to the grass, handcuffed him, and radioed McColgin.   McColgin arrived on the scene and retraced the route back to where the officers had originally seen the group.   He found a baggie containing 15 chunks of what later proved to be cocaine near the apartment complex.1

On April 20, 1988, a subsequent petition under Welfare and Institutions Code section 602 was filed against appellant alleging possession of cocaine.   (Health & Saf.Code, § 11350.)   A supplemental petition alleged a curfew violation.  (Welf. & Inst.Code, § 777, subd. (a).)

On May 2, 1988, appellant filed a motion to suppress all evidence seized as a result of his detention.  (Welf. & Inst.Code, § 700.1.)   On May 19, the motion was denied.   The court subsequently found the allegations of the petitions to be true.

At the dispositional hearing on June 6, appellant was ordered committed to Los Cerros Camp.   A timely notice of appeal was filed on June 13, 1988.

DISCUSSION

On appeal, appellant challenges the court's suppression order, arguing that the cocaine should have been suppressed because the chase constituted a detention and the officers had no reasonable cause to detain appellant.   Respondent argues that there was no detention until the officers caught appellant, and that absent an illegal police threat to search, as opposed to a threat to detain, appellant's discard of the cocaine is not a result of a threatened illegality.

 The trial court's findings and reasoning were not entirely clear.   The court stated:  “I'm not concerned with the illegality of the chase on these facts.   I think this was clearly illegal.   The cops had no reasonable basis for doing what they did in chasing him.” 2  The court's concern was with the issue of whether, granting the initial illegality, “[A]m I required to find that anything that was disposed of ․ that's suppressible?”   The trial court found it illogical that discarded evidence should be suppressed, even though the court felt that the evidence would have been suppressed if appellant left it in his pocket and the police discovered it during a search following appellant's apprehension.   It appears that the court's main concern was with the nexus between the illegality and the evidence, rather than the issue of whether there was illegal police conduct.   We approach the issue as a three-part inquiry into whether a detention occurred, if there was reasonable cause for detention, and whether abandonment of the evidence was a direct result of an illegal detention.

Was There a Detention?

 We apply federal law, but utilize state law where it does not conflict with federal law in evaluating the issues involved.  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)   In reviewing a motion to suppress, we accept the factual findings of the trial court which are supported by substantial evidence, but we independently determine whether the facts conform to the constitutional standards of reasonableness.  (People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)   Since only the police officers testified in this case, the facts are undisputed.

Both parties correctly cite Michigan v. Chesternut, supra, 486 U.S. 567, 108 S.Ct. 1975, as the most recent Supreme Court case analyzing when police conduct constitutes a detention.   In Chesternut, officers in a patrol car observed a man get out of a car and approach the defendant.   When defendant saw the officers, he turned and ran.   The patrol car followed, “ ‘to see where he was going.’ ”   As the car drove alongside, defendant discarded several packets containing codeine.  (Id., 108 S.Ct. at p. 1977.)

The court noted it would “leave to another day the determination of the circumstances in which police pursuit could amount to a seizure under the Fourth Amendment.”  (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1980, fn. 9.)   The court also declined to adopt a rule that “a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive, as long as the police did not succeed in actually apprehending the individual.”  (Id., at p. 1979.)   Instead, the court reaffirmed the test of United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, that “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].”  (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1979.)   The test is designed to “assess the coercive effect of police conduct, taken as a whole, ․”  (Ibid.)

In evaluating the facts of Chesternut, the Supreme Court noted that the police conduct in that case “would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent's freedom of movement.”  (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1980.)   There was no use of siren or flashers, no command to halt, and no operation of the police car to block the suspect's course, “or otherwise control the direction or speed of his movement.”  (Ibid.)  The court also noted that mere surveillance or approach by an officer is not a seizure.  (Id., at pp. 1980–1981.)   The court left open the question of when police pursuit would constitute a seizure.  (Id., at p. 1980, fn. 9.)

In the instant case, appellant alludes to the coercive nature of the police action of engaging in an aggressive foot chase to cut off his flight and of sending an officer in each direction.   Of course, appellant had disappeared by the time Officer Pertoso got out of the car, and thus had no knowledge of this police pincer maneuver.   In fact, appellant never saw Officer McColgin until after he was under arrest.   Police conduct of which the suspect is unaware is not relevant to a Fourth Amendment analysis.   (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1980, fn. 7.)   The only police conduct with which we are concerned in the instant case is that of Officer Pertoso as he ran up Foothill Boulevard toward appellant, from the time appellant, who was also running, looked forward and saw the officer running directly at him.

We have no doubt that it is coercive and intimidating to discover a police officer running directly toward one, some 11 feet away on a public sidewalk.   Indeed, the sight of a running officer, even without a command to halt, would reasonably convince most citizens that they were not free to ignore the officer and leave.   We disagree with the trial court that there was no detention until the officer physically gained control of the suspect.   This case involves more than a pursuit, as Officer Pertoso did not pursue appellant, but ran in such a fashion as to cut him off and confront him head on.   Under the rationale of Chesternut, this action is reasonably perceived as an intrusion upon one's freedom of movement and as a maneuver intended to block or “otherwise control the direction or speed” of one's movement.  (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1080.)

California cases and federal 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 [officer's rapid pursuit of suspects who knew the officers could be reasonably viewed as an intended detention];  United States v. Bowles (5th Cir.1980) 625 F.2d 526, 532 [officer in pursuit of suspect who passes him, turns to face him and holds out credentials has restrained the suspect].)   A citizen has the right to leave at the approach of police, and when the officer takes action to prevent a citizen's exit, the officer has restrained the citizen's freedom of movement.  (People v. Washington, supra, 192 Cal.App.3d 1120, 1125–1126, 236 Cal.Rptr. 840.)

Respondent contends that by its citation of Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 in Brower v. County of Inyo (1989) 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628, a civil rights case, the Supreme Court has adopted the suggestion of two justices in Chesternut that there can be no detention until a fleeing suspect is actually caught.3  (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1081, Kennedy, J., concurring, joined by Scalia, J.)   We do not find that conclusion is compelled by Brower.   In Hester, defendant and an accomplice were under surveillance as a result of an informant's tip.   Officers saw the accomplice hand defendant a quart bottle, at which point the court stated:  “An alarm was given.”  (Hester v. United States, supra, 265 U.S. 57, 58, 44 S.Ct. 445, 446.)   Defendant grabbed a gallon jug and fled with the accomplice.   An officer pursued, and the two men dropped the bottles, which the officers recognized as containing illegal whiskey.   It appears from these facts that the officers in Hester had at least a reasonable suspicion, having lawfully witnessed the transaction with the bottles, which would have justified a detention prior to defendant's flight.   The case has no application to illegal detentions, nor does it purport to define what constitutes a detention, but merely states that there was no seizure when the officers inspected the bottles.

 The Brower court's purpose in citing Hester was to illustrate its statement that the term “seizure” could not be applied to an unknowing act, but must be the result of government means “intentionally applied.”  (Brower v. County of Inyo, supra, 109 S.Ct. 1378, 1381.)   The court was considering a case in which a fleeing suspect had been killed when his car crashed into a police roadblock.   The lower court had concluded that the death was caused by the suspect's voluntary act of failing to stop.   The Supreme Court stated that this “decision to continue the chase” could not eliminate the county's responsibility for termination of his movement.  (Id., at p. 1380.)   The court concluded that use of the roadblock to stop the car was a seizure.   We find no application to the instant case, and no requirement of physical restraint prior to a finding that a detention has occurred.4  We conclude, on the facts of this case, that there was a detention, and that the detention began as soon as appellant saw the officer running toward him.

Reasonable Cause to Detain

The trial court concluded that the police had no reasonable cause to detain appellant prior to his discard of the drugs.   Respondent does not dispute the trial court's finding that the police had no reasonable cause to chase or detain appellant, choosing to rest on the argument that there was no detention.   The trial court's decision on this issue is supported by the law.

 Initially, we note that the fact of appellant's flight at the sight of the officers is sometimes relevant in assessing the existence of an officer's reasonable suspicion, where, as here, the flight is not triggered by an illegal act on the part of the officer.  (3 LaFave, Search and Seizure (2d ed. 1987) § 9.3(c), p. 449, fn. 150, citing Commonwealth v. Thibeau (1981) 384 Mass. 762, 429 N.E.2d 1009.)   Flight alone, however, is insufficient to justify a detention.  (People v. Aldridge (1984) 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240.)  “If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless;  it would exist only to the extent it was not exercised.”   (People v. Bower (1979) 24 Cal.3d 638, 649, 156 Cal.Rptr. 856, 597 P.2d 115 [fact that appellant, white, observed by police with a group of blacks, started moving hurriedly away raises no inference of criminal activity];  Wong Sun v. United States (1963) 371 U.S. 471, 482–483, 83 S.Ct. 407, 414–415, 9 L.Ed.2d 441 [suspect's flight from narcotics officer at door does not justify otherwise illegal police action].)   Flight coupled with other “specific knowledge on the part of the officer relating the suspect to the evidence of crime” may be considered in assessing an officer's actions.  (Sibron v. New York (1968) 392 U.S. 40, 66–67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917.)   Thus, the fact that appellant ran away can support a detention only when coupled with other specific knowledge.

 The only other factor known to the officers in the instant case at the time was that the address where the red car was parked was an area of high narcotic activity.   The hour (10:30 p.m.) was not unusually late;  the officers observed no exchange of drugs or money;  there was no Vehicle Code violation observed;  and the officers did not recognize any of the people standing near the car.   The factors of nighttime, high drug activity in the area, and seeking to avoid police were held insufficient to justify a detention in People v. Aldridge, supra, 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240.   We must conclude that the facts known to the officers in the instant case at the time they began to chase appellant, and when appellant became aware of the effort to stop him, did not constitute “ ‘․ specific and articulable facts causing [the officers] to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person [the officers] intend[ ] to stop or detain is involved in that activity․’ ”  (People v. Aldridge, supra, 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240;  In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

Link Between Abandonment of the Cocaine and the Illegality

 Finding that appellant was detained without a reasonable suspicion of criminal activity does not end our inquiry.   Not all evidence obtained through illegal police action must be excluded.  (Wong Sun v. United States, supra, 371 U.S. 471, 487–488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.)   The test is not whether the evidence would have come to light but for the illegality, but if the evidence was obtained as a direct result, or exploitation of the illegality.   If the evidence was obtained by sufficiently independent means, or an intervening independent act of the defendant, the “taint” of illegality is said to have been purged.  (Ibid;  People v. Lee (1986) 186 Cal.App.3d 743, 751, 231 Cal.Rptr. 45.)

 Respondent argues that appellant failed to show a nexus between the police action and the evidence, as there was no showing that the police intended to search him as opposed to merely detaining him.   Respondent disputes our analysis in People v. Menifee, supra, 100 Cal.App.3d 235, 160 Cal.Rptr. 682, and the holding in People v. Washington, supra, 192 Cal.App.3d 1120, 236 Cal.Rptr. 840, and cites two opposing cases as the correct analysis of the nexus requirement.  (People v. Patrick (1982) 135 Cal.App.3d 290, 185 Cal.Rptr. 325;  People v. Holloway (1985) 176 Cal.App.3d 150, 221 Cal.Rptr. 394.)   The latter two cases conclude that absent a police threat of an illegal search, evidence that is abandoned by a fleeing suspect is the product of a voluntary act rather than a product of an illegal detention.   We cannot agree that the illegality involved must be a search in order for discovered evidence to be suppressed as a direct result or exploitation of the illegality.

 “[T]he exclusionary sanction applies to any ‘fruits' of a constitutional violation—whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention.”  (United States v. Crews (1980) 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537, fns. omitted.)   Factors to be considered in determining whether evidence is a product of police illegality include whether the evidence was obtained as a product of the defendant's free will, the temporal proximity of the illegality to the discovery of the evidence, the presence of intervening circumstances, and 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 [considering whether a confession was obtained by exploitation of an illegal arrest].)   None of these factors require a showing of an illegal search as the triggering illegality, as opposed to an illegal arrest or detention.

Where the police illegality involved is running head on at a suspect in an effort to stop him, we cannot see how the suspect's immediate discard of contraband can be anything other than a direct result and exploitation of the illegality.   There were no intervening circumstances;  the officer's stated purpose in pursuing appellant was to stop him because of a hunch that illegal narcotic activity had taken place.   The officer's acts were unfounded, as he admitted he originally saw nothing suspicious other than the four Black youths standing near a car.   Appellant's act of abandoning the evidence when confronted with the running officer in his path was not a mere coincidence.   (United States v. Pirolli (11th Cir.1982) 673 F.2d 1200, 1204 [abandonment that is the product of police misconduct is not voluntary];  United States v. Beck (5th Cir.1979) 602 F.2d 726, 730 [throwing marijuana out car window not voluntary abandonment after officer had pulled police car in front of defendant's parked vehicle].)   To say the police did not obtain the evidence through exploitation of their illegal activity would be a fiction.

The purpose of the exclusionary rule to deter illegal police conduct is served by our decision.  “Incriminating admissions and attempts to dispose of incriminating evidence are common and predictable consequences of illegal arrests and searches, and thus to admit such evidence would encourage such Fourth Amendment violations in future cases.”  (4 LaFave, Search and Seizure, op. cit. supra, § 11.4(j), pp. 459–460.)   If the police had no legal ground to obstruct appellant's path, exclusion of the evidence obtained as a direct result of that action serves to deter the repetition of such unfounded detentions.

We adhere to the analysis mandated by Wong Sun, Crews, and Brown, and determine that the challenged evidence was obtained as a direct result of the illegal detention.   The trial court erred in ruling that the evidence was admissible in the action below.

The order appealed from is reversed.

FOOTNOTES

1.   In a search incident to the arrest, police discovered $130 in appellant's shoe and a pager.

2.   The trial court noted that there was no “actual detention” until after appellant discarded the rock.   The court was distinguishing between threatened detentions and actual, physical detentions.   The court also stated, however, that the police had no right to chase appellant or to detain him.   Under the facts of this case, as compared to cases in which an officer merely follows a suspect, we find there was an actual detention, for Fourth Amendment purposes, when the officer confronted appellant head on at a run, as at that point, the officer communicated an intent to capture or block appellant's freedom of movement.  (Michigan v. Chesternut (1988) 486 U.S. 567, –––, 108 S.Ct. 1975, 1980, 100 L.Ed.2d 565.)

3.   The language referred to in Chesternut is:  “It is at least plausible to say that whether or not the officers' conduct communicates to a person a reasonable belief that they intend to apprehend him, such conduct does not implicate Fourth Amendment protections until it achieves a restraining effect.”  (Michigan v. Chesternut, supra, 108 S.Ct. 1975, 1981.)   If this statement refers to a requirement of physical restraint, it would be contrary to many years of Supreme Court precedent stating that no physical restraint is necessary to constitute a detention.  (Adams v. Williams (1972) 407 U.S. 143, 146, 92 S.Ct.1921, 1923, 32 L.Ed.2d 612 [involuntary rolling down of vehicle window in response to officer's request denoted a “forcible stop” ];  Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16, 88 S.Ct. 1868, 1879, fn. 16, 20 L.Ed.2d 889 [“[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred” ].)

4.   Even if physical seizure were required, we believe that the facts of the instant case illustrate a situation tantamount to a physical seizure.   Appellant, who was running down the sidewalk, had his physical freedom of movement sufficiently blocked by the presence of a police officer, wearing a jacket marked “police,” who was 11 feet away and running toward him.

RACANELLI, Presiding Justice.

NEWSOM and STEIN, JJ., concur.