PEOPLE v. PULLAR

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Edward Lee PULLAR, Defendant and Appellant. IN RE: Edward Lee PULLAR on Habeas Corpus.

Nos. F012169 and F013410.*

Decided: June 11, 1990

George A. Boyle and Dean J. Miller, Bakersfield, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Thomas F. Gede, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant, Edward Lee Pullar, was charged with one felony count of possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a).   Appellant's case was referred to the probation department for a report and recommendation regarding drug diversion under Penal Code section 1000.1  On December 28, 1988, Judge Westra denied diversion.

On February 27, 1989, after a change of counsel, appellant again moved for diversion and filed a motion to suppress evidence under section 1538.5.   On March 2, Judge Bowles noted diversion had previously been denied by Judge Westra.   On March 10, Judge Bowles denied the suppression motion.

On March 23, 1989, appellant entered into a negotiated plea of guilty as charged on the condition he receive a maximum of one year county jail time as a condition of felony probation.   On April 21, 1989, appellant was admitted to felony probation for three years upon the condition he serve eight months in county jail and pay various fines totaling $260.   Appellant filed a timely notice of appeal.

On February 2, 1990, appellant filed a petition for writ of habeas corpus in the instant case and on the same date we directed the Attorney General to file an informal response to the merits of the petition.   The petition for writ of habeas corpus was ordered consolidated with this appeal on February 27, 1990.

FACTS

On August 10, 1988, Kern County sheriff's deputies assigned to the Narcotics Task Force executed a search warrant for a residence at 2270 Lone Oak Drive in Bakersfield.   According to facts outlined in the People's written opposition to appellant's suppression motion, the warrant authorized a search of the residence, a 1977 Chevrolet pickup with license 76976R, and the person of Dan, a white male in his 30's, 5 feet 10 inches in height, medium weight and having light brown hair.   The warrant authorized a search for stolen property and controlled substances, including “mini-bennies,” “black beauties,” and powder referred to as “crank” or “speed,” together with paraphernalia associated with the use or sale of such controlled substances.

Officer Steve Perez testified that on August 10, 1988, he assisted officers in executing the warrant at the Lone Oak Drive residence.   He was aware there “were suspected dealings going on in that residence,” meaning sales of controlled substances.   Officer Perez noted it was “a matter of routine” that officers identify anyone that comes to the residence while they are conducting a search on a warrant.

While at the residence during the search, Officer Perez heard a knock on the front door.   He opened it, concealing himself in the process, and asked what the visitor wanted.   The male visitor responded he wanted to speak to Dan.   Officer Perez knew that “Dan” was the name of the subject in the search warrant.

Officer Perez then stepped away from the door and advised the visitor that he, Perez, was with the Kern County Sheriff's Department, the officers were conducting an investigation at that time, and, Perez recalled, he showed the visitor his badge for identification.   Deputy Ericsson stood behind Perez.   In court, Officer Perez identified appellant as the visitor.   Officer Perez then asked appellant for identification.   At that point, appellant started backing away from the door.   When appellant started to back away from the house, Officers Perez and Ericsson each took hold of appellant's arms and led appellant into the residence.

Officer Perez testified he was suspicious that appellant was somehow involved in the narcotics activity at the residence, and he based this in part on appellant's mannerisms and manifestation of a desire to get away from the investigation.   During cross-examination, Officer Perez stated he was also concerned whether appellant had a weapon.   Perez also stated he was suspicious of appellant because persons in the residence are suspected of dealing drugs in that house and that it is common for “foot traffic or persons driving vehicles to arrive at the residence, go to a door, meet with someone and make a transaction.”   He stated appellant's backing away from the house added to his suspicion appellant was either buying or selling or dealing with drugs.   Officer Perez opined appellant appeared frightened when Perez told appellant that he, Perez, was a police officer.   Perez stated this fright is likely when persons coming to the door to make a transaction are greeted by the police instead of the dealer.

Officer Perez testified that Officer Ericsson asked appellant if he, appellant, would mind if Ericsson searched him.   After Ericsson had requested of appellant consent for the search, Ericsson handed Perez appellant's wallet with appellant's identification.

Officer Conny Ericsson testified he was the officer in charge of executing the search warrant at the Lone Oak Drive residence on August 10, 1988.   He testified that after Officer Perez identified himself to appellant and appellant started backing away from the house, Ericsson stepped out and behind Perez, and he followed Perez out to get appellant.   Ericsson, too, was suspicious of appellant, partly because appellant attempted to “get away.”

Ericsson testified once appellant was inside the house, he asked appellant if he could search appellant “for drugs and weapons.”   Per Ericsson, appellant's response was “Go ahead.”   In conducting a search of appellant, Officer Ericsson recovered pills which appellant admitted were valiums.   Ericsson asked appellant if he had a prescription for the valiums and appellant responded he did not.   Ericsson placed appellant under arrest for possession of the valiums without a prescription.

While searching appellant's wallet, Ericsson seized $2,960.   Sergeant Wayne Perry testified he was in the company of the other officers executing the search warrant at the Lone Oak Drive residence on August 10, 1988.   When appellant was leaving the residence, Perry asked him if the money taken from appellant's wallet was his, and appellant told Perry he did not know whose money it was.

Deputy Valerino Garcia testified he, too, was assigned to the task force executing the search warrant.   He had been asked to fill out the arrest book for appellant, having been advised appellant was arrested for possession of prescription drugs without a prescription.   Incident to that arrest, Garcia conducted another search of appellant and found a small baggie in appellant's coin pocket.   The baggie contained a white powdery substance appearing to be methamphetamine.

Defense

Appellant testified on his own behalf at the hearing.   He stated he went to see “Dan” to look at a car.   He heard about the car through a friend.   When Officer Perez showed appellant his badge, appellant told Perez he would come back later.   As he started to leave, the two officers took him by the arms and brought him into the house.   Appellant claimed the officers asked about his wallet rather than asking for identification.   He also claimed the officers asked only to search him for weapons, and that he responded that they could pat him down for weapons.   At the hearing, appellant stated he did not give anyone consent to search his person.   He testified he did not use the words “go ahead.”   He had the large amount of money because he was going to buy a car.

In denying the motion to suppress, the court stated it believed that, under the circumstances, the officers had a right to detain appellant and determine who the parties were coming to that house and get their identifications.   The court further stated it believed the officers' testimony that appellant did give consent to search his person.

DISCUSSION

I. THE DETENTION AND SEARCH

 Appellant contends there was no probable cause for his detention or for his arrest.   Appellant asserts:

“For all that was known to the officers at the time that they answered the door, the appellant was an innocent visiter [sic ].   There wasn't the slightest indication at that time that the appellant was involved in any type of criminal activity.   His mere presence on the premises, without more, cannot support an arrest of him under the circumstances of this case.  (U.S. vs. Robertson 833 Fed.2d 777 (Ninth Circuit 1987)).”

Respondent, of course, argues to the contrary:

“The contention is totally without merit, as the stop in this case was a detention for limited questioning and identification, justified by the circumstances, as permitted by Terry v. Ohio (1968) 392 U.S. 1, 22 [88 S.Ct. 1868, 1880, 20 L.Ed.2d 889]․  Therefore, the ensuing consensual and custodial searches were not tainted by an illegal arrest and this Court should reject the contention.

“ ‘It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.’  (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957], citing Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658], and Terry v. Ohio, supra, 392 U.S. at p. 22 [88 S.Ct. at p. 1880.] )”

Appellant relies, primarily, on this court's recent decision in People v. Schwind (Cal.App.), an appeal arising out of the same superior court upon almost identical facts and involving some of the same law enforcement officers.   Unfortunately for appellant our Supreme Court ordered the Schwind opinion deleted from the Official Reports (but not reversed) on September 28, 1989.   Therefore, Schwind is not citable and may not be used as authority here.   Thus, it seems, we must start anew.

The two-step procedure of appellate review of a motion to suppress evidence under Penal Code section 1538.5 was fully set forth in People v. Lawler (1973) 9 Cal.3d 156, 107 Cal.Rptr. 13, 507 P.2d 621.   The trial court's factual findings relating to the challenged search or seizure “whether express or implied, must be upheld if they are supported by substantial evidence.”   (Id. at p. 160, 107 Cal.Rptr. 13, 507 P.2d 621.)   The appellate court then exercises its independent judgment in determining whether, based on the facts as found, the search was constitutional.  (Ibid.)

The rules surrounding investigative detentions are also well-settled.

“As an initial matter we note that ‘[a]lthough each case [involving detention for questioning or limited investigation] must be decided on its own facts ․ [t]he guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution ․ is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.”  [Citation.]’  [Citation.]

“The federal test for determining whether a detention is justified involves a weighing of (i) the public interest served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty [citation] and (ii) the officer's reasonable suspicion that a crime has occurred or is occurring (ibid.).  [ ] On the latter point, the United States Supreme Court's cases provide, ‘certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime’ [citations], and that ‘reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’  [Citations.]

“Relying on both federal cases and our own cases, we have acknowledged the same initial considerations (e.g., Tony C. [1978] 21 Cal.3d [888] at pp. 892–893, 148 Cal.Rptr. 366, 582 P.2d 957) and, with regard to the second consideration, we have expressed essentially the same standard:  ‘[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so:  the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.   The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.  [Citation.]’  [Citation.]”  (In re James D. (1987) 43 Cal.3d 903, 913–914, 239 Cal.Rptr. 663, 741 P.2d 161, fn. omitted.)

The facts in United States v. Clay (8th Cir.1981) 640 F.2d 157 are very similar to those presented in the instant case.   In Clay, the defendant knocked on the door of his cousin's house while the police were executing a search warrant for “drugs, contraband and firearms.”  (Id. at p. 158.)   An armed officer answered the door.   Defendant hesitated and took two steps backward, but did not run.   The officer drew his weapon and ordered the defendant inside.   He was frisked and a gun was found.  (Ibid.)

At the hearing on the motion to suppress, the officer offered several facts in support of the detention.   He testified that the search took place during the evening hours, that marijuana, firearms and ammunition had been discovered in the house prior to the defendant's arrival, and that he knew the occupant of the house was known to be armed and dangerous.   In addition, the officer testified defendant's “ ‘hesitation’ in complying with the order to enter the house and the danger associated with a white officer in a predominantly black neighborhood placed him in reasonable apprehension of bodily harm.”  (United States v. Clay, supra, 640 F.2d at p. 159.)   The district court concluded these facts would naturally lead “to a reasonable suspicion that any person that came to the door was potentially armed and dangerous.”  (Ibid.)

The defendant's conviction was reversed on appeal.   The court concluded none of these facts constituted “specific, objective facts sufficient to establish that the initial seizure of appellant was justified.”  (Ibid.)  The court further concluded neither defendant's “hesitancy” nor his presence at the scene justified the search.  (Id. at p. 160.)

Respondent argues:

“The investigative detention here was fully justified under the circumstances.   Not only did Officer Perez have a subjective belief to suspect that appellant may have come to buy, sell or deal drugs, but that suspicion was objectively reasonable under the circumstances.  (In re Tony C., supra, 21 Cal.3d at p. 893, fn. 2 [148 Cal.Rptr. 366, 582 P.2d 957].)”

There follows a laundry list of alleged facts, as respondent interprets the record, which respondent concludes “taken in their totality (United States v. Sokolow, supra [490 U.S. 1, ––––, 109 S.Ct. 1581, 1585], 104 L.Ed.2d [1] at p. 10), demonstrate the suspicion entertained by the officers was sufficiently reasonable to justify detaining appellant in order to get his identification.”

In our view, the essential facts leading up to the detention are essentially as follows:  the officers were conducting a search of the premises at 2270 Lone Oak Drive for illegal drugs, paraphernalia, et cetera, pursuant to a presumably valid warrant which also authorized the search of one “Dan.”   During the search, the officers seized substantial contraband and other incriminating items.   None of the above pertained in any way to appellant.   Appellant was not known to the officers conducting the search, they had no warrant to search or arrest appellant and, as far as the officers knew, appellant had no connection with these premises.   He walked up to the door, knocked, and, when Officer Perez partially opened the door, appellant asked for Dan.   When Officer Perez identified himself and showed appellant his badge, appellant stepped back, said he would return later, and started to leave.   At this point, he was detained, physically seized and led into the house where the disputed search occurred.

The balance of “facts” recited by respondent primarily consist of surmise, unsubstantiated opinion and conclusions and facts or inferences beyond the scope of the record before us.   The transcript does disclose, however, that from the point in time Perez opened the door to appellant's knock, appellant was not free to go—to leave.   Per Perez, “because he was being detained because of identification.”   Perez later testifies in justification of his and Ericsson's actions:

“Q. [defense counsel] I believe that you said that when you looked at him, you were suspicious that he was involved in drugs.   My question to you is what led you to be suspicious that he was involved in drugs in any way?

“A. [Officer Perez] A person in the residence is suspected of dealing drugs in that house.   It is common for foot traffic or persons driving vehicles to arrive at the residence, go to a door, meet with someone and make a transaction.

“Q. What led you to believe that this person was involved in the trafficking of drugs rather than some other activity?

“A. Just how I answered before.

“Q. Would you say it was a hunch?

“A. No.

“Q. A guess?

“A. No.

“Q. What would you call it?

“A. Based on my experience, this is a normal way for a person to do business, to have foot traffic and/or automobile traffic to the residence.

“Q. Did it have anything to do with the way that Mr. Pullar looked?

“A. Yes.

“Q. And how did Mr. Pullar look?

“A. I don't recall his exact features at this time.

“Q. Did he look different than he does now?

“A. I don't recall.

“Q. What was it about his looks that led you to believe that he was dealing in drugs?

“A. It wasn't entirely his looks.

“Q. What was it about the looks that led you to believe that he was dealing in drugs?

“A. I can't recall what he looked like and I don't recall.

“Q. Was there something else about his person that led you to believe that he was dealing in drugs?

“A. I don't recall.

“Q. Did you ascertain at any time that he was under the influence of drugs?

“A. I don't recall that either.

“․

“Q. Mr. Pullar was at the house.   Something about him made you suspicious.   You were in a house serving a search warrant for drugs, were you not?

“A. That is correct.

“Q. Now, was there anything about the fact that Mr. Pullar was at the premises at that particular time and that particular place where you believed drugs were being sold that led you to believe that he was either buying or selling or dealing with drugs?

“A. After I identified myself as a peace officer, he started backing away from the house.

“Q. Were those actions illegal?

“A. No.

“Q. Did he appear frightened when you said you were a police officer?

“A. Yes.

“Q. That appearance of him being frightened, that didn't mean anything to you in and of itself?

“A. Coupled with the fact that persons coming to make a transaction, if they are walking into a cop inside the door, instead of the person they are making the transaction from, yes, it would frighten them.”

Deputy Ericsson, the officer in charge of the search, testified in part:

“Q. [Defense counsel] When you went out to aid Deputy Perez in the detension [sic ] of Mr. Pullar, did you make any observations about him that led you to the suspicion that he was somehow involved in drug traffic?

“A. [Deputy Ericsson] Anybody that comes up to a house where we are doing a search warrant, we obviously think they are involved in some way with drugs.

“Q. My question, officer, is whether or not you had any personal observations, in looking at Mr. Pullar, that said to you, ‘this man is probably dealing drugs in some way’?

“A. No, I can't look at somebody and tell that.

“Q. You were not looking at a profile and saying this man fits a profile of a drug dealer of some sort?

“A. No.

“Q. When you went out to Deputy Perez, did you go out because Deputy Perez went out, or did you go out because of something on your own that said to you I want to detain this man?

“A. Deputy Perez went out because—I followed Deputy Perez out because Mr. Pullar was moving away from the house.

“Q. That was not an illegal move, was it?

“A. No.

“Q. Did that cause you any suspicion, the fact that he was moving?

“A. Sure.

“Q. The fact that he was turning to walk away, that caused you some discomfort in the fact that he might have been involved in drug traffic?

“A. It alerted me that he probably is trying to get away because he was in some way involved with drugs.”

This record supports only one conclusion;  that the detention here was predicated on nothing more than a hunch, or unfounded suspicion, and a policy that anyone who came to a residence during a search was automatically going to be detained, identified and, apparently, searched.   Whether or not the officer was acting in complete good faith had no bearing on that decision.   Thus, appellant's detention was unlawful from its inception.  (Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889;  In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

 As respondent points out, to justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect not only that some activity relating to crime has taken place, is occurring or is about to occur, but also that the person he intends to stop or detain is involved in that criminal activity.  (In re Tony C., supra, 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   In the instant case, there were no facts connecting appellant to the premises being searched, where criminal activity had occurred, other than walking up to the house and knocking on the door.   It must be emphasized that appellant did not live at the house or, as far as the officers knew, have any connection with the premises.   Obviously he was not present when the officers arrived to execute the warrant.

Nor is appellant's attempt to leave upon being confronted by Officer Perez helpful to the People's argument.   In People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, our Supreme Court rejected the argument that an individual's apparent desire to avoid contact with a police officer justified a detention.   The court noted that

“an outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable.  [ ] No reason is suggested why this principle does not apply with equal force to detentions.   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.   Such a conclusion is unacceptable.”   (Id. at p. 649, 156 Cal.Rptr. 856, 597 P.2d 115, fn. omitted.)

The recent case of United States v. Sokolow (1989) 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 is not helpful to respondent.   In that case there were numerous factors which, if taken one by one, were consistent with innocent activity, but when added together provided reasonable suspicion of drug activity and probable cause to detain.  (Id. at p. 1586.)   That defendant fit the profile of a drug courier and was reasonably detained at an airport.   The facts of Sokolow are easily distinguishable from those of the instant case.   We also note that decisions in other jurisdictions are consistent with the reasoning here where the person sought to be detained is not a resident of the premises searched or present at the time the warrant is executed, i.e., an otherwise unsuspected visitor or caller.  (Cf. State v. Broadnax (1982) 98 Wash.2d 289, 654 P.2d 96;  Lippert v. State (Tex.Cr.App.1984) 664 S.W.2d 712;  State v. Carrasco (1985) 147 Ariz. 558, 711 P.2d 1231.)

In the instant case, there were no facts known to the officers present that support a reasonable suspicion connecting appellant to the illegal activity occurring in the searched premises or to some unidentified illegal activity on the part of appellant individually.   Thus, the facts known to Officer Perez and the others present were not sufficient to warrant a detention of the appellant.   It follows, of course, that the subsequent search of appellant was illegal and the products of that search should have been suppressed as “fruit of the poisonous tree.”  (Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.)

II. DIVERSION

In view of our conclusions in part I of this opinion, appellant's contention that the trial court improperly denied him diversion is now moot and need not be addressed further.   This is equally true of appellant's petition for writ of habeas corpus.

The judgment is reversed.   The petition for writ of habeas corpus is moot and therefore denied.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

MARTIN, Acting Presiding Justice.

BEST and ARDAIZ, JJ., concur.