PEOPLE v. MARTINEZ

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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Joseph J. MARTINEZ, Defendant and Respondent.

A034633.

Decided: August 21, 1987

John K. Van De Kamp, Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for plaintiff and appellant. James R. Jenner, Public Defender, John E. Costain, Asst. Public Defender, Oakland, for defendant and respondent.

Defendant was charged with violating Health and Safety Code section 11351 (possession of heroin for sale.)   A preliminary hearing was held and defendant moved to suppress the evidence against him.  (Pen.Code, § 1538.5.)   The motion was denied and he was held to answer on the charge.   After the information was filed and defendant pled not guilty to the charge, he filed a motion to dismiss the information.  (Pen.Code, § 995.)   The motion was granted and the People appeal.   We reverse.

I. FACTS

On February 8, 1986, Officer Aquino and his partner were on patrol duty in a marked police vehicle.   They observed a car illegally parked on the sidewalk on the side of 3532 San Leandro Boulevard.   Officer Aquino knew this was a high drug traffic area and this house was a “shooting gallery” for heroin addicts.   He had personally made several arrests for drug-related offenses at this location.   He had also been advised by the Vice Unit that a car matching the description of the one he saw, a blue Maverick with Oregon license plates and a discolored or different colored fender, had allegedly been involved in drug transactions.   The vice unit had shown him pictures of the car and of the area.

The officer observed two people inside the vehicle.   Defendant was standing outside, leaning into the driver's side, with his hands and head inside of the car.   The officers stopped their patrol car behind the Maverick.   Aquino planned to tell the driver he was illegally parked and to make “field contact” with the men.   Officer Aquino explained that, “Field contact is to identify the person and then to ship to the appropriate agency or division, investigative unit, that you want that field contact to go to․  The purpose of field contacts is to identify people in the general vicinity of that area or specific individuals that the investigators have requested a field contact.”   [sic.]  However he later explained that he was also trying to find out if defendant was a drug user.  “At the time whenever a police officer makes a field contact trying to identify an individual as to who he is, if other factors led to a search or an arrest, it depends on the factors that I as an officer, would find at that time.”  [sic.]

Defendant began to immediately walk away from the Maverick.   Officer Aquino asked him to stop because he wanted to talk to him.   Defendant then took off running.   The officer, who was approximately 10 feet away from defendant, got out of the car and took off after him, yelling at him to stop.

The chase led through the house at 3532 San Leandro Boulevard and then back out into the street.   During this time Aquino saw defendant put his hand into his left pocket.   He thought perhaps defendant had a gun.   Finally defendant tripped.   He tried to get up and continue running but tripped a couple more times.   He tripped and fell particularly hard at one chuckhole.   The officer finally caught up with defendant and told him “to lay down and stay down.”   The officer testified that defendant then tried to run at him, so he hit him once with his baton on the shoulder.   Defendant was rendered unconscious by the blow.

As the officer was handcuffing him he found five balloons of heroin within inches of defendant's hands.   Back at the chuckhole he found 20 more balloons.   Although the officer had noticed his left hand come out of his pocket when he tripped in the chuckhole, he had not seen defendant discard the baggies during the chase.   At the trial the parties stipulated that the baggies contained heroin.

II. ANALYSIS

Before proceeding to the merits of the People's argument we briefly discuss the standard of review to be applied in this case.   Since the magistrate denied the motion to suppress and held defendant to answer, the governing principles would appear to be those stated in People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278:  “[I]n proceedings under section 995 it is the magistrate who is the finder of fact;  the superior court has none of the foregoing powers, and sits merely as a reviewing court;  it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate.  (People v. Hall (1971) 3 Cal.3d 992, 996 [92 Cal.Rptr. 304, 479 P.2d 664], and cases cited.)   On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer.  (People v. Maltz (1971) 14 Cal.App.3d 381, 389 [92 Cal.Rptr. 216];  see generally People v. Sanchez (1972) 24 Cal.App.3d 664, 690, fn. 25 [101 Cal.Rptr. 193].)”

The magistrate here stated the following findings:  “Well, it seems to me that the case pretty squarely falls within the language of Holloway,1 as a matter of fact.   And under these circumstances it does not appear to me that the defendant could have entertained a rational belief that he was threatened with either arrest or search of his person given the surrounding circumstances.   It seems to me that the facts lack an exploitative nexus and that would be the thing that would make admission of the evidence illegal.   Under the circumstances, when he fled the officer pursued.   While the defendant was fleeing, he discarded the drugs he was carrying.   But that would not appear to me to be an exploitative nexus and simply what the defendant did, I guess, conscious of the fact that he was carrying contraband on him and if given the holding of the case that even if the defendant [sic—detention] is illegal, that doesn't necessarily mean that the contraband in this case should be suppressed unless there is an exploitative nexus.   And I don't see that in these facts.”

The People argue this case is indistinguishable from People v. Holloway, supra, 176 Cal.App.3d 150, 221 Cal.Rptr. 394, and therefore it should not have been dismissed.   In Holloway two officers saw a group of five men standing in a grassy area adjacent to an apartment complex.   The area was known as a high drug trafficking area.   The officers approached the men and when they had almost reached the group someone spotted them and everyone but defendant ran away.   He apparently had not seen the officers approach.   The officers recognized defendant as previously having hung around this area, although he did not live there.

The defendant finally realized the officer was there.   The officer told defendant to “hold it.”   Instead the defendant began to make a throwing motion with his arm.   The officer, believing he was probably attempting to discard contraband, stopped his arm and opened defendant's hand, finding cocaine.

The court first questioned whether the officer's words constituted a true detention.   But they went on to find that even assuming defendant was being detained it was reasonable under the circumstances.   They alternatively concluded that even assuming an unlawful detention, the evidence need not be suppressed.  “[I]t should also be emphasized that Officer Lumas' response to appellant's hand motion would not have been wrongful even if appellant could be said to have been inappropriately detained for purpose of questioning.   It is well settled that evidence to be suppressed because of a Fourth Amendment violation must in some sense be the product of illegal government activity.  (United States v. Crews (1980) 445 U.S. 463, 471, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537.)   Indeed, the challenging party must demonstrate ‘an exploitative nexus' between the challenged evidence and the primary illegality.  (People v. Cella (1983) 139 Cal.App.3d 391, 400, 188 Cal.Rptr. 675.)   No such causal connection was shown here.  [¶]  The appearance of a police officer, even when unexpected, would not lead an innocent citizen, by whose standards the propriety of all official conduct is to be measured (People v. Bellomo (1984) 157 Cal.App.3d 193, 198, 203 Cal.Rptr. 610), to attempt to hurl his personal property into the night.   It is only when a person has reasonable cause to believe his private possessions will inevitably be exposed to view by improper police practices, that their attempted abandonment will be deemed the fruit of that conduct ․ [¶]  There is nothing in the present record to suggest that appellant did, or could have, entertained a rational belief he had been threatened with either an arrest or a search of his person, prior to his attempt to dispose of the cocaine he had the misfortune to be holding when the police chanced upon him.   Rather, it was solely his own awareness of the illicit nature of his activities that precipitated his efforts to destroy the proofs thereof.”  (People v. Holloway, supra, 176 Cal.App.3d at pp. 155–157, 221 Cal.Rptr. 394.)

People v. Patrick (1982) 135 Cal.App.3d 290, 185 Cal.Rptr. 325, also cited by the People, is similar.   Here two policemen approached a group of men in a high crime area.   They recognized defendant.   When he saw the officers he ran and was chased.   During the chase defendant threw two objects over a fence.   The objects were later retrieved and found to contain PCP and cocaine.   Defendant argued the evidence was obtained as the result of a threatened unlawful detention and was therefore inadmissible.

The appellate court disagreed, stating that even if defendant was under the threat of an illegal detention, he was not under the threat of an illegal search.  “[W]hen defendant decided he was about to be detained, he eliminated any question about an illegal search by openly disposing of the contraband (tossing it over the fence).   The contraband was therefore not an indispensable product of a detention, but an abandonment, and was properly seized.”  (People v. Patrick, supra, 135 Cal.App.3d at pp. 292–293, 185 Cal.Rptr. 325;  see also Restani v. Superior Court (1970) 13 Cal.App.3d 189, 91 Cal.Rptr. 429.)

Defendant argues however that cases like People v. Aldridge (1984) 35 Cal.3d 473, 198 Cal.Rptr. 538, 674 P.2d 240 and People v. Menifee (1979) 100 Cal.App.3d 235, 160 Cal.Rptr. 682 should govern this situation, and that they are the proper line of cases to follow.2  He asserts the detention was unlawful and that the drugs seized were either the product of an unlawful detention or an unlawful arrest.3

In Aldridge the police approached a parking lot in which drug transactions were known to be common.   The officer testified that it was his practice to conduct field interviews of all people in this particular lot.   That night they drove their car into the lot to question a group of people congregating there, suspecting they might have drugs or guns.   As they approached, the group dispersed.   Four men began to walk away and then began to run.   The officer went after them and stopped them for identification.   Because the men were “fidgety” and the officer feared for his safety he also asked if they had any knives or guns, and then patted them down.   Defendant had a stolen loaded gun on him.

The California Supreme Court held the gun should have been suppressed because defendant was unreasonably detained.   In so holding, they emphasized the officer's practice of stopping everyone in this particular parking lot “evidently hoping to uncover some evidence of some crime by some person.”   (People v. Aldridge, supra, 35 Cal.3d at p. 480, 198 Cal.Rptr. 538, 674 P.2d 240.)

In Menifee the officers were again walking in a high crime area.   They saw defendant, whom they knew, and another man walking towards them.   When defendant spotted the officers he walked the other way.   The officers followed the two men in “brisk pursuit.”   They saw defendant throw a black pouch into a trash can.   His companion entered a liquor store and placed a brown pouch on one of the shelves.   The pouches were retrieved and found to contain heroin.   The appellate court agreed with the lower court's finding that defendant had been under the threat of an illegal detention and that therefore the seized evidence was tainted.

In determining which line of cases to apply to this situation, we begin with the question of whether defendant was under the threat of an unlawful detention.   The People do not argue there was no detention.   The act of stopping the police car, asking the defendant to stop and then running after him suggest an attempted detention was being made.  (See People v. Bower (1979) 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115;  Wilson v. Superior Court (1983) 34 Cal.3d 777, 790–791, 195 Cal.Rptr. 671, 670 P.2d 325;  People v. James Edward D. (1987), 43 Cal.3d 903, 239 Cal.Rptr. 663, 741 P.2d 161.)

In order to justify a 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.”  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957;  Terry v. Ohio (1968) 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889.) Furthermore, “ ‘the totality of the circumstances—the whole picture—must be taken into account ․’ ” including the fact “that the principal function of an officer's investigation is to resolve often ambiguous-appearing circumstances and determine ‘whether the activity is in fact legal or illegal—to “enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.” ’ ”   (People v. Loewen (1983) 35 Cal.3d 117, 128–129, 196 Cal.Rptr. 846, 672 P.2d 436.)

Although a detention may not be justified on the fact that the individual, as the defendant here, wants to avoid contact with the police, (People v. Bower, supra, 24 Cal.3d at pp. 647–648, 156 Cal.Rptr. 856, 597 P.2d 115) under certain circumstances, “flight might imply a consciousness of guilt, and combined with other objective factors could justify an investigative stop.” (People v. Aldridge, supra, 35 Cal.3d at p. 479, 198 Cal.Rptr. 538, 674 P.2d 240;  People v. Johnson (1987) 189 Cal.App.3d 1315, 1320–1321, 235 Cal.Rptr. 62;  cf. People v. Brown (1985) 169 Cal.App.3d 159, 215 Cal.Rptr. 101.)   The area in which the crime occurred, including the fact the officer had made previous arrests at this location (see In re Frederick B. (1987) 192 Cal.App.3d 79, 86, 237 Cal.Rptr. 338), the description of the illegally parked vehicle, coupled with defendant's position near the car, and his sudden flight would appear to justify the officer's decision to chase and detain defendant.   (But see People v. Wilkins (1986) 186 Cal.App.3d 804, 231 Cal.Rptr. 1 following Aldridge.)

 However Officer Aquino did not testify that he thought defendant was engaged in illegal activity.   Rather, he testified that he was merely going up to ask the suspects for identification.   He did not articulate that he felt a drug exchange or any other criminal activity was then taking place.   Nor did the magistrate draw the conclusion that the officers had cause to detain defendant.   Thus, we cannot conclude that the detention was lawful under these circumstances.4

 Defendant thus had a right to walk away from the officer and to refuse to answer any questions.  (Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229.)   Instead however he chose to flee and in doing so abandon the drugs he was carrying.   Therefore the issue becomes whether an “exploitative nexus” exists between the unlawful detention and the evidence seized (People v. Cella (1983) 139 Cal.App.3d 391, 188 Cal.Rptr. 675), or in other words, whether it is “fruit of the poisonous tree.”  (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)   We hold that it was not, and in doing so follow Holloway and Patrick. (But see People v. Washington (1987) 192 Cal.App.3d 1120, 236 Cal.Rptr. 840.)   The taint associated with the evidence may be removed by an intervening act of the defendant.  (People v. Sesslin (1968) 68 Cal.2d 418, 428, 67 Cal.Rptr. 409, 439 P.2d 321.)   The abandonment of the drugs was such an act.

Furthermore both Aldridge and Menifee are distinguishable.   In Aldridge the court emphasized that the officer had a routine practice of going up and questioning anyone in this lot.   As the court stated, “The record reveals that defendant had previously been detained and interviewed by Baldenegro on Dr. J's lot, and it can safely be assumed that he knew what was in store for him if he were to remain.   Defendant had every right to avoid such persistent harassment.”  (People v. Aldridge, supra, 35 Cal.3d at p. 479, 198 Cal.Rptr. 538, 674 P.2d 240.)   Also there was no abandonment of evidence to break the nexus between the alleged illegal detention and the discovery of the evidence.   Defendant was patted down, so the court did not even address the question we are presented with here.

Menifee, although on point, has been both distinguished and criticized.   (But see People v. Washington, supra, 192 Cal.App.3d at pp. 1125–1126, 236 Cal.Rptr. 840.)   Its result can in part be viewed as stemming from the appellate court's deference to the trial court's findings.  (See People v. Patrick, supra, 135 Cal.App.3d at p. 293, 185 Cal.Rptr. 325.)   Furthermore, as the Patrick court explained, “we read Menifee as inferring that an illegal search would have inevitably followed the illegal detention.   We cannot subscribe to that rationale.”  (Emphasis added.)  (People v. Patrick, supra, at p. 292, 185 Cal.Rptr. 325.)  Holloway is in agreement.   After giving their holding they stated “We do not regard People v. Menifee (1979) 100 Cal.App.3d 235, 160 Cal.Rptr. 682, as standing for a contrary rule.   Although not recited in the opinion itself, presumably the police officer there involved had been guilty of illegal conduct during his previous encounters with the suspect, otherwise the latter's reported behavior, and the trial court's factual finding with regard thereto, would have been inexplicable.”  (People v. Holloway, supra, 176 Cal.App.3d at p. 156, 221 Cal.Rptr. 394.)

Rather here, as in Holloway and Patrick, the defendant was possibly under the threat of an illegal detention, but not an unreasonable search.   Therefore no “exploitative nexus” existed between the threatened illegal detention and the abandonment of the drugs.

The order dismissing the information is reversed.   The case is remanded for further proceedings.

FOOTNOTES

1.   People v. Holloway (1985) 176 Cal.App.3d 150, 221 Cal.Rptr. 394.

2.   Menifee relied on Badillo v. Superior Court (1956) 46 Cal.2d 269, 294 P.2d 23 and Gascon v. Superior Court (1959) 169 Cal.App.2d 356, 337 P.2d 201.   However those cases seem distinguishable from the present situation.   In Badillo there was not merely a threat that defendant's constitutional rights would be invaded.   The police broke into his home before he ran and disposed of the contraband.   In Gascon the police told defendant they planned to search him.  (See People v. Patrick, supra, 135 Cal.App.3d at p. 294, 185 Cal.Rptr. 325;  Crueger v. Superior Court (1970) 7 Cal.App.3d 147, 150–151, 86 Cal.Rptr. 555;  People v. Robinson (1976) 58 Cal.App.3d 363, 366, 129 Cal.Rptr. 915.)

3.   We very briefly address defendant's claim that the evidence was the product of an unlawful arrest.   This question was not raised below, thus we have no findings by the magistrate on this point.   Even assuming we could address this issue, which is raised for the first time on appeal, we find defendant's argument lacks merit because the facts indicate the officer believed defendant had a gun, he asked him to lay still, and defendant then turned and “came after” the officer, indicating an assault.   The officer thus had cause to handcuff and arrest him.

4.   We wonder whether upon further questioning by the District Attorney facts showing a proper detention might have been elicited.   The officer started to say that he also wanted to question defendant to find out if he was a drug user. Further facts might have shown the officer was suspicious that a drug deal was taking place. However, we cannot in hindsight contrive a theory on which the detention might have been based.   (People v. Aldridge, supra, 35 Cal.3d at p. 480, 198 Cal.Rptr. 538, 674 P.2d 240.)

SABRAW, Associate Justice.

ANDERSON, P.J., and CHANNELL, J., concur.