This post provides an overview of the issues involved in your illegal stop and arrest in Ventura County. The sample motion illustrates the different levels of restraint on a client’s liberty and what is required for law enforcement to justify a stop or an arrest. The motion also provides an overview of the case law as applied to a common drug sales scenario. For any questions about the specifics of your case, please call the Law Office of Jennifer Zide at (805) 477-0327 or visit our website at www.Zidelaw.com. We are here to help.
PLEASE TAKE NOTICE that on January 20, 2011, at 8:30 a.m., or as soon thereafter as counsel may be heard, in the above-entitled court, the defendant Mr. X will move for an order suppressing the evidence listed below pursuant to Penal Code section 1538.5.
MOTION
The defendant Mr. X, by and through counsel, hereby moves pursuant to Penal Code section 1538.5 for an order suppressing the following evidence:
1) 9 ounces of cocaine found in a package on the rear seat of the pick-up driven by Mr.X
2) Any and all observations made by Ventura County Sheriff’s Department officers and detectives before, during and after Mr. X’s arrest;
3) Any and all statements made by Mr. X before, during and after his arrest;
4) Any and all evidence not already stated.
This motion is made pursuant to Penal Code section 1538.5 on the grounds that the evidence was seized in violation of the defendant’s right to be free from unreasonable search and seizure as guaranteed by the Fourth Amendment to the United States Constitution, and Article I, section 13, of the California Constitution. The defendant had a legitimate expectation of privacy as to the areas searched, and/or evidence seized. United States v. Salvucci, (1980) 448 U.S. 83; Rakas v. Illinois, (1978) 439 U.S. 128.
This motion is based on the attached Points and Authorities, testimony and evidence presented at the hearing herein, or as stipulated to by the parties, and argument of counsel at the hearing of this motion.
ISSUES PRESENTED
1. Whether Deputy Alvarez, at Detective Macias’ direction, illegally detained Mr. X without reasonable suspicion?
2. Whether Deputy Alvarez, at Detective Macias’ direction, illegally arrested Mr. X without probable cause?
3. Whether Deputy Alvarez and Detective Payton lacked the requisite probable cause to search the white pick-up truck driven by Mr. X?
STATEMENT OF THE CASE
On July 8, 2010, the people filed a felony complaint against Mr. X alleging a violation o Health and Safety Code § 11351 [Possession of a Controlled Substance – Cocaine – for sale] as Count 1, with a special allegation pursuant to Penal Code section 1203.073(b)(1), which occurred on March 11, 2010 . The felony complaint against Mr. X also alleged a violation of Health and Safety Code § 11352 [Transportation of a Controlled Substance – Cocaine] as Count 2, with a special allegation pursuant to Penal Code section 1203.073(b)(1), which occurred on March 11, 2010 . On September 16, 2010, the prosecution conducted a preliminary examination, and the magistrate bound Mr. X over to superior court for trial on the above complaint. A felony information was filed on September 21, 2010 and Mr. X was arraigned on that felony information on September 30, 2010. The matter is currently set for trial on January 28, 2011, with a thirty day time waiver.
STATEMENT OF ANTICIPATED FACTS
On March 11, 2010, at approximately 8:30 p.m., officers who were investigating a subject named Mr. Y and who were preparing to execute a search warrant for Mr. Y’s residence, observed Mr. Y and Mr. X leave the residence in a white Ford pick-up truck. Mr. X, who is Mr. Y’s uncle, also lived at that residence, along with other family members. Although the officers had a signed search warrant for several of Mr. Y’s vehicles and for Mr. Y’s residence, the truck that Mr. Y and Mr. X were in was not a vehicle for which a search was authorized pursuant to the warrant.
Detective Chips set up surveillance of the vehicle as it left the residence. Detective Chips was in constant contact with Detective Macias, who was overseeing the surveillance operation. Detective Chips informed Detective Macias that Mr. X was the driver of the truck and Mr. Y was the passenger. Detective Chips details the observations that he made prior to that point at which Detective Macias ordered him to detain the vehicle. The observations are as follows: The vehicle was followed around the City of Oxnard before, Detective Chips reports, it eventually went to a house on the south end of the city. As observed by another detective, Detective Diaz, Mr. Y was seen to go inside the residence and, after approximately five minutes, leave the residence carrying what is described as a weighted black plastic bag. Mr. Y then got in the passenger’s seat and the truck drove away. The surveillance team followed Mr. X and Mr. Y to the Mr. Y residence which was the subject of their search warrant. Both Mr. X and Mr. Y went inside the residence.
A second driving episode and observations then followed. Detective Macias recounts that, before the search warrant could be served, Mr. X and Mr. Y left the residence in the same white Ford pick-up. At this point, Detective Macias admits that surveillance officers could not see if anything was in Mr. Y’s hands due to the darkness. Mr. X was the driver and Mr. Y was the passenger. The surveillance team followed Mr. Y and Mr. X to several residences in Oxnard. At this time, the surveillance team observed what they believed to be counter-surveillance driving by driving through alleys and making abrupt turns. The only driving that is specifically detailed is the action of quickly turning into a parking lot, and immediately making a u-turn, before again proceeding in the same direction on Victoria Avenue.
It was at this point based on Detective Macias’ knowledge of Mr. Y’s past drug history, this alleged driving pattern, Detective Diaz’s observations of Mr. Y with the weighted black plastic bag, and the short stops at residences, that Detective Macias ordered Deputy Alvarez to stop the pick-up and detain Mr. Y and Mr. X. After the pick-up was stopped and Mr. X and Mr. Y detained, the pick-up was searched by Deputy Alvarez, Detective Payton, and K-9 officer Fibi, who alerted on a package in the rear seat of the pick-up. Deputy Alvarez searched the package and found nine ounces of cocaine HCL. At that point, Mr. X and Mr. Y were placed under arrest.
A search warrant was also executed by a team of detectives at Mr. Y’s residence. It is undisputed that the cocaine, rock cocaine, methamphetamine, large amounts of cash and drug paraphernalia were all found behind a locked door in the converted garage area exclusively inhabited by Mr. Y. No drugs or other indicia of criminal activity were found in the area of the residence in which Mr. X and other family members resided.
POINTS, AUTHORITIES AND ARGUMENT
INTRODUCTION
The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, guarantees “[t]he right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Searches and seizures “conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions.” Thompson v. Louisiana (1984) 469 U.S. 17, 19-20, citing Katz v. U.S. (1967) 389 U.S. 347, 357. As the court held in Mapp v. Ohio, the Exclusionary Rule, holding that all illegally obtained evidence must be excluded, is an essential part of both the Fourth and Fourteenth Amendments. Mapp v. Ohio (1961) 367 U.S. 643, 657.
“In the June 1982 Primary Election, California voters enacted Proposition 8, an initiative containing a Truth-in-Evidence provision (Cal.Const., Art. I, section 28, subd. (d)), which, for crimes committed after its enactment, permitted exclusion of relevant but unlawfully obtained evidence only if the exclusion was required by the United States Constitution. People v. Smith, (1983) 34 Ca1.3d 251, 257-263, In re Lance W., (1985) 37 Ca1.3d 873, 885-890). ” Under Proposition 8, the trial court must apply federal constitutional law established by the United States Supreme Court, but utilizes state law where it does not conflict with federal law. In re Lance W., (1985) 37 Ca1.3d 873, 886-888
It is a fundamental principle of the law of search and seizure that when a person is detained or arrested without an arrest warrant, or a person or place searched without benefit of a search warrant, the prosecution has the burden of showing the legality of that seizure of evidence:
“Our guiding principles are well settled. Inasmuch as the search herein was conducted without a warrant, the burden was on the People to establish justification under a recognized exception to the warrant requirement.” People v. James, (1977) 19 Ca1.3d 99, 106; Badillo v. Superior Court, (1956) 46 Cal.2d 269, 272.
In the instant case, the officers lacked both the reasonable suspicion necessary to justify a temporary or investigative detention of Mr. X and the probable cause necessary to support his arrest. It was during this illegal detention of Mr. X that K-9 officer Fibi searched the vehicle, alerting on a package which was discovered to contain cocaine. This search of the pick-up truck was undertaken without the requisite probable cause needed to justify it. As a search incident to an unlawful arrest, the fruits of this search must be excluded.
I. DEPUTY ALVAREZ AND DETECTIVE PAYTON ILLEGALLY DETAINED MR. X WITHOUT REASONABLE SUSPICION
“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive.” Wilson v. Superior Court, (1983) 34 Ca1.3d 777, 784.
“First, there are … ‘consensual encounters,’ [citation omitted], which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever – i.e., no ‘seizure,’ however minimal – and which may properly be initiated by police officers even if they lack any ‘objective justification.’
Second, there are what are commonly termed ‘detentions,’ seizures of an individual strictly limited in duration, scope, and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’
Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. Wilson v. Superior Court, (1983) 34 Ca1.3d 777, 784, citing Justice White’s lead opinion in Florida v. Royer, (1983) 460 U.S. 491, 497
A detention occurs when a law enforcement officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen. (Florida v. Bostick, (1991) 501 U.S. 429, 434; People v. Johnson, (1991) 231 Cal.App.3d 1, 11. A police officer has restrained the liberty of a citizen if, “taking into account all of the circumstances surrounding the encounter, the police officer’s conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.
A detention is unreasonable under the Fourth Amendment unless the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provides an objective basis to believe that the person detained may be involved in criminal activity. People v. Souza, (1994) 9 Ca1.4th 224; Reid v. Georgia, (1980) 448 U.S. 438, 440 Reasonable suspicion entails some minimal level of objective justification for briefly detaining an individual; it is something more than just a suspicion or hunch, but less than the level of suspicion required for probable cause. United States v. Sokolow, (1989) 490 U.S. 1, 7. An investigative detention predicated on mere curiosity, rumor or hunch is unlawful, even though the officer may be acting in complete good faith.
A. The Seizure of Mr. X Went Beyond the Kind of Temporary Investigative Detention That Must Be Justified by Reasonable Suspicion
“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, (1983) 460 U.S. 491, 500. Moreover, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, (1983) 460 U.S. 491, 500. In addition, the “`[l]evels of force and intrusion in an ‘investigatory stop’ may be legitimately escalated to meet supervening events…. ” People v. Johnson, (1991) 231 Cal.App.3d 1, 13, citing U.S. v. White, (D.C. Cir. 1981) 648 F.2d 29, 40, citations omitted, cert den. 454 U.S. 924. “It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Florida v. Royer, (1983) 460 U.S. 491, 500.
While the investigative detention rationale of Terry has now been extended to vehicle stops, allowing for a detention that is brief and limited in scope in response to an officer’s reasonable suspicion, a Terry stop does not allow for a full-blown arrest or a comprehensive search for evidence of a crime. Terry involved the brief detention of a person based on an officer’s firsthand observation of the person and his suspicion that the man’s conduct suggested that he was engaged in criminal activity. Terry v. Ohio, (1968) 392 U.S. 1, 7-8. The Supreme Court held that an officer with an articulable suspicion that a crime was currently underway, but without sufficient information upon which to find probable cause, could stop an individual in order to conduct only a limited investigation to either confirm or dispel the suspicion upon which the stop is based. Terry v. Ohio, (1968) 392 U.S. 1, 29. But the scope of the investigative detention authorized by Terry “ must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004); Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir. 1996). It allows only for a brief detention for the purpose of investigating the particular suspicion that formed the basis for the stop. See Florida v. Bostick, 501 U.S. 429, 437 (1991); Royer, 460 U.S. at 500 (“A seizure becomes unlawful when it is ‘more intrusive than necessary’.”) As the court similarly made clear in People v. Souza, (1994) 9 Ca1.4th 224, a brief, investigatory detention is intended to enable the officer to resolve the ambiguity in an observed situation and to find out whether the activity was in fact legal or illegal. Id. at 242. Where, as here, Detective Macias had already formed the opinion that drugs were in that pick-up truck when he ordered Mr. X detained, this seizure is not an investigatory detention; it is something more.
Factors such as police presence, use of weapons and a significant period of detention all support a finding that what occurred here went beyond a mere investigatory detention. Mr. X was seized at gunpoint by multiple law enforcement officers. As Detective Macias testified at the preliminary hearing, he ordered officers under his command, including Detective Payton, Officer Alvarez, and another unnamed detective, to make a coordinated approach to the truck driven by Mr. X and to do so with guns drawn. (Reporter’s transcript, 18: 11-27. After that point, Detective Macias estimated that Mr. X was detained by the side of the road for less than twenty minutes. (Reporter’s transcript, 18: 10-15.) It was during this period of time that the pick-up truck was searched and the cocaine uncovered. This is not the kind of temporary, short or least intrusive means of detention, limited in scope and duration, that is commonly associated with an investigative detention. This goes beyond the kind of roadside detention that occurs when, for example, someone is suspected of driving under the influence. There, the officer, starting with a reasonable suspicion based on observed weaving or other indicia of possible DUI, is allowed to make a detention that is temporary and that lasts no longer than is necessary to effectuate the purpose of the stop. During this period, the officer is able to make observations as to the suspect’s physical condition, his ability to speak and understand what is happening, to examine his physical coordination, and to generally gather evidence to determine whether probable cause has been reached to believe the driver is driving under the influence.
Neither is this the kind of short-term investigative detention that follows an officer’s contemporaneous, firsthand observation of a driver violating a traffic law.
The facts here are at odds with cases such as United States v. Mariscal, 285 F.3d 1127, 1130 (9th Cir. 2002) and United States v. Lopez-Soto, 205 F. 3d 1101, 1105 (9th Cir. 2000), in which the investigating officer relied on the Terry rationale in order to conduct a traffic stop based on the officer’s observation of a traffic violation. For example, the Lopez-Soto case involved a common scenario where the defendant was stopped for expired tags and, while being questioned about proof of registration, the officer smelled a strong odor of marijuana. Id. at 1105. Following that stop, and during a limited period of questioning the driver, questioning which was consistent with the purpose articulated for the initial stop, the officer developed probable cause to justify an arrest or subsequent search. In contrast, here we have a situation where the officers are not seeking to confirm or dispel a suspicion through tailored questioning or a brief, limited detention; they are seeking to seize evidence that they believe to be present in the pick-up driven by Mr. X.
The detention of Mr. X, as far as it involves substantial law enforcement presence, the use of weapons, and a lengthy detention during which Mr. X is secured by the side of the road by multiple officers, goes beyond the kind of minimal Terry-type investigative detention that is contemplated by the reasonable suspicion standard. Also, as far as this detention was motivated not by the desire to investigate, but rather by the belief on the part of Detective Macias that there were narcotics in that white Ford pick-up truck, its purpose went beyond what is contemplated by a limited, investigative detention.
B. Justifying An Investigative Stop or Detention: Essential Observations Needed to Support Reasonable Suspicion to Detain in an Alleged Drug Sales Context Are Missing Here
In People v. Jones (1991) 228 Cal.App.3d 519, the court discusses what level of observations are required to justify an investigative detention. In order to justify an investigative stop or detention, the Jones court notes, the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to a crime has taken place, is occurring, or is about to occur; and (2) the person he intends to stop or detain is involved in that activity. Id. at 524. As the court explained the standard in People v. Wilkins, a police officer can detain a person when the officer is aware of “specific and articulable facts” suggesting “that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity.” People v. Limon, 17 Cal.App.4th 524, 531-532, citing People v. Wilkins, (1986) 186 Cal.App.3d 804 at 809. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so.
The court in People v. Souza also tackled the issue of what kind of observations are required to justify the temporary detention of an individual. As the Souza court phrased it, the temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on “some objective manifestation” that criminal activity is afoot and that the person to be stopped is engaged in that activity. People v. Souza (1994) 9 Cal.4th 224, 230, citing United States v. Cortez (1981) 449 U.S. 411, 417 & fn. 2. A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. Id. at 231. This standard is a lesser standard than the probable cause standard, requiring that the facts and circumstances known to the arresting officer “warrant a [person] of reasonable caution in the belief that” an offense has been or is being committed [by the person to be arrested].’ ” People v. Souza (1994) 9 Cal.4th 224 , 230, citing Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9, quoting Carroll v. United States (1925) 267 U.S. 132, 162.
In Jones, the officer saw an apparent exchange of money in an area known for drug sales. The officer decided to contact the suspect. During his attempt to do so, the officer ordered the suspect to stop. The suspect then immediately reached toward his pants pocket. The officer, fearing a possible weapon and standing approximately five feet away from the suspect, grabbed the suspect’s arm. When he pulled the suspect’s hand out, he saw a clear plastic bag with a substance in it that appeared to be cocaine. The officer asked the suspect what it was and the suspect admitted that it was methamphetamine. There, the court found this was an investigative detention, not merely a contact or consensual encounter as argued by the prosecution. Id. at 524. In Jones, the court found that the observations of the officer – witnessing an apparent exchange of money in an area known for drug sales – were insufficient to justify even a temporary, investigative detention at the time it took place. Id. at 524.
Here, we do not even have observations that rise to the level of Jones. The officers do not observe an apparent hand-to-hand exchange or exchange of money in a high crime area. They observe no exchange at all. In light of the fact that the observations involved in Jones were found inadequate to give rise to reasonable suspicion, the much weaker observations here are clearly deficient.
The case of People v. Limon sheds light on the kind of observations that will be found sufficient to rise to the level of reasonable suspicion necessary for a temporary, investigative detention. In People v. Limon (1993) 17 Cal.App.4th 524, the officers witnessed an apparent exchange but could not see what had been exchanged. The court in Limon specifically addresses itself to whether there were reasonable grounds to detain, as distinguished from the probable cause needed to arrest. Id. at 533. While the officers in Limon could not clearly make out a hand-to-hand transaction of drugs for money, their observations were bolstered by a combination of other factors that leant suspicious undertones to the situation. There, an officer observed a one minute hand-to-hand exchange in a carport where the officer knew other drug deals had occurred, and which was in a known drug-ridden neighborhood. The officer also saw the same man, just before and after the exchange, walk over and reach into an apparent hiding place, namely, the wheel-well of a pickup truck. In Limon, the court noted that factors such as the known drug dealing nature of the area, the quick hand to hand transaction consistent with drug dealing, the fact that the officer had seen multiple drug transactions in that same carport in recent months, the fact that dealers often hide their drugs nearby and retrieve them as needed (consistent with the observed act of retrieving something from the wheel-well of the truck), and the presence of a syringe in plain view as the officer approached, all built upon one another to reach that level of reasonable suspicion needed to detain. Id. at 530 – 531. Although it has been settled under Cunha and Remers that merely observing a possible exchange in a high crime area does not justify arrest, Limon reminds us that it may justify the lesser retraint of a detention if the area is known for drug sales. Id. at 532, citing Cunha v. Superior Court (1970) 2 Cal.3d 352, 357, Remers v. Superior Court (1970) 2 Cal.3d 659, 665-666. And the observation of a possible exchange, in combination with other suspicious factors such as reaching into an area to retrieve something, an action consistent with the storage and retrieval of drugs, meets that lesser standard of reasonable suspicion necessary for an investigative detention. Id. at 532.
Similarly, the facts of People v. Souza, in which reasonable suspicion was found to justify a temporary investigative detention, highlight the kind of observations that rise to the level of establishing reasonable suspicion. In Souza, the court held that factors such as the presence on the sidewalk at 3 a.m. of two people who appeared to be talking to the occupants of a car parked in total darkness in an area that the officer described as a “high crime area,” coupled with the evasive conduct by the occupants and defendant’s sudden flight when the officer directed his patrol car’s spotlight toward the group, were found to justify a brief, investigative detention. People v. Souza (1994) 9 Cal.4th 224, 242. The purpose of this investigative detention was specifically to enable the officer to resolve the ambiguity in the situation and to find out whether the activity was in fact legal or illegal. Id. at 242.
Both Limon and Souza are completely at odds with the facts of Mr. X’s case. Here, there are no observations of a suspected transaction of any kind. No hand to hand exchanges are ever seen and, apart from the one appearance by the bag as it is carried by Mr. Y leaving the first residence, there is no indication that anything is even being transported. A look at the kind of factors that are required to justify an investigative detention – an observed transaction plus other factors, factors such as high crime area, late at night, furtive movements or flight, retrieval of objects in a manner used by drug dealers, the kind of fleeting transaction that characterizes a drug buy, past drug activity in that same specific area, all of which combined lend a suspicious sheen to the totality of circumstances that are witnessed – reveals that all of those factors are lacking here. Applying this analysis, the detention of Mr. X, even if it is viewed as merely an investigatory detention, was not supported by the reasonable suspicion standard required under our Constitution.
C. The Observations at Issue Here – Stopping at a Residence and then Leaving Carrying a Dark Weighted Plastic Bag, the Contents of Which Were Not Visible to Officers, then Stopping at Other Residences without the Observation of Any Bag, Drugs, Hand to Hand Transactions, or Cash Exchanges – Did Not Give Rise to Reasonable Suspicion to Detain Mr. X
If the detention of Mr. X is to be considered the investigatory Terry-style detention that must be justified by reasonable suspicion, then it is clear that that reasonable suspicion requirement is not met under the facts here. Detective Macias ordered Deputy Alvarez to detain Mr. X on the basis of observations that included observing a pick-up driven by Mr. X drive around Oxnard and then drive to a residence in the south end of Oxnard. There is no observation that this was an area known for drug trafficking. At that location, the surveillance team observed Mr. X’s passenger, Nelson Mr. Y, enter the residence and come out five minutes later carrying a weighted black plastic bag. The officers could not see what was inside the bag. Although Detective Diaz offers his opinion that the bag was consistent with how someone would carry a large amount of narcotics and conveyed that opinion to Detective Macias, there are many other items that it could also be consistent with carrying. Black plastic bags are not exclusively used for the transportation of garbage and so it cannot fairly be suggested that somehow it is odd or suspicious, or a case of a container not being used for its intended purpose, merely because one is being carrying into a home rather than out of one. This is the only observation of Mr. Y carrying a bag – this one time leaving one residence. The officers do not state whether Mr. Y carried the bag inside when he returned to his residence.
The officers also do not indicate whether this bag they observed was consistent with the “package” later found on the rear seat of the pick-up and which contained cocaine.
After this first series of observations, the surveillance team then observed the pickup return to Mr. Y’s residence, the residence for which they had earlier obtained a search warrant. Mr. X and Mr. Y went inside. The team does not detail how long they were inside before they left. When they leave the residence for the second time, it is noted that the surveillance officers could not see if anything was in Mr. Y’s hands due to the darkness. Mr. X himself is never observed to be carrying anything. Again, Mr. X is observed to be driving the pick-up.
After leaving the residence for a second time, the pick-up is followed to several residences in Oxnard, at which apparently “short stops” are made. Somewhere in the course of making these stops, the surveillance team observes Mr. X to be engaged in what they label as counter-surveillance driving. They describe this as driving through alleys and making abrupt turns. They do not indicate how many times this is done, the locations where such actions were taken, or offer a description of how this affected the course of Mr. X’s apparent travels. For example, it is quite possible that Mr. X, like many drivers, especially if they are taking directions from a passenger, simply waited too long to move into a position to turn so that what appeared to the officers to be an abrupt turn designed to lose anyone following them was really the result of poor planning or last minute decision-making. It is also possible that an alley, if used at some point, was simply a faster way to reach a destination or to get around traffic, not an attempted escape route. The one point at which the officers offer a more detailed description of the driving by Mr. X and the location of that driving involves turning into a parking lot in what is described as a quick manner, immediately making a u-turn, then driving back to the same street and heading in the same direction on it again, first signaling the direction that they intended to travel. Based on this limited information, a pattern of driving that could be classified as “counter-surveillance”, as far as it seems intended to lose law enforcement officers who may be tailing, cannot be established.
And what about the stops at the residences during this second trip? The length of these stops is not estimated. The surveillance team does not indicate that the passenger Mr. Y ever leaves the pick-up at these locations, nor is he described as carrying anything in or out of the residences. Far from observations of hand-to-hand transactions or apparent exchanges of drugs for cash, or even the carrying of a bag whose contents are not visible, this second set of observations is completely devoid of any suspect purpose.
As will be born out by the presentation of facts at the hearing on this motion, the observations made of Mr. X before that moment when Detective Macias ordered him detained were insufficient to rise to the level of reasonable suspicion. The mere fact of having a suspected drug dealer in a car with you does not give rise to a reasonable suspicion to believe that, at that moment in time, illegal drug transactions are taking place or that evidence of such is to be found in the car. It requires more. Looking at the other observations that were made prior to the seizure, namely driving to one home and emerging after approximately five minutes with a black, weighted plastic bag, the contents of which are unknown, then driving to other residences, without any bag or any hand-to-hand transactions witnessed, no transactions witnessed at all either clear or possible, without even a description of going into those residences, simply does not give rise to a reasonable suspicion that criminal activity is afoot or that evidence of crime is to be found in that car. None of the additional suspect factors, such as presence in a high-crime area or at a location linked to past drug sales activity, the observed speed of a hand-to-hand exchange that is consistent with a drug transaction, the concealing of suspected drugs after receipt, or the retrieval of suspected drugs from some location where they are commonly stored nearby, are present here. The allegation of counter-surveillance driving as a potential factor is too weak and incompletely documented to bolster a finding of reasonable suspicion. As a result, Deputy Alvarez, Detective Payton and other officers acting at the direction of Detective Macias did not have the reasonable suspicion required to justify a temporary detention of Mr. X, but were instead acting on an inchoate suspicion or hunch that Mr. X was involved in illegal narcotics activity.
D. Alleged Counter-Surveillance Driving Alone Cannot Justify a Temporary Detention
Even if counter-surveillance driving can be equated to flight from the police, this one factor, standing along, has generally been found insufficient to justify even a temporary detention. People v. Souza, 9 Cal.4th 224, 236, citing United States v. Lane (6th Cir. 1990) [flight by several occupants of an apartment house known for drug trafficking together with anonymous tip of drug dealing justified detention]; State v. Stinnett (1988) [known drug dealer huddling with three others in an area known for street sales of narcotics fled when he spotted police]; United States v. Haye (4th Cir. 1987) 825 F.2d 32 [two men arriving on a flight from Miami and exhibiting characteristics of the "drug courier profile" ran when approached by local police and Drug Enforcement Administration agents who held up their law enforcement badges]; United States v. Pope (6th Cir. 1977) 561 F.2d 663 [when Drug Enforcement Administration agent in the Cleveland Airport identified himself to arriving passenger who exhibited drug courier characteristics, the passenger assaulted the agent with his briefcase, then ran into a nearby construction site where he withdrew a white bag from his coat and stuffed it into the sewer]; City of St. Paul v. Vaughn (1975) 306 Minn. 337 [officers pursued the defendant's car after they mistook him for his brother whose license had been suspended; as the defendant fled, the officers thought they saw a .45-caliber automatic pistol in his hand].)
Addressing itself to the two cases from other jurisdictions that held otherwise, the Souza court expressly held that perceived flight alone is not enough. To elevate flight to the status of a factor that could, on its own, justify a detention, however temporary, would be to undermine the totality of circumstances examination that lies at the heart of the reasonable suspicion requirement. People v. Souza (1994) 9 Cal.4th 224, 237. As the court in Souza clarified, “no single fact-for instance, flight from approaching police-can be indicative in all detention cases of involvement in criminal conduct.” Id. at 239.
In Mr. X’s case there was no flight. The observations based on which law enforcement alleged a counter-surveillance driving pattern are also very weak. However, even if this alleged driving can somehow be equated to flight, the case law is clear that that one factor, on its own, is not capable of catapulting us into a finding of reasonable suspicion.
E. Information Received over Official Channels to Support the State’s Claim of a Lawful Detention must Be Presented at the Hearing
“[I]f the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channel; the prosecution must establish in court … evidence showing that the officer who originally furnished the information had probable cause to believe that the suspect had committed a felony…” People v. Collin, (1973) 35 Cal.App.3d 416, 420. The purpose of the rule is to ensure that “‘the source of the information is something other than the imagination of an officer who does not become a witness.’” Remers v. Superior Court, (1970) 2 Cal.3d 659, 666. ”[A]lthough an officer may make an arrest based on information received through ‘official channels,’ the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.” People v. Madden, (1970) 2 Ca1.3d 1017, 1021
Under People v. Harvey, (1958) 156 Cal.App.2d 516, and People v. Madden, (1970) 2 Ca1.3d 1017, Mr. X gives the people notice that official proof of the actual observations of Mr. X by Detective Diaz, Detective Chips, Deputy Alvarez, Detective Payton and any other surveillance officers who are not specifically identified by name in the police report, and whose observations formed the basis of the decision to detain Mr. X, as well as official proof of the direction to detain Mr. X over the radio to Deputy Alvarez, will be requested at this motion’s hearing.
II. The Officers Went Beyond the Limited Term Investigatory Detention authorized by Reasonable Suspicion under Terry, instead conducting a full-fledged Seizure which Must be Justified by Observations and Information that Rise to the Level of Probable Cause
A. The Seizure of Mr. X Was the Kind of Significant Restraint that Amounts to Arrest and Which Must Be Justified By Probable Cause
Mr. X was seized at gunpoint by multiple law enforcement officers. As Detective Macias testified at the preliminary hearing, he ordered officers under his command, including Detective Peyton, Officer Alvarez, and another unnamed detective, to make a coordinated approach to the truck driven by Mr. X and to do so with guns drawn. (Reporter’s transcript, 18: 11-27. After that point, Detective Macias estimated that Mr. X was detained by the side of the road for less than twenty minutes. (Reporter’s transcript, 18: 10-15.) It was during this period of time that the pick-up truck was searched and the cocaine uncovered. This is not the kind of temporary, short or least intrusive means of detention, limited in scope and duration, that is commonly associated with an investigative detention. This goes beyond the kind of roadside detention that occurs when, for example, someone is suspected of driving under the influence. There, the officer, starting with a reasonable suspicion based on weaving or other indicia of possible DUI, is allowed to make a detention that is temporary and that lasts no longer than is necessary to effectuate the purpose of the stop. During this period, the officer is able to make observations as to the suspect’s physical condition, his ability to speak and understand what is happening, and to examine his physical coordination and other factors to then make an informed judgment as to whether probable cause has been reached to believe the driver is driving under the influence. This detention of Mr. X, as far as it involves substantial law enforcement presence, the use of weapons, and a lengthy detention during which Mr. X is secured by the side of the road, goes beyond the kind of minimal Terry type investigative detention that is contemplated by the reasonable suspicion standard.
The nature and extent of Mr. X’s detention – executed with overwhelming police presence and based on law enforcement’s belief that drugs were to be found in the pick-up truck – belies any claim that it was the kind of temporary or minimally intrusive investigative detention that can be justified by reasonable suspicion. As the court in Royer makes clear, “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, (1983) 460 U.S. 491, 500. Moreover, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, (1983) 460 U.S. 491, 500. “It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Florida v. Royer, (1983) 460 U.S. 491, 500.
B. Mr. X Was Illegally Detained Without Probable Cause
Given the extent of the seizure here, as well as its motivation, it is clear that we are not operating in the realm of an investigative detention. We then look to whether the standard of probable cause to arrest was met, looking at the totality of the circumstances known to the officers at the time Mr. X was seized. “Probable cause” to arrest exists when the totality of the circumstances would cause a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime. Terry v. Ohio, (1968) 392 U.S. 1, 27. To make a valid arrest without a warrant, the officer must therefore have sufficient factual information to make an average, reasonable person – who has your same training and experience – believe or strongly suspect that the individual is guilty of a crime. Terry v. Ohio, (1968) 392 U.S. 1, 29. Probable cause to arrest requires more than the “reasonable suspicion” required for a detention, and is the same standard to obtain an arrest warrant or a search warrant. In re Marcellus L., (1991) 229 Cal.App.3d 134. An arrest occurs when the officer either physically restrains the person, or the person submits to the officer’s authority. In re Marcellus L., (1991) 229 Cal.App.3d 134, 138.
1. A Review of the Cases: When Is Probable Cause To Detain Reached?
Cases that have explored what observations are sufficient to justify officers in seizing a suspect have made clear that, in the context of potential drug transactions, officers must observe something that goes beyond the mere possibility of a drug transaction to justify detaining a suspect. In People v. Mims (1992) 9 Cal.App.4th 1244, officers observed what they believed to be an attempted hand to hand exchange in which two individuals were observed with hands extended toward each other, one visibly holding cash. Once the officer approached to get a better look, someone alerted the suspects by shouting “police.” The officer then saw a plastic sandwich bag in the suspect’s hand and observed the suspect furtively transfer that bag into his other hand and put it in his pocket in an apparently attempt to conceal it. The suspect then continued in his suspicious course of conduct, walking up to the porch of a nearby house and knocking on the door. The officer noted that this is a common technique used by drug dealers to pretend that they live there. The issue there was whether those observations were sufficient for a finding of probable cause at the time that the officer detained the suspect and searched his pocket. In that case, in finding that probable cause was met, the court cited a number of criteria that all supported a finding of probable cause. First, the officers were operating in an area known as a high drug traffic area. In addition to that factor, the officer had observed transactions at that same location before and had actually served warrants at the residence where the defendant knocked. The presence of the look-out who shouted “police” was another factor that gave a guilty construction to the events that the officer witnessed.
Applying the requirements of Remers and Cunha, the Mims court held that merely witnessing a suspected hand to hand transaction, without more, would not have been sufficient to reach that level of proof required by the probable cause standard. Merely seeing two individuals with their hands outstretched toward each other, with cash apparent in one hand but a baggie or drugs not visible in the other, would not have been sufficient grounds for an arrest, according to the Mims court. In Mims, what made the detention constitutional was the presence of additional suspicious factors which, looking at the totality of the circumstances, provided enough reason for a reasonable officer to believe that a crime was then taking place and that evidence of that crime was present in the suspect’s pocket at the time it was searched. People v. Mims (1992) 9 Cal.App.4th 1244, 1250. Upholding the arrest and search, the Court of Appeal held that the search was incident to a lawful arrest, even though it preceded his formal arrest, because the officer “observed all the elements of an attempted drug deal and those observations were further supported and buttressed by the warning, the flight, the concealment, and the subterfuge.” People v. Mims (1992) 9 Cal.App.4th 1244, 1248-1250.
In Remers and Cunha, the issue was whether the observations were sufficient to support a finding of probable cause where suspects were arrested on the strength of observations of apparent or possible transactions. In Cunha v. Superior Court (1970) 2 Cal.3d. 352, two officers observed “some sort of transaction” between two people involving “the sale” of what “appeared” to be an object for what “appeared” to be money. The officers also observed the suspect “looking around” before the “transaction” occurred. Finally, the officers testified that they had participated in numerous narcotics arrests in the area. Finding insufficient specific and articulable facts to constitute probable cause to arrest, the Supreme Court held 1) that a high crime area cannot convert innocent circumstances into sufficient cause; 2) that neither the petitioner’s activities nor the location of his arrest provide probable cause for arrest; 3) that transactions conducted by pedestrians are not per se illegal; and 4) that the participants’ apparent concern for privacy did not imply guilt. Cunha v. Superior Court, (1970) 2 Ca1.3d 352, 357. Shortly after the decision in Cunha, the California Supreme Court decided Remers v. Superior Court (1970) 2 Cal.3d 659, which involved the same arresting officers, in the same location, and on the same day as in Cunha. In Remers, a suspect merely showed a companion a tinfoil package. The officers were unable to see the contents of the package or make out any impressions in the foil wrapping. Holding the circumstances provided even less justification for arrest than in Cunha, the Supreme Court stated:
“The act of showing a tinfoil package to a companion is even less suspicious than that of engaging in a sidewalk sale–. [F]or all [the officers] knew at the time [they] approached petitioner, the tinfoil package could have contained cookies. Petitioner exhibited less concern with her surroundings than did the suspects in Cunha; and her apparent concern was consistent with innocent activity – such as keeping an eye out for acquaintances.” Remers v. Superior Court, (1970) 2 Ca1.3d 659, 665.
The California Supreme Court has since remained quiet on the subject, but the California Court of Appeal has rendered several decisions in the area, often with differing results. Pre-proposition 8, the Court of Appeal was presented with facts substantially similar to Cunha and Remers in People Knisely, except the arresting officer unequivocally observed the exchange of money for an unknown object, instead of what “appeared” to be money and an unknown object. People v. Knisely, (1976) 64 Cal.App.3d 110. Giving no deference to th distinction, the Court of Appeal held the arrest illegal, stating “[t]here [was] no material difference in circumstances, in Cunha and the case at bench, respecting the existence of such a transaction.” People v. Knisely, (1976) 64 Cal.App.3d 110, 114. But in People v. Garrett, (1972) 29 Cal.App.3d 535, the officer arrested the defendant after observing a transaction involving a conversation, the exchange of green paper currency for a wax paper package, and the concealment of the package in the defendant’s pocket. Finding sufficient probable cause to arrest the defendant for the street purchase, sale and delivery of narcotics, the Court of Appeal stated:
“In Cunha only an apparent transaction was seen, one involving apparent money in an apparent exchange for an unseen object. In Remers a suspicious package was observed, but neither money nor merchandise was seen to change hands. In contrast [the officer here] observed all the elements of a completed sale –preliminary negotiations, delivery of paper currency, and a reciprocal delivery of a suspicious package, specifically, a waxed paper package of a type known to him to be commonly used for marijuana sales.” People v. Garrett, (1972) 29 Cal.App.3d 535, 538-539.
After post-Proposition 8, the Court of Appeal continued utilizing the same analysis.
In People v. Stanfill, (1985) 170 Cal.App.3d 420,the officer observed the defendant sitting in a park known for marijuana sales, a person drove up to the defendant and handed him a $ 1 bill in exchange for two small, thin cigarettes, the transaction took less than three minutes, and the person drove away after the transaction. Upholding the arrest, the Court of Appeal stated, “[the officer] observed all the elements of a complete sale and was able to articulate specific facts regarding the transaction,” thus he “had reasonable cause to believe that he had just witnessed the sale of marijuana.” People v. Stanfill, (1985) 170 Cal.App.3d 420, 426.
Finally, in People v. Guajardo, (1994) 23 Cal.App.4th 1738, an experienced narcotics officer arrested the defendant where: (1) he saw him in a neighborhood known for street narcotics trafficking; (2) he saw him hand a small object to one of two males who were with him; (3) the recipient put the object into a cigarette package; (4) the officer had arrested the suspect one month earlier for selling narcotics; and (5) the suspect seemed nervous when he approached the patrol vehicle afterwards. When making its decision, the Court of Appeal took into consideration:
“(1) the officer’s experience (which may render suspicious that which appears innocent to a layman); (2) the officer’s prior contacts with the suspect; (3) the officer’s awareness that the area is one known for street drug transactions; (4) the defendant’s conduct (such as a covert or secretive display, transfer or exchange); (5) a caching of an object given or received in a peculiar receptacle designed for a different, specialized purpose; (6) some indication by the defendant of a consciousness of guilt; and so on. People v. Guajardo, (1994) 23 Cal.App.4th 1738, 1742.
Based upon these considerations as applied to the facts, the Court of Appeal concluded it was “clear that a person of ordinary care and prudence would conscientiously entertain an honest and strong suspicion that [the defendant] was selling or at least furnishing narcotics,” and thus, upheld the arrest and search.
Given the fact the United State Supreme Court has not spoken directly regarding this issue, this court must look to the California Supreme Court’s decision in Cunha and Remers as mandatory authority to decide this case. Despite the fact that these cases were decided before Proposition 8, the logic and authority utilized by the California Supreme Court is still relevant today, as displayed by the Court of Appeal’s similar analysis pre and post Proposition 8.
2. The Observations Are Deficient To Reach the Level Required for Probable Cause
Probable cause is a flexible standard that is based on the “totality of the circumstances” known to the officer at the time of the seizure. Illinois v. Gates, 462 U.S. 213, 228 (1983). “Probable cause exists where ‘the facts and circumstances within [an officer's] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed,” Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 (1925)), and that evidence bearing on that offense will be found in the place to be searched.” As discussed in Maryland v. Pringle (2003) 540 U.S. 366, probable cause to arrest is a fact-bound determination based upon the totality of circumstances.
The allegation of counter-surveillance driving as a potential factor is too weak and incompletely documented to bolster a finding of reasonable suspicion.
As will be born out by the presentation of facts at the hearing on this motion, the observations made of Mr. X before that moment when Detective Macias ordered him detained were insufficient to rise to the level required by the probable cause standard. The mere fact of having a suspected drug dealer in a car with you does not give rise to probable cause to believe that, at that moment in time, illegal drug transactions are taking place or that evidence of such is to be found in that car. It requires more. None of the factors identified in the cases discussed above are present in Mr. X’s case to establish probable cause for his seizure. Not even an apparent drug transaction is witnessed, much less the array of other factors that, under a totality of the circumstances analysis, would elevate law enforcement observations to the level required for probable cause.
The observations that were made prior to the seizure – driving to one home and emerging after approximately five minutes with what appears to be a black, heavily weighted plastic bag, the contents of which are not visible, then driving to other residences, without any further observations of a bag, without a description of ever entering those residences, and indeed without any observation of even a possible drug transaction – simply do not support a finding of probable cause. The mere act of going into one residence and emerging five minutes later carrying what appears to be a dark heavily weighted plastic bag, the contents of which are not visible, does not give rise to probable cause to believe that the person carrying it is engaged in criminal activity. Although stops at several other residences follow (after first returning home), there is no further mention of the bag. The only comment is that it is too dark for the officers to see if Mr. Y is carrying anything when he leaves his residence for the second time. There is no mention of carrying this dark weighted plastic bag into residences or indeed of any even possible exchanges or transactions of drugs for cash. The mere act of stopping at residences, in itself, cannot be classified as criminal. None of the additional suspect factors, such as presence in a high-crime area or at a location linked to past drug sales activity, the observed speed of a hand-to-hand exchange that is consistent with a drug transaction, the concealing of suspected drugs after receipt, or the retrieval of suspected drugs from some location where they are commonly stored nearby, are present here. Similarly, the alleged counter-surveillance driving pattern is too weak to be reliably established and, even if it is established, cannot, on its own or in concert with the other factors observed, provide an adequate basis for the detention of Mr. X.
The facts here are also at odds with those in United States v. Vasquez, (9th Cir. 1988) 858 F.2d 1387 and in United States v. Acevedo, (1991) 500 U.S. 565, 567. In United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir. 1988), the court found that “fresh, direct, and uncontradicted evidence” that defendant was selling cocaine from his vehicle supported the arrest. Similarly in United States v. Acevedo, 500 U.S. 565, 567 (1991), the seizure and search of the vehicle was found to be justified where narcotics officers first witnessed a man bringing a package into his home that they knew to contain marijuana and then witnessed the defendant emerging from the home shortly thereafter carrying a package that looked similar to the package officers knew to contain marijuana. Here, in contrast to the situation in Vasquez, there is no clear evidence of a drug transaction of any kind, or indeed of a potential drug transaction, at the time Mr. X is seized. Unlike the scenario where the narcotics officers in Acevedo observe a bag known to contain drugs being carried into a residence and then observe a bag matching its description leave that same residence, the surveillance team here does not know what that dark heavily weighted plastic bag contains. They cannot see inside it or make out any impressions or outlines that might suggest a criminal purpose. They observe it on one occasion being carried out of a residence by Mr. Y and it is never seen again. These observations, whether considered alone or combined with the other factors present here, do not rise to the level required for probable cause to justify a seizure.
This is far less than the observations in Remers, where the officers observed two individuals standing on the street and one individual showing the other one a tinfoil package. There, the officers could not see what was inside the package or even make out an outline or impression of an object. _In finding that probable cause was not reached there, the Remers court pointed out that “for all [the officers] knew at the time [they] approached petitioner, the tinfoil package could have contained cookies.” Remers v. Superior Court, (1970) 2 Ca1.3d 659, 665. Similarly in this case, the surveillance team could not see what was inside that dark heavily weighted plastic bag or make out any outlines or impressions to suggest that it contained contraband. Even when seen through the prism of the officers’ training and experience, and in light of the other factors present here, there was no probable cause to believe that Mr. X was either engaged in illegal drug transactions or in possession of illegal drugs. At the time Mr. X was seized, Deputy Alvarez, Detective Payton and other officers acting at the direction of Detective Macias were acting, not based on probable cause, but on a suspicion or hunch that Mr. X was involved in illegal narcotics activity. As such, Mr. X’s detention was illegal and unconstitutional.
3. Knowledge of Past Drug History is an Inadequate Basis for Finding Probable Cause
The mere knowledge or suspicion as to the passenger Mr. Y’s past drug history does not, either on its own or in combination with the other factors present here, provide adequate probable cause to believe that, at the moment of seizure, Mr. Y was either engaged in illegal drug activity and had evidence of such illegal activity concealed within the vehicle in which he was traveling. Detective Macias had been investigating Nelson Carillo as a suspected methamphetamine and cocaine dealer from November 2009 through March 2010. As cases discussing this issue have made clear, the mere suspicion or knowledge of alleged prior drug activity or transactions, at some alleged time prior to the night of March 11, 2010, is not sufficient to give rise to probable cause to believe that on this particular night the subject is engaged in a drug transaction or that narcotics would be found in his vehicle. United States v. Matlock, 415 U.S. 164 (1974); United States v. Perez, 67 F.3d 1371 (9th Cir. 1995), rev’d on other grounds, quoting United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir. 1988). As recognized by the court in Brinegar, the requirements of probable cause specifically call for “facts and circumstances within [an officer's] knowledge and of which [he] had reasonably trustworthy information… to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-176. Suspicion of some past illegal conduct does not provide an adequate basis for a belief that, at the moment he is seized and the vehicle searched, Mr. Y is either engaged in illegal activity or in possession of evidence of crime.
4. Alleged Counter-Surveillance Driving Pattern Does Not, On Its Own or In Concert with Other Factors, Rise To The Level of Establishing Probable Cause
The government contends that, on the day of the seizure in this case, the surveillance team members, including Detective Macias, observed the white pickup truck driven by Mr. X engaged in counter-surveillance driving. This counter-surveillance driving allegedly occurred during the second foray out from the residence, during which the pickup truck went to several residences in Oxnard. During this observation period, the officers observed no bag being carried by Mr. Y. Law enforcement does not specify how long the stops were at the residences or address whether Mr. Y even entered the residences. Part of the driving pattern which is labeled as counter-surveillance included driving through alleys and making abrupt turns. The officers who made these observations do not detail how many times these maneuvers were done or place them in context. As discussed above, there are a number of reasonable innocent explanations for making abrupt turns or using alleyways. The second part of the driving pattern which is labeled as counter-surveillance is more specifically detailed. It appears to amount to quickly turning into a parking lot, immediately making a U-turn, and then driving back onto the same street, going in the same direction, and signaling prior to doing so. These observations standing alone, even if equated to “flight”, are insufficient to rise to the level of probable cause. Given the deficiency in the other factors present here, the additional factors, even when combined with these driving observations, do nothing to raise the level of evidence here to meet the demands of the probable cause standard.
III. Probable Cause, Not Reasonable Suspicion, is the Standard Applicable To The Seizure and Search of the Vehicle In This Case
A warrantless seizure and search of a vehicle for evidence of a crime is permissible only where there is a probable cause to believe that evidence of a crime will be found in the vehicle. Ornelas v. United States, 517 U.S. 690, 696 (1990). The Terry rationale which has been extended to vehicle stops does not allow for a full-blown arrest or a comprehensive search for evidence of a crime. Terry v. Ohio, 392 U.S. 1 (1968).
Terry involved the brief detention of a person based on an officer’s firsthand observation of the person and his suspicion that the man’s conduct suggested that he was engaged in criminal activity. Id. at 7-8. In Terry, the Supreme Court held that an officer with an articulable suspicion that a crime was currently underway, but without sufficient information upon which to find probable cause, could stop an individual in order to conduct only a limited investigation to either confirm or dispel the suspicion upon which the stop is based. Id. at 29. But, to be considered reasonable and within the limits of what is Constitutionally permissible, the scope of the investigative detention authorized by Terry must be “carefully tailored to its underlying justification” and no more intrusive than necessary. Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004); Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir. 1996).
Terry has since been understood and applied to allow for only a brief detention for the purpose of investigating the particular suspicion that formed the basis for the stop. Florida v. Bostick, 501 U.S. 429, 437 (1991); Florida v. Royer, 460 U.S. 491, 500. Although the Ninth Circuit has upheld the application of Terry’s “reasonable suspicion” standard to permit “investigative traffic stops,” it has not applied Terry to the seizure of a vehicle for the purpose of conducting a full-blown search for evidence, as in this case. As discussed above, the cases which have allowed a Terry-type investigative detention are found within the setting of stops for traffic infractions or suspected driving under the influence, cases in which officers make contemporaneous, firsthand observation of a driver violating a traffic law. See United States v. Mariscal, 285 F.3d 1127, 1130 (9th Cir. 2002) and United States v. Lopez-Soto, 205 F. 3d 1101, 1105 (9th Cir. 2000). In these scenarios, the officers undertake an actual investigation during a limited period of questioning the driver, an investigation which is limited in scope and consistent with the purpose articulated for the initial stop. For example, the Lopez-Soto case involved a common scenario where the defendant was stopped for expired tags and, while being questioned about proof of registration, the officer smelled a strong odor of marijuana which warranted further questioning and investigation. Id. at 1105.
In our case, what occurred went beyond a Terry stop. The detention was neither brief nor limited in scope. Nor was it made for the purpose of conducting a limited investigation, authorized by Terry, to confirm or dispel a suspicion that a crime was underway. In this case, Deputy Alvarez simply stopped the vehicle driven by Mr. X, under the orders of Detective Macias, who believed that there were illegal drugs in the vehicle. Thus, this case is more analogous to the circumstances in United States V. Ramirez, 473 F.3d 1026 (9th Cir. 2007). In that case, Glendale police officers knew, based on their first-hand observation and search of the vehicle that the defendants were driving, that that same vehicle had been used only a few weeks prior to transport narcotics in a hidden compartment. Based on that observation, the officers who had inspected the vehicle and previously found that hidden compartment instructed other officers to follow the vehicle. While conducting surveillance on the vehicle, the officers observed a man placing a large bag in the area of the vehicle where the hidden compartment was known to be located. They then observed the vehicle rock back and forth. They reported these facts to the officers who had personally inspected the vehicle. Based on those facts, the officers who had personal knowledge as to that vehicle ordered the surveilling officers to conduct a traffic stop. The officers stopped the vehicle under a pretext of having failed to drive within a single lane, in violation of California law, subsequently searched the vehicle and found narcotics. The court found that the pretext for the stop was faulty, in that there was no reasonable suspicion to believe that the defendants violated any traffic law. Id. at 1029. However, the court found that the seizure and search was justified based on “previously gathered information” that rose to the level of probable cause to believe drugs would be found in that vehicle and in that known hidden compartment. Id. at 1031.
Likewise, the stop in this case was based on previously gathered information, not on the desire to conduct a limited investigation. This detention was not intended merely to allow officers the chance to investigate. Detective Macias believed that the information that had been previously gathered by the surveillance team rose to the level of probable cause to authorize the detention of Mr. X and the search of that vehicle. He believed there were illegal drugs in that white pick-up truck. When Mr. X and Mr. Y were seized, the scope and purpose went beyond a mere investigative detention, the kind of short-term seizure contemplated by Terry to either confirm or dispel officers’ suspicions. At that moment when Mr. X was seized at gunpoint by multiple law enforcement officers, no greater restraint on his liberty was possible.
Because the detention of Mr. X was not for the purpose of conducting the limited investigation authorized by Terry, and because Deputy Alvarez did not take any other steps authorized by Terry to confirm or dispel any particular suspicion that may have justified the detention, the detention is unconstitutional unless there was probable cause to justify it. The probable cause that is lacking to justify the seizure of Mr. X is likewise inadequate to support the search of the vehicle he was driving and in which he had a reasonable expectation of privacy. See California v. Acevedo, 500 U.S. 565, 569-570 (1991) (holding that warrantless search of a vehicle is valid only where probable cause is shown); see also United States v. Ross, 456 U.S. 798, 823 (1982) (“The exception to the warrant requirement established in Carroll…applies only to searches of vehicles that are supported by probable cause.” None of the observations made by the surveillance team, either individually or when combined, rose to the level of probable cause to believe that illegal drugs were, at that moment, present in that vehicle. For the reasons discussed above, this seizure and search of the white pick-up truck driven by Mr. X was not supported by probable cause to believe that evidence of a crime would be found inside. As such, it is illegal and unconstitutional.
CONCLUSION
For the foregoing reasons, the evidence recovered from the vehicle, any observations made by law enforcement officers, and any and all statements made by Mr. X pursuant to his illegal detention must be suppressed.
DATED: January , 2011 Respectfully submitted,
By: Jennifer Zide
LAW OFFICE OF JENNIFER ZIDE
Attorney for Defendant Mr. X
