Filed 3/26/13 P. v. Lu CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037846
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1113650)

         v.

KEVIN LU,

         Defendant and Appellant.



         After the court denied his Penal Code section 1538.5 motion to suppress evidence,
Kevin Lu (appellant) entered no contest pleas to one felony count of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a), count one) and one count
of possession of drug paraphernalia (Health & Saf. Code, § 11364, count two).
         On January 13, 2012, the court suspended imposition of sentence and admitted
appellant to probation pursuant to Proposition 36 (Pen. Code, § 1210 et seq.). The court
imposed various fines and fees. Relevant to this appeal, the court did not calculate or
award appellant any presentence custody credits.
         Appellant filed a timely notice of appeal. On appeal, appellant challenges the
denial of his suppression motion and contends that the court erred in failing to calculate
his presentence custody credits. For reasons that follow we reverse the judgment.
                                         Discussion
Motion to Suppress
       Appellant contends that he was deprived of his rights under the Fourth and
Fourteenth Amendments when he was subjected to an illegal search and seizure.
       A defendant may move to suppress evidence obtained as the result of an
unreasonable search. (Pen. Code, § 1538.5, subd. (a)(1).) Challenges to the admissibility
of a search or seizure must be evaluated solely under the Fourth Amendment. (People v.
Carter (2005) 36 Cal.4th 1114, 1141.)
       "Police contacts with individuals may be placed into three broad categories
ranging from the least to the most intrusive: consensual encounters that result in no
restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
restraints on an individual's liberty. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th
805, 821 (Manuel G.).)
       In reviewing the trial court's denial of a suppression motion, we defer to the trial
court's factual findings if supported by substantial evidence, but exercise our independent
judgment to determine whether, on the facts found, the search or seizure was reasonable
under the Fourth Amendment. (People v. Camacho (2000) 23 Cal.4th 824, 830; People
v. Glaser (1995) 11 Cal.4th 354, 362; People v. Weaver (2001) 26 Cal.4th 876, 924.)
       The Fourth Amendment proscribes " '. . . unreasonable searches and
seizures . . . .' " (United States. v. Mendenhall (1980) 446 U.S. 544, 550 (Mendenhall).)
A consensual encounter with a police officer is neither unreasonable nor is it a seizure.
(Id. at pp. 554–555.) As an example, a consensual encounter occurs when an officer
approaches a person in public and asks how he or she is doing, or questions a person at a
crime scene in a non-accusatory and routine manner to determine whether he or she may
have information about the crime. (People v. Mendoza (2011) 52 Cal.4th 1056, 1081.)

                                              2
As opposed to a consensual encounter, "a detention is a seizure within the meaning of the
Fourth Amendment of the United States Constitution; a seizure occurs when an officer
restrains a person's liberty by force or show of authority. [Citation.]" (Ibid.)
       " 'Although there is no "bright-line" distinction between a consensual encounter
and a detention . . . "the police can be said to have seized an individual 'only if, in view of
all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.' " ' [Citations.] ' "The test is necessarily imprecise,
because it is designed to assess the coercive effect of police conduct, taken as a whole,
rather than to focus on particular details of that conduct in isolation." ' [Citation.]" (Ford
v. Superior Court (2001) 91 Cal.App.4th 112, 124.) "Circumstances establishing a
seizure might include any of the following: the presence of several officers, an officer's
display of a weapon, some physical touching of the person, or the use of language or of a
tone of voice indicating that compliance with the officer's request might be compelled.
[Citations.]" (Manuel G., supra, 16 Cal.4th at p. 821.) "In the absence of some such
evidence, otherwise inoffensive contact between a member of the public and the police
cannot, as a matter of law, amount to a seizure of that person." (Mendenhall, supra, 446
U.S. at p. 555.) Nevertheless, an officer's "words and verbal tones are always
considered," along with how an officer physically approaches the subject, or if the officer
attempts to block the subject's path. (People v. Garry (2007) 156 Cal.App.4th 1100,
1110–1112.) "The officer's uncommunicated state of mind and the individual citizen's
subjective belief are irrelevant in assessing whether a seizure triggering Fourth
Amendment scrutiny has occurred. [Citation.]" (Manuel G., supra, 16 Cal.4th at p. 821.)
       To put it another way," [a]s long as a reasonable person would feel free to
disregard the police and go about his or her business, the encounter is consensual and no
reasonable suspicion is required on the part of the officer." (Manuel G., supra, 16
Cal.4th at p. 821.)


                                              3
       Although both "detentions" and "arrests" are seizures under the Fourth
Amendment, distinctions are drawn between the two concepts since "the constitutional
standard for permissible detentions 'is of lesser degree than that applicable to an arrest.'
[Citation.]" (People v. Hester (2004) 119 Cal.App.4th 376, 386.) Thus, "[A]n officer
who lacks probable cause to arrest can conduct a brief investigative detention when there
is ' "some objective manifestation" that criminal activity is afoot and that the person to be
stopped is engaged in that activity.' [Citations.] Because an investigative detention
allows the police to ascertain whether suspicious conduct is criminal activity, such a
detention 'must be temporary and last no longer than is necessary to effectuate the
purpose of the stop.' [Citations.]" (People v. Celis (2004) 33 Cal.4th 667, 674.) Under
such circumstances, in Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United States
Supreme Court created a limited exception that allows police officers to "stop and . . .
frisk for weapons" when they have an "articulable suspicion [the] person has committed
or is about to commit a crime." (Florida v. Royer (1983) 460 U.S. 491, 498.) It is well
established that when an officer has reason to believe that his suspect is armed and
dangerous he may conduct a superficial weapon search. (Adams v. Williams (1972) 407
U.S. 143, 145.)
       To justify a detention, that is, to make it a lawful detention, "the circumstances
known or apparent to the officer must include specific and articulable facts [which would
cause the officer] to suspect that (1) some activity relating to crime has taken place or is
occurring or about to occur, and (2) the person [the officer] intends to stop or detain is
involved in that activity." (In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.),
superseded on other grounds by Cal. Const., art. I, § 28.) Of course, "[t]he corollary to
this rule . . . 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 . . . ."
(Ibid., citing Terry, supra, 392 U.S. at p. 22.)


                                               4
       In order to address this issue, we set forth in detail the evidence adduced at the
suppression hearing and the trial court's factual findings.
       San Jose Police Officer Michael Panighetti testified that on the morning of
August 15, 2011, at approximately 4:45 in the morning, he was on patrol in a marked
police car; he was in full uniform, which included his standard weapons—service
weapon, taser, pepper spray and baton. As he was driving he saw two people walking on
the street; originally they had been standing in the shadow under a tree between Nakomas
Street and Ridgebrook when he first saw them. As the people walked on, Officer
Panighetti saw that one person was a man and the other a woman. The man was pushing
a bicycle.1 As the officer turned onto Ridgebrook and drew parallel with appellant and
his companion, he asked them what they were doing. Appellant's companion told the
officer that they were out for a walk; the officer asked if either of them was on probation
or parole. Appellant's companion said she was on parole; at this time the officer was
approximately 10 feet away from appellant and his companion talking out of the window
of his patrol car. Officer Panighetti's patrol car was facing north in the southbound lane
with the "nose" of the car centered toward the curb; he was approximately two to three
feet from the curb and had the patrol car's headlights on.
       After appellant's companion stated that she was on parole, Officer Panighetti got
out of his patrol vehicle, shut the door but he left the patrol car headlights on. Officer
Panighetti testified that he looked at appellant's female companion and motioned for her
to come to him with his right arm by pointing his right arm forward and cupping his right
hand and waving it back and forth; he said come here. At this time, appellant and his
companion were standing about four feet apart with appellant slightly to the officer's
right. According to Officer Panighetti he made eye contact with only appellant's female
companion, but he did have defendant in his peripheral vision. Appellant's female


1
       In court, Officer Panighetti identified appellant as the man with the bicycle.
                                              5
companion immediately took approximately two steps toward the officer; at the same
time appellant walked forward. Appellant was still holding his bicycle and was coming
toward the officer at a quicker pace than his female companion. The female companion
stopped and Officer Panighetti told her to stay still; he asked appellant to put down his
bicycle.2 Appellant put the bicycle on its kickstand and continued to walk toward the
officer. Appellant walked right up to the officer. At the time, appellant was dressed in a
sweater and jeans; in court the officer described the clothing as not tight, rather it was
loose. Officer Panighetti grabbed one of appellant's hands and asked him to turn around;
the officer conducted a pat search on appellant. In a pocket, the officer felt what his
experience taught him was a methamphetamine pipe. After asking appellant twice if the
object that he was feeling was a pipe, appellant admitted it was. Officer Panighetti
handcuffed appellant and informed him he was being "detained" in relation to the
methamphetamine pipe. At this point another officer arrived and took appellant to the
rear of Officer Panighetti's patrol car.3
       In denying the suppression motion the court made the following findings.
"[T]here was not sufficient evidence in the initial contact of [appellant] as well as with
the woman that was on parole to justify a detention at that time. [¶] I [do] not think that
that initial contact was a detention. I think it was a citizen contact and an officer doing

2
        Specifically, Officer Panighetti testified "once she started coming towards me, she
stopped, so I had her stay there and I had him come to me since he was now walking
towards me and he was a little closer than she was." Conspicuous by its absence is any
testimony by the officer that at this point in time he felt threatened by appellant's
approach.
3
        The prosecutor intended to call this officer to testify that in a search incident to
arrest he found the pipe and a gram of methamphetamine. However, the court found that
the officer's testimony was not relevant to the issue before the court and defense counsel
said she would "accept the offer of proof with respect" to this officer, so long as the court
would exclude the evidence in the event the court granted the suppression motion. The
prosecutor was in full agreement with this procedure. Accordingly, the officer did not
testify. We take this to mean that the parties were stipulating that the officer seized a
pipe and the methamphetamine.
                                              6
exactly what would be expected of them is to contact the person that's walking late at
night and to see what they're doing, so there was nothing inappropriate raising conduct by
the officer of a citizen con[tact] to a detention, nor was there any justification for a
detention . . . ." The court determined that the detention occurred when "the officer
directed [appellant] to put the bike down. That at that point there was specific commands
in the direction and directed at [appellant]." The court found that Officer Panighetti was
"credible that his questioning and motions were directed specifically at the woman that
was on parole" and so when appellant "began to walk towards the officer -- even if
[appellant] innocently interpreted the motion and the statements to the woman that he
was with to include him, that doesn't change the officer's safety concerns that now late at
night alone in extremely close proximity certainly in proximity to use a weapon . . . at
four or five feet . . . . [¶] I think at that time the officer was justified in a brief pat-down
search. Again two people there. One of them a parolee. There is no right to search a
person with a parolee, but I do think it is a fair assumption that when a parolee is present,
that causes a heightened sense of officer safety, and that as soon as he began to
approach -- even if he was misinterpreting the officer's directions to the woman on
parole, that that justified the officer in a brief detention to pat down for weapons . . . ."
The court concluded, "I don't think there was reasonable articulable suspicion of criminal
activity in the initial contact really at any time, but there was a legitimate set of concerns
once [appellant] approached the officer in close proximity, and that was a valid basis for
the detention." Thus, as can be seen, the court justified the detention on officer safety
grounds.
       Although we believe that it is a very close case as to whether appellant was
detained when initially stopped by Officer Panighetti (see People v. Garry, supra, 156
Cal.App.4th at p. 1111 [after only five to eight seconds of observing the defendant from
his marked patrol car, the officer bathed defendant in light, got out of his car and armed
and in uniform briskly walked 35 feet and directly questioned defendant about his legal
                                                7
status]), we agree with the trial court that appellant was detained the moment the officer
told him to put down his bicycle and appellant complied. At that point in time, a
reasonable person would not have felt free to leave because to do so would have entailed
leaving behind his or her personal property.4
       Terry, supra, 392 U.S. 1, established the standards for search and seizure that we
must follow here. "At issue in [Terry] was the constitutionality of a police procedure
commonly known as a 'frisk' or 'pat-down' in which police officers conducting an
investigation search a suspect for concealed weapons. Describing the procedure as 'a
serious intrusion upon the sanctity of the person,' the United States Supreme Court
nevertheless concluded that it was not 'unreasonable' if the police officer could 'point to
specific and articulable facts which, taken together with rational inferences from those
facts,' would warrant the intrusion. [Citation] Because the 'intrusion upon the sanctity of
the person' consists not only of the patdown itself but also of the temporary detention
during which the patdown occurs, to justify frisking or patting down a person . . . 'the
officer must first have constitutional grounds to insist on an encounter, to make a forcible
stop.' [Citation.]" (People v. Souza (1994) 9 Cal.4th 224, 229.)
       To put it another way, in order to lawfully detain an individual, even temporarily,
an officer must have a reasonable, articulable suspicion that the person has committed or
is about to commit a crime. (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) The
temporary detention of a person for the purpose of investigating possible criminal
activity, because it is less intrusive than an arrest, must be based on "some objective
manifestation" that criminal activity is afoot and that the person to be stopped is engaged
in that activity. (United States v. Cortez (1981) 449 U.S. 411, 417 & fn. 2.) Inchoate
concerns for officer safety may justify certain minimal intrusions. However, a

4
        Respondent agrees that to the extent that appellant complied with Officer
Panighetti's direction to put down his bicycle, the court was correct in finding a detention
at this point.
                                              8
reasonable, articulable suspicion of criminal activity is still needed to justify the initial
detention. (Terry, supra, 392 U.S. at p. 21; Tony C., supra, 21 Cal.3d at p. 893.)
Conspicuous by its absence in this case is any evidence that appellant was engaged in any
criminal activity at any time during his encounter with Officer Panighetti.
       Respondent contends that the companion of a person subject to search may, under
certain circumstances be detained while officers conduct a search of that person.
       In People v. Samples (1996) 48 Cal.App.4th 1197 (Samples), four officers
executing a warrant to search an apartment and its two residents were told the two
subjects would be returning in a particular car. (Id. at p. 1200.) When that car arrived
outside the apartment, the officers asked the defendant, who was driving, to get out so
that the two suspects could get out of the backseat; the officers pat searched him when he
did so. (Ibid.) The search was held justified because the four police officers were
dealing, at night, with five occupants of a car, two of whom were subjects of a search
warrant. The officers were " 'engaged in an undertaking fraught with the potential for
sudden violence' " and it would be " 'utter folly' to require them to wait to search so as to
protect themselves until there is 'an overt act of hostility.' " (Id. at p. 1210.)
       The circumstances in Samples were significantly different, and the reasoning of
that case cannot be extended to authorize the search here. As noted, in Samples, police
officers had a warrant, based on probable cause to search two individuals suspected of
possessing methamphetamine for sale. (Samples, supra, 48 Cal.App.4th. at p. 1200.) At
9:40 at night, the officers stopped a car in which these suspects and three other
individuals were riding. (Id. at pp. 1200, 1210.) Considering all of these circumstances--
the time of night, the fact that officers were dealing with five people exiting from a car,
and the apparent relationship of the car's other occupants to the two passengers who were
the subject of drug-related warrants--the court concluded the police were justified in
conducting pat searches of the occupants to ensure officer safety. (Id. at pp. 1210-1212.)
However, in this case appellant's companion was not the subject of a warrant, and she
                                                9
was not suspected of being a drug dealer or at the time when she was stopped being
involved in criminal activity of any kind. Nor were the other officer safety concerns in
Samples present here. In Samples, the officers were dealing with suspected drug dealers.5
Further, in contrast to appellant, the defendant in Samples "was more than just a casual,
sidewalk companion of a person who was the subject of a warrant . . . ." (Id. at p. 1212.)
Appellant was simply walking on the street with a companion while pushing a bicycle in
the early hours of the morning. A time, 5 a.m., when it is reasonable to believe they
could have been walking to or home from work. As the trial court found, there were no
suspicious circumstances attached to their presence on the street at that time in the
morning. Further, Officer Panighetti did not testify that he felt threatened at any time,
even when appellant was walking toward him.
       " 'In evaluating the validity of an officer's investigative or protective conduct
under Terry, the "touchstone of our analysis . . . is always 'the reasonableness in all the
circumstances of the particular governmental invasion of a citizen's personal security.' " '
[Citation.]" (People v. Thurman (1989) 209 Cal.App.3d 817, 824; see also People v.
Rivera (1992) 8 Cal.App.4th 1000, 1006.) "Central to the Terry court's understanding of
reasonableness is the requirement of 'specificity in the information upon which police
action is predicated . . . .' [Citation.] Thus, 'in justifying the particular intrusion the
police officer must be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion.' [Citation.]"
(People v. Glaser, supra, 11 Cal.4th at p. 363.) An officer need not be certain that the
individual is armed; the fundamental test is "whether a reasonably prudent man in the
5
        The unfortunate association between drug dealers and possession of weapons has
often been recognized. (See U.S. v. Sakyi (4th Cir.1998) 160 F.3d 164, 169; People v.
Glaser, supra, 11 Cal.4th 354, 367-368; People v. Collier (2008) 166 Cal.App.4th 1374,
1378; People v. Limon (1993) 17 Cal.App.4th 524, 535 [noting it was not unreasonable
for officer to assume a suspected drug dealer might be armed].) "Firearms are, of course,
one of the ' "tools of the trade" ' of the narcotics business. [Citation.]" (People v.
Ledesma (2003) 106 Cal.App.4th 857, 865.)
                                               10
circumstances would be warranted in the belief that his safety or that of others was in
danger." (Terry, supra, 392 U.S. at p. 27; see also United States v. Garcia (9th Cir.1990)
909 F.2d 389, 391; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230; People v.
Allen (1975) 50 Cal.App.3d 896, 902.)
       " 'The Terry case created an exception to the requirement of probable cause, an
exception whose "narrow scope" [the United States Supreme Court] "has been careful to
maintain." Under that doctrine a law enforcement officer, for his own protection and
safety, may conduct a patdown to find weapons that he reasonably believes or suspects
are then in the possession of the person he has accosted. [Citation.] Nothing in Terry can
be understood to allow a generalized "cursory search for weapons" or, indeed, any search
whatever for anything but weapons. The "narrow scope" of the Terry exception does not
permit a frisk for weapons on less than reasonable belief or suspicion directed at the
person to be frisked . . . .' " (People v. Sandoval (2008) 163 Cal.App.4th 205, 212.)
       Officer Panighetti did not testify he thought appellant was armed and dangerous.
To the contrary, Officer Panighetti testified that he did not see any bulges or anything in
appellant's clothing before he pat searched him, which would have given him a
reasonable belief that appellant was armed. Rather, this was a generalized cursory search
for weapons, which under Ybarra v. Illinois (1979) 444 U.S. 85 (Ybarra) cannot be
sanctioned.6
       In the present case, the pat down search of appellant was unlawful under Terry and
Ybarra. The touchstone for justifying a pat down search under Terry and Ybarra is that
the officer must first have a reasonable belief or suspicion that the suspect is engaged in
criminal activity and also a reasonable belief or suspicion that he is armed in order to


6
      In Ybarra, a pat search was conducted on nine to 13 patrons of a public tavern.
The Supreme Court regarded the search as a "generalized 'cursory search for weapons' "
(Ybarra, supra, 444 U.S. at pp. 93-94); a search that the United States Supreme Court
would not sanction. (Id. at p. 96.)
                                             11
conduct a pat search. Here, there was no evidence presented that Officer Panighetti had
any such reasonable belief or suspicion; in short his testimony at the suppression hearing
was bereft of any suggestion that he reasonably believed appellant was engaged in
criminal activity or that he reasonably believed that appellant was in fact armed.
       In reaching our conclusions in this case, we are mindful that "[t]he judiciary
should not lightly second-guess a police officer's decision to perform a patdown search
for officer safety. The lives and safety of police officers weigh heavily in the balance of
competing Fourth Amendment considerations. [Citations.] However, the Terry rule has
been extant for over [forty years] and is well known to the police. [Citation.] It is alive
and well. [Citation.]" (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
       We conclude that the suppression motion was erroneously denied. The error is by
its nature prejudicial where, as here, appellant pleaded no contest after the erroneous
denial of a suppression motion. (People v. Ruggles (1985) 39 Cal.3d 1, 13.)
Accordingly, appellant must be allowed, if he so chooses, to withdraw his no contest
pleas. Since we must reverse appellant's conviction, it is not necessary to address
appellant's other issue regarding the trial court's failure to calculate his presentence
custody credits.




                                              12
                                         Disposition
       The order granting probation is reversed. On remand, the trial court shall enter an
order granting appellant's motion to suppress. The trial court is directed to permit
appellant to withdraw his guilty plea.




                                           _________________________________
                                           ELIA, J.


WE CONCUR:




_____________________________
RUSHING, P. J.




_____________________________
PREMO, J.




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