People v. Franklin

• Decision Date: 15 June 1987
• Docket Number: No. F007110,F007110
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Chris FRANKLIN, Defendant and Appellant.

Page 840

237 Cal.Rptr. 840

192 Cal.App.3d 935

The PEOPLE, Plaintiff and Respondent, v. Chris FRANKLIN, Defendant and Appellant.

No. F007110.

Court of Appeal, Fifth District, California.

June 15, 1987.

Review Denied Sept. 23, 1987.

Mark E. Cutler, Rescue, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PETTITT, Associate Justice. ^**

An information filed on September 19, 1985, accused appellant in the first count of murder (Pen.Code, § 187) ¹ with allegations of firearm use (§ 12022.5) and the fact the murder was committed in the course of a robbery (§ 190.2, subds. (a)(17)); and in the second count with robbery (§§ 211, 213.5) with an allegation of firearm use (§ 12022.5).

Appellant pleaded not guilty. After denials of his motion to suppress under section 1538.5 and motion for reconsideration appellant withdrew his plea of not guilty and pleaded guilty to the first count and admitted the allegations. The second count was dismissed. Appellant was sentenced to a term of 25 years to life for first degree murder, plus a consecutive term of two years for use of a firearm.

Appellant filed a timely notice of appeal.

A little past midnight on August 10, 1985, authorities found the body of Joseph Luther in his room after responding to a call from the Desert Motel. Luther had been shot twice; his pockets were turned inside out. A search of the room produced a .22 caliber shell casing and drug paraphernalia. Luther was sharing the room with a woman whom authorities found sitting outside.

Perhaps 20 or 30 minutes before discovery of the body, Ridgecrest Police Officer Michael Scott was patrolling in an area where vandalism, robbery and narcotics trafficking was prevalent. He spotted appellant walking south on Warner Street, about one-half block away from the Desert Motel. Appellant was wearing a full-length camouflage jacket. The officer thought this odd on a warm summer evening. The officer shone his patrol car spotlight on appellant.

The officer noted appellant was carrying a white cloth-like object which he appeared to try to conceal from the light. The officer pulled up directly behind appellant and stopped his car. He radioed his position and reported he was making a pedestrian stop.

While the officer was on the radio, appellant approached the patrol car on the passenger side. When the officer got out of the car, appellant came toward him; they met in the area of the headlights. Appellant repeatedly asked, "What's going on?"

The officer noted appellant was sweaty and appeared "real jittery, hyper." The officer asked him to remove his hands from his pockets. When appellant did so, the officer saw what appeared to be a film of blood on his hands and noted, visible in his pocket, a cork-stopped vial containing a white powdery substance.

Appellant put his hands back in his pockets and when told to remove them again, fled. The officer chased and tackled him. There was a struggle and appellant fled again. Once more the officer caught him and held him until assistance arrived.

Appellant was arrested for possession of narcotics. Shortly after handcuffing appellant, the officer learned of the murder at the Desert Motel. A vial containing white powder was found at the site of the first struggle; a .22 semi-automatic pistol, an unspent .22 cartridge and another vial were found in the area where the officer first encountered appellant. At the police station, wallets belonging to the victim and his female companion were found in appellant's possession.

On appeal appellant challenges the trial court's denial of his motion to suppress under section 1538.5. We focus upon the events between the time the officer first spotted appellant walking on the street and when appellant removed his hands from his pockets. Appellant first argues he was detained improperly by the officer, no articulable suspicion existing that he committed or was about to commit a crime. Second, if we construe the initial contact between the officer and appellant as a consensual encounter, the officer's request that appellant remove his hands from his pockets exceeded the permissible scope of authority under such an encounter and converted the encounter to an improper detention, the officer still lacking an articulable suspicion sufficient to support a detention.

On review of a motion to suppress, we defer to the trial court's factual findings, where supported by substantial evidence, but must independently assess, as a question of law, whether under the facts as found the challenged search and seizure conforms to the constitutional standards of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

"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. First, there are ... 'consensual encounters' [citation], 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.' [Citation.] Second, there are what are commonly termed 'detentions,' seizures of an individual which are 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.' [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, ..., 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 Cal.3d 777, 784, 195 Cal.Rptr. 671, 670 P.2d 325.)

The line between a consensual encounter which is marked by its voluntary nature, the citizen being under no compulsion to respond or remain, and a detention, which results in a restriction of freedom, is drawn upon objective grounds. If a reasonable person in appellant's position believes in view of all the surrounding circumstances that he is not free to leave, a detention has occurred and such detention must be supported by an articulable suspicion. (Id. at p. 790, 195 Cal.Rptr. 671, 670 P.2d 325.) The officer's state of mind is not relevant for resolution of this question except insofar as his overt actions would communicate that state of mind. (People v. Bailey (1985) 176 Cal.App.3d 402, 406, 222 Cal.Rptr. 235.) Here, we take the facts as found by the trial court, either expressly or by implication, and redetermine whether a reasonable man in appellant's position would have felt himself free to leave. (See People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

As appellant aptly discusses, two cases with related facts appear to define the limits of our determination. In People v. Bailey, supra, 176 Cal.App.3d at pages 404-406, 222 Cal.Rptr. 235, the court found that when an officer pulled in behind the defendant's car, parked in an empty parking lot, and turned on his colored emergency lights, the occupant of the car reasonably believed he was not free to leave. Conversely, the court in People v. Rico (1979) 97 Cal.App.3d 124, 128-130, 158 Cal.Rptr. 573, found that an officer who momentarily spotlighted a car, as both cars were traveling on the freeway, and then followed the car for five minutes before the driver voluntarily pulled to the shoulder, did not "detain" the occupants.

Our facts fall between those in Bailey and Rico. While the spotlighting of appellant alone fairly can be said not to represent a sufficient show of authority so that appellant did not feel free to leave (id. at p. 130, 158 Cal.Rptr. 573), the question is whether the immediate act of pulling to the curb behind appe...