People v. Lopez

• Decision Date: 19 July 1989
• Docket Number: No. G006708,G006708
• Citation: 212 Cal.App.3d 289,260 Cal.Rptr. 641
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Servando Najera LOPEZ, Defendant and Respondent.

Page 641

260 Cal.Rptr. 641

212 Cal.App.3d 289

The PEOPLE of the State of California, Plaintiff and Appellant, v. Servando Najera LOPEZ, Defendant and Respondent.

No. G006708.

Court of Appeal, Fourth District, Division 3, California.

July 19, 1989.

As Modified on Denial of Rehearing Aug. 8, 1989.

Review Denied Oct. 12, 1989.

Cecil Hicks, Dist. Atty., Michael R. Capizzi and Maurice L. Evans, Asst. Dist. Attys., Thomas M. Goethals, E. Thomas Dunn, and Andrea Burke, Deputy Dist. Attys., for plaintiff and appellant

Ronald Y. Butler, Public Defender, Carl C. Holmes, Thomas Havlena, and Ronald E. Klar, Deputy Public Defenders, for defendant and respondent.

OPINION

CROSBY, Associate Justice.

The question presented here is whether a police request for identification during a street encounter amounts to a detention in the sense that a reasonable person would not feel free to leave under the circumstances and must be grounded upon some reasonable suspicion. The answer is no.

I

Santa Ana Police Corporal Richard Reese, a 13-year veteran, and a recruit were patrolling for narcotics traffickers in a parking lot on October 22, 1986. The officers saw Lopez sitting on the hood of a car. Reese "thought [he] recognized [Lopez] from some prior encounter" but "just couldn't remember where," so he initiated the following conversation as they walked by: "And I happened to ask him as I was passing if that was his car. And he said, 'No, it's not my car.' [p] And then I asked him why he was sitting on that car, and he told me he was waiting for his friends to play pool. At this time I came to a stop ... and looked back at him and asked him, if he was waiting for his friend to play pool, where his pool stick was. He didn't reply at that time. [p] And I asked him, did he have an I.D. card or did he have I.D.; and he reached into his left front pocket and handed his wallet to [the recruit]."

The wallet was opened, a bindle "pop[ped] up," and Lopez was arrested after the officers confirmed it appeared to contain cocaine. More narcotics were found during a postarrest search. ¹

II

The district attorney concedes the officers had no reasonable justification to detain Lopez before the contraband was discovered. But, contrary to the trial court's conclusion, it is quite clear police do not need to have a reasonable suspicion in order to ask questions or request identification: "[O]ur recent decision in [Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229] plainly implies that interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." (INS v. Delgado (1984) 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247.) Of course, in theory the citizen can refuse and simply walk away. (See Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357.) Whether this is an accurate assessment of street reality is not for us to decide. (See People v. Contreras (1989) 210 Cal.App.3d 450, 452, opn. mod. 210 Cal.App.3d 1145e, 259 Cal.Rptr. 290.) It is clearly the view of the current majority of the United States Supreme Court. (INS v. Delgado, supra, 466 U.S. at pp. 216-217, 104 S.Ct. at pp. 1762-1763.)

That court holds no detention or Fourth Amendment seizure occurs until an encounter reaches the point where a reasonable person would not feel free to leave. (Ibid.) Thus, the key issue here is whether the officer's questions and the request for identification changed the consensual nature of the encounter to a detention: " '[A] person has been "seized" within the meaning of the Fourth Amendment ... only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " (Michigan v. Chesternut (1988) 486 U.S. 567, ----, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 571-572; see also Florida v. Royer, supra, 460 U.S. at p. 502, 103 S.Ct. at p. 1326; United States v. Mendenhall (1980) 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (plur. opn. of Stewart, J.); Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, 195 Cal.Rptr. 671, 670 P.2d 325.) The district attorney argues this "consensual ordeal" was trivial and did not implicate Fourth Amendment concerns; i.e., there was no seizure of Lopez' person.

We agree Royer and Delgado compel the conclusion that no seizure occurred here under the Supreme Court's formulation. In Royer only one member of the court, Justice Brennan, adopted the position that a request for identification would reasonably cause an individual to believe he was not free to leave. (Florida v. Royer, supra, 460 U.S. at p. 511, 103 S.Ct. at p. 1331 (conc. opn. of Brennan, J.).) The plurality opinion by contrast states, "Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for purposes of the Fourth Amendment." (Id., at p. 501, 103 S.Ct. at p. 1326.) Four justices approved that statement, notwithstanding their apparent determination that the officers had no reasonable basis to suspect Royer of criminal activity until they learned he was traveling under an assumed name. (Ibid.; see also People v. Gonzales (1985) 164 Cal.App.3d 1194, 211 Cal.Rptr. 74.) Subsequently in Delgado it became clear that a majority of the Supreme Court was in accord with this dictum. (INS v. Delgado, supra, 466 U.S. at pp. 216-217, 104 S.Ct. at pp. 1762-1763.) Consequently, we hold that the request for identification was not enough to constitute a Fourth Amendment seizure.

Nevertheless, questions of a sufficiently accusatory nature may by themselves be cause to view an encounter as a nonconsensual detention. (Wilson v. Superior Court, supra, 34 Cal.3d at pp. 790-791, 195 Cal.Rptr. 671, 670 P.2d 325.) In Wilson the officers told the defendant they " 'had received information that he [ ] would be arriving today from Florida carrying a lot of drugs.' " (Id., at p. 790, 195 Cal.Rptr. 671, 670 P.2d 325.) The questions asked in this case were much less accusatory than the statement in Wilson, but they are not the stuff of usual conversation among adult strangers either. They did indicate the officers suspected defendant of something, if only bad manners; and the degree of suspicion expressed by the police is an important factor in determining whether a consensual encounter has ripened into a detention. (Id., at p. 791, fn. 11, 195 Cal.Rptr. 671, 670 P.2d 325.) ²

The officers were concededly on the prowl for narcotics dealers; and Reese recognized Lopez from a previous, but then unremembered, encounter (a drunk driving arrest, as it turned out). Lopez was not engaged in any apparently unlawful conduct, yet the officers stood on either side of him and launched into a short, albeit somewhat accusatory, interrogation. But the questions were brief, flip, and, most importantly, did not concern criminal activity. The statements in Wilson, by contrast, were heavily accusatory and related to serious criminal conduct. The officers made no show of force or attempt to physically restrain Lopez, nor did they order him to remain. With all due deference to the trial court, we do not believe the undisputed evidence in this case meets the applicable legal standard, i.e., that "the circumstances [were] so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded...." (INS v. Delgado, supra, 466 U.S. at p. 216, 104 S.Ct....