State v. Jason L.

¶1dissenting.

¶2{33} I must respectfully dissent from the majority’s opinion. I would reverse the district court’s suppression of evidence and hold that the officers’ search of Jason L. did not violate his Fourth Amendment rights. I disagree with the majority’s conclusion that a seizure of Jason L. occurred during the initial encounter between the youths and officers. Even when considering the facts in a light most favorable to the prevailing party, I do not believe that the initial encounter created an atmosphere such that a reasonable person would have believed that he or she was not free to leave. I would find that the initial encounter was consensual in nature. It was only after Officer McDaniel reached for and made contact with Filemon M.’s hand just prior to the discovery of the weapons, that the encounter escalated into a Terry stop as to Filemon M. only. I believe that it was objectively reasonable for the officers, having discovered two weapons on Jason L’s companion, to initiate a protective frisk of Jason L. limited only to the discovery of weapons.

¶3{34} It is well-settled that police/citizen encounters fall within one of three categories: “(1) consensual encounters which do not implicate the Fourth Amendment!;] (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by reasonable suspicion of criminal activity [the “Terry ” stop][;] and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.” United States v. Hill, 199 F.3d 1143, 1147 (10th Cir.1999) (citing United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir.1996)). Consensual encounters are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). An officer is free to approach people and ask questions without violating the Fourth Amendment rights of the individual questioned. Id.

¶4{35} Although I agree with the majority’s modifications of State v. Lopez, I cannot agree that substantial evidence exists to show that the officers used a show of authority during the initial encounter nor that circumstances established that the officers’ display of authority rose to such a level that a reasonable person would have believed he or she was not free to leave. 109 N.M. 169, 171, 783 P.2d 479, 481 (Ct.App.1989) (stating “[a] reviewing court must determine whether the [district] court’s result is supported by substantial evidence”); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (concluding “a person has been ‘seized’ within the meaning of the Fourth Amendment 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”). In assessing whether a seizure has occurred, the Lopez Court identifies three factors to consider when reviewing the factual circumstances surrounding an encounter — factors I believe are consistent with the majority’s modifications of Lopez: “(1) the conduct of the police, (2) the person of the individual citizen1, and (3) the physical surroundings of the encounter.” Lopez, 109 N.M. at 171, 783 P.2d at 481. Commonly cited examples of circumstances that might create a belief in a reasonable person that he or she was not free to terminate the encounter include; “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. at 170, 783 P.2d at 480.

¶5{36} When the officers made their initial contact with the youths, the exchange appears to have been conducted in a conversational manner. After exiting their patrol car and approaching the youths, Officer Jordan testified that Officer McDaniel asked them, “ ‘Can we talk to you for a minute?’ or ‘Come here,’ one of the two.” He was not certain which. Officer McDaniel asked the youths what they were doing, and received an answer that they were “just walking” which Officer McDaniel considered a “pretty good” response. There is no evidence that the officers commanded the youths in a tone of voice that could be considered as compelling action. The officers did not have their emergency lights engaged which might have signaled to the youths that they were not free to terminate the encounter. Nor is there evidence that either officer had his weapon drawn. Furthermore, I cannot agree with the interpretation of the facts that there were several armed officers creating a threatening presence. I do not believe two officers, in one patrol car, constitutes “several” officers in the manner likely contemplated by Mendenhall and Lopez. To adhere to such a conclusion might presumptively transform every standard two person officer patrol into an intimidating situation even during what might otherwise be considered a consensual encounter. Furthermore, evidence that it was late at night on an empty street, without more, is not sufficient to transform the encounter into a Terry stop. Finally, there is no evidence that Jason L.’s education, psychological background, or his age of fifteen, made him particularly vulnerable to intimidation by the officers. See Seventy-Three Thousand, Two Hundred Seventy-Seven Dollars, 710 F.2d at 288. Thus, even under the majority’s modification of Lopez, I cannot agree that substantial evidence existed to support the conclusion that the officers’ conduct demonstrated a show of authority. Nor can I agree that, as a matter of law, the circumstances of this case would communicate to a reasonable person that he or she was not free to decline the officer’s requests or terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (reversing the Florida Supreme Court adoption of a per se rule that every encounter on a bus is a seizure and adhering to the rule that “a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter”).

¶6{37} It is an established tenet of Fourth Amendment jurisprudence that investigatory detentions require that an officer have a reasonable suspicion that criminal activity is afoot before he [or she] may conduct a brief investigatory stop of a person. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Eli L., 1997-NMCA-109, ¶12, 124 N.M. 205, 947 P.2d 162 (quoting State v. Jones, 114 N.M. 147, 150, 835 P.2d 863, 866 (Ct.App.1992), for the proposition that “we will not dispense with the requirement of individualized, particularized suspicion”). In State v. Cobbs, the majority correctly notes that “[unsupported intuition and inarticulate hunches are not sufficient.” 103 N.M. 623, 626, 711 P.2d 900, 903 (Ct.App.1985); see also Terry, 392 U.S. at 27, 88 S.Ct. 1868 (“[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”). The reasonable suspicion standard is “a commonsensieal proposition,” and “[e]ourts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993) (holding that an officer’s observation of a man holding his hand out with a group of other men looking down at his open palm in an high drug trafficking area, late at night, constituted reasonable suspicion); see also Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 674, 145 L.Ed.2d 570 (2000) (“[T]he reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior.”). The determination as to whether an investigatory detention is reasonable must be analyzed viewing the totality of the circumstances. See Ohio v. Robinette, 519 U.S. 33, 34, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (stating “In applying this test, the Court has consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.”).

¶7{38} The officers had sufficient reasonable suspicion to justify an investigatory stop of Filemon M. While both youths were walking and prior to the initial contact with the youths, the officers testified to several observations of Filemon M.’s conduct that raised their suspicion that criminal activity was afoot: Filemon M. glanced back at the officers several times, both youths appeared to alter the speed of their gait to avoid contact with the police after having been apprised of the officers’ presence, and perhaps, most importantly, Filemon M. appeared to be fidgeting with or adjusting something in his waistband under a heavy jacket. Later, while speaking with the youths, during what I believe was a consensual encounter, Filemon M. continued to adjust something in his waistband, appeared very nervous, hesitated upon being questioned about possession of any weapons, and finally reached for something at his waistband. I believe these facts were sufficient to justify the search of Filemon M. under the reasonable suspicion standard that criminal activity was afoot. It is only at the point where Officer McDaniel initiated physical contact with Filemon M., when he reached for his waistband and the officer discovered the first weapon, which from the officers’ testimony, appears to be a virtually simultaneous occurrence, that the consensual encounter transformed into a Terry stop — as to Filemon M. only. Only then could it be said that Officer McDaniel, “by means of physical force or show of authority” prevented Filemon M. from leaving. Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868.

¶8{39} The question now arises as to whether the search of Filemon M. then transformed the consensual encounter between Jason L. and the officers into a Terry stop requiring reasonable suspicion. I do not believe that it did. In United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.2000), the Court disagreed with the argument that “the suspicion justifying a protective frisk must be present at the outset of an investigative stop.” The Court reasoned that “[t]he danger to officer safety that justifies a protective search may arise after a consensual encounter or investigative stop has commenced.” Id. In Davis, the defendant argued that after the officer’s fruitless search of the defendant’s companion, a consensual encounter was transformed into an investigative detention unsupported by reasonable suspicion that criminal activity was afoot; and that defendant’s subsequent conduct — nervous behavior, movement behind his companion, and reaching into a jacket — could thus not form the basis for reasonable suspicion justifying the search of defendant’s person. Id. at 1061. The Court disagreed and stated while protective searches normally occur during investigative detentions, “it need not follow from the fact that [because defendant’s companion] was momentarily seized during the protective frisk that the frisk was also an investigative stop.” Id. at 1062.

¶9{40} It is true that no reasonable suspicion existed to support a Terry stop search of Jason L. prior to the discovery of weapons on Filemon M. However, even during the search of Filemon M., Jason L. was not subject to a seizure that would invoke Fourth Amendment protections. It is clear from the officers’ testimony that only Filemon M.’s conduct had attracted their attention and that they noticed no suspicious conduct by Jason L., aside from previous observations that he was wearing a jacket during a July night, and had changed the pace of their walk after Filemon M. saw the officers. In addition, during the search, Jason L. was standing a short distance away from the activities occurring around Filemon M. and there is no evidence that during that time, he was commanded to move to a certain area or remain where he was. In contrast, Officer Jordan’s testimony reveals that Jason L. “was standing right in front of the patrol car just like Officer McDaniel asked him to do.” In short, the officers’ actions could not have led Jason L. to reasonably believe that he was not free to terminate the encounter; the encounter was not transformed into an investigatory detention by the search of Filemon M.

¶10{41} The Davis Court states that “[t]he only relevant question is whether [the officer] reasonably concluded, after pat-searching [the defendant’s companion], that officer safety justified a pat-down search of [the defendant] because ‘criminal activity may be afoot and [Davis] may be armed and presently dangerous.’” Id. at 1063 (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). As such, I would find that in view of the totality of the circumstances, it was objectively reasonable for the officer to conduct a protective frisk of Jason L after discovering weapons on Filemon M. The protective pat-down of Jason L. was a momentary intrusion; however, had the search yielded no weapons, he would still have been free to leave and terminate the encounter with the officers. Although in Davis, the defendant’s nervous conduct and suspicious behavior was sufficient to form the basis for the officer’s reasonable conclusion that he was armed and dangerous, id. at 1063, in the present case, sufficient justification for a protective frisk, resulted after Officer McDaniel discovered two weapons in possession by Jason L.’s companion.

¶11{42} During the suppression hearing, the officers repeatedly testified that they conducted a pat-down search of Jason L. after discovering two weapons on Filemon M. for purposes of officer safety. The Court of Appeals cites to cases standing for the general proposition that officers may conduct a search for weapons on the associate of a person lawfully arrested, where that associate is a potential threat to officer safety. In re Jason L., 1999-NMCA-095, ¶ 16, 127 N.M. 642, 985 P.2d 1222. In Lewis v. United States, the Court stated, “The fact that [appellant’s] companion had just been arrested for unlawful possession of a firearm” and because both persons appeared to be more than just casual acquaintances, based on the officers observations of them walking together before approaching them “is a particularly compelling justification for the frisk of appellant.” 399 A.2d 559, 561 (D.C.1979). I believe that the Court’s commentary captures the essence of the question at issue in this case:

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 ... (1967), the Court affirmed the right of a limited search “to assure … that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him” despite the absence of probable cause for an arrest. We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a peace officer effecting a lawful arrest ... must expose himself to a shot in the back from defendant’s associate because he cannot on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance.

¶12Id.; accord United States v. Poms, 484 F.2d 919, 922 (4th Cir.1973) (accepting reasoning in United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971), that “[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.”); People v. Garner, 50 Ill.App.3d 294, 8 Ill.Dec. 357, 365 N.E.2d 595, 596 (1977) (“Although a police officer may not search a person simply because he is in the company of another person lawfully arrested ... he is not precluded from conducting a ‘pat-down’ of the companions of that person in order to protect himself or others, who may be nearby.”). Thus, I agree with the Court of Appeals’ reasoning that “even if the companion is not sufficiently suspected so that he could be legitimately seized for investigation, the circumstances may nonetheless indicate that the officer should take appropriate precautions.” Jason L., 1999-NMCA-095, ¶ 16, 127 N.M. 642, 985 P.2d 1222 (citing 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 263 (3d ed.1996) (internal quotes omitted).

¶13{43} During a highly dangerous situation created by the discovery of two weapons on an individual lawfully searched, officers must be able to secure the immediate vicinity without pause. I find it entirely reasonable that the officers conducted a search of Jason L. precisely for the stated reason of officer safety. After Officer McDaniel completed the first pat-down of Filemon M., found a weapon and secured it in the patrol ear, Filemon M. then alerted the officers that they had failed to find his other concealed weapon stating, “I have another one on the other side.” Officer Jordan then found the second weapon on Filemon M. The fact that the officers testified that up until the search of Filemon M., that Jason L. was not acting suspiciously and that they did not have reason to suspect that Jason L. was armed and dangerous, does not prevent the officers from taking appropriate precautions to protect themselves and secure the area by conducting a limited pat-down on Jason L. for weapons.

¶14{44} The district court’s conclusion that Jason L. was improperly seized is not supported by substantial evidence. I would find that the initial encounter of the officers with the youths was consensual in nature. As such, I would hold that the officer’s protective frisk of Jason L. was objectively reasonable having just discovered two weapons on his companion and consequently that Jason L.’s Fourth Amendment right to be free from unreasonable searches and seizures was not violated. Therefore, I would reverse the district court’s order suppressing the weapons.