California Court Rules against Police Pat-Down Search outside Convenience Store
A California Court of Appeals recently ruled against a pat-down search performed by police officers outside of a 7-Eleven store. See People v. Humberto-Perrusquia, Case No. G037094 (Cal. Super. Ct. No. 06NF1033). Court rulings siding with defendants and against police officers have been become rare, but in this case the court threw out crucial evidence against Oscar Humberto Perrusquia and dismissed the case against him.
Anaheim, California police officers had been warned, in their pre-shift meeting, that someone had been knocking over 7-Eleven stores in the area. When Officer Ryan Tisdale stopped at a local 7-Eleven, at around 11:30 pm, he noticed a driver sitting in his car outside of the store. The driver was crouched down in the driver's seat with the engine running. After a couple of minutes, the driver fumbled around and dropped something to the floor of the car. When Perrusquia saw the officer in his side mirror, he turned off the engine and stepped out of the car.
Perrusquia tried to walk quickly past Tisdale, obviously trying to avoid him. Tisdale asked Perrusquia to "hang on a second." Perrusquia was defensive. The Officer asked him if he had any weapons. When Perrusquia answered that he had no weapons, Tisdale told him he needed to pat him down for weapons.
Tisdale's pat-down revealed a loaded nine-millimeter-automatic handgun. At this point Tisdale and his fellow officer handcuffed Perrusquia. A further search found a loaded .22-caliber gun and a small bag containing what appeared to be methamphetamine and a glass pipe. Perrusquia was charged with two counts of having a concealed firearm in a vehicle, one count of possessing a controlled substance with a firearm, one count of possessing a controlled substance and two counts of carrying a loaded, unregistered firearm in public.
At trial, Perrusquia asked the judge to disallow the evidence found by the officers. The trial judge agreed. The District Attorney appealed, but the court of appeals upheld the trial court's ruling.
Evidence that has been obtained in violation of the Fourth Amendment prohibition against unreasonable search and seizure cannot be used against a defendant at trial. No evidence found during or after an unreasonable stop or search can be used at trial. The issue in this case was whether Officer Tisdale's stop and pat-down of Perrusquia was reasonable. An officer may stop someone for questioning even though he has something less than probable cause to arrest him. The court of appeals said an officer may stop someone for questioning if circumstances indicate that (1) some activity relating to crime has taken place, is taking place, or is about to occur and (2) the person he stops is likely involved with that activity.
The court also limited what circumstances can raise a reasonable suspicion that criminal activity is going down. Reasonable suspicion cannot be based solely on factors not related to the suspect. Criminal activity in the area was not enough to create a reasonable suspicion.
The court said Perrusquia's sitting in his vehicle and fumbling around was not enough to raise a reasonable suspicion. In fact, asked the court, if the officers were concerned Perrusquia had a weapon, why did they allow him to retrieve his identification from his car? According to the court, the district attorney could show no facts that would lead an ordinary person to believe that a crime had occurred, was occurring, or was about to occur.
Perhaps most important is this statement from the court: "The officer in this case had a hunch that something was amiss with defendant, and he turned out to be right. That he was right, however, cannot be used to retroactively justify a detention." Just because the officer turned out to be right, doesn't make his stop and search of Perrusquia reasonable. The trial court had to dismiss the case and the court of appeals upheld that decision.
