Metropolitan News-Enterprise


Wednesday, November 14, 2007


Page 3


C.A. Says Police Officer’s Show of Authority Constituted Detention


By STEVEN M. ELLIS, Staff Writer


A police officer’s actions can give rise to a detention under the Fourth Amendment, despite the absence of any verbal commands, the First District Court of Appeal ruled yesterday.

Reversing a decision by Solano Superior Court Judge D. Scott Daniels, Div. Two held that McKinley William Garry was “detained” when a police officer illuminated him with a spotlight and rushed directly at him while asking about his legal status, because the officer’s non-verbal actions constituted a show of authority so intimidating as to communicate to any reasonable person that he was not free to decline the officer’s requests or otherwise terminate the encounter.

As a result, the court held, the officer’s subsequent search of Garry upon learning that Garry was on parole during the encounter violated the Fourth Amendment, and the trial court should have suppressed drug evidence found during the search.

Garry was arrested and charged with one count of possessing cocaine base for sale after Officer Brian Crutcher saw him standing near a parked car in a Vallejo neighborhood known as a high-crime, high-drug area.  Crutcher, who was in full uniform and armed with a baton and gun, was on patrol in a marked police vehicle at the time.

Crutcher observed Garry for five to eight seconds, and then turned on his patrol car’s spotlight, emitting a white light and illuminating Garry.  Upon exiting his patrol car, Crutcher noticed that Garry looked nervous, so he quickly approached Garry, covering 35 to 40 feet in less than five seconds.

Taking a few steps back, Garry pointed to a nearby house and said that it was his residence.  Crutcher asked Garry if he was on probation or parole, and when Garry admitted to the latter, Crutcher arrested him and conducted a search incident to the arrest, revealing the presence of cocaine.

Before trial, Garry moved to suppress the evidence, arguing that it was found as the result of an illegal detention.  He contended that Crutcher’s non-verbal actions—particularly the use of the spotlight and the rapid approach—employed a level of intimidation that amounted to an unlawful detention.

The prosecution responded that Crutcher used the spotlight to illuminate the high-crime area for his own safety, and then merely approached Garry and asked him if he was on parole.  It argued that Crutcher only detained Garry after receiving an affirmative answer, and pointed out that Crutcher did not verbally order Garry to stop or to approach Crutcher.

The trial judge agreed with the prosecution and denied the suppression motion, and Garry was later convicted as charged. 

Daniels based his ruling on the fact that Crutcher did not issue any verbal commands.  He held that no detention occurred until Crutcher determined that Garry was on parole, at which point Crutcher had a legal basis to detain Garry for the purpose of conducting a parole search.

However, on appeal, Justice James R. Lambden said that a detention had occurred when Crutcher shined the spotlight and rushed towards Garry.  Noting that previous cases in California had not found the use of a spotlight alone to constitute a detention, he said that the cases nonetheless indicated that a spotlight’s use should be considered in determining whether was a show of authority had taken place that was sufficient to establish that a detention occurred.

“Crutcher’s testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person,” Lambden wrote.

“No matter how politely Crutcher may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’”

Lambden said that the trial judge’s statement at the conclusion of the suppression hearing indicated that he did not give proper weight to all of the circumstances in denying the motion.  Instead, he said, Daniels placed undue emphasis on the one fact that Crutcher did not issue any verbal commands to defendant.

“In doing so,” he wrote, “the court did not sufficiently consider the combined, intimidating effect of Crutcher’s actions.”

Lambden was joined in his opinion by Presiding Justice J. Anthony Kline and Justice James A. Richman.

The case is People v. Garry, 2007 S.O.S. 6627.


Copyright 2007, Metropolitan News Company