Metropolitan News-Enterprise


Monday, November 24, 2008


Page 1


Court Allows Evidence of Conduct During Illegal Detention


By STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal on Friday upheld a man’s conviction for resisting police officers after he refused to allow them to search him and attempted to flee, even though the officers were acting illegally when they stopped him for walking down the middle of the street.

Concluding that officers of the Sacramento Police Department lacked any reasonable suspicion to detain Donnell Cox because he was in compliance with state law preempting a city code provision requiring pedestrians to use sidewalks, the court nonetheless denied Cox’s request to suppress evidence of his struggle with the officers because Cox’s conduct was an independent act dissipating the taint stemming from the illegal detention.

Two officers on patrol in October 2006 in a marked vehicle in a residential neighborhood observed Cox walking in the road after the officers stopped to speak to a number of individuals clustered around two vehicles parked at a dead end.

Believing Cox was violating a provision in Sacramento’s City Code requiring pedestrians to walk on the sidewalk where one is provided, one officer asked him “what’s going on?”, but Cox continued on his way, so the officer exited the vehicle and ordered him to stop.

Cox did so, but would not respond to the officer’s attempts to identify him. When the officer attempted to perform a search for weapons, Cox allegedly locked his elbows and resisted, and then struggled with both officers before breaking free and running toward an empty field.

The officers pursued him, and alleged that he attempted to punch one of them during the pursuit. They finally caught up to Cox after he tripped and fell on his face, and subdued him after several minutes of alleged struggle

Charged with resisting an executive officer in the performance of his duties, Cox moved to suppress the evidence of his actions, but a magistrate concluded that Cox—by walking down the road—had created sufficient reasonable suspicion for the police to at least stop him, and denied the motion.

On appeal, Justice Ronald B. Robie agreed with Cox that the officers had no legal basis to detain him, but wrote that the case “recasts [U.S. Supreme Court] Justice [Benjamin] Cardozo’s oft-quoted dictum on the exclusionary rule: although the constables here blundered, the defendant will not go free.”

Noting that the Legislature “expressly intended” to regulate pedestrian traffic on public roads through the Vehicle Code, Robie wrote that the Sacramento City Code provision was preempted and unenforceable.

He then agreed with Cox that the latter’s conduct had been lawful because relevant state law, Vehicle Code Sec. 21956, only restricts pedestrians from walking on roadways outside of business or residential districts, logically implying that pedestrians may do so inside such districts.

The justice also pointed out that the state law has been in effect for more than 40 years, and opined that neither the reasonableness of the officers’ belief that Cox had violated the local ordinance nor their “good faith” underlying that belief was relevant to establishing the detention’s legality.

But Robie, joined by Justices Rod Davis and M. Kathleen Butz, nonetheless concluded that the magistrate had correctly denied the suppression motion, explaining:

“Normally, in a case where evidence is uncovered following an illegal search, the search itself procures the evidence sought to be excluded. But it would be a curious use of language to say that the officers’ detention of defendant (illegal though it might have been) procured the officers’ subsequent observations of his resistance to arrest.

“Unlike tangible evidence that is uncovered when police conduct an unlawful search, defendant’s reaction here to being detained was not inevitable, but an independent decision he himself made, amounting to an intervening circumstance that cured the taint.”

Cox’s counsel, Redding attorney William A. Molloy, said he had not had an opportunity to review the opinion, but predicted his client would seek review from the Supreme Court “as a matter of course.”

Representatives of the California Attorney General’s Office could not be reached for comment.

The case is People v. Cox, 08 S.O.S. 6330.


Copyright 2008, Metropolitan News Company