California Court Holds Terry Stop to be Unreasonable

A California court of appeals ruled recently that a Terry stop by an officer at a 7-Eleven store was unreasonable. The ruling was made in People v. Humberto-Perrusquia, G037091 (Super. Ct. No. 06NF1033). Officers contacted Oscar Humberto-Perrusquia outside of an Anaheim, California 7-Eleven, stopped him for questioning, and patted him down for weapons. The court of appeals held the officers did not have a reasonable suspicion to stop Perrusquia and conduct such a Terry stop.

Anaheim, Calif., police officers had been warned, in their pre-duty meeting, that someone had been holding up 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 walked past Tisdale, obviously attempting to avoid him. Tisdale asked him to “stop a second.” Perrusquia was defensive and attempted to continue away from the store. Tisdale asked him if he had any weapons. When Perrusquia said he did not, the Officer told him he needed to pat him down for weapons.

The pat-down turned up a loaded nine-millimeter-automatic handgun. 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’s criminal defense attorney motioned the court to exclude evidence of the weapons and drugs. The trial judge granted his motion and dismissed the case. The District Attorney appealed, but the court of appeals upheld the trial court.

The court of appeals held that Tisdale’s stop and search of Perrusquia was unreasonable under the Fourth Amendment to the United States Constitution. “‘[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.’ (In re Tony C. (1978) 21 Cal.3d 888, 892.) The key consideration, as with all Fourth Amendment issues, is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ (Ibid.)” Perrusquia at 5. “An investigative stop, such as the one conducted by Tisdale, is valid if ‘the circumstances known or apparent to the officer . . . include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.’ (In re Tony C., supra, 21 Cal.3d at p. 893.)” Id.

The court of appeals also said circumstances not related to the suspect cannot, alone, raise a reasonable suspicion. Id. Criminal activity in the area was not enough, by itself, to create reasonable Perrusquia was involved in criminal activity.

The court determined that 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 been, was, or was about to occur.

Although presumably obvious, the court pointed out that the district attorney could not use the fact that the officer turned out to be right and may have stopped an armed robbery to retroactively justify a detention.