Officer Cat v. Dr. Mouse
by Bruce McEwen, April 30, 2014
No matter how law-abiding you are, you are likely to tighten your grip on the wheel when a police interceptor appears in your rearview mirror. If you don't, you are too medicated to be driving in the first place. There’s not enough Prozac in the world to keep any sane driver calm when the pulsing blue-and-reds light up the insular world of your vehicle.
When a cop pulls you over, you go through an abbreviated form of the grieving process: fear, denial, anger, acceptance. Your whole driving record flashes before your eyes. In a matter of seconds, you review your last few minutes of driving with acute clarity, thinking, “Did I do something? Is my license plate light out? Did I miss a speed limit sign? Do I reek of alcohol?”
If the answer is no, then it’s, “Why me? I’ve done nothing wrong. That guy who just sped past me should be the one pulled over.”
Once you're got, you're got. Remain calm. Indignation or undo agitation will be construed as guilt by the officer, who by now is approaching your window to ask for your driver’s license and registration. You might also take into consideration that most cops operate on the safe assumption that you are either a criminal or a criminal sympathizer no matter what your law-abiding bona fides might be. Considering who they mostly deal with, law enforcement's skeptical view of humanity is entirely justified.
By the time you get through the introductory part of the pull-over process, acceptance should be setting in. Unless you are the kind of maniac who gets off on high speed chases, and you probably aren't, you are busted. You will wonder where you stand, whether or not you’ll be searched, put in handcuffs, formally arrested and read your rights.
And when are you free to go?
These questions are routinely addressed in the courts, and the cats — I mean the cops — can do a species change into slippery eels when they're on the stand.
If you don't fully understand your rights when an officer of the law has detained you, you are not alone. And it doesn’t help if you are a lawyer because even the courts can be unclear on the subject.
A recent decision by newbie Mendocino County Superior Court Judge Jeanine Nadel is being re-considered by a panel of local judges. It stems from a traffic adventure involving a local doctor and a Ukiah policeman.
The case concerns Dr. Seema Nayak. The doctor, sitting in her red Jeep, was parked behind her clinic in Ukiah one night when a Ukiah Police officer pulled up to the doctor's Jeep and lit her up with his high beams and spotlight. Dr. Nayak was shortly thereafter arrested for DUI.
Dr. Nayak’s lawyer, William Conwell of Lake County, convinced Judge Nadel that the doctor's arrest was fishy and the judge dismissed the case. Which arouses in us class suspicions, as in class solidarity suspicions. Was the case tossed for reasons unrelated to the facts? Did the judge feel sorry for a female medical doctor who just happened to be loaded?
The DA’s Office appealed the dismissal and the appeal was heard last Friday, April 18th at 3pm. The Judges were an in-house crew consisting of the Honorable Richard Henderson, the Honorable John Behnke and The Honorable David Reimenschneider. For the defense, William Conwell, Esquire; for the prosecution, Deputy DA Daniel Madow.
Here’s how it went.
Judge Behnke announced, “We are here to determine whether there was, from the outset, some kind of detention or whether it was a consensual contact with the officer. The issue of whether there was probable cause will likely come into play, as well. The Magistrate [Judge Nadel] found the initial contact was a detention, and the District Attorney asked for the briefing…"
“The officer parked his car in front of the subject’s vehicle,” Conwell said, “and illuminated it with his high-beam headlights and spotlight, from 10 to 12 feet away.”
Conwell then cited instances of case law where the circumstances were similar, except that in those cases, the patrol vehicle was nowhere near as close — more like 20 to 30 feet away. One case involved a tipster who had seen the occupant of a vehicle snorting cocaine and called the police. In that case the police car pulled in behind the suspect’s vehicle.
“Parking behind the suspect is different from parking in front, because it more clearly allows the person in question to leave. So the trial court made the correct decision, that the officer in this case parked in front of the subject’s vehicle to detain the defendant, where he had no reasonable suspicion…”
Behnke said, “Slow down, Mr. Conwell. Where you talk about reasonable suspicion, we have a closed business where the subject vehicle pulls into the parking lot and goes out of sight. It was a medical laboratory of some kind, and the officer drives by, makes a mental note there’s something amiss, then comes back. It was at night and the subject’s vehicle was running. He thinks some criminal act is ongoing…”
Conwell: “He used the term that it wasn’t a normal thing. But he has to have a suspicion, a reasonable suspicion, of a particular crime.” Conwell cited a case where a bicyclist entered a parking lot of a closed business at night with a large ax, giving the officer in that case reasonable suspicion that mischief was afoot.
“In this case,” Conwell continued, “Officer Murray [the Ukiah Police officer] had no particular or personal knowledge of a crime at that clinic. He saw a red Jeep pull into a parking lot which, in his words, no one else would pull into. Officer Murray says he thought it could be a drug burglary, but he has nothing to support why he thought that.”
Uh, in other words, the doctor would have to have begun kicking the door in or breaking windows until Officer Murray could have reasonably asked her, "Que pasa, Miss?"
Judge Henderson said, “He’s stating his belief that it could be a burglary because drugs are stored in the building.”
“Yes, but what’s lacking is any explanation. It would be different if he saw people walking back and forth, casing the joint. He merely hazards the guess that it could be this or it could be that.”
“He felt there was some kind of criminal activity afoot,” Behnke said.
“What’s missing here is he can’t render an opinion as to why he felt that,” Conwell said.
How about it's 9:30 at night, it's dark and someone has pulled in behind a building where no one is working? Isn't this what a cop is supposed to do? Isn't he supposed to find out what the only other person around is doing?
Rookie Deputy DA Dan Madow said, “We shouldn’t even get to that, to the reasonable suspicion. This was a consensual contact. There was no submission to authority, because there was no show of authority. The officer activated his high beams and spotlight, then walks up and knocks on the window. The defendant opens the door, the officer asks for identification, she hands it to him, and he notes the smell of alcohol.”
“Let me say the magistrate (Judge Nadel) found this was not a consensual contact,” Behnke repeated. He then cited the Mendenhall case where the US Supreme Court ruled that not every contact with law enforcement is considered a detention. But there was a reasonable contention that they were not free to leave. “So when you have a lady in her vehicle behind her office on a cellphone, and a vehicle pulls up with his high beams and spotlight on — and it’s not crystal clear — but he lights the vehicle up and goes to knock on the window. Any reasonable person — you’d think to yourself, Well, I’m detained. Can I put the car in gear and pull off? Maybe he’s just curious. He’s knocking on my window — Hey, I’ll just drive off! I have trouble seeing a reasonable person doing that. She physically could have got away. But a reasonable person would not feel free to put it in gear and drive away.”
Madow for the DA: “An innocent person would just say, ‘I’m fine. A reasonable, innocent person would say, ‘Hey, I work here, I’m fine.’ Dr. Nayak acquiesced. Now, if the emergency lights were on, that would be different.”
Judge Riemenschnieder said, “I get a kick out of the difference between the spotlight and the emergency lights; it’s a little ironic to me that a reasonable person would feel free to leave with the one and not the other.”
“I don’t get the distinction either,” Behnke said.
“All we have here is an officer approaching a parked vehicle,” Madow said. “He needs light for officer safety concerns, and as for the show of authority, he makes no demands, only a request for identification. There isn’t any threats or drawing of a weapon…”
“Let’s move on,” Behnke suggested. “Suppose we don’t find any consensual contact — is there a particular, reasonable suspicion?”
Madow replied, “I think there is. It’s a medical building, all closed up. There are prescription pills inside, and the defendant had no lawful business in the parking lot. It’s a high-target area for a burglary, 9:30 at night at a medical facility, and the car was secluded from public view.”
“The car was in plain sight,” Riemenschneider said. “If this car wanted to be hid it would have found a better place to park.”
“Also,” Henderson added, “weren’t the lights on?”
“Well,” Madow said, “sometimes criminals are not the brightest… Still, I think it’s reasonable suspicion. I think we have to go with the assumption someone might want to target this place; I think it’s a reasonable inference.”
Mr. Conwell, in his turn, brought up People v. Perez, wherein an officer pulled up behind a car in a parking lot and saw the occupants scrunching down. It was in an area known for drug sales and prostitution. “We have none of that here,” Conwell noted.
Behnke asked, “So the officer saw one person, the driver?”
“I’m not sure what he saw,” Madow answered. “They were going in opposite directions, and when the red Jeep pulled into the parking lot he turned and came back.”
“The driver appeared to be a female, the officer said, so he came back and parked in front of the red Jeep at a 45 degree angle, 10 to 12 feet away,” Behnke elucidated.
Henderson added, “If a burglary was in progress, and if only one person was in the vehicle when he passed it, and comes back and still there’s only one person there…”
Madow said, “There’s no lawful reason for her to be there, the business is closed.”
Behnke said (referring to Henderson’s comment), “He’s making the point that if there were more than one person in the car when he first saw it, then only one occupant when he came back, you could build a scenario for a burglary.”
Madow said that in cases where the subject is innocent, the driver eventually gets out and comes to the patrol vehicle and asks, “Is there a problem, officer.”
Behnke: “So probable cause in this case was something that was evolving?”
Conwell referred again to the case law instances he’d provided, noting that none of the elements were present in this case. No one was walking around casing the joint, scrunching down in the vehicle to avoid detection, no tools — such as an ax — for breaking into the building were observed… Nothing was suspicious except a single person parked behind a closed medical building where drugs are stored.
Which is suspicion enough, isn't it? And whatever happened to cat burglars, the real pros with their long apprenticeships, portable tool kits and professional pride? Axes? Just chop the door down and walk on in?
Behnke said the judges would deem the matter submitted and get back to the lawyers with a ruling, in writing. As of press time, the decision was not available.
As noted above, this question whether or not a subject in the clutches of law enforcement is legally detained, and at what point the detention begins and when it ends, is common in the courts. In Mendocino County, it appears the question becomes debatable when a doctor comes to court.
As a defendant.