People v. PERRUSQUIA , 150 Cal. App. 4th 228 ( 2007 )

O’LEARY, J., Concurring.

I join in the majority opinion because I agree with both its reasoning and its result. Our dissenting colleague places some reliance on People v. Souza (1994) 9 Cal.4th 224 [36 Cal.Rptr.2d 569, 885 P.2d 982]. I write separately to distinguish Souza from the facts before us and to query how an individual should properly decline a “consensual encounter” with the police.

I agree with our dissenting colleague regarding the general criteria under which we evaluate the propriety of a detention, but I find his reliance on Souza to be misplaced. In Souza an officer was on patrol at approximately 3:00 a.m., in a “high-crime” residential area when he observed two people standing in almost complete darkness near a parked car. He described seeing one of the two individuals leaning toward the car as if talking to someone inside. When the officer directed his patrol car’s spotlight into the car’s interior, the two people in the front seat immediately bent down toward the floorboard, and the individual standing outside the car took off running. The Supreme Court concluded that from these circumstances, the area’s reputation for criminal activity, the presence of two people near a parked car very late at night in total darkness, and the evasive conduct by the three individuals, the officer had reasonable suspicion to detain the suspects. Our circumstances are significantly different.

Here, observations are made at 11:30 p.m., in the parking lot of an open convenience store.¹ Tisdale testified that when he first saw him, Perrusquia was parked and seated “just hunched over slightly” not to where he could not be seen, “but he was kind of leaning against the .glass or down a little bit lower.” There is no evidence Perrusquia repositioned himself in response to police presence. The dissent states, “Rather than taking one of the open spots close to the store, defendant chose to park his vehicle near the exit . . . .” (Dis. opn., post, at p. 239.) There is no evidence Tisdale saw Perrusquia park his vehicle, or that an open spot closer to the store was available when Perrusquia parked. Given the rapid turnover of parking spots at open convenience stores, I cannot assume Perrusquia intentionally bypassed open parking spots. Also, unlike the suspect in Souza, Perrusquia did not take off running when he became aware of the police, rather he turned off the engine in his car, exited his vehicle, and attempted to walk quickly past the officer. I do not find Souza compelling given the facts before us.

Courts have long recognized that police officers enjoy First Amendment rights just like the rest of us. And, there is nothing in the Constitution that prevents a police officer from attempting to engage an individual in conversation. (United States v. Mendenhall (1980) 446 U.S. 544, 553 [64 L.Ed.2d 497, 100 S.Ct. 1870].) Frequently, we are reminded by the prosecution that when approached by the police, suspects are free to walk away. Should they remain and accept the invitation to engage in conversation they have voluntarily engaged in a consensual encounter and no Fourth Amendment scrutiny is triggered. Our dissenting colleague comments that the appellant had the right to avoid the officer, “but it is an appropriate consideration in determining the legality of . . . Tisdale’s actions.” (Dis. opn., post, at p. 239.) My query is how does one exercise one’s right to decline a conversation with a police officer without assisting the officer in establishing reasonable suspicion?

1 Our dissenting colleague relies on the fact that Perrusquia is “a male Hispanic ... in his late 20’s.” (Dis. opn., post, at p. 238.) The record does not reflect that the officer made observations at any time regarding Perrusquia’s ethnicity or age.