SAN FRANCISCO — A San Francisco County judge denied a motion Sept. 1 to suppress a search that was central to a narcotics case, rejecting defense arguments that an officer lacked sufficient justification for the pat-down that led to the discovery of drugs. Judge John D. Echeverria ruled against the defense after the officer testified that he suspected the accused and two other men nearby of burglarizing a vehicle following a dispatch report.
Private criminal defense attorney Neil Hallinan sought to establish that the search was the product of an unnecessary pat-down.
The San Francisco Police Department officer in question recounted the details. He stated that he saw the accused lying on the ground with two other men near the vehicle, which, according to the officer, raised his suspicion.
The accused and the other two men allegedly stood up and began to walk away as the officer approached. The accused did not stop but eventually turned to face the officer and slowed down, at which point the officer grabbed him by the shoulder and ordered him to put his hands behind his back.
The accused put his hands on a wall and was slow to respond to other verbal instructions, which Hallinan pointed out was an indication that the accused did not speak English.
After the accused was detained, the officer used the suspected car burglary and the alleged failure to comply with a lawful order to justify a pat-down for sharp objects. According to the officer’s testimony, he did this because he suspected the accused might possess burglary tools.
After lifting the accused’s coat to check his waistband, the interior of a pocket was exposed, revealing a white powder and U.S. currency. With this, Deputy District Attorney Max Draskovitch argued that probable cause for a full search had been established and that the search was justified.
Hallinan questioned the integrity of the search. First, according to Hallinan, a dispatch must be corroborated with circumstantial evidence to establish probable cause.
Citing other case law, Hallinan argued that, in prior cases, courts upheld items such as burglary tools or similar evidence as circumstantial evidence, but in this case, there was no such evidence.
Second, Hallinan cited People v. Quiroga. According to Hallinan, the precedent set by Quiroga states that failing to cooperate immediately with a reasonable order is not inherently a crime, and thus the accused — who turned seconds before being detained — did not give the officer reasonable suspicion.
Hallinan also argued that the officer deliberately moved the coat to reveal what was in the accused’s pockets and that, based on the officer’s testimony, the narcotics were not openly visible.
In effect, Hallinan argued that because the officer did not have reasonable suspicion and made an unlawful stop, the pat-down was unlawful. According to Hallinan, the cash, the narcotics that were found and the officer’s testimony should be suppressed as evidence, as cited under the Harvey-Madden Doctrine.
Judge Echeverria disagreed that the pat-down was unlawful, denying the motion to suppress and ultimately allowing the matter to proceed to arraignment.
When interviewed after the preliminary hearing, Draskovitch explained that just because the officer did not have one clear avenue to reasonable suspicion, the totality of the circumstances added up and justified the search. Furthermore, Draskovitch pointed out that reasonable suspicion is a low evidentiary threshold, which is what the officer needed to make the stop and conduct the pat-down.
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