People v. Santos

Opinion

ç:~fl 1 SUPERIOR COURT 0F GUAM 2 2021 MiS 26 P112:~8

CL ER K OF COURT

9 IN THE SUPERIOR COURT OF GUAM 10 11 PEOPLE OF GUAM 12 CRIMINAL CASE NO.: CF0433-20 13 14 vs. DECISION AND ORDER 15 Re: Defendant’s Motion to Dismiss 16 GIL TAITINGFONG SANTOS, 17 Defendant. 18 19 20 INTRODUCTION 21 This matter came before the Honorable Judge Jonathan R. Quan on May 24, 2021, 22 upon Gil Taitingfong Santos’ (hereinafter “Defendant Santos”) Motion to Dismiss. The 23 People of Guam were represented by Assistant Attorney General Brendlynn 0. Joseph. 24 The Defendant was represented by Alternate Public Defender Peter J. Santos. After 25 reviewing the moving papers and oral arguments of both parties, the Court DENIES the 26 Defendant’s Motion to Dismiss. 27

28 29 BACKGROUND 30 On August 3, 2020, Guam Police Department Officer Burt Carbullido was 31 patrolling in Sinajana, when he observed a motorcycle reverse into a red color bus stop. 32 See Mot. to Dismiss at 2 (Apr. 26, 2021). Officer Carbullido parked his patrol vehicle and

CF0433-20, People of Guam v. Gil Taitin~fong Santos Page 1 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 approached a male individual who emerged from the bus stop, later identified as 2 Defendant Santos. Id. After announcing his presence, Defendant Santos replied, “I’m just 3 waiting for the rain to pass sir.” Id. According to Officer Carbullido, it was not raining at 4 the time. Id. Officer Carbullido asked Defendant Santos to produce his driver’s license and 5 motorcycle documents. Id. Defendant Santos explained that he only had a regular driver’s 6 license and the bike belonged to his son. Id. Defendant Santos further claimed he lived 7 very close by. Id Officer Carbullido noticed Defendant Santos “to have a bulge 8 underneath his left armpit area with a fanny pack type clip exposed by his neck area.” Id. 9 Defendant Santos became “very anxious” and began to be excited and angry. Id. 10 Noting Defendant Santos’ emotional state, Officer Carbullido requested an additional 11 patrol unit for back up. Id. Defendant Santos then informed Officer Carbullido that he was 12 currently on probation and verbally lashed out stating “you are a corrupted motherfucker 13 officer Carbullido, why the fuck are you harassing me?” Id. at 3. Defendant Santos then 14 suddenly “darted out of the bus stop. . . .“ Id. Officer Carbullido gave pursuit on foot, 15 while Defendant Santos “nearly collid[ed] with a customer” near the entrance of the 16 Sinajana Payless. Id. Defendant Santos ran behind the store refrigeration container, and 17 disappeared from sight. Id. Officer Carbullido became concerned Defendant Santos “was 18 reaching for a weapon and waiting around the corner” for him. Id. After turning the 19 corner, however, Officer Carbullido saw Defendant “running slower west” on Avenida 20 Herman De Leon street. Id. 21 Officer Carbullido eventually caught up to the Defendant Santos and applied a 22 takedown sweep. Id Defendant Santos allegedly struggled against Officer Carbullido but 23 was overpowered and placed in wrist restraints. Id. There appeared to be blood on the 24 sidewalk while Defendant Santos was bleeding from the backside of his head, and in 25 response, medics were requested. Id. While restrained: 26 “Officer Benavente inquired with the Defendant if he had any weapons on his 27 person or his small black bag as Officer Benavente was going to conduct a pat 28 down. The Defendant responded saying “go ahead and check, no weapons, I only 29 have a baton”. The Defendant then reachedfrom inside the seam ofhis pants (right 30 rear side) and pulled out a collapsible baton. In front of the Defendant, Officer 31 Benavente then checked his small bag andfound improvised glass pipe with white 32 frost crystal like residue suspected to be methamphetamine.”

CF0433-20, People of Guam v. Gil Taitingfong Santos Page 2 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 2 People’s Opp’n to Mot. to Dismiss (May 11, 2021). 3 Defendant Santos filed the instant motion, seeking to dismiss the matter due to a 4 violation of Defendant Santos’ constitutional right to freedom against unreasonable 5 searches and seizures, on April 26, 2021. The People filed their opposition on May 11, 6 2021. A hearing on the motion was held, via Zoom, on May 24, 2021, and the Court 7 subsequently took this matter under advisement. 8 9 10 DISCUSSION 11 The Fourth Amendment of the United States Constitution and the Guam Organic 12 Act, Section 1421b(c), state: “[t]he right of the people to be secure in their persons, houses, 13 papers and effects, against unreasonable searches and seizures, shall not be violated.” U.S. 14 Const. Amend. IV; 48 U.S.C.A. § 1421b(c). The United States Supreme Court explains, 15 “the rights of privacy and personal security protected by the Fourth Amendment. . . are to 16 be regarded as of the very essence of constitutional liberty.” Harris v. Us., 331 U.S. 145, 17 150 (1947). In interpreting the Fourth Amendment, “[t]he touchstone. . . is reasonableness 18 . .. [and] [r]easonableness, in turn, is measured in objective terms by examining the totality 19 of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (citations omitted). The 20 Constitution, and by extension the Organic Act of Guam, “permits brief investigative 21 detentions when a police officer has reasonable suspicion that an individual was engaged in 22 or is about to be engaged in illegal conduct.” People v. Johnson, 1997 Guam 9 ~J 4 (citing 23 Terry v. Ohio, 392 U .S. 1(1968)). $~ ~ 8 GCA § 30.10’ 24 “In order to determine whether an officer had reasonable suspicion sufficient to 25 warrant a. . . stop, the court must look at the totality of the circumstances, adding into 26 account the facts known to the officers from personal observation.” Johnson, 1997 Guam 9 27 ¶ 6 (citation and quotation marks omitted). Furthermore, reasonable suspicion must exist at 28 the time the stop was initiated. Id. The “lawfulness of a Terry stop turns not on the officer’s 29 actual state of mind at the time the challenged action was taken, but rather on an objective 30 assessment of the officer ‘s actions. In other words, if sufficient objective evidence exists 1 Guam’s Stop and Frisk Act states: “[w]henever a peace officer encounters any person under circumstances

which reasonably indicate that such person has committed, is committing or is about to commit a criminal offense, the peace officer may detain such person.”

CF0433-20, People of Guam v. Gil Taitingfong Santos Page 3 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 to demonstrate reasonable suspicion, a Terry stop is justified regardless of a police officer’s 2 subjective intent.” United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008) (internal 3 quotation marks and citations omitted). 4 5 I. POLICE DID NOT ENGAGE IN A TERRY STOP BEFORE DEFENDANT FLED. 6 “A Terry stop begins when an individual is seized for purposes of the Fourth 7 Amendment.” United States v. Lopez, 432 F. Supp. 3d 99, 110 (D. Conn. 2020) (citing 8 United States v. Price, 599 F.2d 494, 498-99 (2nd Cir. 1979)). ~ ~ United States v. 9 Hernandez, 847 F.3d 1257, 1264 (10th Cir. 2017) (“what may begin as a consensual 10 encounter may change to an investigative detention if the police conduct changes and vice 11 versa.”). In addition, “a person is seized only when, by means of physical force or a show 12 of authority, his freedom of movement is restrained. . . . As long as the person to whom 13 questions are put remains free to disregard the questions and walk away, there has been no 14 intrusion upon that person’s liberty or privacy. . . .“ US. v. Mendenhall, 466 U.S. 544, 553- 15 54 (1980). Thus, “a person has been seized within the meaning of the Fourth Amendment 16 only if, in view of all the circumstances surrounding the incident, a reasonable person 17 would have believed that he was not free to leave.” Id. at 554. See also Florida v. Boyd, 18 501 U.S. 429, 434 (1991) (“a seizure does not occur simply because a police officer 19 approaches an individual and asks a few questions. So long as a reasonable person would 20 feel free to disregard the police and go about his business, the encounter is consensual and 21 no reasonable suspicion is required.”). $~ ~ People v. Chargualaf~ 2001 Guam 1 ¶ 21. 22 Further, the inquiry into whether a reasonable person would have felt free to leave is highly 23 fact specific, Courts have identified several factors to consider including: 24 [T]he time and place of the encounter, the number of officers present and whether 25 they were un~formed, whether the police removed the person to a d~fferent location 26 or isolated him or her from others, whether the person was informed that he or she 27 was free to leave, whether the police indicated that the person was suspected of a 28 crime, whether the police retained the person’s documents, and whether the police 29 exhibited threatening behavior or physical contact that would suggest to a 30 reasonable person that he or she was notfree to leave.” 31

CF0433-20, People of Guam v. Gil Taitingfong Santos Page 4 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 Ferris v. State, 735 A.2d 491, 502 (Md. Ct. App. 1999); See ~ United States v. 2 McCarthur, 6 F.3d 1270, 1275-76 (7th Cir. 1993); United States v. Gray, 883 F.3d 320, 3 322 (4th dr. 1989). 4 Further, “interrogation relating to one’s identity or a request for identification by 5 the police does not, by itself, constitute a Fourth Amendment seizure.” I.N.S. v. Delgado, 6 466 U.S. 210, 216 (1984) (citing Florida v. Royer, 460 U.S. 491, 501 (1983)). When an 7 officer, however, does not return an identification card “a reasonable person is much less 8 likely to believe he can simply terminate a police encounter.” US. v. Villa-Gonzalez, 623 9 F.3d 526, 533 (8th Cir. 2010). Finally, a call for backup does not generally indicate a show 10 of authority necessary to convert a consensual encounter into a Terry stop. $ç~ US. v. 11 Fields, 823 F.3d 20, 29 (1st Cir. 2016). In Fields, an Officer requested backup during a 12 consensual encounter after “becoming concerned with [defendant’s] statements and 13 seeming agitation” and therefore, the call for backup would not have “communicated to a 14 reasonable person an attempt to capture of otherwise intrude upon [the defendant’s] 15 freedom of movement.” Id. In other words, there are many reasons an officer will call for 16 backup, including officer safety, that do not implicate a restriction on the ability to leave to 17 a reasonable person. Id. 18 In the case at bar, Officer Carbullido approached Defendant Santos as he emerged 19 from the bus stop in Sinajana where he had parked his motorcycle. Def.’s Mot. to Dismiss 20 (Apr. 26, 2021). Defendant Santos informed Officer Carbullido that he “was waiting for the 21 rain to pass. . . .“ Id. According to Officer Carbullido, it was not raining. Id. Officer 22 Carbullido then requested Defendant Santos’ driver’s license and motorcycle documents. 23 Id. Defendant Santos claimed he “only had a regular driver’s license.” Id. Officer 24 Carbullido then “noted Santos to have a bulge underneath his left armpit area with a fanny 25 pack type clip exposed by his neck area.” Id. Officer Carbullido then inquired whether 26 Defendant Santos had anything on his person. Id. Defendant Santos responded “why are 27 you harassing me officer, this is fucked up.” Id. Officer Carbullido “noted Santos to be 28 very anxious as he began to be excitedly angry,” and then immediately requested for 29 backup. Id. Defendant Santos angrily stated he is actively on probation and then “darted out 30 of the bustop toward the Payless gravel parking lot.” Id. 31 The totality of the circumstances indicates a consensual encounter. Officer 32 Carbullido was alone. The encounter occurred in a public place. Officer Carbullido never

CF0433-20, People of Guam v. Gil Taitingfon~gSantos Page 5 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 indicated Defendant Santos was a suspect to a crime or could not leave. The call for 2 backup was because Defendant Santos was becoming agitated, not in an effort to restrict 3 his freedom of movement. Further, simple requests for identification are not seizures. It 4 should be noted that Officer Carbullido never received Defendant Santos’ driver’s license. 5 Finally, there was no indication of threatening behavior or physical contact with Defendant 6 Santos. Based on the totality of the circumstances, the encounter was entirely consensual 7 until Defendant Santos took flight, because a reasonable person would feel free to leave. 8 9 II. OFFICER CARBULLIDO HAD SUFFICIENT REASONABLE SUSPICION 10 TO DETAIN DEFENDANT SANTOS AFTER HE TOOK FLIGHT. 11 A Terry Stop requires the Officer have “reasonable suspicion that an individual was 12 engaged in or is about to be engaged in illegal activity.” Johnson, 1997 Guam 9 ¶ 4. In 13 order to determine whether an officer had reasonable suspicion. . . the court must look at 14 the totality of the circumstances, taking into account the facts known to the officers from 15 personal observation.” Id. at ¶ 6. The reasonable suspicion must exist at the time the stop 16 was initiated. Id. The “lawfulness of a Terry stop turns not on the officer’s actual state of 17 mind at the time the challenged action was taken, but rather on an objective assessment of 18 the officer’s actions. In other words, if sufficient objective evidence exists to demonstrate 19 reasonable suspicion, a Terry stop is justified regardless of a police officer’s subjective 20 intent.” United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). Finally, “[b]rief, even 21 if complete deprivations of a suspect’s liberty do not convert a stop and frisk into an arrest 22 so long as the methods of restraint used are reasonable to the circumstances.” US. v. 23 Crittendon, 883 F.2d 326, 329 (4th Cir. 1989). See also United States v. Bautista, 684 F.2d 24 1286, 1289 (9thCir. 1982). 25 In addition, “although flight, furtive gestures, nervousness, or startled behavior at 26 the sight of a police officer, is, by itself, insufficient to justif~’ an investigatory stop, this 27 type of highly suspicious conduct may be a factor leading to a finding of reasonable 28 [suspicion].” State v. Handy, 925 So. 2d 577, 581 (La. Ct. App. 2006). Likewise, “nervous 29 evasive behavior is a pertinent factor in determining reasonable suspicion” and officers 30 may use “commonsense judgments and inferences about human behavior. . . .“ Illinois v. 31 Wardlow, 528 U.S. 119, 124 (2000). See also United States v. Arvizu, 534 U.S. 266, 274-75 32 (2000) (acts that, by themselves, might be innocent, can, when taken together, give rise to

CF0433-20, People of Guam v. Gil Taitingfong Santos Page 6 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 reasonable suspicion). Finally, furtive movements coupled with an Officer’s knowledge of 2 the Defendant’s prior criminal history, can establish reasonable suspicion. ~ US. v. 3 Horn, 234 Fed. Appx. 466, 467 (9th Cir. 2007). 4 Defendant Santos argues that “[a]lthough, a police officer may chase a person who 5 flees from them, it needs to be established that the incident occurred in a high crime area.” 6 Def.’s Mot. to Dismiss at 5 (Apr. 26, 2021). In other words, Defendant Santos is arguing 7 that flight alone, absent evidence of flight occurring in a high crime area, does not supply 8 reasonable suspicion. Defendant Santos is correct that unprovoked flight in a high crime 9 area can supply reasonable suspicion. See Wardlow, 528 U.S. at 124. Flight alone, 10 however, does not. See ç~g~ State v. Mendez, 970 P.2d 722, 730 (Wash. 1999). 11 In the present case, Officer Carbullido was not relying on flight alone to create 12 reasonable suspicion. He noted Defendant Santos “to have a bulge underneath his left 13 armpit with a fanny pack type clip exposed by his neck area.” Def.’s Mot. to Dismiss at 2 14 (Apr. 26, 2021). He further noted Defendant Santos “to be very anxious as he began to be 15 excitedly angry.” Id. Further, Defendant Santos claimed he was waiting for the rain to pass 16 while it was not raining, and told Officer Carbullido he was on probation. Id. It should also 17 be noted that Officer Carbullido asked Defendant Santos to produce his driver’s license and 18 motorcycle documents. Id. Defendant Santos explained that he only had a regular driver’s 19 license and the bike belonged to his son. Id. Finally, Defendant Santos took flight. Id. 20 Defendant Santos then took flight and “nearly collid[edj with a customer” near the 21 entrance of the Sinajana Payless. Id. 22 While flight alone clearly does not establish reasonable suspicion, acts that may be 23 innocent alone, can form reasonable suspicion when combined together. See US. v. Horn, 24 234 Fed. Appx. 466, 467 (9th Cir. 2007). In the present case, the Court finds ample 25 evidence based upon the totality of the circumstances listed above that Officer Carbullido 26 had reasonable suspicion to chase after Defendant Santos and then execute a Terry stop. 27 Finally, the Terry stop, was not a full seizure requiring probable cause because the 28 use of wrist restraints was reasonable considering Defendant Santos “nearly collid[ed] with 29 a customer,” the bulge under Defendant Santos’ left armpit and Officer Carbullido’s “fear{J 30 Santos was reaching for a weapon.” Id. $ç~ gi~ç~ Crittendon, 883 F.2d at 329. The Court, 31 therefore, finds no Fourth Amendment violation as to the pursuit and subsequent Terry stop 32 of Defendant Santos.

CF0433-20, Peovie of Guam v. Gil Taitingfong Santos Page 7 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 III. OFFICERS LEGALLY LOCATED THE SUSPECTED 2 AMPHETAMINE PURSUANT TO A CONSENT SEARCH 3 A Terry stop allows “a reasonable search for weapons for the protection of the 4 police officer, where he has reason to believe that he is dealing with an armed and 5 dangerous individual, regardless of whether he has probable cause to arrest the individual 6 for a crime.” Terry v. Ohio, 392 U.S. 1, 27 (1968). A Terry stop “may include a pat-down 7 of the suspect’s effects, including a bag.” US. v. Leo, 793 F.3d 742, 749 (7th Cir. 2015). 8 See ~ United States v. Muhammed, 463 F.3d 115, 123-24 (2nd Cir. 2006). While a pat- 9 down of a bag is generally allowed, however, the safety concerns that drive Terry stop 10 policy do “not justify opening and emptying the backpack because [defendant] was 11 handcuffed and out of reach of the backpack.” Leo, 793 F.3d at 749. 12 In the instant case, at the time the bag was searched and the suspected 13 amphetamines were located therein, Defendant Santos was in wrist restraints and the bag 14 was no longer in his possession. It would be “inconceivable that [defendant] would have 15 been able to lunge for the bag, unzip it, and grab the gun inside.” Id. at 750. The search of 16 the bag, thus, exceeded the permissible scope of the Terry frisk, which is limited to the 17 search for weapons which could be used to harm officers or other parties during the 18 encounter. 19 However, “in the absence of a warrant, the police may lawfully conduct a search or 20 seizure only if an exception to the warrant requirement applies.... [v]oluntary consent is a 21 recognized exception to the warrant requirement.” People v. Chargualaf~ 2001 Guam 1 ¶ 22 14. $ç~ ~ People v. Santos, 1999 Guam 1 ¶ 33. Further, “[i]f consent is given during 23 either a lawful encounter or a lawful detention, as opposed to an illegal seizure, the validity 24 of the consent turns on whether it was given voluntarily.” Chargualaf at ¶ 15. The factors 25 in determining voluntariness include: 26 1) whether the defendant was detained and the length of time of the questioning, 2) 27 whether the defendant was threatened or intimidated by the police; 3) whether the 28 defendant relied on misrepresentations or promises made by the police; 4) whether 29 the person was in custody or under arrest when the consent was given; 5) whether 30 the person was in a public or a secluded place, and 6) whether the defendant 31 objected to the search. 32

CF0433-20, People of Guam v. Gil Taitinpfon~Santos Page 8 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss). 1 Id. at~J25. 2 In the present case, after Defendant Santos was lawfully stopped pursuant to Terry, 3 Officer Benavente “inquired with the Defendant if he had any weapons on his person or in 4 his small black bag . . . .“ People’s Opp’n to Mot. to Dismiss at 4 (May 11, 2021). 5 Defendant Santos then responded “go ahead and check, no weapons, I only have a 6 baton.” Id. Defendant Santos was detained when consent was given, but the questioning 7 lasted for a short period of time. The Police made no misrepresentations or promises, and 8 searched the bag in front of the Defendant Santos after he stated “go ahead and check, no 9 weapons, I only have a baton.” The search occurred in a public place, and Defendant 10 Santos did not object to the search. 11 Based on the totality of the circumstances, the Court finds the search of the bag, and 12 the resulting fruits of that search, were lawfully obtained under the consent exception. 13 14 CONCLUSION 15 For the reasons set forth above, the Court hereby DENIES the Defendant’s Motion 16 to Dismiss. 17 18 SO ORDERED this 1(7 ~‘L4ay of (3~1-ujfr’ ~Lo2,4 ‘~

19 0 20 21 ( [HAN R. QUAN 22 erior Court of Guam 23 24 25 26 SERV~CE V~A E-~A~L 27 acknowledge that an electronic copy of th~rigina~i~e-maiIed to: 28 29 30 Date: _______ ______

31 Deputy Clerk, Superior Court of Cuani 32

CF0433-20, People of Guam v. Gil Taitinzfong Santos Page 9 of 9 Decision and Order (Re: Defendant’s Motion to Dismiss).